I(P) (O) (P) O(O) (A Minor Suing by His Mother and Next Fried I(P) and O (H) (A Minor Suing by Her Mother and Next Fried I(P)

• Jurisdiction: Ireland
• Judge: MS JUSTICE CLARK,
• Judgment Date: 28 September 2010
• Neutral Citation: [2010] IEHC 368
• Court: High Court
• Date: 28 September 2010

[2010] IEHC 368

THE HIGH COURT

[No. 402 J.R./2009]

I (P) & Ors v Min for Justice & Ors

JUDICIAL REVIEW

BETWEEN

P. I., P. O., O.O. (A MINOR, SUING BY HIS MOTHER AND NEXT FRIEND P. I.) AND H.O. (A MINOR, SUING BY HER MOTHER AND NEXT FRIEND P. I.) [NIGERIA]

APPLICANTS

AND

THE MINISTER FOR JUSTICE AND LAW REFORM, REFUGEE APPEALS TRIBUNAL, ATTORNEY GENERAL AND IRELAND

RESPONDENTS

IMMIGRATION ACT 1999 S3(1)

IMMIGRATION ACT 1999 S3(2)(F)

REFUGEE ACT 1996 S17

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S11(1)

REFUGEE ACT 1996 S11(2)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5(1)

OLOO-OMEE v REFUGEE APPEALS TRIBUNAL UNREP MCCARTHY 31.3.2009 (EX TEMPORE)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

REFUGEE ACT 1996 S16(2)(A)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 2(1)

GORMAN v JUDGE MARTIN & ORS UNREP SUPREME 29.7.2005 2005/28/5734 2005 IESC 56

J & ORS v MIN FOR JUSTICE & ORS UNREP CLARK 9.10.2009 2009/28/6928 2009 IEHC 437

EMEKOBUM v MIN FOR JUSTICE UNREP SMYTH 18.7.2002 2002/10/2387

REFUGEE ACT 1996 S8(1)(A)(i)

Y (S) & Y (R) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP MCMAHON 13.1.2009 2009/58/14870 2009 IEHC 18

REFUGEE ACT 1996 S17(4)

N (A) & ORS v MIN FOR JUSTICE & CMSR OF AN GARDA SIOCHANA 2008 2 IR 48 2007/43/9091 2007 IESC 44

REFUGEE ACT 1996 S8

REFUGEE ACT 1996 S18(3)(B)(ii)

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS 1992 CHAP VI

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 184

CONVENTION RELATING TO THE STATUS OF REFUGEES 1951 (GENEVA CONVENTION)

PROTOCOL RELATING TO THE STATUS OF REFUGEES 1967

EEC DIR 2005/85 ART 12

INTERPRETATION ACT 2005 S5(1)

O (J) (A MINOR) v MIN FOR JUSTICE & REFUGEE APPLICATIONS CMSR UNREP COOKE 28.10.2009 2009/43/10673 2009 IEHC 478

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(3)(A)

IMMIGRATION LAW

Deportation

Irish born non-citizen child - Dependent - Asylum application never separately investigated - Born after recommendation in mother's case - Asylum claim made after recommendation in mother's case - Mother filled out ASY1 form - Whether within statutory definition - Whether respondent lacked power to make deportation order - Included as dependent in mother's application - Negative credibility finding in relation to mother - No separate interview conducted - No separate s 13 report - No objection raised - No fear specific to child put forward - Whether mandatory to conduct individual investigation of each child's circumstances - Whether mandatory to issue individual s 13 reports - Whether Tribunal had jurisdiction to include minor in an appeal where no investigation carried out by Commissioner - Whether applicants precluded from challenging decision of Tribunal and Ministerial decision - Absence of statutory procedure for accompanied dependent minor applicants - Whether consent by mother to inclusion of child's claim with her own amounted to waiver of investigation - Whether child an independent asylum seeker - Whether independent fear of persecution - O(J)(a minor) v Refugee Applications Commissioner [2009] IEHC 478 (Unrep, Cooke J, 28/10/2009) followed; SY and RY v Refugee Appeals Tribunal [2009] IEHC 18 (Unrep, McMahon J, 13/1/2009) approved; Oloo Omee v Refugee Appeals Tribunal (ex tempore, Unrep, McCarthy J, 31/3/2009), Gorman v Judge Martin [2005] IESC 56 (Unrep, Supreme Court, 29/7/2005), J v Minister for Justice [2009] IEHC 437 (Unrep, Clark J, 9/10/2009) and Emekobum (a minor) v Minister for Justice (Unrep, Smyth J, 18/7/2002) considered - Nwole v Minister for Justice [2007] IESC 44 (Unrep, Supreme Court, 18/10/2007) distinguished - Immigration Act 1999 (No 22), s 3 - Refugee Act 1996 (No 17), s 11 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Interpretation Act 2005 (No 23), s 5 - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006), reg 2(1) - Asylum Procedures Directive (Council Directive 2005/85/EEC) art 12 - Relief refused - (2009/402JR - Clark J - 28/09/2010) [2010] IEHC 368

I(P) v Minister for Justice

Facts: The first and second applicants were nationals of Nigeria and the parents of children born in Ireland. Neither child was an Irish citizen. The applicants contended that the couple's younger child, H., had not been refused asylum as her application had not been investigated as she was born after her mother's claim was investigated. The mother was legally represented at all stages and had applied for subsidiary protection and leave to remain for her children, which had been refused and the Minister had made deportation orders. The issue arose inter alia as to whether a single application for asylum could be made on behalf of a family solely relying on the parent's fear of persecution, where it was mandatory for each child's circumstances to be individually investigated and what individual appeal process each child had to go through.

Held by Clark J. that H. was a dependent child with no independent fear of persecution. The claim was investigated in accordance with statutory obligations and fair procedures was the family claim and H therefore was a person whose asylum application had been lawfully refused b the Minister. A joint asylum application could be made on behalf of members of a family relying solely on the parent's fear of persecution. The obligation on the Commissioner was to fairly and fully investigate that claim but there was no obligation or necessity for each dependent child's circumstances to be individually investigated by an officer. The relief sought would be refused.

Reporter: E.F.

1 1. The first and second applicants are nationals of Nigeria and are the parents of two children born in Ireland in 2005 and 2007 who are the third and fourth named applicants. Neither child is an Irish citizen. While the applicants originally challenged the legality of deportation orders made against both infants, the only issue before this Court is the legality of a deportation order made by the Minister for Justice and Law Reform ("the Minister") on the 12 ^th March 2009 against the fourth named applicant H.O.

2 2. Section 3(1) of the Immigration Act 1999 permits the Minister to make deportation orders against a failed asylum seeker who is described in s. 3(2) (f) as " a person whose application for asylum has been refused by the Minister".

3 3. The applicants contend that H.O. - otherwise H, the fourth applicant and the couple's younger child - was not such " a person whose application for asylum has been refused by the Minister" because her application was never separately investigated by the Refugee Applications Commissioner as she was born after her mother's claim had been investigated and a recommendation made in her case.

4 4. On the 31 ^st July 2009 Cooke J. in a written decision granted leave to H to challenge the deportation order made against her on the following ground:-

"The respondent Minister lacked power to make the said deportation order in respect of the fourth named applicant because the applicant was not a person whose application for asylum had been lawfully refused within the meaning of s, 3(2) (f) of the Immigration Act 1999, there having been no investigation of her claim to refugee status by the Commissioner and no report and recommendation in respect of her claim under s. 13 of the Refugee Act 1996."

Background

5 5. The first named applicant ("the mother") was pregnant when she arrived in the State in October 2005 and applied for asylum. She claimed to be an orphan and that her father's brother, who was a widower with one child, was raising her two siblings and herself in his household. The basis of her fear of persecution was that her uncle was forcing her to enter a polygamous marriage with a third party.

6 6. In December 2005 her son O (the third named applicant) was born in Ireland. O was brought by his mother to offices of the Refugee Applications Commissioner (ORAC) a few weeks later where literally as a baby in arms he was photographed, given an asylum application number and included as a dependent under his mother's asylum application. No individual fear was ever asserted on his behalf. His claim for asylum was joined to his mother's claim in relation to her fear of a forced marriage. Very material credibility issues emerged during the investigation of the mother's claim leading to a negative recommendation in relation to both mother and son by the Commissioner. An appeal in the names of mother and son O was lodged to the Refugee Appeals Tribunal in January 2006.

7 7. Later in 2006 and while the appeal was pending, P.O. ("the father") who is the second named applicant joined his girlfriend and son in Ireland and he too applied for asylum but on a completely different and unrelated basis. His application failed on credibility issues. In April 2007 their second child H was born and on the 4 ^th July 2007 the mother brought H, who shares her father's family name, to the Commissioner's offices. As had occurred with her son O, she applied for asylum on behalf of H. She completed an ASY-1 asylum application form on H's behalf wherein the infant's status was recorded by the clerical officer receiving the application as " Dependent Minor - ASY-1 completed". The mother signed and dated the ASY-1 form and acknowledged receipt of an asylum questionnaire. Each child had now been assigned a separate asylum claim number. On the same date the mother signed a standard ORAC form, which read as follows:

"I, wish to have by child H included under my application for asylum. I do not wish to have my child interviewed or considered separately from my asylum application. I understand that the decision which will be made in relation to my asylum application will also apply to my...