Gideon Odum and S C (an infant suing by her father and next friend Gideon Odum) and R C A (an infant suing by his father and next friend Gideon Odum) and W O A (an infant suing by his father and next friend Gideon Odum) v The Minister for Justice and Equality
| Jurisdiction | Ireland |
| Judge | Mr. Justice O'Donnell |
| Judgment Date | 14 November 2023 |
| Neutral Citation | [2023] IESC 26 |
| Court | Supreme Court |
| Docket Number | S:AP:IE:2022:000023 |
[2023] IESC 26
O'Donnell C.J.
Charleton J.
Baker J.
Woulfe J.
Hogan J.
Murray J.
Collins J.
S:AP:IE:2022:000023
AN CHÚIRT UACHTARACH
THE SUPREME COURT
Judgment of Mr. Justice O'Donnell, Chief Justice delivered on the 14 th day of November, 2023.
. Gideon Odum applied for residency in Ireland through his solicitor in 2014. Consideration of his case resulted in a deportation order made on 21 June, 2016. He commenced judicial review proceedings to challenge the deportation order and is joined as an applicant by three children SC, RCA and WOA, who were born in 2008, 2010 and 2012 respectively and therefore, were aged approximately seven, six and four respectively at the time of the deportation order challenged in these proceedings.
. The judicial review proceedings were placed in a Gorry holding list ( Gorry v. Minister for Justice [2020] IESC 55 (Unreported, Supreme Court, O'Donnell and McKechnie JJ., 23 September, 2020) (“ Gorry”)) pending the resolution of that case which was seen as a test case in respect of claims based on interference with family rights both under Article 8 of the European Convention on Human Rights (“ECHR”), and Articles 40, 41 and 42 of the Constitution. In the aftermath of the decision of this Court in Gorry, a number of claims in the Gorry list were compromised by agreement. In a small number of cases, including this one, the State respondents did not concede the challenge to the deportation order but rather maintained that the orders made were valid and consistent with the law as set out in Gorry. Accordingly, the case proceeded. In the High Court, Tara Burns J. dismissed the applicants' claim in a judgment delivered on 21 November, 2021 ( [2021] IEHC 747).
. This Court granted leave to appeal on 29 June, 2022 ( [2022] IESCDET 80). In its determination, the Court recorded its conclusion that the application met the requisite constitutional threshold at paragraphs 16–18:-
“Whether the Minister's consideration of constitutional family rights within a deportation decision ought to be expressly carried out, or whether it is sufficient that the underlying factual matrix of a case makes it clear that constitutional rights will not be breached by the deportation is an important question.
The judgment in Oguekwe v. Minister for Justice makes it clear that constitutional rights arise in relationships between parents and children, regardless of citizenship status. The judgment in Gorry v. Minister for Justice emphasised that constitutional family rights, if arising, ought to be considered by the Minister when making deportation orders. How those rights are affected by the absence of a “meaningful involved relationship”, and whether that is the correct test, or even a test at all, to be applied in deportation decisions are issues of general public importance.
A deportation order may have a very significant impact on its subject. It is in the interests of justice that the correct approach to considerations of constitutional family rights in deportation decisions be clarified, or indeed identified”.
By order of this Court of 24 November, 2022, the Irish Human Rights and Equality Commission (“IHREC”) was permitted to participate in the appeal as amicus curiae.
. Subsequently, the first applicant was informed that he had been granted temporary leave to remain under the respondent's “Regularisation of Long Term Undocumented Migrants' Scheme” and the deportation order was revoked. The State respondents then contended that this rendered the appeal moot. This Court decided in Odum and ors v. Minister for Justice and Equality [2023] IESC 3 (Unreported, Supreme Court, O'Donnell C.J., 2 February, 2023) (“ Odum No. 1”) that while it inclined to the view the appeal was technically moot, it should nevertheless be heard, the Court having determined that the appeal involved a point of general public importance.
. The basic facts, upon which it will be necessary to elaborate later, are that the first applicant is a Nigerian national who claims to have arrived in Ireland in November, 2007, in circumstances which he accepts constituted an unlawful entry to the State. Very shortly thereafter, on 1 December, 2007 he claims to have married E A, also a Nigerian national, who had been residing in the State since 2002. He says the marriage was celebrated by a pastor of the Word of Life Bible Ministry at GAA Club House in Mungret, Co Limerick and photographs of the event have been produced. It is accepted that this itself did not constitute a valid marriage according to Irish law, and no marriage was registered. Accordingly, it is accepted that the first applicant and E A cannot be treated as having been lawfully married for the purposes of these proceedings.
. E A gave birth to three children, being the second, third and fourth applicants in these proceedings. In the case of the oldest child S C, born in August 2008, the first applicant was named as her father on her birth certificate, with an address provided in Lagos, Nigeria. In the case of the third and fourth applicants, born in 2010 and 2012 respectively, no details of the children's father were registered. It was said that this was because the first applicant was not lawfully in the State. There was some dispute in the early part of the proceedings, in which it appeared that the respondent Minister was contesting the first applicant's status as father of the third and fourth applicants. However, the High Court judge held that in the light of the manner in which the application had been dealt with by the Minister, the Minister must be treated as having accepted (or at least not denied) that the first applicant was indeed the father of all three children and that the case must therefore be approached on that basis.
. The assessment of this case accepted by the Minister addressed the various factors set out in section 3(6) of the Immigration Act, 1999 (as amended) (the “1999 Act”), including the duration of the first applicant's residence in the State (section 3(6)(b)) and his family and domestic circumstances (section 3(6)(c)) and also contained a full analysis of the impact of the deportation upon his rights to a family life under Article 8 of the ECHR. The conclusion that the deportation of the first applicant would not violate Article 8 is not challenged here. However, the assessment contains no reference to the constitutional rights now asserted. The first applicant sought to contend that this in itself was a ground rendering the decision invalid. However, it was observed by the Minister that the representations made on behalf of the first applicant did not at any stage of the process make reference to the Constitution and did not assert any constitutional rights, and the Minister was not to be faulted for not referring explicitly to the Constitution. The fundamental question it was said was the correctness of the decision.
. It may be understandable given the development of the law more generally in relation to entry to and deportation from the State by reference to the ECHR, that analysis by reference to the Convention would be readily invoked in challenges to ministerial decisions. It is also the case that here it appears to have been accepted that since the first applicant and E A could not be treated as married, that a claim of family rights may have been more readily advanced by reference to the ECHR jurisprudence. However, it must be emphasised that the Constitution is the basic law of the State. It sets the standard against which legislation, statutory instruments and administrative decisions should be tested and also sets the standard which the courts are obliged to uphold. While in the area of fundamental rights, there is a significant overlap in the area of protection between the Constitution and instruments such as the ECHR, however, in some cases the Constitution will provide for a more extensive or at least different level of protection and in any event provides for a more powerful remedy. Applicants and their advisors should, therefore, be expected to consider and advance claims by reference to the Constitution when challenging departmental decisions which engage constitutional rights. As Hogan J. stated in Middelkamp v Minister for Justice and Ors [2023] IESC 2, [2023] 1 I.L.R.M. 277 (“ Middelkamp”) at paragraph 26, “… legal professionals should, where possible, also ensure that constitutional issues are raised appropriately in conjunction with any corresponding ECHR issues as arise within the confines of the European Convention of Human Rights Act 2003”. Indeed, it is to be expected that the Constitution would merit separate consideration in advance of resort to the Convention even though the analysis will be similar under both instruments, and indeed under section 3(6)(c) of the 1999 Act.
. In Middelkamp, Hogan J. also observed that “… in some instances of this kind an issue may possibly arise in future cases as to the extent to which non-citizens can rely on the corresponding constitutional provisions”. This is such a case. The applicants, who are not citizens of Ireland, rely in these proceedings on the fact that the decision of the Minister did not refer to the Constitution or consider the constitutional rights of the applicants. However, as already mentioned, here the applicants themselves did not mention the Constitution in the submissions made to the Minister and, therefore, cannot sensibly argue that a decision is invalid simply because no express reference...
To continue reading
Request your trial