K.I. and Others v Minister for Justice and Equality and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 21 February 2014
• Neutral Citation: [2014] IEHC 83
• Court: High Court
• Date: 21 February 2014

I (K) (a minor) & Ors v Min for Justice & Ors

JUDICIAL REVIEW

IN THE MATTER OF THE IMMIGRATION ACT 1999, AND IN THE MATTER OF THE CONSTITUTION, AND IN THE MATTER OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003, SECTION 3(1)

BETWEEN

K.I. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND M. I.) A.A.O. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND M.I.) A.O. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND M.I.), M.I. AND R.O.

APPLICANTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY, ATTORNEY GENERAL AND IRELAND

RESPONDENTS

AND

THE HUMAN RIGHTS COMMISSION

NOTICE PARTY

[2014] IEHC 83

[No. 459 J.R./2012]

THE HIGH COURT

Immigration law - European Union law - Judicial review - Family life - Deportation order - Asylum seeker - Precarious state - Revocation of deportation order - Article 8 ECHR - Zambrano decision - Irish citizen - Biological father - Whether the revocation of the deportation order was required

Facts: The applicant was a Nigerian national and a failed asylum seeker and the partner of the second named applicant. The second named applicant was the mother of an Irish citizen born to her previous partner. The applicant alleged that his deportation was in breach of Article 8 ECHR, for its failure to respect his family life, and fell within the scope of the Zambrano decision of the Court of Justice for relief.

Held by McDermott J. that the applicants had failed to establish that the respondent”s decision was fundamentally flawed. The rights of the applicant had been appropriately considered and the welfare and best interests of the children had been appropriately assessed, even if not his biological children. The Court was not satisfied that the applicants had established that the decision to refuse to revoke deportation was vitiated by the grounds advanced. He had persisted in a deception as to his time of arrival in the State. Throughout the applicant had acted in disregard of the immigration and asylum laws and had maintained a family life in the knowledge of his precarious state.

ZAMBRANO v OFFICE NATIONAL DE L'EMPLOI (ONEM) 2012 QB 265 2012 2 WLR 886 2011 AER (EC) 491 2011 ECR I-1177 2011 2 CMLR 46 2011 2 FCR 491

IMMIGRATION ACT 1999 S3(11)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

ABDULAZIZ & ORS v UNITED KINGDOM 1985 7 EHRR 471

SMITH v MIN FOR JUSTICE & ORS UNREP CLARKE 1.2.2013 2013 IESC 4

OKUNADE v MIN FOR JUSTICE & ORS 2013 1 ILRM 1 2012/37/10891 2012 IESC 49

IMMIGRATION ACT 1999 S3(1)

SIVSIVADZE & ORS v MIN FOR JUSTICE & ORS UNREP KEARNS 21.6.2012 2012/42/12601 2012 IEHC 244

WORLDPORT IRL LTD (IN LIQUIDATION), IN RE UNREP CLARKE 16.6.2005 2005/58/12287 2005 IEHC 189

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 7

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 20

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 20(2)

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 21(1)

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)

A (M) v MIN FOR JUSTICE UNREP COOKE 17.12.2009 (EX TEMPORE)

IRFAN v MIN FOR JUSTICE UNREP COOKE 23.11.2010 2010/23/5721 2010 IEHC 422

EFE & OLUKAYODE v MIN FOR JUSTICE & ORS (NO 2) 2011 2 IR 798 2011 2 ILRM 411 2011/20/4992 2011 IEHC 214

IMMIGRATION ACT 1999 S3

CONSTITUTION ART 41

GUARDIANSHIP OF INFANTS ACT 1964 S6A

STATUS OF CHILDREN ACT 1987 S12

CONSTITUTION ART 42

CONSTITUTION ART 40.3

NICOLAOU, STATE v BORD UCHTALA 1966 IR 567

G v BORD UCHTALA & ORS 1980 IR 32 1979 113 ILTR 25

K (J) v W (V) & PROTESTANT ADOPTION SOCIETY (NO 2) 1990 2 IR 437

O'R (W) v H (E) 1996 2 IR 248 1996/14/4316

S (W) v ADOPTION BOARD 2010 2 IR 530 2010 1 ILRM 417 2009/52/13131 2009 IEHC 429

KEEGAN v IRELAND 1994 3 FCR 165 1994 18 EHRR 342

BOULTIF v SWITZERLAND 2001 2 FLR 1228 2001 33 EHRR 1179

UNER v NETHERLANDS 2006 3 FCR 340 2007 45 EHRR 14

B v UNITED KINGDOM 1988 10 EHRR 87

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

CONSTITUTION ART 40.3.1

SHUM v IRELAND & ORS 1986 ILRM 593 1986/4/1484

FITZPATRICK v MIN FOR JUSTICE UNREP RYAN 26.1.2005 2005/25/5246 2005 IEHC 9

S (BI) & ORS v MIN FOR JUSTICE UNREP DUNNE 30.11.2007 2007/54/11584 2007 IEHC 398

ALLI v MIN FOR JUSTICE 2010 4 IR 45 2009/3/608 2009 IEHC 595

HAGHIGHI v NETHERLANDS 2009 49 EHRR SE8 2009 ECHR 765

1 1. The fifth named applicant (R.O.) is a Nigerian national and a failed asylum seeker. The fourth named applicant (M.I.) is R.O. 's partner. She is the mother of the first named applicant (K.I.), a minor, who is an Irish citizen born on 1 ^st October, 2002. R.O. is not the natural father of K.I., but R.O. and M.I. are the parents of the second named applicant (A.A.O.) and the third named applicant (A.O.), who are not Irish citizens but were born in Ireland on 2 ^nd April, 2009 and 16 ^th April, 2011, respectively.

2 2. R.O., according to his initial claim for asylum, arrived in the state on 15 ^th April, 2009, having departed Nigeria on 13 ^th April. He claimed to have worked as a cameraman in Nigeria between October, 2006 and September, 2008 and to have fled Nigeria following the making of a documentary which implicated a number of senior politicians in corruption as a result of which the producer of the programme was murdered and he was wounded. He was subsequently beaten. He feared for his life because of his involvement in the making of the documentary and the resulting prosecution of a number of politicians. Following a series of threats the applicant claimed that he moved to the city of Ibadan in Oyo State, but returned to Lagos on 14 ^th February, 2009, believing it was safe to do so. He claimed that on 2 ^nd April armed men called to his house and threatened to kill him. He was spared but his house and car were burnt. He was then advised by another politician to leave the country, which he did. His application for asylum was rejected on credibility grounds in June, 2009 and the recommendation of the Refugee Applications Commissioner was affirmed by the Refugee Appeals Tribunal in a decision made on 29 ^th August, 2009, following an oral hearing on 4 ^th August. A deportation order was made in respect of R.O. on 27 July, 2010.

3 3. In grounding affidavits to these proceedings R.O. claimed that he left Nigeria in February, 2008 and he and M.I. deposed that they formed a relationship at that time shortly after R.O. arrived in Ireland. R.O. complained that he never received notification of the decision of the Refugee Appeals Tribunal and the Minister concerning the refusal of asylum, or notification of the deportation order.

4 4. By letter dated 20 ^th May, 2011, R.O. 's solicitors wrote to the INIS (Irish Naturalisation and Immigration Service) claiming that he was the father of three Irish citizen children, namely, K.I., A.A.O. and A.O.. This was incorrect. Original birth certificates were furnished in respect of A.A.O. and A.O. and an Irish passport in respect of K.I.. A letter from a national school confirmed K.I. was enrolled and attending the school since March, 2008 and that R.O. delivered and collected him every day. A claim was made that as a result of the decision by the European Court of Justice in Case C-34/09 Ruiz Zambrano v. Office National de l'Emploi [2011] ECR 1-1449, delivered after the making of the deportation order, Ireland was precluded from refusing R.O., a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in Ireland which was also their place of residence and nationality, and from refusing to grant him a work permit, insofar as that decision deprives the children of the genuine enjoyment of the substance of their rights as European Union citizens. Further documentation was supplied over the subsequent months in support of this claim.

5 5. The first named respondent considered these representations under s. 3(11) of the Immigration Act 1999, as amended. Amongst the documents furnished was a letter from M.I. in which she stated that R.O. was a caring and loving partner whom she had known for years, and was a caring father. In addition, a letter from Our Lady's Hospital for Sick Children, Crumlin of 7 ^th February, 2012, stated that K.I. had been diagnosed with severe eczema and would, for the foreseeable future, require regular follow up and blood tests to monitor and treat his condition.

6 6. The first information received by the first named respondent concerning R.O. 's claim to be the parent of an Irish citizen child was contained in the letter of 20 ^th May. In his asylum application he claimed only to be the father of two children living in Nigeria, born in 1998 and 2000 respectively. The Irish birth certificate submitted in respect of K.I. clearly indicated that R.O. was not his natural father. His father was A.I. to whom M.I. was married on 26 ^th January, 2001. The other two children, A.A.O. and A.O. are not Irish citizens, though born in Ireland.

The Decision

7 7. By letter dated 9 ^th May, 2012, R.O. was informed that the Minister had affirmed the earlier deportation order and a copy of the latest consideration was enclosed. The examination of file dated 3 ^rd May, 2012, referred to the submissions made on behalf of the applicant arising out of the Zambrano judgment and other documents submitted. The first named respondent was left to configure the exact relationship of R.O. to the three children from these documents. The examination of file correctly concluded that the Zambrano judgment had no application in respect of the relationship between K.I. and R.O. Having done so, the first respondent treated the correspondence as an application under s. 3(11) for revocation of the deportation order, though no formal application was made: the alternative was...