O.I. r v Refugee Appeals Tribunal

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Mac Eochaidh
• Judgment Date: 17 June 2015
• Neutral Citation: [2015] IEHC 408
• Docket Number: [2010 No. 1547 J.R.]
• Date: 17 June 2015

[2015] IEHC 408

THE HIGH COURT

JUDICIAL REVIEW

Mac Eochaidh J.

[2010 No. 1547 J.R.]

BETWEEN

O. I.

O. P. I. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND O. I.)

APPLICANTS

-AND-

THE REFUGEE APPEALS TRIBUNAL

THE MINISTER FOR JUSTICE AND LAW REFORM

ATTORNEY GENERAL

IRELAND

RESPONDENTS

Asylum, Immigration & Nationality – S. 3 of the Immigration Act 1999 – European Convention on Human Rights – UN Convention on the Rights of the Child – Deportation – Interest of child

Facts: The applicants sought an order of certiorari for quashing the decision of the second named respondent making deportation orders against them. The applicants contended that the second named respondent had failed to engage the operation of art.8 of the European Convention on Human Rights.

Mr. Justice Mac Eochaidh granted an order of certiorari to the applicants on the ground that the second named respondent had erred in law by not engaging the operation of art. 8 of the European Convention on Human Rights. The Court, however, dismissed the challenge of the applicant that the second named respondent was obliged to view the rights of the deportee/child pursuant to the UN Convention on the Rights of the Child. The Court held that the second named respondent should have engaged into the questions posed by art. 8 of the European Convention on Human Rights concerning the private and family life of the deportee as any deportation would interfere with the deportee's private life. The Court held that the second named respondent had no obligation to give effect to the UN Convention on the Rights of the Child as it had only been ratified and not implemented by the State and any order by the Court superimposing the obligations on the second respondent pertaining to the said Convention would be unconstitutional and outside the jurisdiction of the Courts. The Court concluded that nothing in the Immigration Act 1999 called for giving primary consideration to the child while making deportation orders. The Court held that there lay a difference between considerations of the best interest of the child v the age of the deportee and the latter should not be read as implicit under art. 3(1) of the United Nations Convention on the Rights of the Child.

JUDGMENT of Mr. Justice Mac Eochaidh delivered on the 17th day of June, 2015

1 This is a ‘telescoped’ application for leave to seek judicial review seeking an order of certiorari to quash a decision of the Minister making deportation orders in respect of the first and second named applicants. Challenges to other decisions affecting the applicants have not been pursued. Two broad grounds of challenge were advanced based on the European Convention on Human Rights and based on the U.N. Convention on the Rights of the Child, a ratified but non-implemented international instrument. The latter ground was adjourned pending a decision of the High Court in a case where an analogous point was raised.

Background:

2 The applicants are a Nigerian mother and her young daughter. The first named applicant (‘the mother’) arrived in Ireland on 15th December, 2008, and claimed asylum the next day. She gave birth to the second named applicant in Limerick on 6th February, 2009. Two weeks later she sought asylum on behalf of her infant daughter. Both applications for asylum were given priority by the Refugee Applications Commissioner in accordance with s. 12(1) of the Refugee Act 1996. The mother stated that she fears persecution by the militant group M.E.N.D. (Movement for the Emancipation of the Niger Delta), as her former boyfriend was involved in the group and they believed that he had given information to the authorities which led to the deaths of fifteen of their members. She claims that M.E.N.D. killed her boyfriend and states that they then pursued her as they believed she knew the group's secrets. She claimed that she did not seek police protection as they are working together with M.E.N.D..

3 Further, she did not seek to move elsewhere within Nigeria as the M.E.N.D. members are everywhere. As the second named applicant was only one month old at the date of her s. 11 interview, the first named applicant outlined her fears as being wholly based on her own. In this regard, she claimed she feared that the militants would use her daughter as a human sacrifice as they knew she was pregnant before she left Nigeria.

4 Both applications for asylum were rejected by the Commissioner primarily on the basis of a lack of credibility. The applicants duly appealed to the Refugee Appeals Tribunal. The Tribunal upheld the recommendation of the Commissioner on the basis of the lack of credibility in a decision dated 15th June, 2009. The applicants received a ‘three options letter’ on 31st July, 2009, and thereafter made an application for leave to remain in the State and for subsidiary protection to the Minister with the aid of the Refugee Legal Service on 11th August, 2009.

5 The applicants' applications for subsidiary protection were refused on the 29th October, 2010, and the applicants were informed by letter of 17th November, 2010. By letter of 26th November, 2010, the applicants were informed that they were also unsuccessful in their application for leave to remain pursuant to s. 3 of the Immigration Act 1999 and that the Minister had made deportation orders against them dated 24th November, 2010. The applicants now seek to quash the decision to make the deportation orders contained in the ‘Examination of file under Section 3 of the Immigration Act 1999, as amended’.

Examination of File:

6 The first ground of challenge to the deportation orders relates to the manner in which their Article 8 E.C.H.R. rights were assessed by the Minister. The finding is set out in the ‘Examination of File’ as follows:-

‘Consideration under Article 8 of the European Convention on Human Rights (ECHR)

If the Minister signs a Deportation Order in respect of O. I., this decision would engage her right to respect for private and family life under Article 8(1) of the ECHR.

Private Life

The House of Lords decision in R (Razgar) v. Home Secretary [2004] 2 A.C. 368, sets out five questions which are likely to have to be addressed when considering Article 8 rights in the context of a proposal to remove an individual. Those questions are as follows:-

(1) Will the proposed removal be of an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life?

(2) If so, will such interference have consequences of such gravity as potentially to engage the operation of Article 8?

(3) If so, is such interference in accordance with the law?

(4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?

(5) If so, is such interference proportionate to the legitimate public ends sought to be achieved?

In considering the first question, it is accepted that if the Minister decides to deport O. I., that this has the potential to be an interference with her right to respect for private life within the meaning of Article 8(1) of the ECHR. This relates to her educational and other social ties that she has formed in the State as well as matters relating to her personal development since his arrival in the State. (sic)

In addressing the second question, and having weighed and considered the facts of this case as set above, it is not however accepted that any such potential interference will have consequences of such gravity as potentially to engage the operation of Article 8.

As a result, a decision to deport O. I. and her daughter does not constitute a breach of the right to respect for private life under Article 8 of the ECHR.’

Applicants' Submissions:

7 It is submitted by Mr. Mark de Blacam S.C., on behalf of the applicants, that the author of the Examination of File has erred in law because she stopped her inquiry by answering the second of Lord Justice Bingham's questions in Razgar in the negative. It is contended that owing to the applicants' degree of integration into Irish society the Minister's official should have found that their deportation would cause interference of sufficient gravity as to engage the operation of Article 8. Having so found she should have proceeded to apply the remaining steps of the test. Counsel relies on the decisions of this court in A.M.S. v. Minister for Justice, Equality and Law Reform [2014] I.E.H.C. 57 and in C.I. v. Minister for Justice & Equality [2014] I.E.H.C. 447 in this regard.

8 The decision in A.M.S. related to an application for family reunification and the assessment of family life rights pursuant to Article 8. It is noted by counsel that this court remarked that the phrase ‘consequences of such gravity’ does not mean that there must be ‘grave consequences’ arising from a decision before Convention rights are engaged. Further the court found at para. 67 that:-

‘…the author commences the assessment by indicating that a negative decision by the Minister would engage the applicant's rights. He then proceeds to ask whether any interference with family rights might have consequences of gravity.

68. Such an approach to an Article 8 assessment is not in accordance with law. The analysis should start by asking whether a negative decision on family reunification would interfere with article 8 rights and then ask whether that interference would have consequences of such gravity as to potentially engage Article 8 rights, bearing in mind the proper meaning of “consequences of such gravity”. Following that analysis, the decision maker may decide that the...