F.M.O. (Nigeria) v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 28 May 2019
• Neutral Citation: [2019] IEHC 371
• Docket Number: [2019 No. 50 J.R.]
• Court: High Court
• Date: 28 May 2019

[2019] IEHC 371

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2019 No. 50 J.R.]

BETWEEN

F.M.O. (NIGERIA), M.O.O.

AND

A.I.O. (A MINOR SUING BY THEIR MOTHER AND NEXT FRIEND F.M.O.)

APPLICANTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

Judicial review – Permission to remain – Deportation – Applicants seeking judicial review – Whether the respondent failed to have regard to the applicants’ family rights

Facts: The first applicant’s brother arrived in the State in 2002 and became a naturalised Irish citizen. The first applicant herself, a national of Nigeria, entered the State on 3rd December, 2014 with the second applicant and pregnant with the third applicant. She arrived on a visitor’s visa purportedly to visit the brother. On the day her visa expired, 6th January, 2015, she applied for asylum on the basis of an alleged claim of fear of Boko Haram. The third applicant was then born in the State on 5th April, 2015. The asylum applications were refused by the Refugee Applications Commissioner on 15th March, 2016 and the applicants then appealed to the Refugee Appeals Tribunal. Following the commencement of the International Protection Act 2015, the applicants sought subsidiary protection. The first applicant was interviewed under s. 35 of the 2015 Act on 4th May, 2017. The subsidiary protection applications were refused on 27th July, 2017, and on 6th September, 2017 the International Protection Office also made a negative recommendation regarding permission to remain. The refusal of protection was then appealed to the International Protection Appeals Tribunal on 19th September, 2017. The appeals were rejected on 7th August, 2018, and thus, by the end of the protection process, each decision-maker had found that the applicants’ claims for international protection were inconsistent, unlikely or incredible. The first applicant then sought review of the permission to remain decision on 16th August, 2018; and on 26th September, 2018 the International Protection Office rejected that review application under s. 49(9) of the 2015 Act. The applicants’ solicitors were written to on 3rd January, 2019 to the effect that if the applicants did not return voluntarily, a deportation order would be made; and deportation orders were indeed made in respect of the applicants on 1st February, 2019. Proceedings were filed on 25th January, 2019, the primary relief sought being certiorari of the review decision and of the deportation orders. The first issue as identified in the applicants’ legal submissions was “Did [the respondent, the Minister for Justice and Equality] breach ... s. 49(3) of the International Protection... Act 2015, Articles 40 and 41 of Bunreacht na hÉireann, and/or Article 8(1) ECHR in failing to have regard to the Applicant’s family rights including (a) her relationship with her brother, an Irish citizen who is resident in the State and (b) to the best interests of the children? Grounds (e)(2) and (e)(3)”. The next question raised by the applicants was “Did the Minister otherwise err in law and/or fetter his discretion in failing to give adequate consideration to the representations and documentation furnished by the Applicant in support of her s.49(9) application for review of permission to remain? Ground e(1)”.

Held by the High Court (Humphreys J) that: (i) the Minister did not fail to have regard to the applicants’ family rights; and (ii) the Minister did not fail to give the applicants’ material adequate consideration.

Humphreys J held that the proceedings would be dismissed and that the respondent would be released from his undertaking not to deport the applicants.

Proceedings dismissed.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 28th day of May, 2019

1 The first-named applicant's brother arrived in the State in 2002 and appears to have become a naturalised Irish citizen since then. The first-named applicant herself, who is a 36 year old national of Nigeria, entered the State on 3rd December, 2014 with the second-named applicant and pregnant with the third-named applicant. She arrived on a visitor's visa purportedly to visit the brother.

2 On the day her visa expired, 6th January, 2015, the first-named applicant applied for asylum on the basis of an alleged claim of fear of Boko Haram. She made the fairly unlikely-sounding claim, which was disbelieved by the tribunal, that she did not tell the brother about the alleged Boko Haram threats until after the end of the holiday. She also claims to have lost her passport on the way to or from Dublin airport. Possibly this scenario illustrates the point that using a permission for an ulterior purpose is not a victimless act; and abuses, if that is what happened here, such as obtaining a visitor's visa for the undeclared purpose of seeking asylum, can lead to pressure to view visitor visa applications more sceptically to the disbenefit of other applicants.

3 The third-named applicant was then born in the State on 5th April, 2015. The asylum applications were refused by the Refugee Applications Commissioner on 15th March, 2016 and the applicants then appealed to the Refugee Appeals Tribunal. Following the commencement of the International Protection Act 2015, the applicants sought subsidiary protection.

4 The first-named applicant was interviewed under s. 35 of the 2015 Act on 4th May, 2017. The subsidiary protection applications were refused on 27th July, 2017, and on 6th September, 2017 the International Protection Office also made a negative recommendation regarding permission to remain. The refusal of protection was then appealed to the International Protection Appeals Tribunal on 19th September, 2017.

5 At the appeal hearing, as noted at para. 4.4 of the tribunal decision, the first-named applicant ‘ changed her evidence’ and ‘ was unable to give any explanation of same’, which was held to undermine her credibility. Her...