F.B.A. and Others v Minister for Justice and Equality and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice McDermott |
| Judgment Date | 03 December 2013 |
| Neutral Citation | [2013] IEHC 554 |
| Court | High Court |
| Date | 03 December 2013 |
[2013] IEHC 554
THE HIGH COURT
BETWEEN
AND
AND
IMMIGRATION ACT 1999 S3
REFUGEE ACT 1996 S13(1)
EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006
IMMIGRATION ACT 1999 S3(6)(H)
UN CONVENTION ON THE RIGHTS OF THE CHILD 20.11.1989 ART 3
IMMIGRATION ACT 1999 S3(11)
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3
D v UNITED KINGDOM 1997 24 EHRR 423 2 BHRC 273 42 BMLR 149
N v SECRETARY OF STATE FOR THE HOME DEPT 2005 2 AC 296 2005 2 WLR 1124 2005 4 AER 1017 2005 HRLR 22 2005 UKHL 31
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8
AGBONLAHOR v MIN FOR JUSTICE & AG UNREP HERBERT 3.3.2006 2006/2/237 2006 IEHC 56
CONSTITUTION ART 40.3
M v MIN FOR JUSTICE & ORS 2013 1 WLR 1259 2012 AER (D) 284 (NOV)
EEC DIR 2004/83 ART 4(1)
M (M) v MIN FOR JUSTICE & ORS (NO 3) UNREP HOGAN 23.1.2013 2013 IEHC 9
CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 24(2)
UN CONVENTION ON THE RIGHTS OF THE CHILD 20.11.1989 ART 3(1)
CONSTITUTION ART 41
OGUEKWE v MIN FOR JUSTICE 2008 3 IR 795 2008 2 ILRM 481 2008/51/10890 2008 IESC 25
DOS SANTOS & ORS v MIN FOR JUSTICE & ORS UNREP MAC EOCHAIDH 30.5.2013 2013 IEHC 237
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8(2)
BOULTIF v SWITZERLAND 2001 2 FLR 1228 2001 33 EHRR 50
UNER v THE NETHERLANDS 2006 3 FCR 340 2007 45 EHRR 14 2007 IMM AR 303 2007 INLR 273 2006 ECHR 873
KADRI v GOVERNOR OF WHEATFIELD PRISON 2012 2 ILRM 392 2012/20/5671 2012 IESC 27
A (AA) & ORS v MIN FOR JUSTICE & ORS UNREP MCDERMOTT 10.9.2013 2013 IEHC 422
T (LA) & ORS v MIN FOR JUSTICE & ORS UNREP HOGAN 2.11.2011 2011/47/13240 2011 IEHC 404
SIVSIVADZE & ORS v MIN FOR JUSTICE & ORS UNREP KEARNS 21.6.2012 2012/42/12601 2012 IEHC 244
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13
CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 47
A (BJS) [SIERRA LEONE] v MIN FOR JUSTICE & ORS UNREP COOKE 12.10.2011 2011/1/84 2011 IEHC 381
L (S) [NIGERIA] v MIN FOR JUSTICE & ORS UNREP COOKE 6.10.2011 2011/31/8496 2011 IEHC 370
C (C) & ORS v MIN FOR JUSTICE & ORS UNREP COOKE 19.4.2012 2012 IEHC 143
A (AA) v MIN FOR JUSTICE & ORS UNREP COOKE 19.6.2012 (EX TEMPORE)
ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5
S (C) & ORS v MIN FOR JUSTICE & ORS 2005 1 IR 343 2005 1 ILRM 81 2004/45/10305 2004 IESC 44
OKUNADE v MIN FOR JUSTICE & ORS 2013 1 ILRM 1 2012/37/10891 2012 IESC 49
IMMIGRATION
Subsidiary protection
Leave to remain - Deportation - Judicial review - Leave - Substantial grounds - Fair procedures - Audi alterem partem - Proportionality - Right to effective remedy - Adverse credibility findings - Whether Minister entitled to take adverse credibility findings from asylum process into account when making decision on subsidiary protection - Whether fresh credibility ought to be carried out - Child - Medical condition - Best interests of child - Whether separate consideration given to rights of child - Whether convention rights engaged - Whether substantial grounds shown - Principle of refoulement - Whether refoulement considered personally by Minister - Whether indefinite effect of deportation breach of constitutional and convention rights - Whether failure to provide effective remedy - Delay - Extension of time - Whether blameworthiness for delay in seeking judicial review - MM v Minister for Justice [2013] IEHC 9, (Unrep, Hogan J, 23/1/2013); AAA v Minister for Justice [2013] IEHC 422, (Unrep, McDermott J, 10/9/2013); LAT v Minister for Justice [2011] IEHC 404, (Unrep, Hogan J, 2/11/2011); Sivsivadze v Minister for Justice [2012] IEHC 244, (Unrep, Kearns P, 21/6/2012); BJSA v Minister for Justice [2011] IEHC 381, (Unrep, Cooke J, 12/10/2011); CC v Minister for Justice [2012] IEHC 143, (Unrep, Cooke J, 19/4/2012); SL v Minister for Justice [2011] IEHC 370, (Unrep, Cooke J, 6/10/2011) and CS v Minister for Justice [2004] IESC 44, [2005] 1 IR 343 followed - Agbonlahor v Minister for Justice [2006] IEHC 56, [2007] 4 IR 309; Oguekwe v Minister for Justice [2008] IESC 25, [2008] 3 IR 795; Kadri v Governor of Wheatfield Prison [2012] IESC 27, [2012] 2 ILRM 392; D v United Kingdom [1997] 24 EHRR 423; FCN v Home Secretary [2005] UKHL 31, [2005] 4 All ER 1017; MM v Minister for Justice (Case C277/11) (Unrep, ECJ, 22/11/2012); Boultif v Switzerland (App No 54273/00), [2001] ECHR 497; A£ner v The Netherlands (App No 46410/99), [2006] ECHR 873 and Okunade v Minister for Justice [2012] IESC 49, [2012] 3 IR 152 considered - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006) - Refugee Act 1996 (No 17), s 13 - Immigration Act 1999 (No 22), s 3 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Directive 2004/83/EC - Constitution of Ireland 1937, art 40.3 - United Nations Convention on the Rights of the Child 1989, art 3 - European Convention on Human Rights and Fundamental Freedoms 1950, arts 3 and 8 - Leave granted (2012/424JR - McDermott J - 3/12/2013) [2013] IEHC 554
A(FB) (an infant) v Minister for Justice and Equality
Facts: The first named applicant was the mother of the second, third and fourth named applicants. They were all Nigerian nationals who arrived in Ireland on the 24 th April 2009 and thereafter applied for asylum. The first named applicant claimed that there was a real risk that she and her children would suffer serious harm if they were returned to their native country from her husband”s family. She stated that she had been attacked by her husband”s family because they blamed her for his religious conversion from Deti to Christianity. The asylum applications were rejected by the Refugee Applications Commissioner on the basis of negative credibility findings, which was then affirmed by the Refugee Appeals Tribunal on appeal. The applicants subsequently made claims for subsidiary protection and for leave to remain in the state under s. 3 of the Immigration Act 1999; however, these were refused by the Minister for Justice and Equality (‘the Minister’), who then made deportation orders in respect of all of the applicants. It was undisputed that the fourth named applicant suffered physical and mental disabilities, which required regular medical treatment.
The applicants brought an application for leave to apply for judicial review to challenge the decision of the respondent in refusing to grant the subsidiary protection applications and making deportation orders. It was said that in determining the subsidiary protection applications, the Minister had not provided a further hearing but instead relied heavily on negative credibility findings made by the Refugee Appeals Tribunal against the mother. The applicants argued that this constituted a breach of fair procedures. It was also argued that the Minister had failed to have proper regard to the best interests of the child applicants when deciding to deport them and, in particular, failed to have due regard for the exceptional circumstances relating to the physical and mental disabilities of the fourth named applicant. It also said that the decision to make the deportation orders was unreasonable.
Held by McDermott J that the application for leave to apply for judicial review would be granted on a number of grounds. In regards to the subsidiary protection, the applicants were entitled to have their applications considered independently of the findings of any other bodies. However, it appeared to be arguable from the written decision of the Minister that he had relied on the Refugee Appeals Tribunal”s negative credibility findings in considering the subsidiary protection applications. On that basis, leave to apply for judicial review was granted on the basis that the Minister had breached fair procedures by relying on these findings without giving the applicants a chance to comment on them, failing to provide the applicants a completely fresh opportunity to revisit all matters bearing on the claim for subsidiary protection, failing to carry out a fresh assessment of the first named applicant”s credibility, and by not providing an oral hearing.
It was also held that on examination of the Minister”s decision to make deportation orders and on the basis of the medical evidence of the fourth named applicant, it was arguable that the Minister had failed to have any or any adequate regard to the best interests of the child applicants when deciding to deport them, and in particular, failed to have due regard for the exceptional circumstances relating to the physical and mental disabilities of the fourth named applicant. Leave to apply for judicial review was granted on these grounds. Leave was also granted on the basis that the Minister”s decision to make deportation order was unreasonable.
Leave to apply for judicial review granted.
JUDGMENT of Mr. Justice McDermott delivered on the 3rd day of December, 2013
1. This is an application for leave to apply for judicial review of decisions whereby the Minister for Justice and Equality refused to grant the applicants subsidiary protection on 21 st February, 2012, and made deportation orders in respect of each of them on 12 th March, 2012. The applicants seek to quash the decision to refuse subsidiary protection and the deportation orders, and declarations that s. 3 of the Immigration Act 1999, insofar as it requires the respondent when making a deportation order to make one of indefinite duration was disproportionate and invalid having...
To continue reading
Request your trial