K. -M and Another v The Minister for Justice, Equality and Law Reform & Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Charleton
• Judgment Date: 16 March 2009
• Neutral Citation: [2009] IEHC 125
• Date: 16 March 2009
• Court: High Court

[2009] IEHC 125

THE HIGH COURT

[No.1182 J.R./2008]

K-M (FL)(A Minor) & Ors v Min for Justice & Ors

JUDICIAL REVIEW

BETWEEN

FL. K. - M. AND FA. K. - M. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND FL. K. - M.)

APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE REFUGEE APPLICATIONS COMMISSIONER, THE REFUGEE APPEALS TRIBUNAL, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

N (A) & ORS v MIN FOR JUSTICE & CMSR OF AN GARDA SIOCHANA UNREP SUPREME 18.10.2007 2007/43/9091 2007 IESC 44

REFUGEE ACT 1996 S2

N (FR) & ORS v MIN FOR JUSTICE UNREP CHARLETON 24.4.2008 2008 IEHC 107

REFUGEE ACT 1996 S11B

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

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

IMMIGRATION ACT 1999 S3

REFUGEE ACT 1996 S5

KOUAYPE v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (EAMES) UNREP CLARKE 9.11.2005 2005/35/7364 2005 IEHC 380

KOZHUKAROV & ORS v MIN FOR JUSTICE & ORS UNREP CLARKE 14.12.2005 2005/35/7380 2005 IEHC 424

AGBONLAHOR (A MINOR) v MIN FOR JUSTICE & AG UNREP FEENEY 18.4.2007 2007/3/447 2007 IEHC 166

D v UNITED KINGDOM 1997 24 EHRR 423

A (J) & A (D) (A MINOR) v REFUGEE APPLICATIONS CMSR & ORS UNREP IRVINE 3.12.2008 2008 IEHC 440

IMMIGRATION

Asylum

Judicial review - Leave - Application by mother - Inclusion of Irish born child in application - Application of Nigerian born child - Refusal of applications - Whether failure to give separate consideration to risk to individual applicants - Extension of period - Delay - Principle of family unity - Centrality of credibility of mother - Failure to establish credibility - Ill health - Right of State to control and regulate immigration - Balancing of rights - Extreme circumstances or ill health - Claim of ill health not made to statutory bodies - Precedent - Delay - N(A) v Minister for Justice [2007] IESC 44 (Unrep, SC, 18/10/2007), N( F R) v Minister for Justice [2008] IEHC 107, (Unrep, 24/4/2008), O(A) v Minister for Justice [2003] 1 IR 1, Kouaype v Minister for Justice [2005] IEHC 380 (Unrep, Clarke J, 9/11/2005), Kozhukarov v Minister for Justice [2005] IEHC 424 (Unrep, Clarke J, 14/12/2005), Agbonlahor v Minister for Justice [2007] IEHC 166 (Unrep, Feeney J, 18/4/2007), D v United Kingdom (1997) 24 EHRR 423 and A(J) v Refugee Applications Commissioner [2008] IEHC 440, (Unrep, Irvine J, 3/12/2008) considered - Refugee Act 1996 (No 9), s 2 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Extension of time and leave refused (2008/1182JR - Charleton J - 16/3/2009) [2009] IEHC 125

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

Facts The first named applicant was the mother of the second named applicant and both parties unsuccessfully applied for refugee status in this State. Subsequently, a deportation order was made by the first named respondent in September 2008. The applicants herein sought to challenge by way of judicial review those various orders refusing their asylum applications and the deportation orders. The applicants claimed that they wee given no separate consideration as regards the various threats which they would receive if returned to Nigeria. The second named applicant sought an extension of time to challenge the decision of the second named respondent made on 23 November 2005 and the decision of the third named respondent made on 31 March 2006. The first named applicant made an application for refugee status on behalf of the second named applicant. The first named applicant was found to be a person without credibility.

Held by Charleton J. in refusing the application: That first named applicant did not make out a separate case of persecution in relation to the second named applicant and consequently the credibility of the first named applicant was central to both claims. It was impossible to conclude that the second named applicant could have some form of credibility in relation to persecution, or the need for international protection, when no credible case was made out by the first named applicant on behalf of the family unit of which the second named applicant was a member. The second named applicant was not entitled to an extension of time for the bringing of an application to seek leave to commence judicial review proceedings. J.A. & Another v. The Refugee Applications Commissioner & Another [2008] IEHC 440 followed. Furthermore, there was insufficient persuasive weight in any of the points raised in this application on behalf of the applicants.

Reporter: L.O'S.

1 1. The first named applicant came from Nigeria to Ireland in May, 2005 making a claim that she was a refugee. A few weeks later she gave birth to the second named applicant. It cannot be assumed that a parent who claims refugee status wishes to have any or all of their children included in their claim. It can happen that a child might be under a different threat to a parent. When the first named applicant applied to the Refugee Applications Commissioner, however, she indicated an affirmative response to the question as to whether she wished to have her child, the second named applicant, included as part of her asylum application. This happened. In addition, the first named applicant had a number of other children in Nigeria. These she left behindon coming to Ireland. One child arrived here later and claimed refugee status. All of these applications were rejected before the statutory bodies and, as regards these applicants, a deportation order was made by the respondent Minister in September, 2008. The first and second named applicants seek leave to commence a judicial review challenge to these orders.

Separate Consideration

2 2. The applicants claim that they were given no separate consideration as regards the various threats which the first named applicant, as mother, and the second named applicant, as an infant, would meet if returned to Nigeria. The first named applicant had previously brought a different judicial review application to an earlier deportation order. This was compromised and it resulted in a second analysis being conducted in relation to her deportation prior to the Minister signing that order. The second named applicant, a child of three years of age, has brought no challenge to the various analyses conducted on behalf of the Minister and by the statutory bodies up to this present application. The child seeks to do so now and, in that regard, requires an extension of the period of fourteen days within which such a review must be commenced, as set out in s. 5 of the Illegal Immigrants (Trafficking) Act 2000, as amended. The delay involved in the second named applicant's case is very substantial. Since the child was included in the claim for refugee status before the Refugee Applications Commissioner, and since the Commissioner decided that case on the 23 ^rd November, 2005, against both applicants, the delay exceeds three years. Both applicants appealed to the Refugee Appeals Tribunal and that statutory body decided against the applicants on the 31 ^st March, 2006, a delay of just under three years at the time of judgment. The delay following upon the notification of thedeportation order in September, 2008 does not meet the time limits, but it is far less substantial. I will return to the delay point.

3 3. The principle of family unity operates in favour of those who are declared to be refugees by the relevant statutory bodies. It does not operate against them. In consequence, when one member of a family is entitled to refugee status, the principle of family unity may, depending on the circumstances, allow for the reunification of that family in its nuclear make-up of mother, father and dependent minor children. Looking at it the other way, however, the converse is not correct as a matter of law. Because a mother or a father is not entitled to refugee status, that does not automatically mean that a child can never be entitled to refugee status. A child may, for instance, be the subject of a particular kind of peril independent of its parents. This was put in the following way by Finnegan J. in A.N. & Ors v. Minister for Justice, Equality and Law Reform & Ors [2007] IESC 44 at p. 8:-

"Taking guidance from the [UNHCR] Handbook I am satisfied that on an application by a parent of a minor child the Minister under the non-statutory regime could deal with that application without having regard to the minor. If the application succeeds the minor should be given refugee status. If the application is unsuccessful then the minor is entitled to apply for refugee status based on his own circumstances and reasons. The [UNHCR] Handbook does not envisage the parent's application as being also an application on behalf of the minor nor that on failure of the parent's application the status of the minor should be determined without regard to his individual circumstances or reasons. Thus the Minister was in error in treating the next friend application as being one on behalf of the minors also. The next friend's application was not an application by the minors but if successful, applying theprinciple of family unity, would benefit them. In the present case there was no application by or on behalf of the minors. Accordingly on the central issue on the application for judicial review there had been no application by or on behalf of the minors and the Immigration Act 1999 section 3(2)(f) did not apply to them: the basis upon which the Minister purported to make deportation orders in relation to the minors did not exist."

4 4. Here, the situation was different. The first named applicant, as mother, made an application for refugee status on behalf of her child. Reading through the entire of the circumstances which she alleged as constituting persecution, within the...