Y (H L) and Others v Min for Justice & AG

• Jurisdiction: Ireland
• Judge: Mr. Justice Charleton
• Judgment Date: 13 February 2009
• Neutral Citation: [2009] IEHC 96
• Court: High Court
• Date: 13 February 2009

[2009] IEHC 96

THE HIGH COURT

[No. 1305 J.R./2008]

Y (H L) & Ors v Min for Justice & AG

JUDICIAL REVIEW

BETWEEN

H.L.Y., N.J. AND P.Y.

APPLICANTS

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND THE ATTORNEY GENERAL

RESPONDENTS

AND

THE HUMAN RIGHTS COMMISSION

NOTICE PARTY

K (M) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP MCCARTHY 31.7.2008 2008 IEHC 294

N (BJ) v MIN FOR JUSTICE & ORS UNREP MCCARTHY 18.1.2008 2008 IEHC 8

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

VILVARAJAH v UNITED KINGDOM 1992 14 EHRR 248

SOERING v UNITED KINGDOM 1989 11 EHRR 439

N (FR) & ORS v MIN FOR JUSTICE & ORS UNREP CHARLETON 24.4.2008 2008 IEHC 107

G v DPP & KIRBY 1994 1 IR 374 1994/3/724

OGUEKWE & ORS v MIN FOR JUSTICE UNREP DENHAM 1.5.2008 2008 IESC 25

CONSTITUTION ART 40

IMMIGRATION

Deportation

Leave - Genuine family unit - Order in respect of father of Irish citizen child - Substantial grounds - Arguable grounds - Anxious scrutiny - Reasonableness of administrative decision - Irish citizen child losing rights if moving to China - Minor criminal offence committed - Whether decision to deport reasonable - Whether decision to deport proportionate - Whether wrong test of insurmountable obstacle to family living together in country of origin applied - K v Refugee Appeals Tribunal [2008] IEHC 294, (Unrep, McCarthy J, 31/7/2008); N v Minister for Justice [2008] IEHC 8, (Unrep, McCarthy J, 18/1/2008); Meadows v Minister for Justice (Unrep, Gilligan J, 19/11/2003); Vilvarajah v United Kingdom (1992) 14 EHRR 248; Soering v United Kingdom (1989) 11 EHRR 439; N (FR) v Minister for Justice [2008] IEHC 107, (Unrep, Charleton J, 24/4/2008) considered - G v Director of Public Prosecutions [1994] 1 IR 374 not applied - Oguekwe v Minister for Justice [2008] IESC 25, (Unrep, SC, 1/5/2008) applied - Constitution of Ireland 1937, Article 40 - European Convention on Human Rights, arts 8 & 13 - Leave granted (2008/1350JR- Charleton J - 13/2/2009) [2009] IEHC 96

Y (HL) v Minister for Justice

1 Mr. Justice Charleton delivered on the 13th day of February, 2009

2 1. This is an application for leave to apply for judicial review and, therefore, the test that I am applying, in terms of one part of this application, is whether there are substantial grounds, ones that are weighty, not merely trivial. And secondly, in terms of the second part of this application, whether there are arguable grounds in terms of the facts as they are stated. The second part concerns an ordinary judicial review which is not caught by the statutory requirement to show substantial grounds before leave may be given.

3 2. There are three applicants; H.L.Y., N.J. and P.Y., all of whom are of Chinese parentage. H.L.Y., the first applicant, is an Irish girl born here on 7 ^th October, 2006 with citizenship of Ireland. She has been referred to throughout the course of the papers as an Irish citizen child. Though both her parents are Chinese, the first applicant became a citizen by statutory qualification on her birth. It is agreed between the parties that she is an Irish citizen and I do not have to consider how or why she qualified further. She is an Irish person and there is no qualification to that. She is simply Irish and entitled as a matter of law to be treated as such. Her mother, N.J., is 27 years of age and her father, P.Y., is 31 years of age. Ms. J. has been here since 2002 and has been working lawfully. Mr. Y. has been here since 2000 and his situation has been irregular since about 2004. His problem, in that regard, was that stupidly, as he says himself, but I think consciously given his plea of guilty, he deceived the Garda authorities in terms of his status by claiming he was studying English at a place where he clearly wasn't studying English. He did that in order to work but apart from that, in my view, very minor crime, he has been well behaved both here and in his home city of Dalian, insofar as that can be ascertained from police reports.

4 3. On 10 ^th August, 2005, it was proposed to deport Mr. Y.. On 7 ^th October, 2006, H.L., his daughter, was born, the mother being the second named applicant. She is an Irish girl. On 15 ^th February, 2007, he informed the Department of Justice of the birth of his daughter and asked for permission to stay. This information was ignored by the Department, due to a mistake. On 23 ^rd April, 2007, a deportation letter was sent to Mr. Y. and he immediately sought to revoke it, having by that stage asked for assistance from a solicitor and perhaps from the Irish Refugee Council. In any event, he clearly got good assistance in the sense that the Department on 30 ^th April, 2007, revoked the deportation order. Then a number of letters were written by Mr. Y. to the Department asking whether or not he should apply for residence or whether he should ask for what is usually referred to as the section 3 consideration of deportation to be looked at again; in other words looking to stay in Ireland on humanitarian grounds. On 24 ^th July, 2007, Ms. J. applied for permission to stay. This was granted on the basis of her being the mother of an Irish child and was to continue to 2011. On the basis of the submissions that I have heard, I understand that that permission will be rolled over from time to time as long it is necessary for her to be here for the purpose of taking care of the young Irish girl and bringing her up. On 4 ^th June, 2008, representations were made to the Department by the Immigrant Council of Ireland on behalf of Mr. Y.. These were followed up by a reminder on 13 ^th August and then on 16 ^th October a decision was made by the respondent Minister to deport him. It is as a result of that decision that all of these proceedings have been launched, effectively in two parts.

5 4. I want to deal with the second part first because that seems to me to be the right place to start. My conclusion on that is based upon the view that I have formed that decisions taken which have a consequence of deporting people from this country and sending them back to places where their human rights are less well protected are ones which the Court is required to look at on the basis of a heightened or anxious level of scrutiny. That is the decision I have made. I note that McCarthy J. (see K v. Refugee Appeals Tribunal & Anor. [2008] IEHC 294 and N. v. Minister for Justice, Equality and Law & Ors. [2008] IEHC 8), for one, disagrees with me, but that is my decision and that is the basis upon which I approach the...