A (K) (Nigeria) v Refugee Appeals Tribunal and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 12 March 2012
• Neutral Citation: [2012] IEHC 109
• Court: High Court
• Date: 12 March 2012

[2012] IEHC 109

THE HIGH COURT

[No. 935 J.R./2011]

A (K) (Nigeria) v Refugee Appeals Tribunal & Ors

MR JUSTICE COOKE

APPROVED TEXT

JUDICIAL REVIEW

BETWEEN

K. A. [Nigeria]

APPLICANT

AND

REFUGEE APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE AND EQUALITY, ATTORNEY GENERAL AND IRELAND

RESPONDENTS

IMMIGRATION ACT 1999 S3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

CONSTITUTION ART 41

EZZOUDHI v FRANCE ECHR UNREP 13.2.2001 APPLICATION NO. 47160/99

AA v UK ECHR UNREP 20.9.2011 APPLICATION NO. 8000/08

DA SILVA & ANOR v NETHERLANDS ECHR UNREP 31.1.2006 APPLICATION NO. 50435/99

NUMEZ v NORWAY ECHR UNREP 28.9.2011 APPLICATION NO. 55597/09

BOUSARRA v FRANCE ECHR UNREP 23.9.2010 APPLICATION NO. 25672/07

BOUCHELKIA v FRANCE ECHR UNREP 29.1.1997 APPLICATION NO. 23078/93

BOUJILIFA v FRANCE ECHR UNREP 29.10.1997 APPLICATION NO. 25404/94

NUNEZ v NORWAY ECHR UNREP 28.9.2011 APPLICATION NO. 55597/09

IMMIGRATION

Deportation

Application for leave to seek judicial review of decision to issue deportation order - Right to respect for family life - Establishment of family life - Orphan - Unmarried - Staying with aunt - Whether residency sufficient to constitute family life - Whether Minister erred in law in assessing impact deportation would have upon entitlement to respect for family life - Ezzouhdi v France (App No 47160/00) [2001] ECHR 85, (Unrep, ECHR, 13/2/2001); Bousarra v France (App No 25672/07) [2010] ECHR 1999, (Unrep, ECHR, 23/12/2010); AA v United Kingdom (App No 8000/08) [2011] ECHR 1345, (Unrep, ECHR, 28/4/2001; Bouchelkia v France (App No 23078/93) [1998] 25 EHRR 686; Boujlifa v France (App No 25404/94) [2000] 30 EHRR 419; DaSilva and Hoogkamer v The Netherlands (App No 50435/99) (2007) 44 EHRR 34 and Nunez v Norway (App No 55597/09) [2011] [2014] 58 EHRR 17 considered - Immigration Act 1999 (No 22), s 3 - European Convention on Human Rights 1950, art 8 - Application refused (2011/935JR - Cooke J - 12/3/2012) [2012] IEHC 109

A(K)(Nigeria) v Refugee Appeals Tribunal

1 1. This is an application for leave to seek judicial review of a decision to issue a deportation order dated the 20 ^th September, 2011, made by the second named respondent in respect of the applicant. The statement of grounds for the application as originally issued included claims for a series of reliefs and named the Refugee Appeals Tribunal as a respondent apparently with a view to obtaining on order of certiorari quashing an appeal decision of the Tribunal of the 25 ^th November, 2008, a decision which was almost three years old at the time.

2 2. Although apparently invited to abandon the claims made in the respect of the Tribunal decision and to withdraw the proceedings as against the Tribunal, it was not until the written submissions for the present application were exchanged that the respondents were informed that no reliefs were to be pursued against the Tribunal or in respect of any of the decisions which featured in the reliefs sought at section d of the statement of grounds, other than the deportation order.

3 3. Similarly, although the statement of grounds set out some 20 distinct grounds, at the hearing of the application counsel for the applicant reduced the issues in the case to a single ground directed at the argument that the Minister, in the analysis which is set out in a memorandum accompanying the deportation order, had erred in law in assessing the manner in which the deportation order would impact upon the applicant's entitlement to respect for her family life under Article 8 of the European Convention on Human Rights.

4 4. In particular, the essential argument formulated by counsel for the applicant was this. In the memorandum entitled "Examination of File under s. 3 of the Immigration Act 1999" the Minister had concluded that a decision to deport the applicant would not "constitute air interference in the right to respect for family life under Article 8(1) of the ECHR" because it was considered that "her circumstances" do not suggest anything more than "normal emotional ties" and accordingly that the applicant was not taken as having established a "family life" in this country since her arrival here. This, it is argued, was based upon the mistaken understanding that because the applicant had attained the age of eighteen at the time when the Minister's decision was being made, it could not be presumed that, as an adult, she had established a family life in the household of the aunt and cousins with whom she had been residing since her arrival. Thus, the legal flaw alleged is that the Minister failed to recognise these circumstances as "family life" for the purpose of Article 8 with the result that he failed to proceed to carry out any analysis of the proportionality of the interference with that family life which would result from her expulsion from the State.

5 5. The applicant is a young woman from Nigeria who is said to have been born on the 6 ^th December 1992, and to have arrived in the State on the 18 ^th November, 2007, as an unaccompanied minor when she was approximately one month short of her fifteenth birthday.

6 6. She had an aunt already living in the State who had two children, one of whom was Irish born and the aunt had permission to reside in the State since 2002 as a result. With the assistance of her aunt she applied for asylum but was unsuccessful, an appeal against the negative recommendation at first instance having been rejected by the Tribunal on the 16 ^th November 2008.

7 7. There appears to have been confusion about some discrepancy in the detail of the applicant's family background in Nigeria as given by her and by her aunt during the asylum process. However, the applicant claimed that her mother had died at childbirth and that she had not known who her father was. She claims that before leaving Nigeria she had lived with her grandparents and two older women who she believed to be her sisters,, but may have been, it appears, aunts.

8 8. Her application for asylum was made in July 2008, although she claimed to have arrived in the State in November, 2007. Whilst in the asylum process she gave an account of having been attacked, chased and possibly sexually assaulted by a group of twenty young boys when she was working as a street trader, she said that her reason for coming to Ireland was for a "better life".

9 9. Following the failure of the asylum claim and the rejection of an application for subsidiary protection, the Minister considered the representations made for leave to remain in the State under s. 3 of the Immigration Act 1999 and then made the deportation order now sought to be challenged.

10 10. The application for leave to remain together with the application for subsidiary protection was made by a letter of the Legal Aid Board (Refugee Legal Services) dated the 10 ^th February, 2009 and thus at a point when the applicant had been in the State for a year and three months. In the application for leave to remain, the essential reason relied upon was that her aunt in this country, together with her own two children, had come to regard the applicant as a member of that family. The aunt regarded her as a daughter and the children regarded her as an older sister. It was submitted that the applicant with "her aunt as her guardian and her cousins, together form a family unit protected by Article 41 of the Constitution". This basic argument was supplemented by some information as to the applicant's schooling since she had arrived; the fact that she was preparing to sit the Leaving Certificate and that she was active in her church and in its youth group. It was submitted that the return of the applicant to Nigeria would not in these circumstances be in her best interest. It is fair to say that the gist of the remaining submissions and arguments made in that letter was concerned with the legal basis upon which the case was advanced - the legal reason which militated against making a deportation order.

11 11. As already indicated these submissions were taken up and addressed under the heading of "Consideration under Article 8 of the European Convention" and "family life" in the memorandum setting out the reasons for the decision. Her family history in Nigeria, so far as it was known, is referred to and the description of her life with her aunt and the family in Ireland since 2007 is described. In the course of argument counsel on behalf of the applicant sought to suggest that this assessment failed to have regard to the fact that the applicant was an orphan and unmarried with no children of her own. This submission cannot be accepted. The fact that the applicant was single and living with her aunt and two cousins is explicitly recorded in the opening sentences of the memorandum and the fact that her parents were deceased is referred to elsewhere. The fact that these basic background facts are not repeated in the section dealing with the Article 8 consideration, cannot be relied upon as indicating that these facts were ignored in the assessment.

12 12. As already indicated in the conclusion quoted from the final paragraphs of the memorandum above, the essential basis upon which the Minister decided that Article 8 family rights would not be infringed by the making of a deportation order in these circumstances is that, in the Minister's judgment, the life that the...