FEC v Minister for Justice and Equality

 
FREE EXCERPT

[2016] IEHC 426

THE HIGH COURT

JUDICIAL REVIEW

Mac Eochaidh J.

[2015] No. 658 J.R.

Between
F. E. C., P. N. C.
and
E. C., D. C., S. C., Z. C. (minors suing by their next friend P. N. C.)
Applicants
and
MINISTER FOR JUSTICE AND EQUALITY
Respondent

Asylum, Immigration & Nationality – Leave to seek judicial review – Certiorari – Refusal to revoke deportation order – Application to seek asylum – Irrelevant factors – Failure to make submissions

Facts: Following the refusal to revoke the deportation order by the respondent against the first named applicant, the applicants sought leave to seek an order of certiorari for quashing the decision of the respondent. The applicants contended that the decision of the respondent was unlawful as it failed to take into consideration essential submissions and evidences and did not provide a reason as to why the application to revoke deportation by the applicants was refused.

Mr. Justice Colm Mac Eochaidh refused to grant leave to apply for an order of certiorari to the applicants. The Court held that the respondent was not bound to consider irrelevant factors such as the status of the parties after marriage. The Court held that the interest of the child was given consideration by the respondent in its decision as clearly mentioned by the respondent. The Court, in line with the decision of E.A.I. v Minister for Justice [2009] IEHC 334, held that there existed limited grounds to challenge the refusal to revoke a deportation order. The Court held that the minister had a duty to consider fairly the submissions given by an applicant and be assured that there were no change in circumstances since the deportation order had arisen so as to create any hindrance in the execution of the deportation order. The Court held that once it was clear that the minister gave a decision after the compliance of fair and lawful procedure, his decision was not amenable to judicial review. The Court held that the minister could not be held accountable for the submissions that the applicants failed to make so as to render the decision of the minister as unlawful.

Judgment of Mr. Justice Colm Mac Eochaidh delivered on the 25th day of July 2016.
Introduction:
1

The first and second named applicants are husband and wife. The third to fifth named applicants are minors suing by their Mother, the second named applicant. The applicants reside together as a family unit.

2

The applicants are seeking leave to seek an order of certiorari quashing the decision of the respondent of the 19th October, 2015, refusing to revoke the deportation order of the 29th November, 2015, against the first named applicant. In accordance with the decision of Humphreys J. in K.R.A. v. The Minister for Justice and Equality [2016] IEHC 289, [2015 No. 299 J.R.], s. 5 of the Act of 2000 applies to this application. The application must establish substantial grounds that the decision is unlawful to obtain leave to seek judicial review.

Immigration history:
3

The first and second named applicants applied for asylum in the State on the 21st September, 2004. These applications were refused and deportation orders were issued on the 29th November, 2005. The third named applicant was born on the 27th October, 2006, and is a Nigerian national. An application for asylum was made on his behalf and the second named applicant was permitted to remain in the State pending the issue of a decision on her son's asylum application.

4

The first named applicant was deported in 2007. He returned to the State illegally in or around June 2008 using a passport in the name of F. E. E.. He has since remained in the State without permission. The fourth named applicant was born in the State on the 9th October, 2008, and an application for asylum was similarly made on his behalf. The fifth named applicant was born on the 3rd March, 2010, and is a Latvian national owing to his father's Latvian citizenship. The second named applicant has since lost contact with the father of the fifth named applicant and the first named applicant is the child's de facto father.

5

The second named applicant was granted a stamp 4 permission to remain in the State on the 25th February, 2014, which extended to her Nigerian national sons, the third and fourth named applicants. On the 26th November, 2014, the first named applicant applied for revocation of the extant deportation order of the 29th November, 2005. The respondent refused this application by decision dated the 6th October, 2015, affirming the deportation order and amending same to include the name 'F. E. E..'

Legal Grounds:
6

The first ground upon which relief is sought is set out as follows:-

'1. In refusing to revoke the deportation order against the first applicant, the respondent breached the applicants' rights to respect for private and family life pursuant to article 8 ECHR. The respondent placed undue weight on the interest of the state in protecting the integrity of the immigration and asylum system and failed to place sufficient weight on other factors pertinent to the particular facts of this case...'

7

In support of this ground, counsel for the applicants, Ms. Aoife McMahon B.L., sets out the factors, purportedly established by the European Court of Human Rights in Nunez v. Norway (App. No. 55597/09, delivered on the 28th June 2011) that she says should have been considered by the respondent in assessing the first named applicant's revocation application. Those factors are set out in Nunez as follows:-

'...Factors to be taken into account in this context are the extent to which family life is effectively ruptured, the extent of the ties in the Contracting State, whether there are insurmountable obstacles in the way of the family living in the country of origin of one or more of them and whether there are factors of immigration control (for example, a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion. ... Another important consideration is whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that e persistence of that family life within the host State would from the outset be precarious.'

8

This ground is augmented by written submissions which allege that:-

'...the respondent erred in law in failing to adequately weigh all the pertinent factors, as establihed in the above case law of the European Court of Human Rights, in determining whether or not to revoke the deportation order against the first applicant...'

9

This ground is formulated as one might plead an appeal point, framed in a general way. I have carefully read the written submissions, and I have not been able to detect what precise legal complaint is said to undermine the decision in suit. Paragraph 15 of the written submissions attempts to explain the ground as follows:-

(i) 'While the documents submitted and relevant factors were listed, there was no analysis of what weight these should be given as against the countervailing interests of the state.'

I am not in a position to identify the legal argument attempted to be made here. No authority has been cited in support of the suggested proposition that it is unlawful not to provide an 'analysis of what weight should be...

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