J.S. and Others v Minister for Justice and Equality and Another
Jurisdiction | Ireland |
Judge | Mr. Justice McDermott |
Judgment Date | 28 March 2014 |
Neutral Citation | [2014] IEHC 195 |
Court | High Court |
Date | 28 March 2014 |
[2014] IEHC 195
THE HIGH COURT
BETWEEN
AND
AND
ZAMBRANO v OFFICE NATIONAL DE L'EMPLOI (ONEM) 2012 QB 265 2012 2 WLR 886 2011 2 CMLR 46 2011 2 FCR 491 2011 AER (EC) 491 2011 ECR I-1177
CONSTITUTION ART 40.3
CONSTITUTION ART 41
CONSTITUTION ART 42
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8
CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S4
CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S17
CRIMINAL JUSTICE ACT 1984 S13
MISUSE OF DRUGS ACT 1977 S15
MISUSE OF DRUGS ACT 1977 S27
IMMIGRATION ACT 1999 S3
IMMIGRATION ACT 1999 S3(11)
IMMIGRATION ACT 1999 S3(1)
IMMIGRATION ACT 2004 S5
SMITH v MIN FOR JUSTICE & ORS UNREP SUPREME 1.2.2013 2013 IESC 4
C (T) & C (A) v MIN FOR JUSTICE 2005 4 IR 109 2005 2 ILRM 547 2005/10/2112 2005 IESC 42
EFE & OLUKAYODE v MIN FOR JUSTICE & ORS (NO 2) 2011 2 IR 798 2011 2 ILRM 411 2011/20/4992 2011 IEHC 214
TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 20
DERECI & ORS v BUNDESMINISTERIUM FUR INNERES 2012 AER (EC) 373 2011 ECR I-11315 2012 1 CMLR 45
TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 20(1)
O & ANOR v MAAHANMUUTTOVIRASTO 2013 FAM 203 2013 2 WLR 1093 2013 AER (EC) 563
IIDA v STADT ULM 2013 FAM 121 2013 2 WLR 788 2013 1 CMLR 47
YMERAGA v MINISTRE DU TRAVAIL 2013 3 CMLR 33 2013 IMM AR 1070
CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 7
CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 24
CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 51
CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 52(3)
CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 20
CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 21
CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 33
CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 34
D v UNITED KINGDOM 1997 24 EHRR 423 2 BHRC 273 42 BMLR 149
N (FC) v SECRETARY OF STATE FOR THE HOME DEPT 2005 2 AC 296 2005 2 WLR 1124 2005 4 AER 1017 2005 HRLR 22 2005 AER (D) 55 (MAY) 2005 UKHL 31
O (ME) [NIGERIA] v MIN FOR JUSTICE UNREP COOKE 5.9.2012 2012/36/10661 2012 IEHC 394
CONSTITUTION ART 40.3.2
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8(1)
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8(2)
AGBONLAHOR v MIN FOR JUSTICE & ORS 2007 4 IR 309 2007/3/447 2007 IEHC 166
Judicial Review - Deportation Order - Grant of Leave – Revocation – European Court of Justice – Legal Error – Citizenship – Family Life – Immigration - Immigration Act 1999 – Time – Practice and Procedure
Facts: This application for judicial review sought to quash the decision of the respondent to affirm a deportation order made against the second named applicant, M.A., on 7th March, 2012, following a grant of leave on 16th April, 2012. It was argued that the decision not to revoke the deportation order was unlawful and ought to be quashed for the following reasons: (a) The respondent erred in law in applying the principles enunciated by the Court of Justice of the European Union in its judgment in Case C-34/09 Ruiz Zambrano to the personal and family circumstances of the applicants as given in their application of 6th April, 2011; (b) The respondent erred in law in construing and applying to the said personal and family circumstances of the applicants the protections afforded to them (and particularly to the minor applicants as Irish and European Union citizens) by Articles 40.3, 41 and 42 of the Constitution and by Articles 3 and 8 of the European Convention on Human Rights and (c) The conclusions reached and the reasons given for them in refusing to revoke the deportation order where unreasonable and disproportionate to the permanent impact of the order on the personal and family circumstances of the applicants having regard particularly to the changed facts and circumstances presented to the respondent in the application of 6th April, 2011, and to the fact that the minor applicants are Irish and European Union citizens. The applicant a Nigerian national who had lawfully entered the State in 2002 failed to comply with the terms of his visa, having committed a number of criminal offences amongst other things. He fathered a number of children, having had relationships with two Irish citizens. Having been convicted of various offences, including a drugs conviction in February 2008, a deportation order was made on 2nd April, 2009, following an extensive consideration or 'examination of file' carried out under s. 3 of the Immigration Act 1999. The application for revocation failed and on 6th April, 2011, a second application for revocation was made to the respondent based primarily on the Zambrano decision and enclosing further documentation concerning the suggested progress made by M.A. and J.S. in dealing with his drug addiction, their respective medical conditions and the welfare of the children. The request to revoke the deportation order was refused and the order affirmed on 7th March, 2012.
Held by Justice McDermott that the respondent did not error in law in applying the principles enunciated by the Court of Justice in the Zambrano and Dereci decisions to the facts of this case. He reasoned that the decision did not cause the applicant"s partner or children to leave the State or the territory of the European Union with their father or since his departure on 7th March, 2012, and it was not suggested that this was likely to occur in the future. In respects of the applicants contention that Articles 7 and 24 of the Charter of Fundamental Rights were not appropriately considered in making the deportation decision which concerned European Union citizen children, Justice McDermott found that that they had no application in this case as the applicants have not been denied the substantive enjoyment of their European Union citizen rights because of the applicants deportation. He stated that the right to family life falls to be considered under Article 8 of the European Convention on Human Rights in the light of the findings made and involved the same considerations as those applicable under Article 7. Thus, it was reasoned that the principles of European Union law were properly considered and applied to the personal family circumstances of the applicants. In respects of the arguments that the applicant would not receive adequate medical treatment in Nigeria for this addiction and the contention that his family life was being denied to him, Justice McDermott, determined that the additional country of origin information and medical reports adduced did not necessitate a reconsideration of the entire case on an overall basis. He reasoned that no new facts had arisen which were relevant to the applicant"s family life. It was stated that the failure to consider aspects of the applicant"s family life rights afresh was not wrong in law having regard to the extensive consideration of family rights in previous decisions and the absence of any additional evidence relevant to the consideration and balancing of those rights with the rights and interest of the state and the proportionality of the decision. Thus, for these reasons, Justice McDermott determined that the refusal to revoke the deportation order was not fundamentally flawed. Having considered all of the submissions of counsel and the materials submitted, Justice McDermott was satisfied that the Minister in considering the additional material submitted on behalf of the applicants adopted a fair approach, having regard to the failure of the applicants to put forward their complete case at the earliest opportunity and to, in effect, furnish evidence incrementally in the course of their applications which could have been adduced at a much earlier stage.
JUDGMENT of Mr. Justice McDermott delivered on 28th day of March, 2014
1. This is an application for judicial review whereby the applicant seeks to quash the decision of the respondent to affirm a deportation order made against the second named applicant, M.A., on 7 th March, 2012, following a grant of leave on 16 th April, 2012 (Cooke J.). Leave was granted on the following grounds:-
"The decision of the respondent of 7 th March, 2012, refusing the second named applicant's application for revocation of the order dated 2 nd April, 2009, is unlawful and ought to be quashed in that:-"
(a) The respondent erred in law in applying the principles enunciated by the Court of Justice of the European Union in its judgment in Case C-34/09 Ruiz Zambrano to the personal and family circumstances of the applicants as given in their application of 6 th April, 2011.
(b) The respondent erred in law in construing and applying to the said personal and family circumstances of the applicants the protections afforded to them (and particularly to the minor applicants as Irish and European Union citizens) by Articles 40.3, 41 and 42 of the Constitution and by Articles 3 and 8 of the European Convention on Human Rights.
(c) The conclusions reached and the reasons given for them in refusing to revoke the deportation order are unreasonable and disproportionate to the permanent impact of the order on the personal and family circumstances of the applicants having regard particularly to the changed facts and circumstances presented to the respondent in the application of 6 th April, 2011, and to the fact that the minor applicants are Irish and European Union citizens."
2. M.A. is a Nigerian...
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O.O.A. v Minister for Justice and Equality
...and Equality [2014] IEHC 30 (Unreported, High Court, Clark J., 30th January, 2014); and J.S. v. Minister for Justice and Equality [2014] IEHC 195 (Unreported, High Court, McDermott J., 28th March, 2014)). It does not seem to me that this deportation will in any way threaten the second nam......