FK v Minister for Justice, Equality and Law Reform

• Jurisdiction: Ireland
• Judge: Charleton J.
• Judgment Date: 20 February 2008
• Neutral Citation: [2008] IEHC 35
• Court: High Court
• Docket Number: [2006 No. 1026 JR]
• Date: 20 February 2008

[2008] IEHC 35

THE HIGH COURT

[1026 J.R/2006]

K (F) v Min For Justice

JUDICIAL REVIEW

BETWEEN

F. K.

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

CONSTITUTION ART 40.4.2

CONSTITUTION ART 2

IMMIGRATION ACT 2004 S4

RSC O.84

SHEEHAN v O'REILLY & GOVERNOR LIMERICK PRISON 1993 2 IR 81 1993 ILRM 427

CRIMINAL JUSTICE ACT 1984 S12

MCSORLEY v GOVERNOR MOUNTJOY PRISON 1997 2 IR 258 1997 2 ILRM 315

BURKE v DPP UNREP CHARLETON 16.4.2007 2007 IEHC 121

COSTELLO LAW OF HABEAS CORPUS IN IRELAND 2006 217 - 221

MCGLINCHEY v GOV OF PORTLAOISE PRISON 1988 IR 671

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

STATE (MCDONAGH) v FRAWLEY 1978 IR 131

IMMIGRATION ACT 1999 S3

KOUAYPE v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (EAMES) UNREP CLARKE 9.11.2005 2005/35/7364 2005 IEHC 380

IMMIGRATION ACT 2004 S4(3)

IMMIGRATION ACT 2003 S5

IMMIGRATION ACT 2004 S16(8)

IMMIGRATION ACT 2004 S5(1)

REFUGEE ACT 1996 S24

IMMIGRATION ACT 2003 S5(1)

IMMIGRATION ACT 2003 S5(3)

CONSTITUTIONAL LAW

Habeas corpus

Liberty - Inquiry pursuant to Article 40.4.2 of Constitution of Ireland - Conditional release of detainee prior to hearing of inquiry - Whether open to State party to effect conditional release of detainee to avoid inquiry - Whether open to court to treat person on conditional release as having been in custody - Constitution of Ireland 1937, Article 40.4.2 - Relief refused (2006/1026JR - Charleton J - 20/2/2008) [2008] IEHC 35

K(F) v Minister for Justice

Facts: The applicant in this case was a Nigerian citizen, who had been granted permission to remain in Ireland on condition that she resided with and discharged her role as parent to her Irish born child. When the applicant initially arrived in Ireland, she claimed not to possess a passport. However, she was subsequently found in possession of 4 different passports on separate occasions. The applicant did not provide any explanation for her possession of those passports. The applicant spent several periods of time outside Ireland between 2001 and 2006. Upon her return to Ireland from a trip abroad, the applicant was refused leave to land by an immigration officer on the basis that there was reason to believe the applicant intended to enter Ireland for purposes other than those expressed by her, namely she intended to travel to Great Britain or Northern Ireland and would not qualify for admission there if she arrived from a place other than this State. The applicant sought an order of certiorari by way of judicial review quashing the decision of the respondent refusing her leave to land in the State.

Held by Charleton J. in refusing the application: That the applicant possessed conditional permission to be in the State, in order to care for her Irish child in Ireland. The grounds set out for refusing the applicant permission to land specified one of the grounds set out in section 4(3) of the 2004 Act. Consequently, in order to quash that decision, the applicant was required to show it was an unreasonable decision. There were grounds for the immigration officer in this case to act as he did and consequently he did not act unreasonably.

Reporter: L.O'S.

1 1. The applicant is a citizen of Nigeria. She claims to currently hold two valid Nigerian passports. Prior to that, she claims to have simultaneously held two other valid Nigerian passports. When she first came to Ireland in the year 2000, she claimed to have no passport. In September 2006, on returning to the State from abroad, the applicant was refused leave to land in Ireland by an immigration official of the respondent Minister, and was detained. There are three issues in this case: firstly, whether these proceedings are a challenge under Article 40.4.2 of the Constitution to the detention of the applicant, despite the fact that she has been at liberty since a few days after her detention; secondly, whether the immigration officer was correct to refuse the applicant leave to land in Ireland; and, lastly, what is to happen now?

Facts

2 2. The applicant came to Ireland during September 2000 as an apparent political refugee. On the 21st September, 2000 she made an application for asylum, claiming that she was being persecuted in her home country of Nigeria. This was done in writing on a standard form issued by the respondent. On the 10th October, 2000, she gave birth to her son, who is referred to herein as A. Under Article 2 of the Constitution, as it then was, her son, who is an entirely innocent party in all that follows, became a citizen of Ireland. On the 8th November, 2000, the applicant withdrew her claim for asylum and instead applied for permission to remain in the State as the mother of an Irish citizen infant. When she applied for asylum, one of the questions asked of the applicant was as to whether she held a passport, or other official national identification and, if she did not, to explain why not. She said that she had no passport, and one wonders how she could have possibly travelled to Ireland. On the form, all of the details in relation to passport number, place of issue, date of issue, period of validity, and similar questions in relation to identity card, are crossed off. Instead, the absence of a passport was explained in the following way: "The person that I followed held documents with him and he was the one that followed the procedures". She asked on the form to stay in Ireland "'till my problem is over". She explained her problem by alleging that on Friday, September the 1st, 2000 several people burst in the door of her home in Lagos in order to kill her husband. He was there brutally questioned, while forced on to his knees, she claimed, and then taken away by armed officers. She said on the form that she hoped that the relevant people would "spare my husband's life and that of his wife", possibly referring to his second wife, but in the meantime she had fled to Ireland.

3 3. On applying as a foreign national to remain in the State as the mother of an Irish citizen child, the relevant forms issued by the respondent Minister require that a passport be submitted. One was submitted by the applicant, and one of the officials of the respondent noted in processing the application: "passport would appear to me to be genuine". However, doubts were also raised by other officials who thought that it looked like a forgery for particular reasons. I will call this Passport 1. I do not know if this or any subsequent passport to which I will refer is in fact a real passport. This one bears the number A0752841 and states that it was issued in Nigeria on the 8th November, 2000 and was valid until the 7th November, 2005. By letter dated the 1st August, 2001, the respondent permitted the applicant to remain in Ireland on the basis of her parentage of an Irish citizen child, for a period of twelve months initially. The relevant letter to her, dated 1st August 2001, states:

"This permission is being granted on the basis that you are living in the same household as the Irish child and discharging the role of parent to that child. Your permission to remain will be reviewed at the end of this period in the light of all relevant circumstances and is conditional on your remaining in compliance with Irish law in every respect during that period. You are now required to register at your local registration office ... on completion of the necessary formalities, you will be presented with a registration book which will set out in detail the conditions on which you have been granted permission to remain. This book is an important document and care should be taken to ensure that you retain it safely. You should apply for renewal of this permission thirty days before its expiry. The conditions of your permission permit you to work without the need for a work permit and to engage in business without seeking the permission of the Minister. Please note that if you are a visa required national, you will be required to obtain the appropriate visa (s) prior to travelling outside the State".

4 4. Nigeria is a country whose nationals require a visa to visit Ireland lawfully. If the applicant had returned to Nigeria in order to obtain a passport, then she would have required a visa to return here. There is such a visa on one of the passports to which I shall refer, though I cannot see how it could have been used to travel to Nigeria in order to obtain Passport1. From these developments, involving the birth of her son A., her application to stay in Ireland to look after him, and her withdrawal of a claim of persecution in her home country, as evidenced in the relevant documents, it might reasonably be inferred that the intention of the applicant from then on was to remain here in Ireland and to take care of her child. On the evidence before me, this has not been what has happened.

Return to Ireland

5 5. On the 13th August, 2006, Steven Whetnall, was on duty at the port of Holyhead in Wales as an Immigration Officer. There he met the applicant who was proposing to travel to Ireland by sea. She was asked for proof of identity and produced a Garda National Immigration Bureau card, stating that she was a Nigerian. He informed the applicant that she was required to produce a passport and a visa in order to be lawfully in the United Kingdom, and she first produced a Nigerian passport number A0311807. I will call this Passport 2. This passport was supposedly valid from the 15th May, 2006 to the 14th May, 2011. Mr Whetnall examined this passport. It contained a number of visas, including one for the United Kingdom. The applicant also told him that she was in the process of applying for residency in Ireland on the basis of having an Irish child. Another passport was produced which had the number A1591868, which also contained a United Kingdom visa....