Igiba (A Minor) and Others v Min for Justice

• Jurisdiction: Ireland
• Judge: MS. JUDGMENT OF MS. JUSTICE M.H. CLARK
• Judgment Date: 02 December 2009
• Neutral Citation: [2009] IEHC 593
• Court: High Court
• Date: 02 December 2009

[2009] IEHC 593

THE HIGH COURT

[No. 621 J.R./2009]

Igiba (a Minor) & Ors v Min for Justice

JUDICIAL REVIEW

BETWEEN

EMMANUELA IGIBA (A MINOR, SUING BY HER MOTHER AND NEXT FRIEND PHILOMENA IGIBA), ANTHONY IGIBA (A MINOR, SUING BY HIS MOTHER AND NEXT FRIEND PHILOMENA IGIBA), SHARON IGIBA (A MINOR, SUING BY HER MOTHER AND NEXT FRIEND PHILOMENA IGIBA) AND PHILOMENA IGIBA

APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

AND

ATTORNEY GENERAL AND HUMAN RIGHTS COMMISSION

NOTICE PARTIES

REFUGEE ACT 1996 S5

R (MAHMOOD) v SECRETARY OF STATE FOR THE HOME DEPT 2001 1 WLR 840 2001 1 FLR 756 2001 2 FCR 63

OGUEKWE & ORS v MIN FOR JUSTICE 2008 3 IR 795 2008 2 ILRM 481 2008/51/10890 2008 IESC 25

Y (HL) & ORS v MIN FOR JUSTICE & AG UNREP CHARLETON 13.2.2009 2009 IEHC 96

ALLI v MIN FOR JUSTICE UNREP FEENEY 11.6.2009 (EX TEMPORE)

A (G) (A MINOR) v MIN FOR JUSTICE & REFUGEE APPLICATIONS CMSR UNREP MCMAHON 22.5.2009 2009 IEHC 235

O (AN) & ORS v MIN FOR JUSTICE UNREP COOKE 14.10.2009 2009 IEHC 448

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)

R (RAZGAR) v SECRETARY OF STATE FOR THE HOME DEPT (NO 2) 2004 2 AC 368 2004 3 WLR 58 2004 3 AER 821

O (A) & ORS v MIN FOR JUSTICE 2003 1 IR 1 2003/31/7267

REFUGEE ACT 1996 S11

IMMIGRATION

Deportation

Judicial review - Leave - Refusal of revocation of deportation order - Mother and children - Youngest child born in state - Failure to pursue asylum application - Departure from state - Deportation order - Application for residency on re-entry - Application for revocation of deportation order - Affirmation of deportation order - Adjournment of leave application for fresh application for revocation of order - Whether insurmountable obstacles to family life in Nigeria - Whether error in application of insurmountable obstacles test - Whether failure to establish sufficient substantial reason - Whether failure to reach reasonable and proportionate decision - Whether substantial grounds for review - Whether open to minister to identify general reasons of immigration control as substantial reason - Whether obligation to identify applicant-specific reason - Disregard for immigration laws - Lack of candour - Failure to pursue asylum application - Requirement for fact-specific assessment of rights of citizen child and family - R(Mahmood) v. Home Secretary [2001] 1 WLR 840; Oguekwe v Minister for Justice [2008] IESC 25, [2008] 3 IR 795; Y(H L) v Minister for Justice [2009] IEHC 96, (Unrep, Charleton J, 13/2/2009); Alli v Minister for Justice [2009] IEHC 595, (Unrep, Feeney J, 11/6/2009); A(G) v Minister for Justice [2009] IEHC 235, (Unrep, McMahon J, 22/5/2009); Osunde v Minister for Justice [2009] IEHC 448, (Unrep, Cooke J, 14/10/2009); R v Home Secretary, ex parte Razgar [2004] 2 AC 368 and AO & DL v Minister for Justice [2003] 1 IR 1 considered - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Leave refused (2009/621JR - Clark J - 2/12/2009) [2009] IEHC 593

I(E) v Minister for Justice, Equality and Law Reform

Facts The fourth named applicant was the mother of the first to third named applicants and all the applicants with the exception of the first named applicant, who was born in Ireland, were nationals of Nigeria. The applicants sought leave to apply for judicial review of the refusal of the respondent to revoke a deportation order made against the fourth named applicant. The fourth named applicant arrived in the State eight months pregnant with the first named applicant and subsequently left and resided in the U.K. for a number of years before returning to this State with the first, second and third named applicants. It was argued on behalf of the applicants that the respondent's application of the "insurmountable obstacles" test constituted an error of law and he ought instead to have asked whether it would be reasonable to expect the family to follow the fourth named applicant to Nigeria. It was further submitted that the respondent used a formula of words relating to immigration control in the identification of a "substantial reason" when he ought to have identified a reason specific to the facts of the case. Finally, it was submitted on behalf of the applicants that the respondent failed to conduct an adequate balancing exercise between the competing rights of the State and the applicants.

Held by Clark J. in refusing to grant leave: That the conclusions reached in the case of Alli v. The Minister (Unreported, High Court, Feeney J., 11 June 2009) applied equally in this case. There was no difference of any substance between the two tests, namely, whether there existed any insurmountable obstacles to the family returning with the deportee and whether it would be reasonable to expect the family members to establish family life elsewhere. Provided the respondent engaged in a fact-specific analysis and weighed the competing interests, as he did in this case, there was no obligation on the respondent to identify an applicant-specific reason. The respondent herein expressly noted that the fourth named applicant had shown a flagrant disregard for the immigration laws of this state and that was a significant factor which contributed to his conclusion that there were substantial reasons requiring her deportation. The applicants herein were not in any sense "settled migrants" within the meaning of the jurisprudence of the European Court of Human Rights and in the circumstances it was unrealistic and near unstateable to suggest that the respondent's decision to deport the fourth named applicant was disproportionate or unreasonable.

Reporter: L.O'S.

1 The applicants are a mother and her three children. The youngest child Emmanuela is a citizen of Ireland by reason of her birth in the State in April, 2003. The mother Ms Philomena Igiba and her two older children, who were born in Nigeria in 1998 and 2000, are nationals of Nigeria.

2 The applicants are seeking leave to apply for judicial review of the refusal of the Minister for Justice, Equality and Law Reform ("the Minister"), dated the 28 ^th May, 2009, to revoke a deportation order made against Ms Igiba in July, 2006. The leave application took place at the Kings Inns in Court No. 1 on the 14 ^th October, 2009. Mr. Michael McNamara B.L. appeared for the applicants. Ms. Sara Moorhead S.C. and Mr. David Conlan Smyth B.L. appeared for the respondents. The applicants' arguments are substantially the same as those advanced in the Alli and Asibor cases, though the facts of this case are significantly different.

Background

3 Ms Igiba who is a well educated science graduate first came to Ireland in March, 2003 when she was eight months pregnant with her third child. Her older children and her husband remained behind in Nigeria. On arrival she made an application for asylum but took no further step and when she failed to attend for interview her application was deemed to be withdrawn. Her daughter the first named applicant, Emmanuela, was born a few weeks after Ms Igiba's arrival in the State and after a passport was obtained for her Ms Igiba went to the U.K. where she and Emmanuela lived at least until late 2006. No information is available on her status in the U.K. and it is stated that mother and children travelled back and forth to Nigeria during that time.

4 In 2004, unaware that Ms Igiba had left the State, the Minister wrote to her at her stated address in Ireland, informing her that he was proposing to deport her. No response was received and the Minister proceeded with the process of the examination of her file under the mandatory statutory provisions including s. 5 of the Refugee Act 1996 which sets out the prohibition against refoulement. No danger of refoulement was identified and the deportation order was signed against her in July, 2006. A letter of notification then issued to her at her last address in Ireland. As she failed to present to the Garda National Immigration Bureau (GNIB) she was classed as an evader. No challenge has been taken to the validity of that deportation order.

5 At the hearing it was claimed that Ms Igiba re-entered the State in December, 2006 with Emmanuela and her two older children. ¹ In May, 2007 her solicitors, Ceemax & Co, made an application on her behalf for residence pursuant to the IBC/05 Scheme. In response she was informed that a deportation order had been made against her in 2006. No further action was taken by those solicitors. In August, 2007 the two older children who are the second and third applicants were enrolled in primary school in Ennis. In February, 2008 a second firm of solicitors, Colgan & Co., made an application for subsidiary protection on behalf of the applicants. That application was refused in September, 2008 and a proposal to deport the older children issued.

6 In October, 2008 a third firm of solicitors, Sarah Ryan & Co., made an application for revocation of the deportation order made against Ms Igiba and a parallel application for leave to remain on behalf of the older children. It was submitted that nothing in the applicant's history required the Minister to remove her from the State. It was submitted that Ms Igiba has a B.Sc in Chemistry; that Emmanuela was 5 years of age and at school in Ennis and that she has rights under the Constitution, EC law and the European Convention on Human Rights (ECHR). It was submitted that Ms Igiba intended to raise Emmanuela, Sharon and Anthony in Ireland and avail of education for them here. No mention was made to the fact that Ms Igiba and Emmanuela had been absent from the State between 2003 and 2006.

7 In February, 2009 the Minister affirmed the deportation order against Ms Igiba and signed deportation orders against Anthony and Sharon. The applicants commenced judicial review proceedings challenging those decisions. Meanwhile Sarah Ryan & Co.,...