Fajujonu v Minister for Justice

JurisdictionIreland
JudgeMr. Justice Barrington
Judgment Date11 November 1987
Neutral Citation[1987] IEHC 2
Docket NumberNo. 9203P/1984
CourtHigh Court
Date11 November 1987

[1987] IEHC 2

THE HIGH COURT

No. 9203P/1984
FAJUJONU v. MIN JUSTICE

BETWEEN

BANKOLE LAWRENCE FAJUJONU, ZOHRA FAJUJONU AND MIRIAM FAJUJONU (AN INFANT SUING BY HER NEXT FRIEND CELINE MAHER)
PLAINTIFFS

AND

THE MINISTER FOR JUSTICE IRELAND AND THE ATTORNEY GENERAL
DEFENDANTS

Citations:

ALIENS ACT 1935 S5

RYAN V AG 1965 IR 294

CONSTITUTION ART 50

M, STATE V AG 1979 IR 73

KENT V DULLES 1958 357 US 116

CONSTITUTION ART 41

CONSTITUTION ART 42.3.1

OSHEKU & ORS V IRELAND 1987 ILRM 330, 1986 IR 733

POK SUN SHUM & ORS V IRELAND & ORS 1986 ILRM 593

BOUZAGOU, STATE V STATION SERGEANT FITZGIBBON ST GARDA STATION 1986 ILRM 98

ABDELKEFI V MIN JUSTICE 1984 ILRM 138

MURPHY V AG 1982 IR 241

MCGEE V AG 1974 IR 284

QUINN, STATE V RYAN 1965 IR 70

EAST DONEGAL CO-OP V AG 1970 IR 317

MURRAY V IRELAND & AG 1985 IR 532

CITYVIEW PRESS V AN CHOMHAIRLE OILUNA 1980 IR 381

LYNCH, STATE V COONEY 1982 IR 337, 1982 ILRM 190, 1983 ILRM 89

Synopsis:

PRACTICE

Parties

~Locus standi~ - Aliens - Illegal immigrants - Anticipated deportation - ~Quia timet~ action - Challenge to validity of legislation affecting aliens - ~See~ Aliens, State - (1984/9203 P - Barrington J. - 11/11/87) - [1990] 2 I.R. 151

|Fajujonu v. Minister for Justice|

ALIENS

State

Entry - Illegality - Married couple - Family - Children citizens born in the State - Parents requested to leave the State - The first plaintiff, a citizen of Nigeria aged 36 years, and the second plaintiff, a citizen of Morocco, were married in London on 20/3/81 - At the end of that month the first two plaintiffs came to live in Ireland - Since December, 1983, they resided with their children, who were born in the State, in a house which was provided by the Corporation of Dublin - The parents did not receive permission to land in the State and the first plaintiff had not obtained permission to work in the State - No deportation order had been made by the first defendant requiring the parents to leave the State, but the first defendant had requested the first plaintiff to make arrangements to depart from the State - The third plaintiff, who was born on 24/9/83 was the eldest of the parents” three children - The first and second plaintiffs claimed an order declaring that they were entitled to remain in the State by virtue of the third plaintiff's status as a citizen of the State and her right as a member of the family to the preservation of the unity of that family - The plaintiffs also claimed, if necessary, a declaration that any provisions of the Act of 1935 which conflicted with the claimed right were inconsistent with the provisions of the Constitution and had not been continued in force - Held, in dismissing the claims of the plaintiffs, that each of the parents had ~locus standi~ to maintain the action - Held that the status and rights of the third plaintiff as a citizen of Ireland did not affect the application of the provisions of the Act of 1935 to the first two plaintiffs as illegal immigrants: ~The State (M.) v. The Attorney General~ [1979] I.R. 73; ~Osheku v. Ireland~ [1987] ILRM 330; ~Shum v. Ireland~ [1986] ILRM 593 and ~The State (Bouzagou) v. Station Sergeant~ [1985] I.R. 426, [1986] ILRM 98 considered - Aliens Act, 1935 - Constitution of Ireland, 1937, Articles 40, 41 - (1984/9203 P - Barrington J. - 11/11/87) - [1990] 2 I.R. 151

|Fajujonu v. Minister for Justice|

CONSTITUTION

Personal rights

Family - Residence - Aliens - Illegal immigrants - Three children had been born in the State since their parents, who had not obtained permission to land, had entered the State - The parents sought to resist anticipated deportation by relying on the rights of their citizen children - ~See~ Aliens, State - (1984/9203 P - Barrington J. - 11/11/87) - [1990] 2 I.R. 151

|Fajujonu v. Minister for Justice|

.Mr. Justice Barrington
Mr. Justice Barrington
1

The first-named Plaintiff is aged 36 years and is a citizen of Nigeria. The second-named Plaintiff is a Moroccan citizen. They met in London in the late 1970's where he, at that time, was a temporary resident studying accountancy. They were married in the city of Westminster in London on the 20th of March 1981.

2

At the end of March 1981 Mr. Fajujonu and his wife came to live in Ireland. Whether knowingly or not, they came as illegal immigrants and have at all material times been illegal residents in Ireland and subject to the risk that a deportation Order might be made against them pursuant to the provisions of Section 5 of the Aliens Act1935. No such deportation Order has in fact been made though the Plaintiff Mr. Fajujonu has been asked by the Minister for Justice to make arrangements for his departure from the State and it was this request, coupled with the fear that a deportation Order would follow, which gave rise to the present proceedings.

3

A deportation Order was apparently made against Mr. Fajujonu in the United Kingdom in July 1981 but this Order, I am informed, was invalid and is no longer in force.

4

I am satisfied that at all material times since he came to Ireland Mr. Fajujonu has been anxious and willing to work. He has not however succeeded in obtaining a work permit nor has he succeeded in completing his accountancy studies. For a time he drew unemployment assistance. To obtain this he had to sign a certificate saying that he was available for work. He was "available for work" in the sense that he was physically able and anxious to work but he was not legally "available for work" in the sense that, not having a work permit, he was not legally entitled to work for reward.

5

In December 1983 Dublin Corporation offered Mr. and Mrs. Fajujonu a house at 27 Croftwood Crescent, Ballyfermot, Dublin, where they still reside. They are apparently popular with the local community. The secretary of the local Tenants' Association, Mr. Larkin, gave evidence on their behalf before me. Indeed it would appear that it was a request by the committee of the Ballyfermot Sports and Leisure complex to employ Mr. Fajujonu which brought his presence in the country formally to the attention of the Department of Justice.

6

From enquiries made by the Department of Justice it would appear that, at one stage, when Mr. Fajujonu was stopped by police in England, he had in his possession a birth certificate purporting to show that he had been born in Ireland. It does not appear however that Mr. Fajujonu in fact used the certificate for any improper purpose.

7

However, the issue of principle which the Plaintiffs seek to raise in this case arises not from any of the matters referred to in the immediately preceding three paragraphs but from the fact that the third-named Plaintiff Miriam Fajujonu is a citizen of Ireland having been born here on the 24th of September 1983. Since then Mr. and Mrs. Fajujonu have had two further children. These also are Irish citizens and, though they have not been joined as parties to these proceedings, the same issues arise in relation to them as arise in Miriam's case.

8

In a letter to the Department of Justice dated the 17th November 1984 the Plaintiffs' Solicitor put his clients' case as follows:-

"From the instructions I have taken I am of the opinion that my clients are in a position to assert a right to remain in the State. Their daughter, Miriam, is an Irish citizen having been born in Dublin on 24th of September 1983. Mr. and Mrs. Fajujonu have been resident in the State since the 31st of March 1981. In December 1983 they were allocated by Dublin Corporation a three bedroomed house at 27 Croftwood Crescent Ballyfermot Dublin where they are now residing. Mr. Fajujonu is a medical-card-holder and a part-time student attending a five year course in the College of Commerce, Rathmines, where he is studying to be a certified accountant. He first enrolled as a student in the College in September 1981.

Miriam Fajujonu, an Irish citizen with a permanent residence in the State, is, in my opinion, in a position to assert a constitutional right to the company, guardianship, custody, care and control of her parents. Any order made in pursuance of the Aliens Act1935prohibiting either or both of her parents from continuing to remain in the State is, in my opinion, in breach of her constitutional rights. Furthermore, any such order under the Aliens Act1935amounts in this particular case to a threat to the family as a unit and a violation of the constitutional rights of both Mr. and Mrs. Fajujonu as well as of their daughter Miriam".

9

In their Statement of Claim the Plaintiffs put the matter as follows:-

10

2 "4. The first and second-named Plaintiffs have established the family home within the State and propose to reside within the State with the third-named Plaintiff.

11

5. The first-named Defendant has refused permission to the first-named Plaintiff to remain in the State and requested him to make arrangements for his departure as soon as possible. The first and second-named Plaintiffs fear and believe that the first-named Defendant has decided to prohibit the first-named Plaintiff herein from continuing to reside or remain within the State and intends unless restrained by this Honourable Court to deport the first-named Plaintiff herein or otherwise make provision for his exclusion from the State.

12

6. The third-named Plaintiff is, by virtue of her citizenship, entitled to remain in and be protected by the State. The third-named Plaintiff is entitled as a citizen and as a member of the family of tender years to reside with and be raised, educated and supported by her parents and to enjoy their company and their society.

13

7. The aforementioned decision of the first-named Defendant to deport the first-named Plaintiff or otherwise make provision for his exclusion from the State is, and if made in future would be, unlawful unjust and contrary to the provisions of Articles 40 41 and 42 of the Constitution.

14

8. In the...

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