Kozhukarov and Others v The Minister for Justice Equality and Law Reform and Others

JudgeMr. Justice Clarke
Judgment Date14 December 2005
Neutral Citation[2005] IEHC 424
CourtHigh Court
Docket Number[No. 284 J.R./2005]
Date14 December 2005

[2005] IEHC 424


[No. 284 J.R./2005]
Kozhukarov v Min for Justice & Ors





Immigration - Asylum - Deportation orders - Infringement of rights under European Convention on Human Rights - European Convention on Human Rights, Article 8

Facts: The applicants applied for leave to apply for judicial review to challenge deportation orders and refusals to revoke such orders. The issue was whether, in an appropriate case, there was an entitlement to seek to challenge orders or decisions made by the Minister in the deportation process on the grounds that such orders would infringe in an impermissible way the rights of parties under the European Convention on Human Rights.

Held by Clarke J. in granting leave that the applicants were entitle to challenge the decision of the Minister but only on the grounds that the decision, insofar as it purported to give effect to an immediate deportation of the applicants, amounted to a disproportionate interference with the applicants’ rights as guaranteed under Article 8 of the Convention.

Reporter: R.W.

Mr. Justice Clarke

1.1 The applicants seek leave permitting them to m challenge deportation orders and refusals to revoke such orders. The first and second named applicants are partners who are both Bulgarian nationals and who left Bulgaria arriving in Ireland on 15th October, 2002. They both applied for refugee status based on a claimed fear of persecution on the grounds of their ethnic identity as Roma. Those applications were rejected both by the Refugee Applications Commissioner and, on appeal, by the Refugee Appeals Tribunal.


1.2 Subsequent to the final determination of her case by the Refugee Appeals Tribunal, the second named applicant ("Ms. Spasova") was notified, by letter of the 15th December, 2003, that her appeal had been refused. Similarly on 28th April, 2004 the first named applicant ("Mr. Kozhukarov") was notified that his appeal had been refused and the original recommendation in his case upheld.


1.3 After each determination Mr. Kozhukarov and Ms. Spasova were respectively notified that the first named respondent ("the Minister") proposed to make deportation orders in respect of them and was giving consideration to their cases under s. 3 of the Immigration Act 1999. Both were informed that they had 15 working days from the dates of their respective letters to make written representations setting out the reasons as to why they should be allowed to remain in the State.


1.4 The Refugee Legal Service, on behalf of both Mr. Kozhukarov and Ms. Spasova, made representations in separate letters dated respectively 23rd January, 2004 and the 21st October, 2004 in which were put forward reasons as to why the parties ought to be entitled to remain in the State.


1.5 These matters were initially considered by a Clerical Officer in the Repatriation Unit of the Minister's Department who produced a report dated the 24th November, 2004. As appears both from the representations made on behalf of Mr. Kozhukarov and Ms. Spasova and also from that report, the principal ground put forward on behalf of the parties for remaining in the State concerned the fact that Ms. Spasova had given birth to a child on 27th July, 2003 (while in this State) and where, tragically, the child concerned (Donald) died on 4th December, 2003. I will return briefly to the circumstances surrounding the tragically short life of Donald, later in the course of this judgment.


1.6 Having reviewed the circumstances of the case the Clerical Officer concerned made the following recommendation:-

"Bilyana Spasova and Andon Kozhukarov's case was considered under s. 5 of the Refugee Act1996, as amended, and under s. 3(6) of the Immigration Act 1999, as amended. Refoulement was not found to be an issue in this case. Therefore on the basis of the foregoing I reluctantly recommend that the Minister sign the deportation orders across."


1.7 It would then appear that, in accordance with normal practice, the matter was next considered by an Executive Officer in the Minister's Department. The conclusions reached by that officer were as follows:-

"I have read and considered all of the papers on Ms. Spasova and Mr. Kozhukarov's file, including Ms. Hanberry's submission of 24th November, 2004 and although they did not seek recourse for their troubles in Bulgaria, they have experienced a tragic loss and Ms. Spasova is expecting another child in early 2005. In light of this I recommend that Bilyana Spasova and Andon Kozhukarov be granted leave to remain for a period of one year with a review of their cases at the end of that period".


1.8 Thereafter it would appear that the matter next came for consideration by a senior official in the Minister's Department who made the following recommendation:-

"I have considered the papers on file in this case which is quite complex. The couple have failed the asylum process but suffered the loss of their four month (old) child, born in the State in December of 2003. Ms. Spasova is pregnant and due to give birth in January 2005. While there are obviously humanitarian aspects to this case, Bulgaria has been designated a safe country as regards refoulement. Accordingly, so as to preserve the integrity of the asylum process, I recommend that the Minister signs the orders opposite".


1.9 Subsequently deportation orders were made in respect of both applicants. By letter of the 4th March, 2005, on behalf of the applicants, the Minister was asked specifically to revoke the deportation orders principally because of the tragic family circumstances to which I have alluded. In these proceedings the applicants, at this stage, seek leave to bring judicial review proceedings for the purposes of quashing the deportation orders and the refusal to revoke. In substance the grounds relied upon, while numerous, concern what is contended to be a failure on the part of the Minister to consider properly the applicants request for leave to remain in the State pursuant to s. 3(6) of the Immigration Act 1999 and also a contention that "the refusal of the first named respondent to revoke or suspend the said deportation orders was ultra vires, arbitrary and unreasonable, disproportionate, contrary to natural and constitutional justice and was contrary to the respondents obligations under the Convention for the Protection of Human Rights and Fundamental Freedoms and the protocols thereto".


1.10 Before going on to consider the legal issues which arise I should refer to the particularly tragic circumstances which surrounded the death of the child of Mr. Kozhukarov and Ms. Spasova. As set out in the representations made by letter from the Refugee Legal Service of 20th October, 2004, written on behalf of Mr. Kozhukarov, the following would appear to have occurred.


1.11 Donald Kozhukarov was born on 27th July, 2003 in Limerick Maternity Hospital with multiple congenital malformations secondary to a significant chromosome anomaly. As noted by Eleanor Jenkins, Head Medical Social Worker at the Children's University Hospital in Temple Street "despite a very poor prognosis his parents worked hard to give him the best possible quality of life and managed to care for him at home for most of this. They accepted some support from this hospital, from Our Lady's and from their local public health nurse but were keen to do as much as possible by themselves". Unfortunately it would appear that Donald died on December 4th 2003 and is buried in the Holy Angel's Plot at Glasnevin Cemetery. It was suggested, not surprisingly, that his parents remained extremely distressed and traumatised and...

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