K (C)(A Minor) and Others v Min for Justice

JurisdictionIreland
JudgeMR JUSTICE E. SMYTH,
Judgment Date25 February 2011
Neutral Citation[2011] IEHC 150
CourtHigh Court
Date25 February 2011
K (C)(A Minor) & Ors v Min for Justice
JUDICIAL REVIEW

BETWEEN

C.K. (A MINOR ACTING BY HER FATHER AND NEXT FRIEND E.K.),

AND

A. K. (A MINOR ACTING BY HER FATHER AND NEXT FRIEND, E.K.)

AND

L. K. (A MINOR ACTING BY HIS FATHER AND NEXT FRIEND, E. K.)

AND

E. K.
APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
RESPONDENT

[2011] IEHC 150

Record No: 1248/JR/2009

THE HIGH COURT

IMMIGRATION

Deportation

Leave to apply - Judicial review - Test - Principles to be applied - Extension of time - Principles to be applied - Factors to be considered - Burden of proof - Obligations on Minister in making decision - Whether obligation on State to ensure person returned to third country will enjoy same medical and social assistances as Ireland - Rights of children of non-national parents - Principles to be applied in deciding whether to deport parent of children - Principles to be applied in making decision regarding applicant with criminal convictions - Factors to be taken into account - Applicant father of minor children convicted of offences - Deportation order made - Contention reliance on convictions by Minister disproportionate - Contention Minister failed to consider rights of children of applicant - Finding by Minister no less restrictive process to achieve legitimate aim of preventing crime disputed - Reference to charge for which applicant not convicted in decision - Whether deliberate deception by applicant - Whether substantial grounds - Whether extension of time appropriate - Omoregie v Norway [2009] Imm 170; Haghighi v Netherlands (App-38165/07), (2009) 49 EHRR SE8; Grant v United Kingdom (App-10606/07) (2009) ECHR 25; R(Mahmood) v Home Secretary [2001] 1 WLR 840; Unur v Netherlands (App-46410/99) (2007) 45 EHRR 14 considered - A(F) v Refugee Appeals Tribunal [2007] IEHC 290, (Unrep, Peart J, 27/7/2007); Kelly v Leitrim County Council [2005] IEHC 11, [2005] 2 IR 404; JA v Refugee Applications Commissioner [2008] IEHC 440, [2009] 2 IR 231; Boultif v Switzerland (App-54273/00), (2001) 33 EHRR 50; Omojudi v The United Kingdom (App-1820/08), (2010) 51 EHRR 10; JA v Refugee Applications Commissioner [2008] IEHC 440, [2009] 2 IR 231 approved - S v Minister for Justice [2002] 2 IR 163; The Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360; CS v Minister for Justice [2004] IESC 44, [2005] 1 IR 343; GK v Minister for Justice [2002] 2 IR 418; Z v Minister for Justice, Equality and Law Reform [2002] 2 ILRM 215; Oguekwe v Minister for Justice [2008] IESC 25, [2008] 3 IR 795; AO & DL v Minister for Justice [2003] 1 IR 1; Meadows v Minister for Justice [2010] IESC 3, [2010] 2 IR 701; O'Keeffe v An Bord Pleanála [1993] IR 39; The State (Keegan) v Stardust Compensation Tribunal [1986] IR 642 applied - Ofobuike (A Minor) v Minister for Justice, Equality and Law Reform [2010] IEHC 89 (Unrep, Cooke J, 13/1/2010); (B)M v Minister for Justice [2010] IEHC 320, (Unrep, Clark J, 30/7/2010); O(S) v Minister for Justice, Equality and Law Reform [2010] IEHC 343 (Unrep, Cooke J, 1/10/2010) approved; Yilmaz v Germany (App-52853/99), (2004) 38 EHRR 23 distinguished - Road Traffic Act 1961 (No 24), ss 38, 40, 56, 69 - Criminal Justice (Public Order) Act 1994 (No 2), s 6 - Refugee Act 1996 (No 17), s 5 - Non-Fatal Offences Against the Person Act 1997 (No 26), s 2 - Immigration Act 1999 (No 22), s 3 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Criminal Justice (UN Convention Against Torture) Act 2000 (No11), s 4 -European Convention on Human Rights 1950, arts 3 and 8 - Constitution of Ireland 1937, arts 2, 40, 41 and 42 - Leave granted (2009/1248JR - Smyth J - 25/3/2011) [2011] IEHC 150

K(C) v Minister for Justice, Equality and Law Reform

Facts The fourth named applicant, who was the father of the first, second and third named applicants sought leave to apply by way of judicial review for an order of certiorari quashing the deportation order made by the respondent in respect of the fourth named applicant and notified to him on 29 October 2009. The fourth applicant arrived in Ireland in 2000. In 2005, he was convicted in the District Court of a number of road traffic offences and also of assault and threatening and abusive behaviour. Following those convictions the applicant's permission to remain was revoked. The applicant did not come to any other adverse attention. The substantial reason for the making of a deportation order in respect of the fourth named applicant as stated in the file note prepared by an Executive Office in the respondent's department was that there was no less restrictive process available which would achieve the legitimate aim of the State to prevent disorder and crime and to protect the economic well being of the country. The applicants' principal submission was that in circumstances where family rights were involved and the respondent was seeking to rely on the substantial reason of the prevention of crime and disorder to justify the making of a deportation order; the crime and disorder committed by the applicant must be of a very serious nature. It was further argued that the respondent failed to consider the personal rights of the minor applicants and their right under Article 2 of the Constitution to be 'part of the Irish nation' and the respondent was required to undertake a fact-specific analysis of the effects of the deportation on the citizen children before making a deportation order. The respondent submitted that these proceedings were brought outside the statutory time limit and objected to an extension of time. The applicant stated that he received the deportation order on 2 November and he made contact with his new solicitor on 4 November in order to challenge the deportation order. These proceedings were file on 2 December 2009. At the request of the court a supplemental affidavit was submitted by the applicant's solicitor explaining the delay in instituting the proceedings herein.

Held by Smyth J. in granting leave: That on the face of it, the applicant acted promptly and brought the matter to the attention of his solicitor well within the 14 day period. The delay in the legal process was adequately explained in a supplemental affidavit of the applicant's solicitor and consequently an extension of time was granted. The respondent carefully considered all the circumstances of the family and the mother of the first to third named applicants that were known to him. A general reading of the file and the contents of the letter revoking the fourth named applicant's permission to remain, gave credence to counsel for the applicant's submission that the real reason why permission was being revoked, and ultimately for the making of the deportation order, was the applicant's criminal convictions. The respondent was entitled to deport aliens convicted of criminal offences and the fact that those offences were minor in nature did not mean that, depending on the circumstances of the case, they could not form an appropriate basis on public policy grounds for the making of a deportation order, where it was necessary in the reasonable interests of the prevention of disorder and crime. However, leave to apply for judicial review was granted in this case on the ground that the conclusion reached in balancing the impact of the deportation upon the rights, interests and welfare of the first, second and third applicants as Irish citizens and family members was disproportionate and unreasonable in law in that mistaken and irrational weight was given to the criminal record of the fourth named applicant.

Reporter: L.O'S.

BOULTIF v SWITZERLAND 2001 33 EHRR 50

OMOJUDI v UNITED KINGDOM UNREP ECHR 24/02/2010 APPLICATION NO 1820/08

FE & ORS v MIN FOR JUSTICE & ORS UNREP HOGAN 11/01/2011

F (ISO) v MIN FOR JUSTICE & ORS UNREP COOKE 17.12.2010 2010 IEHC 457

CONSTITUTION ART 2

OGUEKWE v MIN FOR JUSTICE & ORS UNREP SUPREME 1.5.2008 2008/51/10890

OMOREGIE v NORWAY 2008 ECHR 761

HAGHIGHI v NETHERLANDS 2009 49 EHRR SE8

GRANT v UK UNREP ECHR 08/1/2009 APPLICATION NO 10606/07

ILLEGAL IMMIGRANTS TRAFFICKING ACT 2000 S5

A (F) & A (B) v REFUGEE APPEALS TRIBUNAL & ORS UNREP PEART 27.7.2007 27/01/188 2007 IEHC 290

KELLY v LEITRIM CO COUNCIL UNREP CLARKE 27.01.2005 2005/34/6980 2005 IEHC 11

J (A) & D (A) (AN INFANT) v REFUGEE APPEALS COMMISSIONER 2009 2 IR 231

S (SAALIM) v MIN FOR JUSTICE EQUALITY & LAW REFORM UNREP SUPREME 05.03.2002 2002/24/6257

ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999 2000 2 IR 360

CS v MINISTER FOR JUSTICE & ORS 2005 IR 343

GK v MINISTER FOR JUSTICE & ORS 2002 2 IR 418

ILLEGAL IMMIGRANTS TRAFFICKING ACT 2000 S5(2)(A)

NON FATAL OFFENCES AGAINST THE PERSON ACT 1997 S2

CRIMINAL JUSTICE PUBLIC ORDER ACT 1994 S6

IMMIGRATION ACT 1999 S3(6)A

IMMIGRATION ACT 1999 S3(6)B

IMMIGRATION ACT 1999 S3(6)C

IMMIGRATION ACT 1999 S3(6)D

IMMIGRATION ACT 1999 S3(6)E

IMMIGRATION ACT 1999 S3(6)F

IMMIGRATION ACT 1999 S3(6)G

IMMIGRATION ACT 1999 S3(6)K

REFUGEE ACT 1996 S4

CRIMINAL JUSTICE UN CONVENTION ON TORTURE 2000 S4

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

CONSTITUTION ART 40

CONSTITUTION ART 41

CONSTITUTION ART 42

Z v MIN FOR JUSTICE & ORS 2002 2 ILRM 215

OFOBUIKE (A MINOR) & ORS v MIN FOR JUSTICE & ORS UNREP COOKE 13.01.2010 2010 IEHC 89

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

B (M) & ORS v MINISTER FOR JUSTICE UNREP CLARK 30.07.2010 2010 IEHC 320

AO & O J O (A MINOR) v MIN FOR JUSTICE 2003 1 IR 1

ROAD TRAFFIC ACT 1961 S38(1)

ROAD TRAFFIC ACT 1961 S40(1)(A)

ROAD TRAFFIC ACT 1961 S69(1)

ROAD TRAFFIC ACT 1961 S56(1)

ROAD TRAFFIC ACT 1961 S56(3)

NON FATAL OFFENCES AGAINST THE PERSON ACT 1997 S2

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S6

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8(2)

R (MAHMOOD) v HOME SECRETARY 2001 1 WLR 840

REFUGEE ACT 1996 S5

CRIMINAL JUSTICE (...

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