K.R.A. and B.M.A (A Minor) v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Ms. Justice Irvine,the President
• Judgment Date: 27 October 2017
• Neutral Citation: [2017] IECA 284
• Docket Number: [C.A. No. 377 of 2016],Neutral Citation Number: [2017] IECA 284
• Court: Court of Appeal (Ireland)
• Date: 27 October 2017

BETWEEN

KRA

AND

BMA (A MINOR)

APPELLANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

[2017] IECA 284

Ryan P.

Irvine J.

The President

Irvine J.

Hedigan J.

Ryan P.

Neutral Citation Number: [2017] IECA 284

[2016 No. 377]

THE COURT OF APPEAL

Immigration and asylum – Deportation orders – Judicial review – Appellants seeking revocation of deportation orders – Whether trial judge erred in concluding that s. 5(1)(m) of the Illegal Immigrants (Trafficking) Act 2000 applies to a refusal to revoke a deportation order

Facts: The first appellant is a Nigerian national. In 2008, she came alone to Ireland while pregnant and sought asylum on 10th March of that year. Her baby, the second appellant was born four days later. The asylum application was rejected. She applied for subsidiary protection and on 9th November 2009, that was also rejected. On 18th November 2009, the respondent, the Minister for Justice and Equality, made deportation orders in respect of both appellants. On 23rd October 2014, she made an application for revocation of the deportation orders pursuant to s. 3 (11) of the Immigration Act 1999. On 18th May 2015, the Minister refused to revoke the deportation orders. On 3rd June 2015, the High Court (Faherty J) granted leave to the appellants to bring judicial review proceedings in respect of the refusal. On 12th May 2016, Humphreys J rejected the various grounds challenging the Minister's refusal. In another judgment in November 2016, Humphreys J granted a certificate permitting the appellants to appeal to the Court of Appeal against the judgment previously given and the order perfected in June 2016. Two further judgments followed dealing with costs and a request by the Minister for leave. The appellants appealed on the following grounds: (i) the trial judge erred in concluding that s. 5(1)(m) of the Illegal Immigrants (Trafficking) Act 2000 applies to a refusal to revoke a deportation order; (ii) the judge erred in refusing to follow the judgment of Eagar J in C.O.O. v The Minister for Justice [2015] IEHC 139; (iii) the judge erred in concluding that Article 42A.1 of the Constitution did not make any, or any significant, difference to the entitlement of the State to deport children who are unlawfully present in the State; (iv) the finding of the respondent that there was a 'functioning' education system in Nigeria was irrational having regard to the material before her and/or the provisions of Articles 42 and/or 42A of the Constitution.

Held by Ryan P that the trial judge was correct to hold that Article 42A does not amount to a bar to the deportation of a child who is undergoing primary education in the State. Insofar as the decision in C.O.O. holds that it is fatal to a decision if there is joint consideration, Ryan P thought that this was incorrect. Ryan P did not think that there was a right as claimed by the appellants to have the child's education in Ireland recognised and protected by the State; the Minister was not obliged to make a comparison between the educational opportunities in Ireland and Nigeria before making a decision. Ryan P held that the question concerning s. 5(1)(m) of the 2000 Act was not in dispute or serious dispute between the parties in a manner that could impact on the outcome of the appeal.

Ryan P held that the appeal should be dismissed.

Appeal dismissed.

JUDGMENT of the President delivered on 27th October 2017

Introduction

1 Ms. KRA, the first named applicant, was born in Nigeria in 1975. She married there and had three children. In early 2008, she came alone to Ireland while pregnant and sought asylum on 10th March of the same year. Her baby, the second named applicant, BMA, was born four days later on 14th March 2008. The asylum application was rejected and in March 2009, Ms. KRA was notified by the Minister of an intention to make deportation orders. Solicitors on her behalf applied for subsidiary protection, but on 9th November 2009, that also was rejected. On 18th November 2009, the Minister made deportation orders in respect of both applicants and Ms. KRA was required to present herself to the Garda National Immigration Bureau on 8th December 2009. She did not do so, but instead went into hiding from the authorities and remained underground for almost five years. Ultimately, she went to solicitors and through them, on 23rd October 2014, she made an application for revocation of the deportation orders pursuant to s. 3 (11) of the Immigration Act 1999. That gave rise to an arrest and an application to the High Court under Article 40 with which we are not concerned. On 18th May 2015, the Minister refused to revoke the deportation order. On 3rd June 2015, the High Court (Faherty J.) granted leave to the applicants to bring these judicial review proceedings in respect of the refusal.

2 Another relevant part of the chronology is that Article 42A of the Constitution came into force on 28th April, 2015, in the period between the application for revocation under s. 3(11) and the Minister's decision. This appeal is primarily concerned with s. 1 of Article 42A which is as follows:

'The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.'

3 The matter was heard by Humphreys J. who delivered judgment on 12th May 2016, in which he rejected the various grounds challenging the Minister's refusal. In another judgment in November 2016, the same judge granted a certificate permitting the disappointed applicants to appeal to this Court against the judgment previously given and the order perfected in June 2016. Two further judgments followed dealing with costs and a request by the Minister for leave. We are concerned in this case with the judgment of 12th May 2016, and the orders made in consequence. The appellants' leave to appeal was granted on two grounds, but they added another two grounds in the notice of appeal, submissions and argument and it is accepted that grounds may be added when leave has been given.

4 A question that arose in the High Court and which was debated on the appeal is whether the decision of the Minister to refuse a revocation application under s. 3(11) required leave of the High Court before judicial review could be sought. Humphreys J. held that the restrictive statutory regime under s. 5 of the Illegal Immigrants (Trafficking) Act 2000, as amended in 2014 did indeed apply to such decisions, but the matter was not entirely clear. Although this appellant maintained her contention that the Minister's refusal could be appealed without leave, in light of the judgment of the High Court, she applied for leave to appeal and the judge granted it. In the circumstances, the mother has had a full hearing in the High Court pursuant to the leave that she obtained to bring judicial review proceedings. She obtained sanction from the court to bring her appeal to this Court so that from her perspective there is nothing to be gained or lost in the discussion about entitlement to appeal from a Ministerial refusal to revoke a deportation order. The question, nevertheless, has obvious importance for other cases and I propose to consider the matter, but this judgment should be read subject to a reservation arising from the relatively academic nature of the argument on the point.

5 Another issue that is important from the Minister's position, but is not central or even relevant to the appellant's case is the approach of this Court to the granting of an injunction restraining the deportation of a person or persons in the circumstances of the mother and her daughter in this appeal. In the final episode of the tetralogy of litigation that came before Humphreys J, he considered whether he should enjoin deportation pending the determination of the appeal from his judgment. Having heard the matter debated, the judge refused an injunction and the matter in due course came to this Court.

6 This Court dealt with the appeal as a matter of urgency and decided on the basis of a pragmatic response to the situation to grant an injunction until the appeal was determined. Thus, the question of an injunction is a live issue for the Minister, but in fact it is of little more than academic interest for the appellants. In the circumstances, the court made it clear that nothing was to be taken from the decision in the instant case to enjoin deportation pro tem and to leave further consideration of the matter over until judgment.

7 Irvine J addresses the injunction issue in her judgment with which I agree and have nothing to add.

The High Court

8 The essential case made on behalf of KRA and BMA was, first, that Article 42A.1 conferred on BMA constitutional rights, inter alia, to education which fell to be put into the balance against the interests of the State. Her right to free primary education was a natural and imprescriptible right under this Article which could not be defeated otherwise than by a careful balancing against the legitimate interests of the State. Secondly, the decision under challenge required a separate consideration of the individual position of the second appellant in circumstances where she was born in the State, was attending primary education, had never resided in the country to which she was to be deported and there was evidence that her education would be impaired if she were deported. Thirdly, the conclusion by the Minister that there was a functioning education system in Nigeria was irrational.

9 The appellants submitted on the procedural question of interpretation or construction of the statutory provision that s. 5(1)(m) of the Act of 2000 does not apply to a refusal to revoke a Deportation Order and therefore that leave of the High Court is not required.

10 The judgment of the High Court was delivered by Humphreys J. on 12th May 2016, and the...