F.E [A Minor] and Others v The Minister for Justice and Law Reform

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 28 February 2013
• Neutral Citation: [2013] IEHC 93
• Court: High Court
• Date: 28 February 2013

E (F)(A Minor) & Ors v Min for Justice

JUDICIAL REVIEW

BETWEEN

F.E. (A MINOR ACTING BY HER FATHER AND NEXT FRIEND, M.E.) AND B.E. (A MINOR ACTING BY HIS FATHER AND NEXT FRIEND, M.E.) AND M.A.E. (A MINOR ACTING BY HIS FATHER AND NEXT FRIEND, M.E.) AND M.E. AND E.E

APPLICANTS

AND

THE MINISTER FOR JUSTICE AND LAW REFORM

RESPONDENT

[2013] IEHC 93

[No. 966 J.R/2009]

THE HIGH COURT

IMMIGRATION

Deportation

Judicial review - Certiorari - Deportation husband - Disproportionality - Allegation of infringement of constitutional rights of family and family rights under European Convention on Human Rights - Husband resident in Ireland since 2003 - Conviction for sexual assault - First conviction - No convictions following release - Application for extension of permission to remain in state refused - Three Irish citizen children - Wife permitted to remain in state - Obligation of respondent when considering deporting application to consider constitutional rights of Irish citizen children - Nature of rights - Extent of ministerial obligation to have regard to constitutional rights of Irish citizen child when considering deportation order against parent - Entitlement to take into account broader considerations of public policy when considering rights - Standard of judicial scrutiny appropriate to a case in which constitutional rights engaged - No material difference between evaluation of proportionality as regards interference with qualified rights and absolute rights - Whether all relevant facts and submissions considered - Whether constitutional rights of parents and Irish born children fully considered - Obligation to obey laws of state - Decision to deport not imposition of penalty as part of sentencing process - Difference between deportation order by Minister and suspension of conviction on condition that accused leave state - Whether decision to deport unreasonable, irrational or disproportionate - People (DPP) v Alexiou [2003] 3 IR 513; O(A) v Minister for Justice [2003] 1 IR 1; Oguelewe v Minister for Justice [2008] IESC 25, [2008] 3 IR 795 and Meadows v Minister for Justice, Equality and Law Reform [2010] IESC 3, [2010] 2 IR 701 applied - Falvey v Minister for Justice, Equality and Law Reform [2009] IEHC 528, (Unrep, Dunne J, 4/12/2009); F(ISO) v Minister for Justice, Equality and Law Reform [2010] IEHC 457, (Unrep, Cooke J, 17/12/2010); Alli v Minister for Justice [2009] IEHC 595, [2010] 4 IR 45 and Boultif v Switzerland [200l] 33 EHRR 1179 approved - Efe v Minister for Justice, Equality and Law Reform (No.2) [2011] IEHC 214, [201l] 2 IR 798; O(S) v Minister for Justice, Equality and Law Reform [2010] IEHC 343, (Unrep, Cooke J, 1/10/2010); Uner v The Netherlands (2007) 45 EHRR 42; Moustaquim v Belgium (1991) 13 EHRR 802; Beljoudi v France (1992) 14 EHRR 801; Yilmaz v Germany (2004) 38 EHRR 23; Omojudi v United Kingdom (App 1820/08) (Unrep, ECtHR, 24/11/2009); Khan v United Kingdom [2010] ECHR 27; Boughanemi v France (App 22070/93) (Unrep, ECtHR, 24/4/1996); Grant v United Kingdom (App 32570/03) (Unrep, ECtHR 23/5/2006); Khan v United Kingdom [2011] ECHR 2253; Emre v Switzerland (No 1) (App 42034/04) (Unrep, ECtHR, 22/5/2008) and (No 2) (App 5056/10) (Unrep, ECtHR, 11/10/11) and A(A) v United Kingdom [2011] ECHR 1345 considered - Immigration Act 1999 (No 22), ss 3 and 5 - European Convention on Human Rights 1950, art 8(1) - Constitution of Ireland 1937, Arts 40, 41 and 42 - Certiorari refused (2009/966JR - McDermott J - 28/2/2013) [2013] IEHC 93

E(F) v Minister for Justice and Law Reform

Facts: The fourth named applicant sought to quash the deportation order against him and sought also a declaration that the legal and/ or constitutional rights of the applicant had been infringed. He was the father of several Irish-born children and had been granted leave to remain under the Irish-born child scheme. He had been convicted of sexual offences and during his period of imprisonment he had been regularly visited by his family. A deportation order had been signed against him. He alleged that he had made a great effort to reintegrate into society after his imprisonment and that the deportation was disproportionate.

Held by McDermott J. that the Court was satisfied that the decision to deport had been conducted in accordance with the terms and spirit of relevant guidelines. All relevant factors relevant to the private and family life of the applicants with respect to Article 8 of the Convention had been considered. The applicants had failed to establish that the decision to deport was unreasonable, irrational or disproportionate.

IMMIGRATION ACT 1999 S3

REFUGEE ACT 1996 S5

IMMIGRATION ACT 1999 S3(6)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS S8(1)

CONSTITUTION ART 40

CONSTITUTION ART 41

CONSTITUTION ART 42

IMMIGRATION ACT 1999 S3(6)(C)

IMMIGRATION ACT 1999 S3(6)(D)

IMMIGRATION ACT 1999 S3(6)(G)

IMMIGRATION ACT 1999 S3(6)(H)

IMMIGRATION ACT 1999 S3(6)(I)

IMMIGRATION ACT 1999 S3(6)(J)

IMMIGRATION ACT 1999 S3(6)(K)

DPP v ALEXIOU 2003 3 IR 513

IMMIGRATION ACT 1999 S3(2)

IMMIGRATION ACT 1999 S3(1)

IMMIGRATION ACT 1999 S3(2)(F)

IMMIGRATION ACT 1999 S3(11)

FALVEY & ORS v MIN FOR JUSTICE & ORS UNREP DUNNE 4.12.2009 2009/20/5042 2009 IEHC 528

OGUEKWE v MINISTER FOR JUSTICE 2008 3 IR 795

O (S) & OO & ORS v MIN FOR JUSTICE UNREP COOKE 1.10.2010 2010/40/10089 2010 IEHC 343

O (A) & L (D) v MIN FOR JUSTICE 2003 IR 1 91

CONSTITUTION ART 40.3.1

MEADOWS v MIN FOR JUSTICE 2010 2 IR 701

STATE KEEGAN v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642

ISOF v MIN FOR JUSTICE & ORS (NO2) 2010 IEHC 457

EFE v MIN FOR JUSTICE & ORS (NO2) 2011 2 IR 798

ALLI (A MINOR) v MIN FOR JUSTICE 2010 4 IR 45

BOULTIF v SWITZERLAND 2001 33 EHRR 1179

UNER v NETHERLANDS 2007 45 EHRR

MOUSTAQUIN v BELGIUM 1991 13 EHRR 802

BELJOUDI v FRANCE 1992 14 EHRR 801

YILMAZ v GERMANY 2004 38 EHRR 23

OMOJUDI v UK UNREP ECHR 24.11.2009 App NO 1820/08

AW KHAN v UK 2010 ECHR 27

BOUGHANEMI v FRANCE UNREP ECHR 24.4.1996 App NO 22070/93

GRANT v UK 2009 ECHR 26

KHAN v UK 2011 ECHR 2253

EMRE v SWITZERLAND NO 1 UNREP ECHR 22.5.2008 App NO 42034/04

EMRE v SWITZERLAND NO 2 UNREP ECHR 10 11.2011 App NO 5056/10

AA v UK 2011 ECHR 1345

MASLOV v AUSTRIA UNREP ECHR 23.6.2008 App NO 1638/03

1 1. This is an application for an order of certiorari by way of judicial review quashing the deportation order issued against the fourth named applicant, M.E., on 27 ^th August, 2009. A declaration is also sought that the legal and/or constitutional rights of the applicants and/or their family rights under the European Convention on Human Rights have been infringed. Leave to apply for judicial review was granted on 16 ^th February, 2011 (Hogan J.) on the single ground that:-

"The decision of the respondent to make a deportation order against the fourth named applicant on the basis that the legitimate aim of the State to prevent crime and disorder constituted a substantial reason associated with the common good which required his deportation, having regard to the conviction recorded against him, was disproportionate in all the circumstances, in that it infringed the applicants' Constitutional and Convention rights."

Background

2 2. M.E., the fourth named applicant, is a citizen of Nigeria born on the 1 ^st January, 1978. He arrived in Ireland on the 27 ^th July, 2003, illegally and was refused leave to land. He applied for asylum but his application for a declaration of refugee status was refused. On the 9 ^th February, 2005, M.E. applied for permission to remain in the state by reason of his parentage of an Irish born child pursuant to the IBC/05 Scheme. This Scheme enabled a non-national to apply for leave to remain in the state on the basis of his parentage of an Irish born child, born before the 1 ^st January, 2005.

3 3. M.E. is married to E.E., the fifth named respondent, who is the mother of his four children. She was born on the 13 ^th January, 1983, and is also a Nigerian citizen. The first named applicant, F.E., a girl, was born in Ireland on the 1 ^st August, 2003. The second named applicant, B. E., a boy, was born in Ireland on the 25 ^th September, 2004. They are both Irish citizens. The third named applicant, M.A.E, was born on the 19 ^th February, 2009 and is an Irish citizen on the basis that his mother was legally resident in the state for a period of at least three of the previous four years at the time of his birth. The couple's fourth child, B.O.E., a girl born on the 5 ^th June, 2006, in Ireland is not an Irish citizen but is entitled to Nigerian citizenship.

4 4. Mrs. E.E. has been granted permission to remain in the state on the basis of her parentage of an Irish born child since 2005. That permission has been renewed and continues until the 18 ^th November, 2013.

5 5. Initially, M.E. sought leave to remain under the IBC/05 Scheme by reference to his paternity of F.E. and B.E. and was granted leave to remain in the state for a period of two years from the 18 ^th November, 2005.

6 6. Under the IBC/05 Scheme the permission to remain could be extended at the conclusion of the two year period at the discretion of the Minister. M.E. applied for an extension of the permission to remain on the 5 ^th October, 2007. In his application he confirmed that he had been convicted of a criminal offence since the date of his first application and that he was appealing against that conviction.

7 7. M.E. was convicted of the sexual assault of a woman that occurred on the 30 ^th April, 2004. Following a contested trial, he was sentenced to a period of eighteen months imprisonment on the 26 ^th February, 2007. The maximum sentence for such an offence is ten years imprisonment pursuant to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990, as amended by s. 37 of the Sex Offenders Act...