I.R.M. v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 29 July 2016
• Neutral Citation: [2016] IEHC 478
• Court: High Court
• Docket Number: [2015 No. 436 J.R.]
• Date: 29 July 2016

[2016] IEHC 478

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2015 No. 436 J.R.]

BETWEEN

I.R.M., SARAH JANE ROGERS

AND

S.O.M. (A MINOR SUING BY HER FATHER AND NEXT FRIEND, I.R.M.)

APPLICANTS

AND

MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

ATTORNEY GENERAL

RESPONDENTS

(No. 2)

Asylum, Immigration & Nationality – Revocation of deportation order – S. 3(11) of the Immigration Act, 1999 – Consideration of application of revocation – Art. 40.3.3 of the Constitution – Rights of an unborn child

Facts: The first named applicant sought an ex-parte leave seeking redressal of certain issues, which were as to whether the first named applicant was entitled to notice of the date and time of his intended deportation; whether it would have been unlawful for the respondent to deport the first named applicant without deciding the application under s. 3(11) of the Immigration Act, 1999; and whether the respondent was obliged to consider the rights of an unborn child in the matters of deportation. The first named applicant being in relationship with the second named applicant and the father of the third named applicant contended that the respondent was obliged to consider the family rights of the first named applicant before making any order of deportation against him.

Mr. Justice Richard Humphreys granted the desired leave to the applicants. The Court granted the declaration to the effect that the respondent was required to consider the current and prospective situation of the first named applicant while considering an application under s. 3(11) of the Immigration Act 1999. The Court held that the first named applicant was not entitled to minimum period of notice of his actual date of deportation as there were enough safeguards in existence, whereby the asylum seeker could challenge the deportation orders and thus, his right to effective remedy was not vitiated. The Court held that though the respondent was not obliged to consider an application under s. 3(11) of the 1999 Act, it did not relieve the minister from the obligation to act lawfully in matter of deportation. The Court held that the respondent must ensure that the deportation order must not breach any right, effect prospective threat from breach of right of freedom of the person deported. The Court held that in the instant case, the respondent failed to consider the rights of an unborn child, which was unlawful as an unborn child, was a potential citizen whose rights were protected by arts. 40.3.3 and 42A of the Constitution and various other statutes. The Court held that though the constitutional rights of an unborn child did not confer immigration rights but that did not mean it displaced any legal consequences flowing from the prospective position of the unborn child. The Court held that the minister must take into account the interest of the unborn child such as the right to life and such other allied rights, which were inseparable from the life itself. The Court held that unmarried couples, by virtue of the amendments in the Constitution, had inherent constitutional rights in relation to their children, such as the applicants.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 29th day of July, 2016

1 The first named applicant is a national of Nigeria. The second named applicant is an Irish citizen. The third named applicant is the child of the first two applicants, and is also an Irish citizen. The first two applicants are not married to each other but are in a relationship which appears to be ongoing.

2 The first named applicant arrived in the State in December 2007 and applied for asylum. This was refused by the Refugee Applications Commissioner. He appealed to the Refugee Appeals Tribunal, and on 30th June, 2008, was notified that his appeal had been refused. He applied for leave to remain on 9th September, 2008, and made a subsidiary protection application on 24th November, 2008, both of which applications were refused.

3 In the course of his asylum application he had stated that he had a partner in Nigeria and a son who was five years old at the time.

4 A deportation order was made against him on 30th October, 2008, and sent to him on 6th November, 2008. No judicial review proceedings were launched in respect of the validity of the deportation order.

5 Despite his illegal presence in the State, the first named applicant has worked unlawfully here. The deportation order in this case was followed in a depressingly predictable manner by the applicant's marriage to a Czech national on 12th August, 2009. This marriage appears to have lasted only a few months. The applicant has not obtained a divorce. On 13th May, 2010, he applied for residency in the State based on marriage to an EU national. This was rejected on 4th November, 2010, due to a lack of necessary evidence.

6 He made further representations as to his position in the State in 2014, and sought an update, although this did not constitute a formal application.

7 He became involved in a relationship with a Cameroonian national in 2014, which resulted in the birth of a child in Ireland on 10th July, 2015. The Cameroonian national was subsequently granted Irish citizenship. He represented himself to the Department of Social Protection as residing with the mother of this child.

8 In or about September, 2014, the first named applicant began a relationship with the second named applicant. Mr. Michael Conlon S.C., who appeared (with Mr. Paul O'Shea B.L.) for the applicants, accepted that the second named applicant was aware of the first named applicant's (lack of) legal status at the time the relationship began.

9 On 21st May, 2015, the applicant applied under s. 3(11) of the Immigration Act 1999, for the revocation of the deportation order.

10 Ms. Rogers had become pregnant in late 2014, and in the run up to her due date of delivery, a major issue arose as to the entitlement of the first named applicant to remain in the State pending the birth of his child.

11 On 28th April, 2015, Article 42A of the Constitution was enacted.

12 The present proceedings were brought before the court by way of ex parte application for leave on 27th July, 2015. The court directed that the application be made on notice to the respondents. An interim injunction staying the execution of the deportation order was granted on 31st July, 2015.

13 In an ex tempore judgment delivered on 1st August, 2015, Mac Eochaidh J. granted an injunction restraining execution of the deportation order until further order ( I.R.M. v. Minister for Justice and Equality (Unreported, High Court, ex tempore, Mac Eochaidh J., 1st August, 2015) ( I.R.M. (No. 1)). The leave application was adjourned for separate consideration. It came before Stewart J. on 6th August, 2015 and was further adjourned, ultimately coming before me. Mac Eochaidh J. also gave liberty to amend the statement of grounds.

14 The third named applicant, S.O.M., was born on 21st August, 2015.

15 Following the birth, the applicant sent the department an application for residency based on parentage of an Irish citizen child (referred to as a ‘Form 1’). That application remains outstanding as of the date the hearing commenced. The letter submitting this application, dated 19th November, 2015, made clear that it should be ‘ treated as superseding’ the s. 3(11) application, and Mr. Conlon clarified at the hearing on 19th January 2016 that the s. 3(11) application was thereby intended to be withdrawn.

Procedural Matters

16 It will be noted immediately that the application has a complex and somewhat unusual procedural history. When the matter came before me on 20th November, 2015, it was originally listed as a hearing of a leave application only. One of the complaints made by Ms. Denise Brett S.C., who appeared for the respondents, in the course of her very able submission, was that the issue of leave and that of the injunction should not have been separated in the manner that arose in the I.R.M. (No. 1) judgment. The respondent relies in this regard on B.O. v. Minister for Justice, Equality and Law Reform [2006] IEHC 162 (Unreported, High Court, Herbert J., 24th May, 2006) at para. 17. To my mind, that complaint is water under the bridge. Mac Eochaidh J. split the issues on the basis of an issue clearly identified in his judgment in I.R.M. (No. 1), namely that the injunction was more urgent than the leave application, and that decision seems to me to have been entirely logical if I may respectfully say so.

17 Of immediate concern to me was the fact that the question of telescoping the hearing had not been raised by the parties. Where the hearing of a leave application on notice will take up significant time and will run the risk of creating a duplicated hearing at a later stage, the question of telescoping the application may fall to be considered by the court motu proprio. (Of course there are other circumstances where telescoping may be appropriate – for example if a determination of the substantive issue is unsuitable to be delayed because it is especially urgent or could otherwise be determined rapidly.) I canvassed the question of telescoping the hearing with counsel at an early stage. Mr. Conlon stated that he had no objection to telescoping the hearing. Ms. Brett originally said she was not agreeable to this but after some reflection and the taking of instructions said it was something that the court could do as long as she was not disadvantaged in terms of her entitlement to be notified as to what the applicants' precise claims were; and I appreciate the practical approach ultimately taken by her. I therefore made an order under the jurisdiction conferred on the court motu proprio by O. 84, r. 24(2), irrespective of the views of the parties, having regard to the need for efficient case management (see Talbot v. Hermitage Golf Club [2014] IESC...