L.A.I (Nigeria) & B.J. v Minister for Justice & Equality
| Jurisdiction | Ireland |
| Judge | Mr. Justice Richard Humphreys |
| Judgment Date | 21 October 2019 |
| Neutral Citation | [2019] IEHC 701 |
| Docket Number | [2019 No. 42 J.R.] |
| Court | High Court |
| Date | 21 October 2019 |
[2019] IEHC 701
THE HIGH COURT
JUDICIAL REVIEW
Richard Humphreys
[2019 No. 42 J.R.]
AND
AND
EU law – Deportation order – Enforcement – Applicant seeking revocation of deportation order – Whether the respondent was obliged to consider the prospective EU law position of the applicant
Facts: The second applicant arrived in the State in or around 2002 and applied for international protection. He was granted leave to remain in 2004 and Irish citizenship in 2007. The first applicant, a national of Nigeria, arrived in Ireland on 16th September, 2016, falsely claiming to be an unaccompanied minor. On 9th June, 2017, her application for international protection was rejected and on 10th July, 2017, she was refused permission to remain. She appealed the protection decision to the International Protection Appeals Tribunal, and that appeal was rejected in a decision that was notified on 22nd February, 2018. On 17th July, 2018, she sought a review of the permission to remain refusal. Following the review, she was notified on 12th November, 2018 that she had been refused permission to remain. A deportation order was made on 30th November, 2018 and notified to her on 18th December, 2018. On 16th January, 2019, she applied for revocation of the deportation order on the grounds that in December, 2018 she had become pregnant by the second applicant. An undertaking that she would not be deported was sought and on 17th January, 2019 that undertaking was refused on behalf of the respondents, the Minister for Justice and Equality, Ireland and the Attorney General. A statement of grounds was filed on 21st January, 2019. The applicants were given liberty to move an application for an interim injunction on 22nd January, 2019. That injunction was granted until 28th January, 2019, on which date a further injunction was granted until 11th February, 2019. On 8th February, 2019, written legal submissions seeking leave were served on the respondents. On 11th February, 2019, leave was granted along with an interlocutory injunction. The case was heard on 31st July, 2019 and resumed on 4th September, 2019, on which latter date the High Court (Humphreys J) delivered an ex tempore ruling granting certain relief to the applicants. Humphreys J took the opportunity to give a formal written judgment.
Held by Humphreys J that the short answer to the respondents’ complaint that the first applicant had no substantive rights that were engaged by the giving effect to of an unchallenged deportation order was that she had a right of fairness of procedure in administrative law, which involved the right to have relevant considerations, including her prospective position, taken into account. Humphreys J held that the complete answer to the respondents’ further complaint that the court was being asked to presume that the Minister would decide the application unlawfully was that the respondents had firmly set out their position that the Minister was not obliged to consider the prospective position of the first applicant under EU law in general or Case C-34/09 Zambrano in particular; in that context, to grant a declaration in this regard did serve a function and did address an issue that was actually in dispute between the parties and was properly raised on the pleadings, and it therefore seemed appropriate and necessary as well as just and convenient to do so. Humphreys J held that, on the material before the court in the very fact-specific circumstances of this case, the chances of the Minister being required to readmit the first applicant to the State, if deported before the birth of the child, seemed relatively high because the child would have a right to come back as an Irish citizen; that would be likely to require the first applicant’s readmission to the State under the Zambrano doctrine. On that basis it appeared to Humphreys J appropriate to restrain the deportation of the first applicant unless and until that determination in the prospective Zambrano application was made, conditional on a Zambrano application being made promptly.
Accordingly, the order made on 4th September, 2019 was: (i) a declaration that, in considering any application for revocation of the deportation order, the Minister was obliged to consider inter alia the prospective EU law position of the first applicant, and; (ii) an order restraining the enforcement of the deportation order against the first applicant until the determination of any application under the CJEU judgment in Case C-34/09 Zambrano that was made within one month of the birth of her child.
Declaration and order granted.
The second-named applicant arrived in the State in or around 2002 and applied for international protection. He was granted leave to remain in 2004 and Irish citizenship in 2007. He then got married on a date unknown and had a hitherto unspecified number of children, although counsel now states that his instructions were that there were four of them. He separated from his wife on an unspecified date, but apparently around 2016 to 2017. The wife and children now reside in the UK.
The first-named applicant is a national of Nigeria who came into the story when she arrived in Ireland on 16th September, 2016, falsely claiming to be an unaccompanied minor. On 10th October, 2016, she disclosed that she was in fact 21. Her aunt is an Irish citizen. On 9th June, 2017, her application for international protection was rejected and on 10th July, 2017, she was refused permission to remain. She appealed the protection decision to the International Protection Appeals Tribunal, and that appeal was rejected in a decision that was notified on 22nd February, 2018. On 17th July, 2018, the first-named applicant sought a review of the permission to remain refusal, and enclosed further representations, including a letter from a Mr. L.K.C., dated 22nd February, 2018, who is apparently an Irish citizen and who stated that he was in a loving relationship with the first-named applicant “for some months now”. The first-named applicant now claims in these proceedings to have been in a loving relationship with the second-named applicant since March or April, 2018. That naturally enough raises the question as to why the first-named applicant wrote to the Minister in July, 2018, enclosing the letter from Mr. C, stating that she was in a loving relationship with him and had been for some time. Counsel for the applicants is now saying, although it has not been specifically deposed to, that the relationship with Mr. C ended in March, 2018 but that the first-named applicant did not tell her solicitors, and they unwittingly forwarded on the letter to the Minister, unaware of the change of circumstances. That is certainly a sub-optimal situation although not the fault of the applicants’ lawyers.
In any event, following the review, the first-named applicant was notified on 12th November, 2018 that she had been refused permission to remain. A deportation order was made on 30th November, 2018 and notified to the first-named applicant on 18th December, 2018. On 16th January, 2019, she applied for revocation of the deportation order on the grounds that in December, 2018 she had become pregnant by the second-named applicant. An undertaking that she would not be deported was sought and on 17th January, 2019 that undertaking was refused on behalf of the respondents. The revocation application itself has yet to be determined. I am informed that her due date was 7th September, 2019.
The statement of grounds was filed on 21st January, 2019. The applicants were given liberty to move an application for an interim injunction on 22nd January, 2019. That injunction was granted until 28th January, 2019, on which date a further injunction was granted until 11th February, 2019. The applicants at that point did not move the leave application as they were awaiting an affidavit from the second-named applicant.
On 8th February, 2019, written legal submissions seeking leave were served on the respondents, which referred to a possible joinder of the unborn child as a potential third-named applicant. On 11th February, 2019, leave was granted along with an interlocutory injunction and the matter was adjourned ultimately to 11th March, 2019 when the issue of joining the unborn child was raised again. The case was then adjourned until 25th March, 2019 while this matter was considered and again adjourned to allow further consideration of this point to 8th April, 2019. This matter was then adjourned until 24th June, 2019, at which point the applicants withdrew the application to join the unborn child, seemingly because they thought that the respondents were opposing that. That was of course a voluntary approach on their part in the sense that the mere fact that an application is opposed does not mean that it is necessarily going to be unsuccessful.
The matter was then adjourned to 8th July, 2019 for a statement of opposition. Given the looming threat of mootness in the proceedings in the event of the birth of the child I was anxious to give the case a date before the first-named applicant's due date, so accordingly fixed a hearing date of 31st July, 2019 with directions for filing of opposition papers and exchange of submissions. The statement of opposition was delivered on 16th July, 2019. The case was heard on 31st July, 2019 and resumed on 4th September, 2019, on which latter date I delivered an ex tempore ruling granting certain relief to the applicants. I now take the opportunity to give a formal written judgment.
I have received helpful submissions from Mr. Michael Conlon S.C. (with Mr. Paul O'Shea B.L.) for the...
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