I (E P) and Others v Min for Justice

• Jurisdiction: Ireland
• Judge: MR JUSTICE HEDIGAN,Mr. Justice Brian McGovern
• Judgment Date: 27 January 2009
• Neutral Citation: [2008] IEHC 358
• Court: High Court
• Date: 27 January 2009

[2008] IEHC 358

THE HIGH COURT

[303 JR/2008]

I (E P) & Ors v Min for Justice

BETWEEN

E. P. I. AND N. A. I. (A MINOR, SUING BY HER MOTHER AND NEXT FRIEND, E. P. I.) AND J. T. I. (A MINOR, SUING BY HER MOTHER AND NEXT FRIEND, E. P. I.)

APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

REFUGEE ACT 1996 S13

IMMIGRATION ACT 1999 S3

REFUGEE ACT 1996 S5

I & ORS v MIN FOR JUSTICE UNREP HIGH FEENEY 30.1.2008 2008 IEHC 23

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 4(2)

H (N) & D (T) v MIN FOR JUSTICE UNREP HIGH FEENEY 27.7.2007 2007/27/5589

GAVRYLYUK & BENSAADA v MIN FOR JUSTICE HIGH BIRMINGHAM 14.10.2008 2008 IEHC 321

CAMPUS OIL LTD v MIN FOR INDUSTRY (NO 2) 1983 1 IR 88

AMERICAN CYANAMID CO v ETHICON LTD (NO 1) 1975 AC 396

FILMS ROVER INTERNATIONAL LTD v CANNON FILM SALES LTD 1987 1 WLR 670

CAYNE v GLOBAL NATURAL RESOURCES PLC 1984 1 ALL ER 225

EDUCATIONAL CO OF IRELAND LTD v FITZPATRICK 1961 IR 323

SPUC v GROGAN 1989 1 IR 753

LEWIS JUDICIAL REMEDIES IN PUBLIC LAW 3ED 2004 288

Y (AM) v MIN FOR JUSTICE UNREP HIGH HEDIGAN 9.10.2008 2008 IEHC 306

O (O) & ORS v MIN FOR JUSTICE & GOVERNOR OF CLOVERHILL PRISON HIGH PEART 3.7.2007 2007/45/9532

FOLEY v SUNDAY NEWSPAPERS LTD 2005 1 IR 88

C (L) v MIN FOR JUSTICE 2007 2 IR 133

KOUAYPE v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (EAMES) UNREP HIGH CLARKE 9.11.2005 2005/35/7364

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

AKUJOBI (A MINOR) & ANOR v MIN FOR JUSTICE UNREP HIGH MACMENAMIN 12.1.2007 2007/3/555

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

G v DPP 1994 1 IR 374

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)

OSAYANDE & LOBE v MIN FOR JUSTICE 2003 1 IR 1

C (L) v MIN FOR JUSTICE 2007 2 IR 133

EUROPEAN COURT OF HUMAN RIGHTS RULES OF COURT 2007 RULE 39

INJUNCTIONS

Interlocutory injunction

Deportation order - Applicant to raise fair question to be tried - Balance of convenience - Whether fair question to be tried flows from grant of leave to apply for judicial review - Whether evidence of irreparable loss - Whether balance of convenience favoured enforcement of deportation order - Subsidiary protection application - Additional evidence submitted after order made - Respondent failing to give undertaking not to deport pending determination of proceedings - Whether interlocutory injunction should be granted when valid deportation order in existence - Campus Oil v Minister for Industry (No 2) [1983] 1 IR 88 applied and G v DPP [1994] 1 IR 374 considered - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006), reg 4(2) - Injunction refused (2008/303JR - Hedigan J - 18/11/2008) [2008] IEHC 358

I(EP) v Minister for Justice

1 The applicants are seeking an interlocutory injunction preventing their deportation pending the determination of the within judicial review proceedings.

Factual Background

2 The first named applicant is the mother of the second and third named applicants; each of the applicants is a national of Nigeria. The first named applicant gave birth to a daughter, Elizabeth, in 1993. Under pressure from her husband's family, she allowed the baby to be genitally circumcised. The baby died in 1994 as a result of blood loss that resulted from the female genital mutilation (FGM) that was carried out. After the second and third named applicants were born in 2000 and 2002, respectively, the first named applicant and her husband were, again, pressured to have the girls circumcised. Fearing that what happened to baby Elizabeth would also befall the second and third named applicants, the applicants fled Nigeria.

Procedural Background

3 Upon arrival in the State on 20 ^th January, 2005, the first named applicant applied for asylum on behalf of herself and her two daughters by filling out an ASY-1 form. Thereafter, she filled out the relevant questionnaire and submitted it to the Office of the Refugee Commissioner (ORAC) and she was invited for interview with an authorised ORAC officer on 18 ^th February, 2005. The basis of her application for asylum was that the second and third named applicants were at risk of having FGM perpetrated against them if they were returned to Nigeria.

4 The ORAC officer compiled a report, dated 24 ^th February, 2005, in compliance with section 13 of the Refugee Act 1996. In the section 13 report, the first named applicant's account of events was not disbelieved, nor was her credibility impeached, but the officer concluded that the applicants' subjective fear that the children would be subjected to FGM if returned to Nigeria was not objectively well-founded. The officer therefore recommended to the Minister for Justice, Equality and Law Reform ("the Minister") that the applicants should not be declared refugees.

5 The applicants appealed to the Refugee Appeals Tribunal (RAT) and an oral hearing was held on 28 ^th April, 2005. The applicant was represented by counsel at the hearing. By decision dated 22 ^nd June, 2005, the Tribunal Member affirmed the earlier ORAC recommendation. The applicants did not seek to challenge either the ORAC or RAT decision by way of judicial review.

6 On 13 ^th September, 2005, the applicants were notified that the Minister was proposing to deport them and they were invited to make applications for leave to remain in the State. Representations were made on behalf of each of the applicants by the Refugee Legal Service (RLS). On 17 ^th and 18 ^th November, 2005, the applicants' file was examined by officers of the Minister's Department under section 3 of the Immigration Act 1999 and section 5 of the Refugee Act 1996. In the departmental analysis, dated 21 ^st November, 2005, it was recommended that deportation orders be signed in respect of each of the applicants. The Minister signed three deportation orders on 23 ^rd November, 2005. That decision was communicated to the applicants by letter dated 29 ^th November, 2005, and the applicants were directed to present to the Garda National Immigration Bureau (GNIB) on 5 ^th December, 2005.

7 By letters dated 17 ^th and 29 ^th November, 2005 (received on 30 ^th November, 2005), further representations were made to the Minister on behalf of the applicants. The applicants' file was informally reconsidered and a briefing note, dated 8 ^thDecember, 2005, was prepared. The conclusion reached in that briefing note remained the same as the original recommendation to make deportation orders.

8 The RLS wrote to the GNIB on 3 ^rd December, 2005, seeking additional time within which to consider the case. The applicants failed to present to the GNIB on 5 ^thDecember, 2005 and were classed as evaders. When, three days later, a member of the GNIB attended at the applicants' residence in Sligo, the first named applicant went "into hiding". Her daughters were taken into care; they were later made the subject of interim care orders, requiring them to be maintained in the care of the Health Service Executive (HSE).

9 The first named applicant was apprehended on 12 ^th January, 2006 and was detained in Mountjoy Women's Prison. The following day, judicial review proceedings were brought challenging the validity of the deportation orders. On 23 ^rdJanuary, 2006, conditional release was granted in respect of the first named applicant and the Minister gave an undertaking not to deport the applicants pending the determination of the proceedings. In November, 2006, McKechnie J. granted an extension of time and leave to apply for judicial review. Thereafter, at the three-day substantive hearing before Feeney J., the applicants argued that the manner in which the Minister had analysed their file was in breach of fair procedures owing to the Minister's alleged failure to identify reasons why none of the applicants were at risk of torture if returned to Nigeria, and in breach of his obligations under section 3 of the European Convention on Human Rights, among other provisions, by failing to obtain and assess "additional material" in respect of the alleged risk of torture.

10 On 30 ^th January, 2008, Feeney J delivered his judgment refusing the relief sought (see I & Ors v The Minister for Justice, Equality and Law Reform [2008] IEHC 23). Feeney J. pointed out that the applicants' fear of FGM had been fully considered during the statutory asylum process and found to have no objective basis. He noted that in cases where the matters that are put before the Minister at the deportation order stage have already been the subject of a decision to refuse a declaration of refugee status, the obligations of the Minister under the doctrine of fair procedures are necessarily more limited than those which must be followed by the decision-makers under the statutory asylum process. Feeney J. found that there was no obligation on the Minister to identify any reasons giving rise to his decision to deport. He also found that the caselaw upon which the applicants sought to rely in respect of the obligation to obtain and assess "additional material" was of no application and that the assessment of an applicant's claim is done by means of specified statutory provisions and "not by means of this Court embarking on an assessment of new material placed before the Court".

11 On 13 ^th March, 2008, Feeney J. refused to grant a certificate of leave to appeal to the Supreme Court. Arising from his decision of 30 ^th January, 2008, an application has been made to the European Court of Human Rights.

The Applications for Subsidiary Protection

12 The first named applicant made an application for subsidiary protection to the Minister on behalf of herself and her daughters on 3 ^rd March, 2008. Some 33 documents were submitted in support of that application, including affidavits, birth, marriage and death certificates,...