I (K) v Min for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 22 February 2011
• Neutral Citation: [2011] IEHC 66
• Court: High Court
• Date: 22 February 2011

[2011] IEHC 66

THE HIGH COURT

[No. 548 J.R./2010]

I (K) v Min for Justice

BETWEEN

K.I.

APPLICANT

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)

ROBERTSON v GOVERNOR OF DOCHAS CENTRE UNREP HOGAN 25.1.2011 2011 IEHC 24

CONSTITUTION ART 41

CONSTITUTION ART 42

G v BORD UCHTALA 1980 IR 32

H (J), IN RE 1985 IR 375

N v HEALTH SERVICE EXECUTIVE 2006 4 IR 470

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

OSHEKU v IRELAND 1986 IR 733

OSAYANDE & LOBE v MIN FOR JUSTICE 2003 1 IR 1

ALLI & ASIBOR v MIN FOR JUSTICE & ORS UNREP CLARK 02.12.2009 2009/3/608 2009 IEHC 595

IMMIGRATION ACT 1999 S3

REFUGEE ACT 1996 S11

U (M A) & ORS (A MINOR) v MIN FOR JUSTICE UNREP HOGAN 13.12.2010 2010 IEHC 492

IMMIGRATION ACT 1999 S3(11)

BUCKLEY v AG 1950 IR 67

OFOBUIKE (A MINOR) & ORS v MIN FOR JUSTICE & ORS UNREP COOKE 13.01.2010 2010 IEHC 89

O (A N) v MIN FOR JUSTICE 2010 2 IR 144

IRISH TRUST BANK LTD v CENTRAL BANK OF IRELAND 1976 ILRM 50

WORLDPORT IRL LTD (IN LIQUIDATION), IN RE UNREP CLARKE 16.6.2005 2005/58/12287 2005 IEHC 189

H (P) v IRELAND 2006 2 IR 540

IMMIGRATION

Deportation

Family rights - Father of citizen child - Mother residing in State with permission to remain - Constitutional right of child to company and care of parents - Practical effect of deportation - Deprivation of meaningful contact with father - Ministerial obligation to give consideration to relevant facts and circumstances - Ministerial obligation to identify substantial reason for deportation - Whether decision disproportionate - Whether substantial grounds for review - G v An Bord Uchtala [1980] IR 32; Re JH [1985] IR 375; N v Health Service Executive [2006] IESC 60; [2005] 4 IR 470; Oguekwe v Minister for Justice, Equality and Law Reform [2008] IESC 25, [2008] 3 IR 795; Osheku v Ireland [1986] IR 733; AO and DL v Minister for Justice [2003] 1 IR 1; Alli v Minister for Justice, Equality and Law Reform [2009] IEHC 595, (Unrep, Clark J, 2/12/2009); U(M A) v Minister for Justice, Equality and Law Reform (No 1) [2010] IEHC 492, (Unrep, Hogan J, 13/12/2010); Buckley v Attorney General [1950] IR 67; Ofobuike v Minister for Justice, Equality and Law Reform [2010] IEHC 89, (Unrep, Cooke J, 13/1/2010); O(AN) v Minister for Justice, Equality and Law Reform [2009] IEHC 448, (Unrep, Cooke J, 14/10/2009); Irish Trust Bank Ltd v Central Bank of Ireland [1976] ILRM 50; Re Worldport Ltd [2005] IEHC 189, (Unrep, Clarke J, 16/6/2005) and PH v Ireland [2006] IEHC 40, [2006] 2 IR 540 considered - Leave refused (2010/548JR - Hogan J - 22/2/2011) [2011] IEHC 66

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

Facts: The applicant was a Nigerian citizen who was the father of three children, the last of whom was an Irish citizen and whose wife was expecting a further child, also if born, an Irish citizen. His wife had received permission to stay pursuant to the Irish born Child Scheme. He had applied for asylum which was refused and he sought to challenge by way of judicial review his deportation. The issue arose as to the application of existing caselaw of the Superior Courts, whether the family would be irrevocably broken up by the decision to deport the applicant and whether substantial grounds for judicial review had been established pursuant to the Illegal immigrants (Trafficking) Act 2000. The Court had to consider a body of caselaw which permitted the deportation of one of a family unit, as sanctioned by the Supreme Court.

Held by Hogan J. that the Court felt bound by existing caselaw which was recent and where the issues were fully argued. It could not be said that the Minister did not give full consideration to all relevant facts and circumstances. It was not disproportionate for the Minister to so act in all the circumstances. The Court thus felt constrained to hold that the applicants had not established substantial grounds within the meaning of s. 5(2) of the Act of 2000 which would warrant the grant of leave to apply for judicial review.

Reporter: E.F.

1 1. This application for leave to apply for judicial review raises once again issues which have troubled the courts for the best part of a decade. The applicant is a Nigerian citizen who arrived here in December, 2008. He is the father of three children, the last of whom is an Irish citizen by virtue of being born here in August, 2004. His wife has permission to remain in the State by virtue of what has come to be known as the Irish Born Child Scheme 05. Ms. I. is presently expecting a child next month which child, if born, will also be an Irish citizen.

2 2. Mr. I applied for asylum upon his arrival, but this was refused by the Office of Refugee Applications Commissioner in December, 2008. This decision was affirmed by the Refugee Appeals Tribunal in February, 2009. An application for subsidiary protection was refused by the Minister in March, 2010. The Minister subsequently made a deportation order on 1 ^st April, 2010. It is the validity of this order which is under challenge in these proceedings and I am now called upon to consider whether the applicants have established substantial grounds within the meaning of s. 5(2) of the Illegal Immigrants (Trafficking) Act 2000 ("the 2000 Act") such as would justify the grant of leave to apply for judicial review.

3 3. Mr. I had previously applied in November, 2006 to our Embassy in Abuja for a visa to travel here to join his wife. This application was refused having regard to the existing policy of not granting a visa to an applicant whose spouse was resident here under the IBC 05 Scheme.

4 4. Since his arrival in the State, Mr. I appears to have been a dutiful father who has looked after the educational and other needs of his children in an impressive fashion. There are various testimonials from teachers and others to the effect that Mr. I. regularly brings the children to school and assists them with homework. Ms. I. has worked in a variety of capacities during this period - ranging from care worker to a retail assistant - and there is little doubt but that Mr. I's presence in the home has facilitated her doing this.

5 5. There is also little doubt but that Mr. I has abused the asylum system. At his interview with the Office of Refugee Applications Commissioner in December, 2008 he candidly agreed that the only reason he came to Ireland was to be with his wife and children. He added that his wife had been threatening to divorce him and "his children have been asking where I am".

6 6. All of this points to the fact that Mr. I came to Ireland to pursue a better life than would have been available to him and his family had they remained in Nigeria. For all our present difficulties, the standard of living in Ireland is incomparably higher than that prevailing in Nigeria. Given that S. is an Irish citizen and given further that Ms. I and the other two children were the right to remain here by virtue of the IBC Scheme, it is unsurprising that Ms. I would elect to remain in the State or that both Mr. and Ms. I considered that it was in the best interests of all the children that they would be reared in Ireland, rather than Nigeria. Few would disagree with that assertion. Mr. I further states that Ms. I has a "fear that our daughters will be subjected to female genital multilation" against their wishes if she returns to Nigeria with them. It is equally understandable that Mr. I. would have sought to come to Ireland to join his family and that his family wanted him in turn to join them in the country in which they had settled.

7 7. Mr. I. was not, however, entitled to circumvent our asylum and immigration laws for this purpose. As I ventured to suggest in my own judgment in Robertson v. Governor of the Dochas Centre [2011] IEHC 000, the principle that legislation should not be interpreted in a fashion as would allow a person to profit from their own wrong is one of general application. If one looked at this issue simply from the standpoint of Mr. I. and from that standpoint alone, then it is plain that any challenge to the validity of the deportation order would have to fail in limine in view of his calculated abuse of the asylum system.

8 8. If only life were that simple. Irrespective of the fact that Mr. I. did abuse the asylum system, the other relevant consideration here is that the I. family have being living here for well nigh seven years. S. will be seven in August, 2004 and she has lived here all her life. As S. is an Irish citizen she has the right to live here and to grow up as a fully fledged member of the Irish nation. She is, moreover, oblivious to the conduct of her father and, in principle, at any rate, the law should, if possible, seek to shield her from the consequences of her father's manipulation of the immigration system.

9 9. A further consideration is that it is perfectly obvious from the language of Article 41 and Article 42 of the Constitution that S. has the right to the care and company of her parents, a point which, in any event, is attested by four powerful Supreme Court decisions, G. v. An Bord Uchtála [1980] I.R. 32, Re JH [1985] I.R. 375, N. v. Health Service Executive [2006] IESC 60, [2006] 4 I.R. 470 and Oguekwe v. Minister for Justice, Equality and Law Reform [2008] IESC 25, [2008] 3 I.R. 795.

10 10. Of course, it is plain from a series of cases such as Osheku v. Ireland [1986] I.R. 733, AO and DL v. Minister for Justice [2003] IESC 3, [2003] 1 I.R. 1 and Alli v. Minister for Justice, Equality and Law Reform [2009] IEHC 595 that these rights are not absolute and must yield in appropriate cases to the State's legitimate interest in controlling its own borders and ensuring the integrity of the asylum system. That system would, of course, be...