Igbosono (A Minor) v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 04 October 2017
• Neutral Citation: [2017] IEHC 681
• Docket Number: [2017 No. 4 J.R.]
• Court: High Court
• Date: 04 October 2017

BETWEEN

MARS CHIDERA PETERS Igbosono (AN INFANT ACTING BY HIS FATHER AND NEXT FRIEND MICHAEL IGBOSONO)

AND

MICHAEL Igbosono

APPLICANTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

[2017] IEHC 681

[2017 No. 4 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Asylum Immigration and Nationality – S. 3 (11) of the Immigration Act 1999 – Revocation of deportation order – Proportionate order – Charge of Sexual Offence – Interest of child

Facts: The second named applicant challenged the decision of the respondent that refused the applicant's application under s. 3 (11) of the Immigration Act 1999 for the revocation of the deportation order. The first issue arose as to whether a deportation order could be challenged at the s. 3(11) stage based on the information that was available at the time of the original deportation order. The second issue that arose was whether the decision of the first named respondent/Minister was proportional and whether the best interests of the child had been considered. The first named respondent contended that the nature and gravity of the offence committed by the second named applicant warranted his deportation in the public interest.

Mr. Justice Richard Humphreys dismissed the second named applicant's application. The Court observed that it was not for the Court to step into the shoes of the decision maker and decide the issue on the merits but to examine whether the decision fell outside the principles of law, according to which the decision ought to have been taken. The Court held that in making the deportation order, the Minister should have weighed the factors and principles in a just manner to achieve a reasonable and proportionate decision. The Court noted that the Minister had complied with those requirements and the Minister was entitled to conclude that it was not disproportionate to deport a non-national who had committed a serious criminal offence.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 4th day of October, 2017

1 The second named applicant arrived in the State with his family in April, 2007, aged around seventeen, and has resided in the State since that date. He is the father of the first named applicant, who is an Irish citizen, and is in a relationship with the child's mother who is also an Irish citizen. On the 30th January, 2009, the second named applicant was convicted of sexual assault and received a custodial sentence of two years, with one year suspended. The offence was the digital penetration of the vagina of a woman who fell asleep beside the second named applicant on a bus. In June, 2012, there was a proposal to deport the him. However, after that the Minister granted the second named applicant permission to reside in the State for a period of six months from the 7th August, 2013. The second named applicant's sentence was subsequently increased by the Court of Criminal Appeal to five years with two suspended and he was readmitted to custody where he remained until April, 2015. A subsequent application for permission to remain in the State was refused. He then began a new relationship. A deportation order was issued on the 27th May, 2016. An application to revoke this order was made on the 1st August, 2016, based inter alia on the rights of the child, unborn at that time. That application was refused. The first named applicant was born on the 15th November, 2016, and leave was granted on 3rd January, 2017, for the present proceedings challenging the s.3(11) decision.

2 I record my thanks to Mr. Conor Power S.C. (with Mr. Paul O'Shea B.L.) for the applicants and Mr. David Conlan Smyth S.C. (with Mr. Timothy O'Connor B.L.) for the respondents.

Can the applicant mount a s.3(11) challenge based on factors that were present when the deportation order was made merely because those factors were mentioned in the course of considering new factors?

3 There is repeated jurisprudence that the deportation order should not be challenged at the s.3(11) stage based on information that was available at the time of the original deportation order, which I discussed in K.R.A. v. Minister for Justice and Equality [2016] IEHC 289. The only matter which has changed since the making of the order is the birth of the first named applicant. Mr. Power, in the course of an able submission, contended that original offence was considered in the course of a s.3(11) examination but that does not mean that every day is a new day, and that mentioning the offence restarts the clock for challenge. It does not bootstrap the offence into being a new point. The main thrust of his challenge is misconceived because the second named applicant cannot challenge the Minister's reliance on the conviction in the context of these proceedings for the simple reason that that issue was there at the time of the original deportation order.

Was the decision refusing to revoke the deportation order proportional to the end sought to be achieved?

4 If I am wrong about the foregoing I will go on to consider this question. Mr. Power submits that ‘ the court has considerable jurisdiction to undertake a proportionality assessment by virtue of the decision of Hogan J. inN.M. (DRC) v. Minister for Justice [2016] IECA 217’. However at para. 53 of that decision, it was held that the court cannot review the merits of the decision. It can of course quash for unreasonableness, lack of proportionality, or if the decision unconstitutionally strikes at the substance of rights without justification, or is tainted by logical or factual error, and there is nothing startlingly new there in the discussion of that issue in N.M. Proportionality is not a wide, merits-based review as emphasised in Mea...