F.E.C., P.N.C., E.C., D.C., S.C.Z.C. (The Third to Fifth Applicants are Minors Suing by their Next Firend P.N.C.) v Minister for Justice and Equality

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMs. Justice Faherty
Judgment Date16 April 2021
Neutral Citation[2021] IECA 119
Docket NumberAppeal Number: 2017/376
Date16 April 2021

[2021] IECA 119

THE COURT OF APPEAL

Whelan J.

Faherty J.

Collins J.

Appeal Number: 2017/376

Between/
F.E.C., P.N.C., E.C., D.C., S.C.Z.C. (The Third to Fifth Applicants are Minors Suing by their Next Firend P.N.C.)
Appellants/Applicants
and
Minister for Justice and Equality
Respondent

Judicial review – Revocation – Deportation order – Appellants seeking leave to apply for judicial review of the respondent’s decision to refuse to revoke a deportation order – Whether it was arguable that the decision not to revoke the deportation order was unlawful

Facts: The appellants appealed to the Court of Appeal against the refusal of the High Court (Mac Eochaidh J), by judgment dated 25 July 2016 and order perfected on 26 July 2016, to grant them leave to apply for judicial review of the decision of the respondent, the Minister for Justice and Equality, dated 6 October 2015 to refuse to revoke a deportation order made in respect of the first appellant in 2005. The appellants advanced three bases upon which they contended that it was arguable, to the requisite threshold, that the decision not to revoke the first appellant’s deportation order was unlawful, and that in refusing leave for judicial review, the High Court judge erred. The appellants wished to argue, if leave for judicial review was obtained, that in arriving at her decision, the Minister did not properly weigh the best interests of the children (grounds 1 and 3 of the statement of grounds). It was pleaded that in circumstances where the first and second appellants were in the same situation in all respects except for their sex, the difference in the treatment afforded them breached the prohibition on discrimination contained in Article 14 of the European Convention on Human Rights (ground 2 of the statement of grounds). It was asserted that the fifth appellant would be deprived of the genuine enjoyment of the substance of his EU citizenship rights if his de facto father (the first appellant) was deported (ground 5 of the statement of grounds).

Held by Faherty J that she did not find that substantial grounds had been established to render it arguable that a “fair balance”, as referred to at para. 121 of Jeunesse v The Netherlands (App. No. 127/38/10) (2015) 60 E.H.R.R. 17, was not struck as far as the best interests of the third to fifth appellants were concerned. She held that grounds 1 and 3 of the statement of grounds had not been established to the requisite threshold for leave for judicial review to be granted. She found that substantial grounds had not been established for the appellants to argue in judicial review that the best interests of the children were not considered. Given that finding, and that the Minister was entitled to take account of the first appellant’s immigration history, she held that the discrimination ground relied on must also be considered not to satisfy the requisite substantial grounds threshold for leave for judicial review to be granted. She held that in the absence of any case having been made that the fifth appellant would as a matter of fact have to leave the State if the first appellant was deported, the decision-maker was not required to conduct the analysis mandated by the CJEU in the Zambrano line of jurisprudence (Ruiz Zambrano v Office national del’emploi (ONEm) (Case C-34/09) [2011] E.C.R. I-1177). In the circumstances, she held that the substantial grounds pursuant to ground 5 of the statement of grounds had not been established such as to warrant the grant of leave.

Faherty J held that the appellants had not made out substantial grounds for leave for judicial review to be granted and that accordingly the appeal must be dismissed; the order of the High Court was thus affirmed. She found that the appellants had not succeeded in the appeal and it followed that the Minister should be entitled to her costs.

Appeal dismissed.

UNAPPROVED

JUDGMENT of Ms. Justice Faherty delivered on the 16 th day of April 2021

1

. The appellants appeal the refusal of the High Court (Mac Eochaidh J.), by judgment dated 25 July 2016 and Order perfected on 26 July 2016, to grant them leave to apply for judicial review of the decision of the respondent (hereinafter “the Minister”) dated 6 October 2015 to refuse to revoke a Deportation Order made in respect of the first appellant in 2005.

Material facts and background
2

. The first and second appellants are Nigerian nationals. They entered the State in 2004 and applied for asylum on 21 September 2004. Those applications were refused, and Deportation Orders issued against both appellants on 29 November 2005.

3

. Their first child (the third appellant) was born on 27 October 2006 and is a Nigerian national. An application for asylum was made on his behalf and the second appellant was permitted to remain in the State pending the issue of a decision on the asylum application.

4

. The first appellant was deported on 19 December 2007. According to his affidavit evidence in the within proceedings, he stayed in Lagos for a number of months before returning to the State illegally and in secret in or around June 2008. He entered the State using a passport in the name of a third party, F. E. E. The first appellant asserts that he has remained in the State since that time without permission.

5

. The fourth appellant was born in the State on 9 October 2008 and, again, an application for asylum was made on his behalf by the second appellant. On 3 March 2010, the second appellant gave birth to a third child (the fifth appellant). The second appellant asserts that the fifth appellant's father is a Latvian national and a Latvian passport for the child has been produced.

6

. In 2013, the second appellant applied for her Deportation Order to be revoked. On 10 February 2014, the Deportation Order which had issued against the second appellant in 2005 was revoked. On 25 February 2014, she was granted a Stamp 4 permission to remain in the State, which extended to her Nigerian national sons (the third and fourth appellants). At the time of the revocation application in respect of the second appellant, the fact that the first appellant had purportedly returned to the State in 2008 was not disclosed to the Minister, either by the first appellant or the second appellant.

7

. On 27 March 2014, the second appellant and her children left the direct provision centre in the South East of the country where they were resident from 2008 to 2014 and went to reside in Dublin.

8

. On 26 November 2014, the first appellant applied to have the existing Deportation Order against him revoked. In his application, his solicitors asserted that from the time he entered the State illegally in or around mid-2008 he visited his children in the direct provision centre as often as he could and that after the second appellant's relationship with the fifth appellant's father broke down he began visiting the second appellant and the children regularly. It was asserted that throughout the intervening years he provided emotional and financial support to the children, including the fifth appellant whom the first appellant considered and treated as his own child. It was asserted that following the grant of permission to the second appellant to reside in the State and her leaving the direct provision centre, the family moved in together at a named address in Dublin.

9

. The Minister was advised that the first appellant had managed to find informal jobs which had allowed him to provide for his family. It was asserted that the first appellant was discharging his moral and legal obligations to his family, that all three children saw him as their father. His solicitors submitted that the Minister, in deciding the application, “ought to take into account the children's best interests and that such interests would best be preserved and served by allowing the children's father to remain in the State…” It was asserted that the denial of permission to the first appellant to remain in the State “would amount to an unlawful interference” with the family's right to respect for their private and family life as guaranteed by the Constitution and Article 8 of the European Convention on Human Rights (ECHR) and that to require the first appellant to leave the State, in spite of his having resided in the State without permission for six years “would be disproportionate and an unlawful breach of the children's right to have the love, care, and company of their father.” The revocation application was accompanied by:

  • • Personal statements from the first and second appellants;

  • • A letter dated 14 July 2014 stating the first appellant was known to the author for nine years having been ordained a deacon of the Faith Christian Fellowship Ministry in Galway in 2005. It was said that first appellant's leadership qualities had earned him the headship of another (named) branch of the Church in the West of Ireland and that the Church would be in a position to offer him work if he was permitted to stay in the State.

  • • A letter (undated) from a named individual stating that the first appellant was a member of and a minister in the Cornerstone Tabernacle Ministries Church in Dublin.

  • • A letter dated 25 June 2014 from the Principal of the third and fourth appellants' national school stating that the first appellant was supportive of school policies and procedures; and

  • • A letter from Vodafone dated 16 September 2014 by way of proof of address.

10

. Further representations were submitted between April 2015 and October 2015. In a letter dated 27 July 2015 by way of response to queries raised by the Minister as to how the first appellant had entered the State and seeking details of his living and working arrangements, the first appellant's solicitors outlined that the first appellant had used the services of an agent to apply for a false passport in Nigeria and an Irish Tourist Visa. It...

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