Ibrahim v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 29 January 2019
• Neutral Citation: [2019] IEHC 61
• Court: High Court
• Docket Number: [2018 No. 755 J.R.]
• Date: 29 January 2019

[2019] IEHC 61

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2018 No. 755 J.R.]

BETWEEN

MUHAMMAD KASHIF IBRAHIM, EMAAN IBRAHIM, MUAWIA IBRAHIM (A MINOR SUING BY HIS FATHER AND NEXT FRIEND MOHAMMED KASHIF IBRAMIM), NAWAL IBRAHIM (A MINOR SUING BY HER FATHER AND NEXT FRIEND MOHAMMED KASHIF IBRAHIM), IBTEHAL IBRAHIM (A MINOR SUING BY HER FATHER AND NEXT FRIEND MOHAMMED KASHIF IBRAHIM)

APPLICANTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY, THE ATTORNEY GENERAL

AND

IRELAND

RESPONDENTS

Asylum & immigration – Deportation of family – Judicial review – Family seeking to challenge deportation

Facts: The applicants were Pakistani nationals who had overstayed in the State after visitors’ visas had expired and had 3 children. Applications for residency had been denied and the respondent sought to deport them. Leave to seek judicial review had been granted, and the matter now came before the Court for determination.

Held by the High Court that the proceedings would be dismissed. The applicants had been unlawfully present in the State for a considerable amount of time, and any family life they relied on had been created at a time they were unlawfully present. The respondents were therefore free to enforce the deportation orders.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 29th day of January, 2019

1 The applicants are a Pakistani family. The father and mother were born in 1981 and 1984 respectively and married in 2008. They arrived in the State on 30th July, 2009 on visitor's visas and overstayed thereafter. The mother was seven months pregnant at that time. Visitor's visas normally expire after three months so the parents would have been unlawfully present at all times from on or about 30th October, 2009. There are three children of the family, born in Ireland on 11th September, 2009 and in 2013 and 2018.

2 On 10th April, 2015 the applicants sought residency. Supporting documents were submitted on 29th April, 2015. The Minister requested further information on 30th June, 2015, which was replied to on 16th July, 2015. On 27th May, 2016, the Minister refused the residency applications. Leave to remain submissions were made on 31st March, and 7th and 10th April, 2017 and 4th May, 2018. On 6th June, 2018 the Minister proposed making deportation orders. Further leave to remain submissions were made on 11th June and 17th July, 2018. The applicants were notified by letter dated 24th August, 2018 that deportation orders had been made.

3 I granted leave in the present proceedings on 24th September, 2018, the primary relief being a challenge to the deportation orders. A statement of opposition was filed on 13th December, 2018. I have received helpful submissions from Mr. Michael Conlon S.C. (with Mr. Garry O'Halloran B.L.) for the applicants and from Mr. Peter Leonard B.L. for the respondents.

Ground 1 - alleged disproportionate impact on children

4 Feeney J. in Agbonlahor v. Minister for Justice, Equality and Law Reform [2007] IEHC 166 [2007] 4 I.R. 309 at 324held that decisions taken pursuant to the lawful operation of the immigration control of the State will be proportionate in all save a minority of exceptional cases, citing R. (Razgar) v. Secretary of State for the Home Department [2004] UKHL 27 [2004] 2 AC 368 at 390. Deportation of an unsettled migrant only gives rise to breach of art. 8 of the ECHR (as applied by the European Convention on Human Rights Act 2003) in exceptional circumstances: see C. I. v. Minister for Justice and Equality [2015] IECA 192 [2015] 3 I.R. 385 at 408 per Finlay Geoghegan J., P.O. v. Minister for Justice and Equality [2015] IESC 64 [2015] 3 I.R 164, John Stanley, Immigration and Citizenship Law (Dublin, 2017) at p. 397 et seq. citing Costello Roberts v. United Kingdom [1993] 19 E.H.R.R. 112 (Application no. 13134/87, European Court of Human Rights, 25th March, 1993) and P.S.M. v. Minister for Justice and Equality [2016] IEHC 474 [2016] 7 JIC 2930 (Unreported, High Court, 29th July, 2016); Nagra v. Minister for Justice and Equality [2018] IEHC 398 (Unreported, High Court, 5th June, 2018) (para. 5), Rodrigues da Silva and Hoogkamer v. the Netherlands (Application no. 50435/99, European Court of Human Rights, 31st January, 2006) (para. 39), C.M. v. Minister for Justice and Equality [2018] IEHC 217 [2018] 4 JIC 2501 (Unreported, High Court, 25th April, 2018) (para. 9).

5 As I noted in O.O.A. v. Minister for Justice and Equality [2016] IEHC 468 [2016] 7 JIC 2924 (Unreported, High Court, 29th July, 2016) an assessment of whether the rights of the child under art. 8 of the ECHR is properly counterbalanced by the legitimate entitlement of the State to operate an orderly immigration control system is primarily a matter for the Minister. The court must attach significant weight to a decision which is prima facie valid and which embodies the Minister's balancing exercise in that regard: see Okunade v. Minister for Justice and Equality [2012] IESC 49 [2012] 3 I.R. 152 [2013] 1 I.L.R.M. 1 per Clarke J. as he then was at para. 10.2, Sivsivadze v. Minister for Justice and Equality and Equality [2015] IESC 53 and Z.H. (Tanzania) v. Secretary of State for the Home Department [2011] 2 AC 166 per Lady Hale at para. 33.

6 This does not mean that the applicants as unsettled migrants have no art. 8 rights, but rather that exceptional circumstances are required to allow the court to quash a ministerial decision to deport an unsettled migrant.

7 A.A. v. United Kingdom (Application no. 8000/08, European Court of Human Rights, 20th September, 2011) arose on very different facts, and in any event the Strasbourg court does not operate a system of stare decisis. It is the general principles of Strasbourg law that apply rather than it being a question of following individual cases, particularly outlying ones. The fact that there may be guidance based on specific time-period thresholds in U.K. Immigration Rules on Family and Private Life, Grounds of...