A (G) (A minor acting by his father and next friend K.A. ) and A (K) v Minister for Justice, Equality and Law Reform & RAC ( respondents)

• Jurisdiction: Ireland
• Judge: Mr. Justice McMahon
• Judgment Date: 22 May 2009
• Neutral Citation: [2009] IEHC 235
• Court: High Court
• Date: 22 May 2009

[2009] IEHC 235

THE HIGH COURT

[No. 193 J. R./2009]

A (G)(A Minor) v Min for Justice & Refugee Applications Commissioner

JUDICIAL REVIEW

BETWEEN

G. A. (A MINOR ACTING BY HIS FATHER AND NEXT FRIEND, K. A.) AND K. A.

APPLICANTS

AND

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM

AND

THE REFUGEE APPLICATIONS COMMISSIONER

RESPONDENT

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

IMMIGRATION ACT 2003 S10

IMMIGRATION ACT 2003 S13

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)(b)

MCNAMARA v BORD PLEANALA UNREP BARR 10.5.1996 1996/6/1716

CONSTITUTION ART 41

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

HUANG v SECRETARY OF STATE FOR THE HOME DEPT (KASHMIRI v SAME) 2007 2 WLR 581

OGUEKWE v MIN FOR JUSTICE & LAW REFORM 2008 2 ILRM 481

CONSTITUTION ART 40.3

Y (HL) & ORS v MIN FOR JUSTICE & AG UNREP CHARLTON 13.02.2009 2009 IEHC 96

IMMIGRATION

Deportation

Judicial review - Leave - Applicants father and child - Child an Irish citizen - Applicants asserting breach of personal and family rights under Constitution and Convention - Proper criteria to be considered by State in deciding whether to issue deportation order - Whether substantial grounds for granting of leave - Whether substantial reason requiring deportation order identified - Oguekwe v MJELR [2008] IESC 25 [2008] 3 IR 795 applied; Y (HL) v MJELR [2009] IEHC 96 (Unrep, Charleton J, 13/02/2009) followed; McNamara v An Bord Pleanála (Unrep, Barr J, 10/5/1996) and Huang v Secretary of State for the Home Department [2007] 2 WLR 581 considered; R (Mahmood) v Home Secretary for the Home Department [2001] 1 WLR 840 doubted - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Leave granted (2009/193JR - McMahon J - 22/5/2009) [2009] IEHC 235

A (G) v Min for Justice, Equality and Law Reform

Facts: The first named applicant was an Irish Citizen born in this State on 24 September 2004. The second named applicant was the father of the first respondent and was a citizen of Nigeria. The first named respondent had a twin brother who was also an Irish Citizen. The first applicant’s mother, who is the wife of the second named applicant has been granted permission to remain in this State. The applicants sought leave to apply for judicial review of a decision of the respondent to make a deportation order in respect of the second named applicant on 27 January 2009. The applicants advanced arguments under several headings including the personal rights of the first named applicant as an Irish citizen and the family rights of both applicants pursuant to the Constitution and the rights of the applicants under Article 8 of the European Convention on Human Rights. The applicants also asserted their right to have the deportation order assessed on the basis of its proportionality. The executive officer’s report, which formed the basis on which the respondent made the deportation order, essentially showed that the test used by the officer was that unless there were insurmountable obstacles to the family living together in the country of origin then the deportation order would stand.

Held by McMahon J. in granting leave to apply for judicial review: That the report of the executive officer did not reflect the principles laid down by Denham J. in the case of Oguekwe v . Minister for Justice, Equality and Law Reform [2008] I.E.S.C. 25. The report did not consider sufficiently the facts relevant to the personal rights of the citizen child and did not identify a “substantial reason” which required deportation of the second named applicant with sufficient clarity. Neither were the facts relating to the family unit sufficiently assessed and weighed.

Reporter: L.O’S.

1 Mr. Justice McMahon delivered on the 22nd day of May, 2009 Background

2 The first named applicant is an Irish citizen born in this State on the 24 ^th September, 2004. He is the son of the second named applicant who is a citizen of Nigeria born on the 4 ^th October, 1969. The first named applicant has a twin brother who is also an Irish citizen by virtue of his birth in the State.

3 The second named applicant was married to M. A., the mother of the first named applicant, in Ivory Coast in 2003. M. A. is a citizen of Ivory Coast where the second named applicant lived at that time. They both left Ivory Coast in 2004. Mrs. A. travelled to Ireland and was granted permission to remain in this State under the "IBC 05" residency scheme. The second named applicant had gone back to Nigeria and was not living in the State at the time the "IBC 05" scheme was in operation. The second named applicant came to Ireland in November 2007, to reunite with his family and he has resided with his wife, children and two stepchildren as a family unit since then. Mrs. A. has established herself in a business and is able to earn an income from this activity. It is alleged that the second named applicant assists in the home and in the education and the social activities of the children. A deportation order was made against the second named applicant by the respondent on the 27 ^th January, 2009.

4 This is an application for leave for judicial review of the decision to make a deportation and is made pursuant to the provisions of s. 5 of the Illegal Immigrants (Trafficking) Act 2000 (as amended by ss. 10 and 13 of the Immigration Act 2003).

The standard

5 The appropriate standard to be applied by this Court in a leave application is that which is set down in s. 5 (2) (b) of the Illegal Immigrants (Trafficking) Act 2000, namely, that the applicant is required to establish substantial grounds. In McNamara v. An Bord Pleanála (Unreported, High Court, Barr, J., 10 ^th May, 1996), Carroll, J., who was the learned trial judge, expanded on the standard to be applied by the court:-

" … . In order for a ground to be substantial it must be reasonable, it must be arguable, it must be weighty. It must not be trivial or tenuous … ."

Arguments advanced on behalf of the applicants

6 Counsel for the applicants advances arguments in favour of this application under the following headings:-

7 (a) The personal rights of the first named applicant as an Irish citizen child.

8 (b) The family rights of both applicants under Article 41 of the Constitution.

9 (c) The rights of the applicants under Article 8 of the European Convention on Human Rights.

10 (d) The rights of the applicants to have the deportation order assessed on the basis of its proportionality.

11 (e) The arguments in favour of an injunction.

What is the proper criterion to be applied by the State when deciding whether to issue a deportation order or not?

12 In the executive officer's report dated the 13 ^th January, 2009, which forms the basis on which the Minister made the deportation order in respect of Mr. A., the executive officer, having noted the factual situation at some length and having examined...