Ezenwaka v Min for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 21 July 2011
• Neutral Citation: [2011] IEHC 328
• Court: High Court
• Date: 21 July 2011

[2011] IEHC 328

THE HIGH COURT

[No. 1433 J.R./2008]

Ezenwaka v Min for Justice

BETWEEN

PETER EZENWAKA (AND BY ORDER, MOREEN EZENWAKA)

APPLICANT

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

IMMIGRATION ACT 2004 S4(3)(J)

IMMIGRATION ACT 2004 S4(3)(E)

IMMIGRATION ACT 2003 S1

I (V) & ORS v CMSR OF AN GARDA SIOCHANA & ORS 2007 4 IR 47 2006/29/6289 2006 IEHC 30

REFUGEE ACT 1996 S18

DILLON v MIN FOR POSTS & TELEGRAPHS UNREP SUPREME 3.6.1981 1981/9/1589

ORFANOPOULOS & ORS v LAND BADEN-WURTTEMBURG 2004 ECR I-5257 2005 1 CMLR 18

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 45(3)

R (FARRAKHAN) v SECRETARY OF STATE FOR THE HOME DEPT 2002 QB 1391 2002 3 WLR 481 2002 4 AER 289

MCCARRON v SUPERINTENDENT KEARNEY 2010 3 IR 302 2011 1 ILRM 237 2010/31/7813 2010 IESC 28

FAKIH & ORS v MIN FOR JUSTICE 1993 2 IR 406 1993 ILRM 274 1992/7/1998

KEOGH v CRIMINAL ASSETS BUREAU (CAB) & ORS UNREP MCKECHNIE 20.12.2002 2003/29/6875

CONSTITUTION ART 28.2

CURRAN & ORS v MIN FOR EDUCATION & ORS 2009 4 IR 300 2009/11/2409 2009 IEHC 378

ROWLAND v ENVIRONMENT AGENCY 2005 CH 1 2004 3 WLR 249

IMMIGRATION LAW

Family re-unification

Residency by virtue of Irish born child - Family re-unification visa granted to wife and children - Refusal of entry on basis that visa granted in error - Scheme applicable to single immediate family units only not subsequent families - Status of visa - Definition of visa - Decision to refuse - Legitimate expectation of permission to enter - Refusal of permission as contrary to public policy - Concept of public policy - Fixed policy considerations - Operation of legitimate policy in unduly inflexible manner - Absence of opportunity to argue for exception to be made - Entitlement of Minister to change position where objective reasons to justify doing so - Policy interests in controlling immigration - Question of fairness - VI v Commissioner of An Garda Síochána [2006] IEHC 30, [2007] 4 IR 47; Dillon v Minister for Posts and Telegraphs (Unrep, SC, 3/6/1981); Orfanopoulous v Land Baden-Württemberg (Case C-482/01) [2004] ECR 1-5257; R (Farrakhan) v Home Secretary [2002] QB 1391; McCarron v Kearney [2010] IESC 28, [2010] 3 IR 302; Fakh v Minister for Justice [1993] 2 IR 406; Keogh v Criminal Assets Bureau (Unrep, McKechnie J, 20/12/2002); Curran v Minister for Education [2009] IEHC 378, [2009] 4 IR 300 and Rowland v Environmental Agency [2004] 3 WLR 249 considered - Immigration Act 2003 (No 26), s 1 - Immigration Act 2003 (No 1), s 4 - Decision to refuse re-entry quashed and matter remitted to Minister for fresh re-consideration (2008/1433JR - Hogan J - 21/7/2011) [2011] IEHC 328

Ezenwaka v Minister for Justice, Equality and Law Reform

1 1. One of the most difficult issues in the sphere of public law is the extent to which the State can be made liable for the mistakes of its officials. This is one such case. The first applicant is a Nigerian national who was disabled as a result of the Biafran conflict in the late 1960s. Mr. Ezenwaka came to Ireland in 2000 when he sought asylum. While he was refused asylum status on 22 ^nd November, 2004, he was subsequently granted residency in the State by virtue of an Irish born child, Samuel Ezenwaka, under the administrative scheme known as the IBC 05 scheme. He has been residing here lawfully since that date and, his disability notwithstanding, he is currently employed part-time as a security officer at a petrol station and he is also in receipt of disability allowance.

2 2. Samuel's mother is an Irish national with whom Mr. Ezenwaka had a relationship. The parties were never married and the relationship has long since broken up. The Irish national has since re-married.

3 3. The second applicant is the wife of the first applicant. She is also Nigerian and lives there with their two children, who are also Nigerian citizens. The couples' two children, Peter and Moreen, are also the half brother and half sister of Samuel, but they have never met. Mr. Ezenwaka had returned once to Nigeria to see his wife and children and was naturally desirous of being reunited with them. In August, 2006 he applied to our Embassy in Abuja for a family re-unification visa, but this was refused.

4 4. In April, 2008 Mr. Ezenwaka re-applied for a visa. In a well-written letter he explained that he was now employed and he also gave details with regard to his disability. While he enclosed the details of his children's birth certificates, he did not, however, spell out the fact that the mother of his Irish born child was not his wife. At all events, it is not in dispute but that the appropriate type "D" visa permitting for family re-unification was granted by the Embassy in June, 2008.

5 5. There is also no doubt but that the Ezenwakas significantly altered their position on the strength of this case. Ms. Ezenwaka gave up her job, sold her car and moved out of her family accommodation in anticipation of a permanent move to Ireland. The Ezenwakas purchased tickets for a flight from Lagos to Dublin via Istanbul for the sum of approximately €1,635. In effect, acting on the strength of this visa, the Ezenwakas sought a new life in Ireland and aimed to move here permanently from Nigeria.

6 6. When Ms. Ezenwaka and her two children arrived in Dublin Airport on 28 ^th July, 2008, they presented their Irish visas to the immigration officials. Having examined the documents, the relevant immigration officials formed the view that the visas had been issued in error and that Mr. Ezenwaka was not entitled to seek family unification based on the existence of an Irish citizen child whom he had fathered by another lady who was not his wife. Contact was made with the appropriate officials in the Department of Justice who explained that IBC 05 policy did not cover that situation.

7 7. In the event, therefore, Ms. Ezenwaka and her children were not permitted to land. They were accordingly obliged to return to Nigeria where they presently remain. The immigration notice was issued pursuant to s. 4(3)(j) of the Immigration Act 2004 ("the 2004 Act") on the ground that their admission into the State would be contrary to public policy. This is an issue to which I will presently return. There is no doubt but that this entire episode was deeply disappointing - perhaps even traumatic - for the Ezenwakas. Certainly, it is not difficult to imagine the acute anguish and hardship which the family must have endured by agreeing to leave Nigeria permanently and to make the long journey to Ireland via Turkey, only to find that they are the victims of the unfortunate bureaucratic misunderstanding.

8 8. In the event, Mr. Ezenwaka approached a local priest, Fr. Gerry Campbell, to take up his case with the Minister for Justice, Equality and Law Reform (Mr. Dermot Ahern TD). Mr. Ahern responded by letter to Fr. Campbell on 25 ^th August, 2008, which letter fairly set out the Department's position:-

"It is fair to say that there was a misunderstanding on the full extent of the new approach described…above between the IBC 05 Unit in my Department and the Visa Office in Nigeria and visas were granted to Ms. Ezenwaka and her children based on this misunderstanding. In a nutshell, the new approach to allowing overseas-based parents and siblings join an IBC is for single, immediate family units only and does not extend to second and subsequent families and the visa office was not sufficiently aware of this 'immediate family only' aspect."

The status of a visa

9 9. As the Ezenwakas were Nigerian nationals coming from a state which was not visa exempt, they were required to have an Irish visa before they could lawfully land: see s. 4(3)(e) of the 2004 Act. As it happens, there is no specific definition of a visa in the 2004 Act, but the definition of this term contained in s.1 of the Immigration Act 2003, can nonetheless be applied by analogy, even though it must be recalled that both items of legislation are distinct and separate and no provision is made for collective interpretation:-

"'Irish visa' means an endorsement made on a passport or travel document other than an Irish passport or Irish travel document for the purposes of indicating that the holder thereof is authorised to land in the State subject to any other conditions of landing being fulfilled."

10 10. It is true, of course, that as Clarke J. noted in VI v. Minister for Justice, Equality and Law Reform, [2007] 4 I.R. 42, the holder of an Irish visa does not have an automatic right to enter the State, since a visa is simply ( [2007] 4 I.R. 42 at 52):-

"a permission to land and amounts to a form of pre-clearance to that end. A permission to remain in the State is given by an immigration officer under the Immigration Acts and, subject to its terms, allows the recipient to remain in the State for whatever period and, subject to whatever conditions, as may be properly attached to that permission."

11 11. VI is a case with, in some respects, a striking similarity to the present one. Here Ms. I. was granted asylum status in Ireland. She then sought permission for her husband and other immediate family members to join her under s. 18 of the Refugee Act 1996. As Clarke J. subsequently found, the I family and their legal advisers "were (albeit innocently and unintentionally) misled into a reasonable belief" that the proper way to apply for such a permission was to apply for a visa through the Embassy in Bucharest and that this misunderstanding had been caused by a letter written on behalf of the Minister which certainly gave that impression. The applicants succeeded in establishing that this conferred on them a legitimate expectation - subject to certain important qualifications in relation to the operation of the statutory conditions - in respect of their entitlement to a...