Igbosonu (A Minor) v Minister for Justice and Equality No.2

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 05 December 2017
• Neutral Citation: [2017] IEHC 748
• Docket Number: [2017 No. 4 J.R.]
• Court: High Court
• Date: 05 December 2017

[2017] IEHC 748

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2017 No. 4 J.R.]

BETWEEN

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

AND

MICHAEL IGBOSONU

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

(No. 2)

Asylum, Immigration & Nationality - S.3(11) of the Immigration Act, 1999 - Revocation of deportation order - Amendment to the statement of grounds - Discretion of court - Exceptional circumstances - Point of law of exceptional public importance - Leave to appeal to the Court of Appeal

Facts: The applicants sought leave to appeal to the Court of Appeal against the substantive order passed by the High Court. The questions formulated by the applicants pertained to the rights of the unborn child in an asylum process and the discretion of the first named respondent. The applicants raised four separate points of law, which the applicants contended were of exceptional public importance.

Mr. Justice Richard Humphreys refused to grant leave to the applicants to file an appeal to the Court of Appeal. The Court held that the questions formulated by the applicants did not involve any points of law of public importance as those questions had already been answered by the Supreme Court in a plethora of cases.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 5th day of December, 2017

1 In Igbosonu v. Minister for Justice and Equality (No. 1) [2017] IEHC 681, I rejected the applicants' application for certiorari of a s. 3(11) decision refusing to revoke a deportation order against the second named applicant. Mr. Conor Power S.C. (with Mr. Paul O'Shea B.L.) for the applicants now applies for leave to appeal that decision, and I have heard submissions from him and from Mr. David Conlan Smyth S.C. (with Mr. Timothy O'Connor B.L.) for the respondents. I have considered the case law on leave to appeal as set out in Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250 and related cases, and as summarised in my decision in Y.Y. v. Minister for Justice and Equality (No. 2) [2017] IEHC 185, [2017] 3 JIC 2405 at para. 72.

The first question

2 The first proposed question is formulated somewhat widely in the written submissions but as presented orally, it was essentially whether the child could challenge a s. 3(11) decision on the basis of a factor which was there at the time of the original deportation order but which predated the birth of that child. In this case the deportation order was made on 27th May, 2016, when the child was in utero. On 1st August, 2016, a s. 3(11) application was made effectively on behalf of the unborn child as well as the father, including points made regarding the position of the child. On 15th November, 2016, the child was born. On 3rd January, 2017, leave for the present proceedings was granted. Mr. Power accepts that the applicant cannot make points related to challenging the s. 3(11) decision on the basis of the conviction because that matter was there at the time of the original deportation order, but he says the position is different because the first named applicant has been born since the original deportation order. That argument rests on a number of fallacies, a first being that the child could not have challenged the deportation order as an unborn child applicant. That unfortunately is a false assumption. It is well established that the unborn child has the right to litigate. I set out the case law on this subject in I.R.M. v. Minister for Justice and Equality (No. 2) [2016] IEHC 478, [2016] 7 JIC 2932, paras. 71 to 76, citing multiple examples where such a right has been recognised, including Baby O. v. Minister for Justice, Equality and Law Reform [2002] IESC 44, [2003] 1 I.L.R.M. 241, [2002] 2 I.R. 169, s. 19(3) of the Registration and Title Act 1964, the practice in every state of the United States as noted in Paul Benjamin Linton, 'The Legal Status of the Unborn Child under State Law', (2011) 6 St. Thomas Journal of Law & Public Policy 141 at 154, P.P. v. Health Service Executive [2015] 1 I.L.R.M. 324, [2014] IEHC 622 (Unreported, High Court, 26th December, 2014) (Kearns P. (Costello and Baker JJ. concurring)), and O.E. and A.H.E. v. Minister for Justice, Equality and Law Reform [2008] IEHC 68, [2008] 3 I.R. 760 per Irvine J. at p. 774 onwards. The second named applicant could have instituted proceedings challenging the deportation order and joined the unborn child as an applicant suing through his father as next friend, but instead no proceedings at all were brought.

3 The second fallacy in the argument made relates to the broader issue as to whether a s. 3(11) decision, or indeed any immigration decision, or perhaps even more widely whether any administrative decision can be challenged by a third party, such as a child, at all. In my view it is necessary that the challenge has to be made by someone to whom the decision is addressed, save in exceptional circumstances which do not arise here. It seems to me that the idea that a child can wander along later and challenge an immigration decision against a parent is fundamentally flawed. Merely being affected by a decision does not give you a legal entitlement to bring certiorari proceedings where the person to whom it is addressed has such an entitlement and fails to exercise it. Otherwise, for example by analogy, a child could intervene in any civil or criminal proceedings against a parent on the grounds that the child would also be affected. The issue is not so much one of asserting locus standi on the grounds of being affected. One can assume for the sake of argument that a child, or any family member, is affected (indirectly, in the sense of not being the primary addressee of the measure in question) by a range of decisions that can be made in relation to an applicant. It is a question of whether a person thus indirectly affected is entitled to quash a decision where the primary addressee does not seek to quash that decision. If a parent fails to challenge a decision in a timely manner it would be absurd if they could vicariously resuscitate an entitlement to challenge it by having a child at a later stage. Mr. Power accepts that what he calls the ' legal logic' of the submission is that five, ten or twenty years later, all issues on a deportation order could be re-litigated by an applicant having a child who could then make a s. 3(11) application. That would make a nonsense of s. 5 of the Illegal Immigrants (Trafficking) Act 2000. In my view the appropriate applicant to challenge an immigration decision is the person to whom it is addressed. Other family members can be joined as and where appropriate but if the primary applicant fails or refuses to challenge the decision, those other family members do not have any independent right to do so. Nor do they have an independent right to challenge it subsequently if they are born at a later stage or at such a later stage cease to be under a disability. In any event, even if I am wrong on all of the foregoing, this is not a decisive point as I said that even if I was incorrect about the status of a s. 3(11) application I would reject the proceedings on the merits (see para. 4 of the No. 1 judgment).

The second...