ID v Minister for Justice and Equality and Law Reform
| Jurisdiction | Ireland |
| Judge | Ms. Justice O'Regan |
| Judgment Date | 17 January 2017 |
| Neutral Citation | [2017] IEHC 15 |
| Court | High Court |
| Date | 17 January 2017 |
| Docket Number | [2016 No. 118 J.R.] |
[2017] IEHC 15
THE HIGH COURT
JUDICIAL REVIEW
O'Regan J.
[2016 No. 118 J.R.]
Asylum, Immigration & Nationality – S. 3(11) of the Immigration Act 1999 – Challenge to deportation order – Constitutional rights of an Irish citizen
Facts: The applicants sought an order of certiorari for quashing the decision of the respondent for affirming the deportation order made against the first applicant/non-national. The first applicant contended that the impugned decision for not revoking his deportation order would affect his private life as he was playing an active role with his wife (‘second applicant’) for the care of their minor child (‘third applicant’) and the two daughters of the second applicant, as well.
Ms. Justice O'Regan granted an order of certiorari and thus quashed the decision of the respondent. The Court found that there was the failure of the respondent to engage in detail with the constitutional rights of the third applicant in the impugned decision. The Court found that the respondent had failed to mention an undated Tusla letter provided by the applicants in relation to active care rendered by the first applicant in bringing up the children. The Court noted that the failure to mention the constitutional rights of the third applicant or the failure to consider the relevant information alone would not be a ground to quash the decision; however, both anomalies, if taken together, would be sufficient to quash the decision. The Court cautioned that the constitutional rights of a minor child were not absolute in nature and each case had to be evaluated after taking into account the surrounding circumstances.
The applicants are challenging the affirmation of a deportation order against the first named applicant of the respondent on 28th January, 2016. The initial deportation order is dated 23rd April, 2014. The first named applicant applied for a review of the deportation order on 2nd December, 2014 pursuant to the provisions of s. 3 (11) of the Immigration Act 1999.
Although initially there were eight grounds for the application for judicial review, subsequently grounds 6 and 8 were accepted as no longer available because of current jurisprudence. Further, at the opening of the matter which was heard on 24th November, 2016 the matter proceeded on the basis of an effective failure by the respondent to consider the constitutional rights of the third named applicant to the care and society of her father, the first named applicant, being Ground no. 1. In addition, the applicants continued to maintain ground no. 3, namely that an undated letter from Tusla was not considered by the respondent in the decision notwithstanding that same was dispatched to the respondent on 10th December. 2015.
The first named applicant is a Nigerian national born in December, 1987. He commenced a relationship with the second named applicant on or about January, 2014 and they commenced co-habitation in or about February, 2014. The third named applicant was born to the first and second named applicants in July, 2015.
The first named applicant came to Ireland on 7th February, 2012 and made an application for asylum on 8th February, 2012 which was refused and he was afforded a three option letter on 29th June, 2012 and again on 24th July, 2012. He subsequently attempted to make an application for subsidiary protection on 27th May, 2014 however this was not entertained.
A deportation order was made against the first named applicant on 23rd April, 2014 and thereafter there was a failed attempt to deport him on 3rd December, 2014. On 2nd December, 2014 the first named applicant applied for a review of the deportation order, at that time limited to an assertion of serious harm if he was returned. The first named applicant did advise the respondent that he was in a relationship with the second named applicant and they were living together. The second named applicant furnished the respondent with a letter in support of the revocation of the deportation order. On the 12th December, 2014 solicitors on behalf of the applicants advised the respondent that the second named applicant was pregnant with the first named applicant's child. In that letter of 16th December, 2014 it was indicated that the application to revoke would also be founded on the rights of the unborn child, constitutional and Article 8 rights and the Zambrano judgment. In a letter from the Chief State Solicitor's Office on 30th July, 2015 reference is made to the letter of 16th December, 2014 and the fact that no further representations had been submitted and therefore a request was made to submit detailed representations on foot of the information provided inter alia in the letter of 16th December, 2014.
Subsequently the birth certificate and passport of the third named applicant were furnished to the respondent. In addition, under cover letter of 4th November, 2015, a Tusla letter bearing date 1st September, 2015 was furnished and subsequently on 10th December, 2015 a further Tusla letter, undated, was furnished to the respondent.
The relevant portion of the Tusla letter of 1st September, 2015 was to effect that:-
‘I. [the first named applicant] has played a parenting role with the two children within the home.’
In the second undated Tusla document, they submit the portion of the letter which states:-
‘I. plays a very important role in caring for both girls and has been seen to take an active role in parenting.’
The following case law, together with the various judgments therein referred to, was relied upon by both parties namely:
a. Oguekwe v. Minister for Justice [2008] 3 I.R. 795 (the Supreme Court)
b. Ubelase v. Minister for Justice [2010] IEHC 371 (being a judgment of Clark J. in the High Court).
c. Shadiat Bot v. Minister for Justice (Clarke J., 20th May 2010)
d. E.B. (a minor) v. Minister for Justice [2016] IEHC 531 (a judgment of Faherty J. in the High Court)
Oguekwe v. Minister for Justice
The applicant relies on this case to the effect that the respondent must consider the circumstances of a foreign national parent of a citizen child in each case of deportation by due inquiry in a fair and proper manner as to the factors affecting the family. The applicant asserts that in that case minimal submissions were made to the effect that if the applicant was sent back this would divide his family and his Irish son would have to leave the country and it would not be safe for him. The wife and son also wrote to the Minister.
In the course of her judgment Denham J. stated that the constitutional right of the Irish citizen child was a right to live in the State and be reared and educated. It was also held that where, as in the case before the Court, the parents were married the child has rights as an individual derived from being a member of a family within the meaning of Article 41. Denham J. acknowledged that such rights were not absolute and they had to be weighed and balanced in all of the circumstances of the case. At para. 61 Denham J. indicated that she was satisfied that the decision making process should identify a substantial reason which requires the deportation of a foreign national parent of an Irish born citizen and the Minister is required to make a reasonable and proportionate decision. At para. 68 the judgment indicates that the extent of the consideration will depend on the facts of the case including the age of the child. A formal approach with specific questions as had been required by the High Court was deemed unnecessary. The Court went on at para. 85 of the judgment to set out a non-exhaustive list of matters which might assist - matters relevant for consideration by the Minister when making a decision as to deportation under s. 3 of the 1999 Act of a parent of an Irish born citizen child.
Of the 16 enumerated matters referred to, the applicants are relying in particular, on Item 6(c) which is to the effect:-
‘The Minister should consider expressly the constitutional rights, including the personal rights, of the Irish born child, including the right to the society, care and company of his parents.’
The applicants further rely on matter no. 7 which is to the effect that the Minister should also consider the Convention rights of the applicants and these may to some extent be considered together with the constitutional rights.
The respondent also relies on this judgment and in particular in relation to that portion that provides that save for exceptional circumstances the respondent is not required to enquire into matters other than those sent to him by and on behalf of the applicants or on file in the Department. The respondent also relies on para. 68 of the judgment of Denham J. to the effect that the extent of the consideration will depend upon the facts of each case. The respondent points to para. 72 which is to the effect that the issues and questions need not be addressed in a micro-specific format as long as the general principles are applied to the circumstances of the case and a formal approach is not necessary.
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