Gideon Odum and Sophia Chukwudi (an Infant Suing by and Through her Father and Next Friend Gideon Odum) and Richard Chukwubuke Agbonese (an Infant Suing by and through his Father and Next Friend Gideon Odum) and William Onyinye Agbonese (an Infant Suing by and through his Father and Next Friend Godeon Odum) v The Minister for Justice

• Jurisdiction: Ireland
• Judge: Ms. Justice Tara Burns
• Judgment Date: 22 November 2021
• Neutral Citation: [2021] IEHC 747
• Docket Number: RECORD NO. 2016/550JR
• Year: 2021
• Court: High Court

Between

Gideon Odum and Sophia Chukwudi (An Infant Suing by and Through her Father and Next Friend Gideon Odum) And Richard Chukwubuke Agbonese (An Infant Suing by and through his Father and Next Friend Gideon Odum) and William Onyinye Agbonese (An Infant Suing by and through his Father and Next Friend Godeon Odum)

Applicants

and

The Minister for Justice

Respondent

[2021] IEHC 747

RECORD NO. 2016/550JR

THE HIGH COURT

JUDICIAL REVIEW

JUDGMENT of Ms. Justice Tara Burns delivered on 22 November 2021

General

1 The First Applicant is a Nigerian national who is asserted to have entered the State without permission in November 2007. The Second, Third and Fourth Applicants, who are Nigerian citizens lawfully resident in the State, are asserted to be the First Applicant's children, although he is not named as the father on the Third and Fourth Applicant's birth certificates. With respect to the Second Applicant's birth certificate, the First Applicant is named as her father, however an address in Nigeria is recorded for him in respect of a period of time when he allegedly was living in this jurisdiction. The First Applicant asserts that his correct details, on all three birth certificates, were intentionally not registered as he did not want his illegal status to come to light.

2 The First Applicant and the mother of the Second, Third and Fourth Applicants, had been in a relationship prior to 2007. They married in a religious ceremony in December 2007, however they did not partake in a civil ceremony. Accordingly, their marriage is not recognised within the State. They separated in November 2014. The First Applicant was made joint guardian of the Second, Third and Fourth Applicant by an order of the District Court, made consensually, on 20 January 2015.

3 After the separation, the First Applicant sought permission to remain in the State, which was refused. On 21 June 2016, a Deportation Order was made against the First Applicant. The reasons for making the Deportation Order were set out in a letter to the First Applicant as follows:-

“The reasons for the Minister's decision are that you have remained in the State without the permission of the Minister for Justice… Having had regard to the factors set out in section 3(6) of the Immigration Act, 1999 (as amended), including the representations received on your behalf, the Minister is satisfied that the interest of the pubic policy and the common good in maintaining the integrity of the asylum and immigration systems outweigh such features of your case as might tend to support you being granted leave to remain in this State.”

4 Leave to apply by way of Judicial Review seeking an order of Certiorari of the Deportation Order was granted by the High Court on 25 July 2016 on the grounds, in summary, that the Respondent had failed to consider the Applicants' constitutional rights pursuant to Articles 40, 41 and 42 of the Constitution; that the Article 8 family life rights decision was void for uncertainty; erred by applying an insurmountable obstacles test; failed to provide reasons for the deportation decision; and erred in the consideration of the First Applicant's employment prospects.

The First Applicant's Permission to Remain Application

5 On foot of the First Applicant's application for permission to remain, protracted correspondence was engaged in between the First Applicant and the Respondent. In summary, the Respondent sought details of the First Applicant's arrival into this jurisdiction; proof of residence since entering this jurisdiction; and information regarding how he had supported himself. Issues with respect to his identity on all three birth certificates and details of where the Applicants resided were sought in order to allow the Respondent to identify the level of contact and dependency involved.

6 In a letter dated 8 January 2015, the Respondent stated that “ the outcome of the access hearing will obviously have a major bearing on whether or not your client will be granted residence in the State.” It also noted that the Second, Third and Fourth Applicants' mother had been claiming lone parent's allowance since September 2013 and a response was invited in respect of the apparent discrepancy. The Respondent indicated that if all of these issues were not clarified and addressed by 9 February 2015, a notification of a proposal to deport the First Applicant would issue.

7 The access hearing, referred to above, was resolved by two consent orders of the District Court dated 20 January 2015, the first of which appointed the First Applicant, of Unit 6, Ballincollig Business Park, Leo Murphy Road, Ballincollig, Cork as joint guardian of the Second, Third and Fourth Applicants, and the second of which directed, by consent, access to the First Applicant as per consent attached. A handwritten consent order was attached to the Court Order dealing with access. However, the consent order forwarded to the Respondent only reflected that the First Applicant was to be appointed joint guardian of the three children. Details of the First Applicant's access arrangements with his children were not notified to the Respondent. A proposal to deport the First Applicant duly issued.

The Respondent's Consideration of s.3 of the Immigration Act 1999

8 The “Examination of file under Section 3 of the Immigration Act 1999, as amended”, which was included with the letter notifying the First Applicant of the Deportation Order, examined the various requirements which the Respondent is mandated to consider, pursuant to s. 3 of the Immigration Act 1999, when determining whether to issue a Deportation Order. Relevant portions of that document state as follows:-

“Section 3(6)(f) Employment (including self-employment) Prospects of the Person

Gideon Odum has submitted a letter dated 8th December 2014 from [BA], CEO, Deltec Computer Services, which states, “I would be glad to offer him full-time employment if he is granted residency in Ireland.” Notwithstanding this offer of employment, no job description or salary has been included, nor is there any further up-to-date information on file to show that this position is still available to Mr Odum or that he has the specialist skills above a citizen of the State who is permitted to work in the State. Gideon Odum is not permitted by law to work in the State.

In a personal letter dated 27th April 2016, Mr Odum further states, “ There are lots of healthcare sections willing to employ me as the demand for carers is very high in Ireland.”

Representations received dated 02nd June 2016 include offers of interviews in the healthcare sector in respect of various positions such as a “Permanent Multi Task Attendant” with Caherciveen Community Hospital and a “Caregiver” with “Home Instead Senior Care”.

It is not in doubt that, given his age, good health and work ethic, and indeed track record of volunteer work in this State, Gideon Odum's employment prospects; in the event that he held a right of residency in the State, accompanied by a right to work, are reasonable.

According to the CSO Monthly Unemployment Report for May 2016, the seasonally adjusted unemployment rate for May 2016 was 7.8%, down from 7.9% in April 2016 and down from 9.6% in May 2015. The seasonally adjusted number of persons unemployed was 169,700 in May 2016, a decrease of 1,500 when compared to the April 2016 figure or a decrease of 38,300 when compared to May 2015…

Therefore, having regard for the numbers on the Live Register, it is hardly in the interest of the common good that a third country national, such as Gideon Odum with no right of residence in the State, would be enabled to take up a position of paid employment in the State without having regard for the fact that other persons, including unemployed Irish and EU nationals, with equal skills and availability to Gideon Odum would be negatively impacted by such a decision.

In the absence of any information or documentation to suggest that Mr. Gideon Odum has any specialist skills which are in deficit in the State, it would have to be concluded that the only nature of employment which would be available to Gideon Odum would be positions of employment which could be filled by reference to an Irish or an EU national, or by a third country national with a right of residency in the State, accompanied by a right to work.

…

Section 3(6)(h) – Humanitarian Considerations

Gideon Odum states that he has three children who were all born in the State between 2008 and 2012. It is noted however that his name does not appear on the Birth Certificates of his two younger children. He states he is no longer married to the children's mother, Ms. [A], but has submitted two Court Orders dated 20th January 2015. The first confirms he has been appointed joint guardian of his three children…. The second Court Order relates to access and notes, “ Access to the father as per consent attached, to commence 25th January 2015”. It is noted that a complete Consent agreement is not within the file and therefore the access arrangements cannot be confirmed.

Mr Odum claims to have been residing in the State with his family since 2007 and that he “is very closely bonded with his children and has been involved in their lives since they were born”. I have carefully considered the Court Order of 20th January 2015 in respect of Mr Odum's Guardianship and access rights to his children, I note that details of the access arrangements are missing from the file and no independent documentation has been submitted to show that Mr Odum is involved in his children's lives.

It noted from file that despite repeated requests to produce documentary evidence identifying the level of contact or dependency that exists between Mr Odum and his children, nothing substantive was produced in support of this. It is also noted that notwithstanding a scant number of utility bills and medical/grocery receipts, Mr Odum has failed...