H (C U) and Others v Min for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 10 March 2011
• Neutral Citation: [2011] IEHC 93
• Judgment citation (vLex): [2011] 3 JIC 1001
• Court: High Court
• Date: 10 March 2011

[2011] IEHC 93

THE HIGH COURT

[No. 174 J.R./2011]

H (CU) & Ors v Min for Justice

JUDICIAL REVIEW

MR JUSTICE COOKE

APPROVED TEXT

BETWEEN

C. U. H. AND J. H., JN. H. AND JE. H. (MINORS SUING BY THEIR MOTHER AND NEXT FRIEND C. U. H.)

APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

IMMIGRATION ACT 1999 S3(11)

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

RSC O.84

REFUGEE ACT 1996 S13

DADA v MIN FOR JUSTICE UNREP O'NEILL 3.5.2006 2006/14/2921 2006 IEHC 140

AKUJOBI v MIN FOR JUSTICE 2007 3 IR 602

A (M) v MIN FOR JUSTICE UNREP 17.12.2009

REFUGEE ACT 1996 S5

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

CONSTITUTION ART 41

DIMBO v MIN FOR JUSTICE UNREP SUPREME 1.5.2008 2008/12/2530 2008 IESC 26

OGUEKWE v MIN FOR JUSTICE 2008 3 IR 795 2008 2 ILRM 481 2008/51/10890 2008 IESC 25

IMMIGRATION ACT 1999 S3(6)

IMMIGRATION

Deportation

Revocation - Refusal - Test for leave - Second decision of respondent to refuse to revoke order - Review - Grounds upon which High Court can intervene in revocation of refusal - Failure by Minister to consider medical opinion that discontinuance of applicant's care would place her at risk of death -DADA v Minister for Justice [2006] IEHC 140, (Unrep, O'Neill J, 3/5/2006); Akujobi v Minister for Justice [2007] IEHC 19 (Unrep, MacMenamin J, 12/1/2007) and MA v Minister for Ex temp Justice (, Cooke J. 17/12/2009)considered - Immigration Act 1999 (No 22), s 3; Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5(2)(b); Refugee Act 1996 (No 17 ), ss 5 and 13; - European Convention on Human Rights, arts 3 and 8 - Rules of the Superior Courts 1986 (SI 15/1986), O 84 - Leave to issue judicial review granted (2011/174 JR - Cooke J - 10/3/2011) [2011] IEHC 93

H(CU) and Ors v Minister for Justice, Equality and Law Reform

Facts The first named applicant sought leave to seek an order of certiorari, by way of judicial review, quashing the decision of the respondent refusing to revoke the deportation order made in respect of the first named applicant. The applicant previously applied for the deportation order to be revoked on the grounds that since the order was made she married the second named applicant and gave birth to the third and fourth named applicants, who were twins. That application was refused and the applicant applied a second time to have the order revoked pursuant to s. 3(11) of the Immigration Act, 1999. It was the decision regarding the second application that the applicant sought to challenge herein. The applicant had also relied on her medical condition and the fact that she was suffering from sickle cell anaemia and tuberculosis in support of her application to revoke the deportation order. In respect of the second application a medical report was submitted which essentially stated that if the applicant was forced to leave Ireland and to discontinue her comprehensive care and treatment regime her condition would certainly deteriorate and she would be at risk of death. In the documentation supporting the respondent's decision, no mention was made of that part of the medical report regarding a risk to the applicant's life.

Held by Cooke J. in granting leave: That the legislative objective in conferring on the respondent the power to revoke deportation orders in s. 3(11) was effectively twofold. Firstly, it enabled the respondent to consider material changes in the personal circumstances of the person subject to the deportation order which had arisen since the order was made; secondly, it enabled the respondent to consider, and if necessary investigate, whether any political, social or other changes had occurred in the country of destination of the deportee which would render implementation of the deportation order unlawful. The medical report submitted by the applicant in support of her application pursuant to s. 3(11) was the only item in the submissions made for the second application to revoke the order, which could arguably be said to raise a new matter which required the respondent's consideration. The applicant was entitled to be granted leave on the ground that the respondent erred in failing to consider or consider adequately the significance of the medical opinion contained in the medical report to the effect that discontinuance of her comprehensive care and treatment regime would place her at risk of death.

Reporter: L.O'S.

1 1. This is an application made ex parte for leave to bring an application for judicial review of a decision (the "Contested Decision",) made by the respondent under s. 3(11) of the Immigration Act 1999, refusing to revoke a deportation order made on the 9 ^th July, 2008, in respect of the first named applicant.

2 2. As such a decision does not come within the scope of the requirement that substantial grounds be established for the grant of leave in accordance with s. 5(2)(b) of the Illegal Immigrants (Trafficking) Act 2000, the test for the grant of leave is the normal criterion under O. 84 of the Rules of the Superior Courts namely that an arguable case be shown.

3 3. While the application might be said to have the benefit of that lower threshold, it faces the difficulty that this is the second decision on the part of the respondent refusing to revoke the deportation order.

4 4. The first named applicant is a national of Nigeria who arrived in the State in May 2006, and claimed asylum. Her claim to refugee status was based upon a claim to fear persecution if returned to Nigeria due the lack of medical care available to her there. The Refugee Applications Commissioner in a report under s. 13 of the Refugee Act 1996, dated the 30 ^th August, 2006, recommended that she not be declared a refugee upon the basis that her claim did not amount to a fear of persecution for a recognised Convention reason. An appeal to the Refugee Appeals Tribunal was unsuccessful. The appeal decision dated the 21 ^st May, 2007, found that she did not have any well founded fear for a Convention reason and that in any event medical treatment for people suffering from sickle cell anaemia is available in Nigeria and there was no evidence to suggest that she would be treated any differently from any other national of that country in her situation.

5 5. Applications were then made for subsidiary protection and for leave to remain in the State on humanitarian grounds. These applications were also unsuccessful and the deportation order of the 9 ^th July, 2008, was made requiring her to report to the Garda National Immigration Bureau on the 11 ^th August, 2008. She failed to do so. No challenge was raised to the validity of the deportation order.

6 6. In the grounding affidavit for this application the first named applicant said that she met the second named applicant in July 2006, in Galway where she was living at the time. The second named applicant is a plasterer by trade who is currently unemployed. Arising out of this relationship, the first named applicant gave birth to twins, the two minor applicants, on the 28 ^th March, 2009. The second named applicant is the father of the two children. The father and the two children are Irish citizens. The first and second named applicants married in Galway on the 23 ^rd April, 2009. On the 22 ^nd May, 2009, the Refugee Legal Service was instructed to apply to the respondent under s. 3(11) of the above Act of 1999 to revoke the deportation order on the basis of these changes in the first named applicant's personal circumstances namely, the birth of the twins and her marriage to an Irish citizen. Simultaneously, an application was made to the respondent for permission to remain and reside in the State on the basis of that parentage. On the 27 ^th August, 2009, the Minister refused to consider the application for permission to reside because of the existence of the deportation order. By letter of the 14 ^th September, 2009, the Repatriation Unit of the Irish Naturalisation and Immigration Service (INIS) informed the first named applicant that the request for revocation had been considered but refused. The letter enclosed a memorandum setting out the consideration of the application for the purpose of s. 3(11) and containing, in effect, the Minister's reasons for the decision.

7 7. On the 21 ^st September, 2009, judicial review proceedings (2009 No. 969 J.R.) were commenced by way of challenge to that refusal decision. The proceeding was subsequently unilaterally withdrawn, apparently in favour of making a new application for revocation. That new application to revoke was made to the respondent on the 20 ^th December, 2010, and is the subject of the present Contested Decision. The initial application of the 20 ^th December, 2010, was later supplemented by further representations forwarded to the respondent by letters of the 7 ^th, 10 ^th, 21 ^st January, and 2nd February 2011.

8 8. The difficulty faced by the present application for leave is essentially that the facility for revocation of a deportation order in s. 3(11) does not have as its legislative purpose the repeated review or reopening of an earlier decision to revoke or of the decision to deport itself. It is well settled that the grounds upon which the High Court can be required to intervene to review a revocation refusal are extremely limited. An application to revoke a deportation order is necessarily predicated upon the fact that a valid deportation order is in existence and an application under subs. (11) is not a means of challenging the reasons given for the original decision to deport or the grounds upon which it was based.

9 9. In A.O.D. v. Minister for Justice, Equality and Law Reform [2006] I.E.H.C. 140, O'Neill J. summarised the position in this regard:-

"It is clear that the nature and extent of the...