O (G) and Others v Min for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Birmingham
• Judgment Date: 19 June 2008
• Neutral Citation: [2008] IEHC 190
• Court: High Court
• Date: 19 June 2008

[2008] IEHC 190

THE HIGH COURT

[416 JR/2006]

O (G) & Ors v Min for Justice

BETWEEN

G. O., OL. O., P. O. (A MINOR, SUING BY HIS NEXT FRIEND AND MOTHER O. O.), R. A. (A MINOR, SUING BY HER NEXT FRIEND AND MOTHER S. O.), S. O., OM. O., and J. O. (A MINOR, SUING BY HIS NEXT FRIEND AND MOTHER OM. O.)

APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

IMMIGRATION ACT 1999 S3(11)

O v MIN FOR JUSTICE & ORS [BABY O CASE] 2002 2 IR 169 2003 1 ILRM 241 2002/3/501

DADA v MIN FOR JUSTICE UNREP O'NEILL 3.5.2006 2006/14/2921

REFUGEE ACT 1996 S5

CRIMINAL JUSTICE (UNITED NATIONS CONVENTION AGAINST TORTURE) ACT 2000 S4

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8

CONSTITUTION ART 41

UN CONVENTION ON THE RIGHTS OF THE CHILD

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

IMMIGRATION ACT 1999 S3

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8.2

OGUEKWE v MIN FOR JUSTICE UNREP SUPREME 1.5.2008 2008 IESC 25

DIMBO v MIN FOR JUSTICE UNREP SUPREME 1.5.2008 2008 IESC 26

MARCKX v BELGIUM 1979-80 2 EHRR 330

SINGH v ENTRY CLEARANCE OFFICER NEW DELHI 2005 2 WLR 325

SLIVENKO v LATVIA 2004 39 EHRR 24

A & FAMILY v SWEDEN (1994) 18 EHRR CD 209

S (BI) & ORS v MIN FOR JUSTICE UNREP DUNNE 30.11.2007 2007/54/11584

CALDARAS v MIN FOR JUSTICE UNREP O'SULLIVAN 9.12.2003 2004/6/1247

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

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8.1

R (RAZGAR) v SECRETARY FOR THE HOME DEPARTMENT 2004 2 AC 368

AGBONLAHOR (A MINOR) v MIN FOR JUSTICE & AG UNREP FEENEY 18.4.2007 2007/3/447

D v UNITED KINGDOM 1997 24 EHRR 423

BENSAID v UNITED KINGDOM 2001 33 EHRR 10

N v SECRETARY OF STATE FOR THE HOME DEPARTMENT 2005 2 AC 296

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 3

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2

AMADASUN v MIN FOR JUSTICE & ORS UNREP PEART 16.12.2004 2004/2/259

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 12

AKUJOBI (A MINOR) v MIN FOR JUSTICE UNREP MACMENAMIN 12.1.2007 2007/3/555

MAMYKO v MIN FOR JUSTICE & ORS UNREP PEART 6.11.2003 2003/33/8069

REFUGEE ACT 1996 S17(6)

IMMIGRATION

Deportation

Revocation - Right to family life - Grandmother - Primary carer of Irish citizen - Whether interference with right disproportionate - Exceptional circumstances - Margin of appreciation - Whether case made at first opportunity - Marckx v Belgium (1979) 2 EHRR 330, Singh v Entry Clearance Officer New Delhi [2005] QB 608, R (Razgar) v Home Secretary [2004] 2 AC 368, Baby O v Minister for Justice [2002] 2 IR 169, Agbonlahor v Minister for Justice [2007] IEHC 166, [2007] 4 IR 309, N v Home Secretary [2005] 2 AC 296, Akujobi v Minister for Justice [2007] IEHC 191, (Unrep, MacMenamin J, 12/1/2007), Mamyko v Minister for Justice [2003] IEHC 75, (Unrep, Peart J, 6/11/2003) and BIS v Minister for Justice [2007] IEHC 398, (Unrep, Dunne J, 30/11/2007) applied - Immigration Act 1999 (No 22 ) - European Convention on Human Rights - Relief refused (2006/416JR - Birmingham J - 19/6/2008) [2008] IEHC 190

O(G) & Others v Minister for Justice

1 At issue in this case is a challenge to a decision of the Minister for Justice, Equality and Law Reform ("the Minister") dated March 30 2006, on foot of an analysis carried out by officials over the preceding days, that a deportation order that had earlier been made in respect of the first named applicant ("G.O.") should not be revoked. The decision in question dealt also with an application seeking the revocation of a deportation order that was in existence in respect of the second named applicant, Ol. O., who is a son of G.O. Ol.O. originally entered the State as an unaccompanied minor. G.O., who is a national of Nigeria, entered the State on July 2 2002. She submitted a claim for asylum which failed before the Refugee Applications Commissioner ("RAC/ORAC"). From this decision she appealed to the Refugee Appeals Tribunal ("RAT"), which dismissed the appeal. At that stage, she was informed that consideration was being given to the making of a deportation order and, as is usual, she was invited to make representations which she did, a submission being made on her behalf by her then legal advisers, the Refugee Legal Service (RLS). In the context of the issues that now arise, it may be noted that these representations dealt to some extent at least with the family circumstances of G.O. and Ol.O., and made reference also to the position of the other applicants.

2 Alongside the written submissions from her legal advisers, G.O. also sent a hand-written letter to the Minister. In this letter, she commented that going back to Nigeria was to go back to the grave, and she emphasised her desire and ability to work in this State. These representations were unsuccessful and a deportation order was made on February 3 2005. Notification of the deportation order was deferred. This occurred in a situation where G.O. and Ol.O. had each made applications for residency under the Irish Born Child 2005 ("IBC 05") Scheme in January 2005. These applications were doomed to failure, as neither G.O. nor Ol.O. was the parent of an Irish born child.

3 It was only on March 2 2006 that the making of the deportation order was notified, this having been deferred to allow completion of the IBC 05 process. As a response to the notification, the applicants' current solicitor, Mr. Connor O'Briain, made an application in writing, by letter dated 8 March, 2006, calling for the revocation of the deportation orders in respect of both G.O. and Ol.O. This letter is of considerable importance in the context of the present proceedings and I will return to it. The applicants' solicitor sent another letter on 27 March, 2006, which addressed the risk of his clients being detained and subject to extortion and other forms of ill-treatment if returned to Nigeria.

4 An executive officer of the Department of Justice, Equality and Law Reform, who conducted an analysis of the application for revocation on March 28 2006, recommended that the deportation orders in respect of both G.O. and Ol.O. be affirmed. This approach was endorsed by a more senior official the following day and, as we have seen, the Minister accepted the views of his officials on 30 March, 2006.

Family Background

5 In order to understand the arguments made in favour of the revocation of the deportation order and the challenge to the decision not to revoke the order, it is necessary to consider the relationship that exists between the seven applicants and to make some reference to their domestic situation. The first named applicant, G.O., is the mother of five children. Three of these five children are in Ireland: Ol.O. - the second named applicant; S.O. - the fifth named applicant; and OM.O. - the sixth named applicant. G.O. is also the grandmother of P.O. - the third named applicant, and J.O. - the seventh named applicant (both of whom are the children of OM.O.), and also of R.A., who is the daughter of S.O. and her partner Mr. L.A.

6 The third named applicant, P.O., was born in Ireland on 28 August, 2002 and the fourth named applicant, R.A., was also born in Ireland, in her case on 14 October, 2002. P.O. and R.A. are Irish citizens. The fifth named applicant S.O., her partner L.A., and her sister, who is the sixth named applicant OM.O., have residency status in Ireland based on their status as parents of Irish born children. P.O. and J.O. do not reside with their mother OM.O., who holds down both a full-time and part-time job. Instead, they live at an address in Swords with their uncle Ol.O., their aunt S.O., her partner L.A., their cousin R.A. and their grandmother G.O. Their mother, OM.O., lives at a different address in a different estate in Swords. P.O. has never known his father, who lives in Nigeria. In these circumstances, G.O. is the primary and principal carer of her grandsons P.O. and J.O. She also plays a significant role in the upbringing of her granddaughter, R.A., whose mother is engaged in education full-time.

Relevance of the Stage at which the Application was Made

7 Before considering the specific details of the challenge to refuse the application for revocation, it is appropriate to consider the stage at which the application was made. The application came against the background of an unsuccessful application for asylum both at first instance and on appeal, an application for humanitarian leave to remain, which was unsuccessful, and an application for residency submitted as part of the IBC 05 Scheme. This situation raises the nature of the consideration required of the Minister in deciding whether or not to exercise his power under section 3(11) of the Immigration Act 1999 (as amended) to amend or revoke a deportation order.

8 In Baby O v. The Minister for Justice, Equality and Law Reform [2002] 2 I.R. 169, the Supreme Court dealt with a challenge to a refusal to revoke a deportation order on the basis of changed circumstances. The challenge was rejected by the Supreme Court. At page 184, Keane C.J. commented as follows:-

"It was entirely a matter for the first respondent to determine whether the circumstances relied on were such that he was obliged to revoke the deportation order already made. I was satisfied that neither the High Court nor this Court on appeal had any jurisdiction to interfere with the first respondent's determination that the change of circumstances referred to would not justify him in revoking the deportation order."

9 He noted that the change of circumstances relied on by the applicants in that case was that the second named applicant, the adult applicant, had become pregnant and was expected to give birth within about three months of the hearing of the case in the Supreme Court. That approach has been followed in a number of High Court cases. In Dada v. The Minister for Justice, Equality and Law Reform [2006] IEHC...