I (E) and Others (Minors) v Min for Justice

• Jurisdiction: Ireland
• Judge: MR JUSTICE E. SMYTH,
• Judgment Date: 04 February 2011
• Neutral Citation: [2011] IEHC 148
• Court: High Court
• Date: 04 February 2011

[2011] IEHC 148

THE HIGH COURT

[No. 1435 J.R./2008]

I (E) & Ors (Minors) v Min for Justice

JUDICIAL REVIEW

BETWEEN:

E. I., O.I., & R. E. I. (MINORS SUING THROUGH THEIR MOTHER AND NEXT FRIEND F. I.) F.I. AND A. I.

APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

IMMIGRATION ACT 1999 S3(11)

CONSTITUTION ART 41

CONSTITUTION ART 42

N v HEALTH SERVICES EXECUTIVE 2006 4 IR 470

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

DIMBO v MIN FOR JUSTICE UNREP FINLAY GEOGHEGAN 14.11.2006 2006/15/3094 2006 IEHC 344

CONSTITUTION ART 40.3

MEADOWS v MIN FOR JUSTICE & ORS UNREP SUPREME 21.1.2010 2010 IESC 3

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8

I (H) v MIN FOR JUSTICE UNREP COOKE 23.11.2010 2010 IEHC 422

A (M) v MIN FOR JUSTICE UNREP HIGH 17.12.2009 (EX TEMPORE)

O (A) & ORS v MIN FOR JUSTICE 2003 1 IR 1

IMMIGRATION ACT 1999 S3(6)

HURLEY v MIN FOR JUSTICE UNREP ?

O'B (J) v RESIDENTIAL INSTITUTIONS REDRESS BOARD UNREP O'KEEFFE 24.6.2009 2009/43/10809 2009 IEHC 284

RESIDENTIAL INSTITUTIONS REDRESS ACT 2002 S8(2)

G v DPP 1994 1 IR 374

O (S) & ORS v MIN FOR JUSTICE UNREP 1.10.2010 2010 IEHC 343

IMMIGRATION LAW

Deportation

Family rights - Irish citizen children - Rights and best interests of children - First applicant's emotional and behavioural difficulties - Need for stable family life - Pivotal role of applicant in family life - Exceptional circumstances - Whether arguable case - Whether respondent misdirected himself as to constitutional rights of family - Whether respondent's decision disproportionate and unreasonable - Whether reasonable to expect other applicants to relocate to Nigeria - Whether exceptional circumstances - Whether more detailed analysis required - N v Health Service Executive [2006] IESC 60, [2006] 4 IR 374; Oguekwe v Minister for Justice, Equality and Law Reform [2008] IESC 25, [2008] 3 IR 795; Dimbo v Minister for Justice, Equality and Law Reform [2008] IESC 26, (Unrep, SC, 1/5/2008); Meadows v Minister for Justice [2010] IESC 3, [2010] 2 IR 701; A(M) v Minister for Justice (Unrep, Cooke J, 17/12/2009); I(H) v Minister for Justice [2010] IEHC 422, (Unrep, Cooke J, 23/11/2010); O(A) v Minister for Justice [2003] 1 IR 1; O'B(J) v Residential Institutions Redress Board [2009] IEHC 284, (Unrep, O'Keeffe, 24/6/2009); O(S) v Minister for Justice [2010] IEHC 343, (Unrep, Cooke J, 1/10/2010); considered - Immigration Act 1999 (No 22), s 3(11) - Constitution of Ireland, 1937, Arts 40.3, 41 and 42 - European Convention on Human Rights, art 8 - Leave granted (2008/1435JR - Smyth J - 4/2/2011) [2011] IEHC 148

I(E) v Minister for Justice, Equality and Law Reform

Facts: The applicants sought leave to review a decision of the respondent to reject an application to revoke a deportation order. The fifth applicant, a national of Nigeria, was the father of the first three applicants, each of the children having Irish citizenship. The fifth applicant was arrested and detained in custody pursuant to an extradition warrant for sentencing for an offence committed in Germany previously. He contended that the fourth applicant, the children’s mother, suffered from Autoimmune Hepatitis and submitted previously unconsidered country of origin information, and a report on his own disability and emotional and behavioural issues.

It was contended that the respondent had failed to consider the constitutional rights of the applicants appropriately and had also failed to consider the possibilities for special care and education in Ireland of a child with disabilities in contrast with those in Nigeria.

Held by Smyth J. that the appropriate test to be applied in an application for leave to appeal against a decision to not revoke a deportation order was to be found in G v DPP [1994] 1 IR 374. Having considered the submissions of counsel for the applicant, leave to apply for judicial review would be granted.

Reporter: E.F.

1 This is an application for leave to apply for judicial review of the decision of the Minister for Justice, Equality and Law Reform ('the Minister'), dated 3 September 2009, to reject an application under s.3(11) of the Immigration Act, 1999 to revoke a deportation order made in respect of the fifth applicant. The hearing took place on 11 - 12 January 2011. Mr. Saul Woolfson B.L. appeared for the applicants and Mr. Patrick O'Reilly B.L. appeared for the respondent.

Factual Background

2 The fifth applicant, a national of Nigeria, is the father of the first three applicants and husband of the fourth applicant, the children's mother. Each of the children is an Irish citizen and their mother, also a Nigerian national, has been granted long term residency in the State as the parent of citizen children. In 2002, the fifth applicant was granted permission to remain in the State for twelve months as the father of an Irish citizen. On 2 July 2003, he was arrested and detained in custody pursuant to an extradition warrant in respect of sentencing for an offence committed in Germany prior to his arrival in Ireland. He remained in custody until he was extradited to Germany in 2004. During his time in custody, his wife and children maintained contact with him through visits and regular telephone calls. On completion of his sentence in Germany, he travelled to Nigeria and unsuccessfully applied for a visa to Ireland. He returned to Ireland illegally in 2006. On 17 October 2008, the Minister notified the fifth applicant of his intention to make a deportation order in his respect.

3 The fifth applicant made an application pursuant to s.3(11) of the Immigration Act 1999 to have the deportation order revoked. The application set out the circumstances of the family unit and submitted a medical report, dated 29 October 2009, explaining that the fourth applicant suffers from Hepatitis Auto Immune. The application also included previously unconsidered country of origin information and a detailed report, dated 14 November 2008, advising of disability, emotional and behavioural difficulties of the first applicant. In correspondence supplementing the application, the applicants' solicitor submitted further country of origin information and a series of reports and documents outlining the difficulties experienced by the first applicant and the role of his father in his upbringing. These included a report from Barnardos, from July 2009, advising of the first applicant's progress and recommending that his home environment remains consistent and that he was benefiting from the support and commitment of both of his parents; a letter from the fourth applicant to the Minister dated 26 June 2009 explaining the effect of her own illness; a letter from the principal of the first applicant's school and; a letter from the Lucena Clinic confirming that the first applicant was waitlisted for assessment. By letter dated 7 September 2009, the Minister informed the fifth applicant that the application to revoke the deportation order had been rejected. It is this decision that is the subject of the present application.

Submissions

4 The applicants first submitted that the respondent breached the applicants' rights by misdirecting himself as to, and/or misunderstanding, the constitutional rights of the family based upon marriage under Articles 41 and 42 of the Constitution. It was submitted that the respondent did not consider, apply, or refer to, the constitutional presumption that the best interests of the child are found within the marital family, as emphasised by the Supreme Court in N v Health Service Executive [2006] IESC 60. The applicants claim that the respondent did not acknowledge the pivotal role of the father within the family and, in fact, drew unreasonable conclusions minimising his role and concluding his presence in the State is not necessary to provide care and support to his family. These conclusions included the respondent's reliance on periods the fifth applicant was in custody to conclude that, if he is deported, disruption of family life will have less of an impact than if he had not been absent previously; that due to this previous absence, his deportation would not have the same impact on his eldest son, the first applicant, that it would have if he had been present continually; that the family 'existed' without the fifth applicant's presence in the State and; that the fourth applicant will have access to the medical system and family support services in the State such that it is not necessary for her husband to be allowed reside here. Counsel on behalf of the applicants submitted that it is clear from Oguekwe v MJELR [2008] IESC 25 and Dimbo v MJELR [2008] IESC 26 that where the couple with citizen children are a married couple, the constitutional rights flowing from that status under Article 41 must be given distinct, meaningful consideration. It was argued that the respondent fundamentally failed to consider properly the constitutional rights of the married couple and the interference or likely interference in the marriage and the constitutional rights of the married couple consequent on a decision to proceed with deportation.

5 The applicants further submitted that in its consideration, the respondent failed to conduct a fair and balanced analysis of the personal rights of the Irish citizen children under Article 40.3 of the Constitution. It was claimed that the consideration of the applicants' constitutional rights was cursory in nature. The applicants argued that following Oguekwe, there was an obligation on the respondent to consider the children's welfare and to determine what was in their best interests before weighing their rights against the rights of the State. It was claimed that there was a failure to conduct a fair and proper inquiry in light of the imperative of protecting the Article...