G O (A Minor) v Minister for Justice

• Jurisdiction: Ireland
• Judgment Date: 19 June 2008
• Date: 19 June 2008
• Docket Number: [2006
• Court: High Court

G.O. (a minor) v. Minister for Justice

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

[2008] IEHC 190,

[2006 No. 416 JR]

High Court

Immigration - Deportation order - Revocation - Right to family life - Grandmother - Primary carer of Irish citizen - Meaning of "family life" - Whether interference with right disproportionate - Exceptional circumstances - Margin of appreciation - Whether case made at first opportunity - Immigration Act 1999 (No. 22) - European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, article 8.

The first and second applicants submitted claims for asylum before the Refugee Applications Commissioner and were unsuccessful. An appeal to the Refugee Appeals Tribunal was also unsuccessful and the applicants were informed that consideration was being given to the making of an order for their deportation. Submissions were made on behalf of the applicants as to why such an order should not be made. An application was also made under the Irish Born Child 2005 scheme in January, 2005.

An order for the deportation of the first and second applicants was made, but notification of the order was deferred pending determination of the application under the Irish Born Child 2005 scheme.

The applicants were notified of the deportation orders upon which the solicitor for the applicant made submissions to the Department of Justice, Equality and Law Reform calling on the Minister to exercise his power under s. 3(11) of the Immigration Act 1999, as amended, to revoke the deportation orders.

An analysis of the application for revocation or amendment was carried out by the Department of Justice after which the deportation orders were affirmed.

The first applicant was the mother of the second, fifth and sixth applicants and the grandmother of the third, fourth and seventh applicants. The third and fourth applicants were Irish citizens. The first applicant was the primary carer of the third and seventh applicants and played a significant role in the upbringing of the fourth applicant. The applicants argued, inter alia, that the refusal to revoke the deportation was an unlawful interference with their family life as protected by Article 41 of the Constitution and article 8 of the European Convention on Human Rights.

The applicants applied to the High Court for judicial review of the decision of the respondent not to revoke the deportation order.

Held by the High Court (Birmingham J.), in refusing the relief sought, 1, that for an application to revoke a deportation order pursuant to s. 3(11) of the Immigration Act 1999 to be successful there must be some change in the circumstances of the applicant to warrant such revocation.

2. That, while the relations between grandparents and grandchildren and other relationships outside of the nuclear family might constitute "family life" as envisaged by article 8 of the European Convention on Human Rights, this depended on the circumstances of the case.

Marckx v. Belgium (1979) 2 E.H.R.R. 330 andSingh v. Entry Clearance Officer [2004] EWCA Civ 1075, [2005] Q.B. 608 followed.

3. That an interference with the right to respect for family life within the meaning of article 8 of the European Convention on Human Rights could be justified pursuant to article 8(2) on the grounds that such interference was necessary for the pursuit of a state's immigration policy. Such interference would only be disproportionate in exceptional circumstances.

Baby O. v. Minister for Justice [2002] 2 I.R. 169applied. Agbonlahor v. Minister for Justice [2007] IEHC 166, [2007] 4 I.R. 309 and N. v. Home Secretary[2005] UKHL 31, [2005] 2 A.C. 296 followed.

4. That in exceptional cases a deportation order could give rise to consequences that were sufficiently grave or severe as to require its revocation but that states enjoyed a wide margin of appreciation in this regard.

• R. (Razgar) v. Home Secretary [2004] UKHL 27, [2004] 2 A.C. 368; Baby O. v. Minister for Justice [2002] 2 I.R. 169; Agbonlahor v. Minister for Justice [2007] IEHC 166, [2007] 4 I.R. 309 and N. v. Home Secretary[2005] UKHL 31, [2005] 2 A.C. 296 followed.

5. That the fact that a deportation order would necessitate a reorganisation of lifestyle by those affected by its application did not give rise to consequences that were sufficiently grave or severe as to require the respondent to revoke the deportation order.

6. That an applicant for leave to remain in the State on humanitarian grounds should put his or her best case forward from the outset of his application, laying out all arguments available to him at the earliest opportunity and an application to revoke a deportation order must contain some new or changed circumstances in order to be successful.

• C.R.A. v. Minister for Justice [2007] IEHC 19,[2007] 3 I.R. 603; Mamyko v. Minister for Justice (Unreported, High Court, Peart J., 6th November, 2003) and B.I.S. v. Minister for Justice [2007] IEHC 398, (Unreported, High Court, Dunne J., 30th November, 2007) followed.

7. That it was not open to individuals to arrive in the State on a false basis and then to proceed to organise their family affairs in such a manner as to frustrate the operation of the immigration system.

Cases mentioned in this report:-

A & Family v. Sweden (1994) 18 E.H.R.R. CD 209.

C.R.A. v. Minister for Justice [2007] IEHC 19, [2007] 3 I.R. 603.

M.A. v. Minister for Justice [2004] IEHC 378, [2007] 3 I.R. 421.

Agbonlahor v. Minister for Justice [2006] IEHC 56, (Unreported, High Court, Herbert J., 3rd March 2006); [2007] IEHC 166, [2007] 4 I.R. 309.

Bensaid v. U.K. (2001) 33 E.H.R.R. 10, [2001] 1 MHLR 287, [2001] 11 BHRC 297.

Caldaras v. Minister for Justice (Unreported, High Court, O'Sullivan J., 9th December, 2003).

D. v. United Kingdom (1997) 24 E.H.R.R. 423.

Dada v. Minister for Justice [2006] IEHC 140, (Unreported, High Court, O Néill J., 3rd May, 2006).

Dimbo v. Minister for Justice [2008] IESC 26, (Unreported, Supreme Court, 1st May, 2008).

P.F. v. Minister for Justice [2005] IEHC 9, (Unreported, High Court, Ryan J., 26th January, 2005).

Kouyape v. Minister for Justice [2005] IEHC 380, (Unreported, High Court, Clarke J., 9th November, 2005).

Mamyko v. Minister for Justice (Unreported, High Court, Peart J., 6th November, 2003).

Marckx v. Belgium (1979) 2 E.H.R.R. 330.

A.O. & D.L. v. Minister for Justice [2003] 1 I.R. 1.

Baby O. v. Minister for Justice [2002] 2 I.R. 169; [2003] 1 I.L.R.M. 241.

Oguekwe v. Minister for Justice [2008] IESC 25, [2008] 3 I.R. 795; [2008] 2 I.L.R.M. 481.

N. v. Home Secretary [2005] UKHL 31, [2005] 2 A.C. 296; [2005 2 W.L.R. 1124; [2005] 4 All E.R. 1017.

R. (Razgar) v. Home Secretary [2004] UKHL 27, [2004] 2 A.C. 368; [2004] 3 W.L.R. 58; [2004] 3 All E.R. 821.

B.I.S. v. Minister for Justice [2007] IEHC 398, (Unreported, High Court, Dunne J., 30th November, 2007).

Singh v. Entry Clearance Officer [2004] EWCA Civ 1075, [2005] Q.B. 608; [2005] 2 W.L.R. 325.

Slivenko v. Latvia (2004) 39 E.H.R.R. 24.

Judicial review

The facts have been summarised in the headnote and are more fully set out in the judgment of Birmingham J., infra.

On the 4th April, 2006, an interim injunction was granted by the High Court restraining the deportation of the first and second applicants pending the determination of an application for leave to seek judicial review.

On the 19th February, 2008, the High Court (Clark J.) granted leave to the applicants to seek relief by way of judicial review of the decision of the respondent not to revoke the deportation orders and continued the injunction restraining the deportation of the first and second applicants pending determination of the said application.

The application for judicial review was heard before the High Court (Birmingham J.) on the 12th June, 2008.

Cur. adv. vult.

Birmingham J. 19th June, 2008

[1] At issue in this case is a challenge to a decision of the respondent, the Minister for Justice, Equality and Law Reform dated the 30th March, 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 applicant 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 applicant who is a son of the first applicant. The second applicant originally entered the State as an unaccompanied minor. The first applicant, who is a national of Nigeria, entered the State on the 2nd July, 2002. She submitted a claim for asylum which failed before the Refugee Applications Commissioner. From this decision she appealed to the Refugee Appeals Tribunal 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. 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 the first applicant and second applicant and made reference also to the position of the other applicants.

[2] Alongside the written submissions from her legal advisers, the first applicant also sent a handwritten letter to the respondent. 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 the 3rd February, 2005. Notification of the deportation order was deferred. This occurred in a...