I.S.O.F. (A Minor) and Others v Minister for Justice, Equality and Law Reform

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 02 November 2010
• Neutral Citation: [2010] IEHC 386
• Court: High Court
• Date: 02 November 2010

F (ISO) (a minor) & Ors v Min for Justice & Ors

JUDICIAL REVIEW

MR JUSTICE COOKE

APPROVED TEXT

BETWEEN

I. S. O. F. (A Minor) AND FOUR OTHERS

APPLICANTS

AND

MINISTER FOR JUSTICE EQUALITY AND LAW REFORM

RESPONDENT

AND

ATTORNEY GENERAL AND HUMAN RIGHTS COMMISSION

NOTICE PARTIES

[2010] IEHC 386

[No. 396 JR/2010]

HIGH COURT

IMMIGRATION LAW

Deportation

Family rights - Proportionality - Balance between rights of family and interests of State - Conviction - Recommendation for deportation following release from prison - Applicant illegally in State - Irish born children - Integrity of immigration system - Employment prospects of deportee - Interests and welfare of children - Reasonableness - Prohibition on refoulement - Whether substantial grounds - Whether decision irrational or unreasonable - Whether High Court could re-examine whether correct balance between competing rights was struck - Whether deportation necessary and in pursuit of legitimate aim - Whether decision plainly and unambiguously flew in face of fundamental reason and common sense - Dimbo v Minister for Justice, Equality and Law Reform [2008] IESC 26, (Unrep, SC, 1/5/2008); Oguekwe v Minister for Justice [2008] IESC 25, [2008] 3 IR 795; Meadows v Minister for Justice, Equality and Law Reform [2010] IESC 3 (Unrep, SC, 21/1/2010); O(S) v Minister for Justice, Equality and Law Reform [2010] IEHC 343, (Unrep, Cooke J, 1/10/2010) considered - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Immigration Act 1999 (No 22), s 3 - Refugee Act 1996 (No 17), s 5 - Criminal Justice (United Nations Convention Against Torture) Act 2000 (No 11), s 4 - Child Care Act 1991 (No 17), s 3 - European Convention on Human Rights, art 8 - Constitution of Ireland 1937, arts 40, 41 and 42 - Leave refused (2010/396JR - Cooke J - 2/11/2010) [2010] IEHC 386

F (ISO) v Minister for Justice, Equality and Law Reform

Facts An application was for leave to apply for judicial review of the deportation order made by the respondent against the fifth-named applicant ("the applicant"). It was common case that the applicant was married to the fourth-named applicant who were both nationals of Nigeria and were resident in the Irish State. In addition the couple had children some of whom were Irish nationals and one who was an American citizen. The applicant had been arrested and convicted in the United Kingdom on a charge of conspiracy to defraud. Subsequently the applicant applied to the Irish State to permission to re-enter the State (his previous permission to remain having expired). Permission was refused, the applicant re-entered the State without permission and ultimately the respondent made an order for deportation against the applicant. It was contended that the order in question had failed to take a number of factors into account and had failed to give due account to the rights of his children to the company of their father. It was contended that the decision was disproportionate and was in effect a life long ban.

Held by Cooke J in refusing the relief sought. The applicant had added to his difficulties by illegally re-entering the State. The Minister was entitled to have regard to this and other factors in order to maintain the integrity of the immigration system. There was nothing to prevent the applicant from seeking a revocation order at some stage in the future. The Minister had looked at all the factors regarding the welfare of the children in question. There was nothing to prevent the family from returning to Nigeria and the State was not bound by the choice of residence that a family has made. It could not be said that a substantial ground had been made out that the decision in question was invalid or was disproportionate having regard to the evaluation made.

Reporter: R.F.

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

REFUGEE ACT 1996 S3(6)(A)

REFUGEE ACT 1996 S3(6)(B)

REFUGEE ACT 1996 S3(6)(C )

REFUGEE ACT 1996 S3(6)(D)

REFUGEE ACT 1996 S3(6)(E)

REFUGEE ACT 1996 S3(6)(F)

REFUGEE ACT 1996 S3(6)(G)

REFUGEE ACT 1996 S3(6)(H)

REFUGEE ACT 1996 S3(6)(I)

REFUGEE ACT 1996 S3(6)(J)

REFUGEE ACT 1996 S3(6)(K)

CRIMINAL JUSTICE (UN CONVENTION AGAINST TORTURE) ACT 2000 S4

EUROPEAN CONVENTION ON HUMAN RIGHTS 2003 ART 8

CONSTITUTION ART 40

CONSTITUTION ART 41

CONSTITUTION ART 42

DIMBO v MIN FOR JUSTICE UNREP SUPREME 1.5.2008 2008/12/25302008 IESC 26

OGUEKWE v MIN FOR JUSTICE 2008 3 IR 795

MEADOWS v MINISTER FOR JUSTICE UNREP GILLIGAN 19.11.2003 2003/34/8235 2003 IEHC 79

O (S) & ORS v MJELR UNREP COOKE 1.10 2010 2010 IEHC 343

CRIMINAL JUSTICE ACT 1999 S3(11)

CONSTITUTION ART 41.2

CRIMINAL JUSTICE ACT 1999 S3(6)(F)

1 1. This is an application for leave to seek a number of reliefs by way of judicial review including, in particular, an order of certiorari, in relation to a deportation order issued in respect of the fifth named applicant dated 9 ^th March, 2010. To obtain leave the applicants must, of course, establish the existence of substantial grounds as to why that order is unlawful and ought to be quashed as required by s. 5 of the Illegal Immigrants (Trafficking) Act 2000.

2 2. The fourth named applicant ("Mrs. F.") and the fifth named applicant ("Mr. F.") are husband and wife, nationals of Nigeria and the parents of the first, second and third named applicants. They arrived in the State in 1999 and the first and second-named applicants who were born on 6 ^th April, 1999 and 22 ^nd January, 2001 respectively are Irish citizens. The third named applicant was born in the United States of America in February 2002 while Mrs. F. was visiting her sister there and that child is a U.S. citizen as a result.

3 3. The two adult applicants were granted permission to remain in the State on the basis of their parentage of the Irish born children as from April 2000 and the permission of Mrs. F. has been renewed repeatedly since and is currently valid until 9 ^th March, 2011. They also have three other children who were born in Nigeria and who are now adults. One continues to live in Nigeria. Two other daughters are in the State and have been granted permission to remain.

4 4. On a date unknown to the respondent and which the applicants have not found necessary to particularise in this proceeding, Mr. F. left the State on a trip to the United Kingdom where he was arrested, charged and subsequently convicted on 3 ^rd August, 2004 of conspiracy to defraud and sentenced to four years imprisonment with a recommendation for deportation.

5 5. During 2005 in anticipation of his release from prison, representations were made on behalf of Mr. F. to the Immigration and Citizenship Division of the Department of Justice with a view to his being permitted to re-enter the State. His then current permission to remain had expired on 19 ^th April, 2004. Having first asked for more information to be provided in order to enable the representations to be considered, the Immigration Division wrote to Mr. F.'s solicitors on 9 ^th November, 2005 in these terms:

"As I indicated in my letter of 17 ^th October, 2004, Mr. F. has no current permission to remain in Ireland and as such Ireland is under no obligation to take him back. However, consideration was given to the possible renewal of his previous residency. Following careful consideration of all aspects of his case, and the representations that were received, it has been decided to refuse the request to take Mr. F. back in the interest of the common good. He has shown a pattern of personal behaviour that could pose a present threat to public policy. Accordingly, this pattern of personal behaviour outweighs the right of his Irish born children to his company in the State and as such I refuse him leave to enter and remain in Ireland."

6 6. On 26 ^th December, 2005, Mr. F. illegally entered the State by road from Belfast. Over the following weeks he says that he obtained a new passport from the Nigerian Embassy in Dublin and at the end of January or early February 2006 presented himself to the Garda National Immigration Bureau with a view, as he puts it, to "regularising" his situation.

7 7. A first deportation order dated 7 ^th March, 2006, was made in respect of Mr. F. but challenged by judicial review proceedings which were compromised and the order was revoked by consent in March 2007. On 21 ^st April, 2008 the respondent notified Mr. F. of a further proposal to make a deportation order under s. 3 of the Immigration Act 1999 in response to which submissions were apparently made on his behalf by his then solicitors. Having changed solicitors, new submissions or representations were made on his behalf by letter of 14 ^th September, 2009 and these were later supplemented by further documentation and representations on 23 ^rd October and 17 ^th December 2009. Additional submissions and documentation were submitted by letter of 20 ^th January 2010.

8 8. The second deportation order of 9 ^th March, 2010 which is the subject matter of the present proceeding was notified to the fifth named applicant by letter of 15 ^th March, 2010 from the Repatriation Unit which gave the reasons for the Minister's decision to make the order in the following terms:

"The reasons for the Minister's decision are that you are a person whose application for a declaration as a refugee has been refused. Having had regard to the factors set out in s. 3 (6) of the Immigration Act 1999 (as amended), including the representations received on your behalf, the Minister is satisfied that the interest of the public policy and the common good in maintaining the integrity of the asylum and immigration systems outweigh such features of your case as might tend to support your being granted leave to remain in this State."

The letter required Mr. F. to leave the State by 1 ^st April, 2010 and to present himself to the GNIB on that date in...