J.W. v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 15 October 2020
• Neutral Citation: [2020] IEHC 500
• Docket Number: [2019 No. 382 JR]
• Court: High Court
• Date: 15 October 2020

BETWEEN

J.W., H.G., E.W. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND J.W.), P.W. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND J.W.), E.W. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND J.W.), J.W. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND J.W.)

AND

P.W. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND J.W.)

APPLICANTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

[2020] IEHC 500

Richard Humphreys

[2019 No. 382 JR]

THE HIGH COURT

JUDICIAL REVIEW

Deportation – Disproportionality – Family and private life rights – Applicant challenging deportation order – Whether the respondent’s decision was disproportionate

Facts: The second applicant was an illegal immigrant from Nigeria who falsely claimed to be from Liberia. He was convicted of sexual assault on a minor. A custodial sentence was imposed and the second applicant was placed on the Sex Offenders Register for seven years. A deportation order was subsequently made. That was challenged. Nineteen grounds of challenge were set out in the amended statement of grounds. In the applicants’ revised written submissions that was reduced to eight headings, and in oral submissions counsel accepted the questions could be framed under four headings: (i) disproportionality; (ii) proper consideration of family and private life rights including constitutional rights; (iii) alleged obligation to publish policies; and (iv) proper consideration of the best interests of the child.

Held by the High Court (Humphreys J) that the decision was not disproportionate; it was clearly open to the first respondent, the Minister for Justice and Equality, to consider that the relevant interests of family members concerned, including all applicants, was outweighed by the offence committed by the second applicant. Humphreys J held that even if the applicants were entitled to assert some failure of box-ticking by the Minister, the family circumstances were in fact fully considered and the decision could not be quashed on that basis. Humphreys J held that the Minister was not obliged to publish policies in relation to her discretionary powers, nor was there any obligation to publish policies as to what amounts to “an adaptable age” and even if there was, the applicants could not succeed under that heading because the issue was irrelevant given that the children were not going to be leaving the State anyway. Humphreys J held that the best interests issue only arises under art. 8 of the ECHR, not under the Constitution, and that there was no failure to validly consider the issue. Humphreys J noted that the only applicant being deported was the second applicant who was an unsettled migrant, and deportation of unsettled migrants is contrary to the ECHR only in exceptional circumstances. In any event, Humphreys J found that the best interests of the children had not been shown to raise anything exceptional to demonstrate that the decision was unlawful.

Humphreys J made the following order on 31st July, 2020: (i) that the proceedings be dismissed, and in that regard he did not need to decide whether to set aside the amendment or to dismiss on grounds of discretion because the action failed on the merits anyway; and (ii) in relation to the interim injunction granted at leave stage, while it did not seem to have been continued, if and insofar it was continued it was discharged, and insofar as any undertakings were given by the respondents, they were released therefrom.

Proceedings dismissed.

JUDGMENT of Mr. Justice Richard Humphreys delivered on Thursday the 15th day of October, 2020

1 The second-named applicant is an illegal immigrant from Nigeria who falsely claimed to be from Liberia. He was convicted of sexual assault on a minor, and it appears that he only entered a guilty plea after his victim was required to give evidence and be cross-examined. According to the Circuit Court Judge, her victim impact statement explained that the crime has had a “significant effect on her” and that she had difficulty going out and travelling which impeded her ability to do part-time work. She was a vulnerable victim and “in fear and dread” in relation to the court appearance. She was “still traumatised and is on medication” and the Circuit Court Judge said that what she underwent constituted “an indelible mark that will be left on her for the rest of her life.” A custodial sentence was imposed and the second-named applicant was placed on the Sex Offenders Register for seven years. Unsurprisingly, perhaps, a deportation order was subsequently made. That is now challenged. Virtually all of the grounds advanced are ruled out on the basis of previous caselaw so, perhaps also unsurprisingly, the present challenge also fails.

Facts

2 The second-named applicant was born in 1983: where exactly is not totally clear, but it seems to have been Nigeria. He also had a Liberian passport which was found to be a false document.

3 He arrived in the State on 21st July, 2008 and fraudulently applied for a declaration of refugee status as a Liberian. That was rejected and an appeal was also rejected on 18th June, 2009. He then applied for leave to remain and subsidiary protection.

4 He apparently has an older child born in 2009, but doesn't have access to that child.

5 He claims to have met Ms. J.W. in 2009 and claims that they married in a non-legal religious ceremony on 12th February, 2011. They apparently have three children: E.G., born 2012; J.G., born 2014; and P.G. born 2015. Ms. J.W. also has two children from a previous relationship: E.E. (who is an Irish citizen, but not a child of the applicant), born 2004; and P.W., born 2008.

6 In 2012 the second-named applicant applied for leave to remain on the basis of parentage of an Irish citizen child, but failed to supply relevant documentation. The application was closed.

7 On 1st January, 2014 the false Liberian passport was seized by Gardaí.

8 The second-named applicant's subsidiary protection application was refused on 31st December, 2014 and there was no appeal.

9 On 17th February, 2014 he was convicted of sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990. The Circuit Court, on appeal, affirmed the conviction and reduced the sentence from six months to five months' imprisonment, as well as putting the second-named applicant on the Sex Offenders Register.

10 A notification of intention to deport was issued on 8th May, 2015 and a deportation order made on 29th September, 2017.

11 Following a first set of judicial review proceedings [2017 No. 861 JR], it was agreed that the deportation order would be withdrawn. A further proposal was made on 13th June, 2018. That resulted in a second deportation order on 8th May, 2019 which is challenged in the present proceedings, filed on 18th June, 2019. Leave was granted on 24th June, 2019 and on 9th June, 2020 I allowed an amendment to the statement of grounds without prejudice to any submissions that the respondents might make at the substantive hearing. I have now received helpful submissions from Mr. Michael Conlon S.C. (with Mr. Paul O'Shea B.L.) for the applicants and from Mr. Anthony Moore B.L. for the respondents. On 31st July, 2020 having heard the matter, I informed the parties of the order being made and indicated that reasons would be given later.

Some general considerations

12 It is worthwhile to contextualise challenges of this kind by setting out a number of general considerations which are established in the caselaw but that unfortunately are sometimes overlooked, particularly by applicants:

(i). there is a presumption of validity for administrative decisions: per Finlay P., as he then was, in In re Comhaltas Ceoltóirí Éireann (Unreported, High Court, 5th December, 1977) and per Keane J., as he then was, in Campus Oil v. Minister for Industry and Energy No. 2 [1983] I.R. 88 at 102;

(ii). there is a presumption that material has been considered if the decision says so: per Hardiman J. in G.K. v. Minister for Justice, Equality and Law Reform [2002] 2 I.R. 418, [2002] 1 I.L.R.M. 401;

(iii). the State has a wide discretion in immigration matters: per Keane C.J. for the court in In re Illegal Immigrants (Trafficking) Bill 1999 [2000] IESC 19, [2000] 2 I.R. 360 (paras. 82-83), citing Costello J., as he then was, in Pok Sun Shum v. Ireland [1986] I.L.R.M. 593 at 599;

(iv). the common good includes...