I (E) & I (B) (A Minor) v Min for Justice and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Ryan
• Judgment Date: 15 October 2010
• Neutral Citation: [2010] IEHC 509
• Date: 15 October 2010
• Court: High Court

[2010] IEHC 509

THE HIGH COURT

[No. 286 & 272 J.R./2010]

I (E) & I (B) (A Minor) v Min for Justice & Ors

JUDICIAL REVIEW

IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000, THE REFUGEE ACT 1996 AS AMENDED AND IN THE MATTER OF APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW

BETWEEN:

E.I. AND B.I. (A MINOR SUING THROUGH HIS MOTHER AND NEXT FRIEND E.I.)

APPLICANTS

AND

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

RESPONDENTS

AND

THE HUMAN RIGHTS COMMISSION

NOTICE PARTY

MEADOWS v MIN FOR JUSTICE & ORS 2010 2 IR 701 2011 2 ILRM 157 2010 IESC 3

REFUGEE ACT 1996 S5

D (A MINOR) & AJIBOLA v REFUGEE APPLICATIONS CMSR & ORS UNREP COOKE 19.1.2010 2010/10/2225 2010 IEHC 172

EEC DIR 2005/85 ART 23

UGBO & BUCKLEY v MIN FOR JUSTICE & ORS UNREP HANNA 5.3.2010 2010/50/12689 2010 IEHC 80

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)

K (G) & ORS v MIN FOR JUSTICE & ORS 2002 1 ILRM 81 2001/13/3546

S (C) & ORS v MIN FOR JUSTICE & AG 2005 1 IR 343 2005 1 ILRM 81 2004/45/10305 2004 IESC 44

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006

IMMIGRATION

Deportation

Refoulement - Reasons - Prioritisation of applications - Decision stating refoulement not found to be an issue in case - Statement capable of multiple interpretations - Whether cases unlawfully prioritised - Whether respondent required to give reasons as to why no risk of refoulement only where claim or factual material to ground risk advanced - Whether threat in relation to refoulement advanced - Whether decision conveys rationale behind it - Delay - K(G) v Minister for Justice [2002] 1 ILRM 81 and S(C) v Minister for Justice [2004] IESC 44 [2005] 1 IR 343 applied; Meadows v Minister for Justice [2010] IESC 3 [2010] 2 IR 701 and Ugbo v Minister for Justice[2010] IEHC 80 (Unrep, Hanna J, 5/3/2010) followed; D (a minor) v Refugee Applications Commissioner [2010] IEHC 172 (Unrep, Cooke J, 19/10/2010) distinguished - Refugee Act 1996 (No 17) , s 5 - Application refused (2010/286JR and 2010/272JR - Ryan J - 15/10/2010) [2010] IEHC 509

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

Facts The applicants were a mother and child seeking judicial review of deportation orders made in 2005 and 2010 respectively. The first applicant’s application for asylum, having been prioritised without objection, had been refused notwithstanding her clam that she was a member of a particular social group that was at risk of genital mutilation (FGM). This refusal by the Refugee Applications Commissioner was later confirmed by the Refugee Appeals Tribunal and a deportation order was accordingly issued. The first applicant had issued High Court proceedings in 2007 in relation to an application for subsidiary protection. The second applicant, the first applicant’s son, was born in Ireland in 2005. After a similar procedural history to the first applicant’s, he had been served with a deportation order in 2010. The applicants submitted that the respondent had failed to consider their claims in accordance with the Supreme Court decision of Meadows v the Minister for Justice [2010] IESC 3.

Held by Ryan J in refusing the first applicant's application but allowing an extension of time for the second applicant:

1. There were a number of important distinctions between the case before the court and D (Minor) v Refugee Applications Tribunal [2010] IEHC 172, which had been cited by the applicants. The first applicant’s deportation order predated the coming into force of the Procedures Directive (Council Directive 2005/85/EC), which therefore was not relevant. The D. case did not concern deportation orders, and leave to challenge the Refugee Applications Commissioner decision in that case had been refused to an applicant with a similar procedural history to the second applicant. The D. case therefore was of no bearing to the case before the court.

2. The Meadows decision was considered to be not essentially about form but about substance. The current case was to be examined in its proper factual context.

3. In regard to the issue of delay, a period of over 4 years had elapsed between the issue of the deportation order made in relation to the first applicant and the issue of the current proceedings. The reasons submitted in explanation for the delay were considered to be weak and were therefore not accepted.

Reporter: BD

1 JUDGMENT of Mr. Justice Ryan delivered the 15th October 2010

2 1. This is an application for leave to apply for judicial review of deportation orders made by the first-named respondent in respect of the applicants dated 23 November 2005 and 23 February 2010. The hearing took place on 6-7 October 2010. Mr Hugo Hynes S.C. appeared with Mr James Healy B.L. for the applicants and Ms Siobhán Stack B.L. appeared for the respondents. I propose to deal with the merits of the case before considering the question of delay.

3 2. The first applicant, a Nigerian national, claimed asylum in this State on 9 August 2004 on the basis that she was a member of a particular social group, namely, a person at risk of female genital mutilation (FGM) and as a person trafficked into Ireland for sexual exploitation. Her application was prioritised, without objection from the applicant, and on 15 September of the same year, the Refugee Applications Commissioner (RAC) recommended that she should not be declared a refugee. The Refugee Appeals Tribunal (RAT) affirmed this recommendation on 11 July 2005. A deportation order was made by the first respondent ('the Minister') in respect of the first applicant on 23 November 2005. In June 2007, the applicant instituted High Court proceedings seeking to compel the Minister to accept and process her application for subsidiary protection. An application for subsidiary protection was made on 15 June 2007 and refused on 17 July 2007. The applicant was arrested on 16 June 2009 for failing to present as required. She was released when she stated she wished to make an asylum application on behalf of her son.

4 3. The second applicant is the son of the first applicant and was born in this State on 19 April 2005. Asylum was claimed on his behalf by his mother on 7 July 2009. This application was also prioritised, again without objection from the first applicant. His claim was based entirely on his mother's alleged experiences in Nigeria and Ireland. On 24 July 2009, the RAC recommended that he should not be declared a refugee. On 11 November 2009 the RAT affirmed this negative recommendation. An application for subsidiary protection was made on 14 December 2009 and was determined on 8 February 2010. On 23 February 2010, the second applicant was notified that the Minister had made a deportation order in respect of him.

5 4. The applicants' central claim is that the respondent failed to consider their claims in accordance with the Supreme Court decision in Meadows v MJELR [2010] IESC 3 which criticised a concluding sentence used in a report accompanying the deportation order that "Refoulement was not found to be an issue in this case." Murray C.J. held that this phrase was capable of multiple interpretations which meant it was not possible to discern from the decision the rationale upon which the Minister decided that no risk of refoulement arose. In the instant case, the letter notifying the first applicant of her intended deportation used the same phrase that was criticised in Me...