Gritto and Others v Minister for Justice
| Jurisdiction | Ireland |
| Judge | Miss Justice Laffoy |
| Judgment Date | 27 May 2004 |
| Neutral Citation | [2004] IEHC 119 |
| Date | 27 May 2004 |
| Court | High Court |
| Docket Number | HC 196/04 |
[2004] IEHC 119
THE HIGH COURT
AND
Immigration - Asylum - Judicial review Standard of review - Deportation order - Whether integrity of asylum process outweighs asserted family rights - Whether deportation order validly served - Whether deportation order should be quashed - Immigration Act 1999, section 3.
Facts: the first and second applicants had applied for asylum, which they subsequently withdrew and applied for residency on the basis of their Irish born child. That application was rejected and deportation orders issued against them. They applied to have the deportation orders quashed on the basis that their rights under the Constitution to a family life were being interfered with thereby. They submitted that when reviewing the decisions, the test of anxious scrutiny should be applied by the courts.
Held by Laffoy J in refusing the relief sought that parentage of an Irish born child gave no right of residence in the State and that the first and second applicants had not established any arguable grounds for challenging the decisions to deport them in accordance with section 3 of the Act of 1999. The proper exercise of the State’s power to control immigration did not require that persons who were the subject of such control be afforded an opportunity to make representations in relation to policy in that sphere.
Obiter dictum: that there were substantial grounds for contending that, where constitutionally protected fundamental rights of a child were at issue, a more rigorous standard of review than the normal standard used in judicial review should be applied.
Reporter: P.C.
Miss Justice Laffoy delivered on 27th May, 2004.
The applicants seek leave to apply by way of judicial review for certain reliefs relating to deportation orders made by the respondent pursuant to s. 3(1) of the Immigration Act, 1999(the Act of 1999) deporting the first and second named applicants.
The primary reliefs sought are orders of certiorari quashing the decisions to make deportation orders and the concomitant decisions to refuse the applications of the first and second named applicants, as the parents of an Irish-born child, for leave to remain in the State, on the basis that such decisions are ultra vires, void and of no force or effect. The third named applicant (the child) is a child of the first and second named applicants, who was born in the State on 30 th December, 2002 and is an Irish citizen.
It is common case that in deciding whether to make the deportation orders the respondent was obliged to consider the position of the child as required by the decision of the Supreme Court in A.O. and D.L. v. Minister for Justice [2003] 1 I.R. 1. It is contended on behalf of the applicants that the respondent did not do so; and that his consideration was more in line with what is required of him by virtue of s. 3 of the Act of 1999 as interpreted by the Supreme Court in F.P. v. Minister for Justice [2002] 1 I.R. 164.
As the core issue in this matter is the validity of the process by which the Minister reached a decision to deport non-national parents of an Irish-born child subsequent to the decision of the Supreme Court in the A.O. and D.L. case, before considering the facts and the grounds on which invalidity is alleged, I propose considering the majority judgments of the Supreme Court in that case in some detail to ascertain from them what guidance was given as to the proper manner of processing such an application and the matters to be taken into consideration and the principles to be applied by the respondent.
First, however, I will outline the decision of the Supreme Court in the F.P. case insofar as it is relevant to the issues with which I am concerned.
This Court is, of course, bound by the decisions of the Supreme Court.
In that case, the court was concerned with challenges to the validity of deportation orders made under s. 3(1) of the Act of 1999 which encompassed complaints as to —
(a) the proposal to make the deportation orders;
(b) the consideration given to representations made under s. 3(3)(b) of the Act of 1999; and
(c) the actual deportation orders.
Each of the applicants had applied for asylum in the State, was refused at first instance and unsuccessfully appealed.
In relation to the proposal to make a deportation order, the Supreme Court held that the respondent could make a deportation order in respect of any person who fell within one of the categories listed in s. 3(2) of the Act of 1999, subject to the subsequent provision (section 3(6)) that representations for leave to remain on humanitarian grounds were sought and, if made, considered. It also held that, as a matter of interpretation, s. 3(3)(a) of the Act of 1999, which provides that the respondent must notify and give reasons for a proposed deportation order, embraces a singular reason.
In relation to consideration of representations made pursuant to a request under s. 3(6) of the Act of 1999, in his judgment, with which the other four judges of the Supreme Court who heard the appeal concurred, Hardiman J. said, at p. 173:
"In the circumstances of this case, the respondent was bound to have regard to the matters set out in s. 3(6) of the Act of 1999. In my view he was also clearly entitled to take into account the reasons for the proposal to make a deportation order, i.e. that the applicants were in each case failed asylum seekers. If the reason for the proposal had been a different one, he would have been entitled to take that into account as well. He was obliged specifically to consider the common good and considerations of public policy. In my view he was entitled to identify, as an aspect of these things, the maintenance of the integrity of the asylum and immigrations systems. The applicants had been entitled, in each case, to apply for asylum and to remain in Ireland while awaiting a decision on this application. Once it was held that they were not entitled to asylum, their position in the State naturally falls to be considered afresh, at the respondent's discretion. There was no other legal basis on which they could then be entitled to remain in the State other than as a result of a consideration of s. 3(6) of the Act of 1999. In my view, having regard to the nature of the matters set out in sub-paras. (a) to (h) of that sub-section, the decision could be aptly described as relating to whether there are personal or other factors which, notwithstanding the ineligibility for asylum, would render it unduly harsh or inhumane to proceed to deportation. This must be judged on an assessment of the relevant factors as, having considered the representations of the person in question, they appear to the respondent. These factors must be considered in the context of the requirements of the common good, public policy, and where it arises, national security."
In relation to the manner in which the decision was formulated, Hardiman J. stated as follows, at p. 175:
"Where an administrative decision must address only a single issue, its formulation will often be succinct. Where a large number of persons apply, on individual facts, for the same relief, the nature of the authorities' consideration and the form of grant or refusal may be similar or identical. An adequate statement of reasons in one case may thus be equally adequate in others. This does not diminish the statements essential validity or convert it into a mere administrative formula."
The Supreme Court also rejected an argument that the reasons for the respondent's decision should be set out in the deportation order rather than in a letter accompanying a copy of the deportation order.
Aside from personal circumstances, the factual situation of the first and second named applicants differs from that of the applicants in the F.P. case. While, on arrival in the State, the first and second named applicants had applied for asylum, they withdrew their applications before they came to be determined at first instance, whereupon their entitlement to remain in the State ceased (s. 9(2) of the Refugee Act, 1996, substituted by s. 7(c) of the Immigration Act, 2003).
That case concerned two families. In the case of each family the parents were non-nationals and each had a child who was born in the State after the making of the relevant deportation order. A factor which was present in relation to each family, which does not apply in the instant case, was that the applications for asylum came within the ambit of the Dublin Convention. In outlining what I believe to be the aspects of the judgments delivered in the Supreme Court which are of relevance for present purposes, generally I will be omit consideration of the application of the Dublin Convention and its ramifications.
The ratio decidendi of the decision of the Supreme Court, insofar as it is relevant for present purposes, is summarised in the head note in the official reports as follows:
1) The constitutional rights of the Irish-born applicant in each case to the company, care and parentage of its parents within the State was not absolute and unqualified.
2) The respondent was obliged to consider whether, in the circumstances of the case, there were grave and substantial reasons associated with the common good which required the deportation of the non-national applicants.
3) In so doing, the respondent was not restricted to taking into account only those matters which were personal to the non-national applicants which...
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