L (R O) & S (L) v Min for Justice & AG

• Jurisdiction: Ireland
• Judge: Mr. Justice McCarthy
• Judgment Date: 05 March 2009
• Neutral Citation: [2009] IEHC 107
• Court: High Court
• Date: 05 March 2009

[2009] IEHC 107

THE HIGH COURT

218 J.R./2006

L (R O) & S (L) v Min for Justice & AG

BETWEEN

R.O.L. AND L.S.

APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE ATTORNEY GENERAL

AND

THE HUMAN RIGHTS COMMISSION

NOTICE PARTY

RESPONDENTS

IMMIGRATION ACT 1999 S3(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5(1)

O'KEEFFE v BORD PLEANALA 1993 1 IR 39 1992 ILRM 237 1990/8/2141

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

N (BJ) v MIN FOR JUSTICE & ORS UNREP MCCARTHY 18.1.2008 2008 IEHC 8

KAMIL v REFUGEE APPEALS TRIBUNAL & ORS UNREP MCCARTHY 28.8.2008 (EX TEMPORE)

Z v MIN FOR JUSTICE & ORS 2002 2 IR 135 2002 2 ILRM 215 2003/49/12190

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

LAURENTIU v MIN FOR JUSTICE 1999 4 IR 26 1999/15/4552

O v MIN FOR JUSTICE & ORS [BABY O CASE] 2002 2 IR 169 2003 1 ILRM 241 2002/3/501

I (CO) v MIN FOR JUSTICE UNREP MCGOVERN 2.3.2007 2007/29/5917 2007 IEHC 180

C (KC) v MIN FOR JUSTICE UNREP MCGOVERN 2.3.2007 2007/8/1468 2007 IEHC 176

IRISH TRUST BANK LTD v CENTRAL BANK OF IRELAND 1976-7 ILRM 50

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

O (H) (A MINOR) & ORS v MIN FOR JUSTICE UNREP MCCARTHY 28.11.2008 2008 IEHC 405

MWIZA v REFUGEE APPEALS TRIBUNAL & ANOR UNREP MCCARTHY 22.10.2008 (EX TEMPORE)

KONGUE v REFUGEE APPEALS TRIBUNAL & ORS UNREP MCCARTHY 29.10.2008 (EX TEMPORE)

BUCUMI v REFUGEE APPEALS TRIBUNAL & ORS UNREP MCCARTHY 29.10.2008 (EX TEMPORE)

CLINTON v BORD PLEANALA UNREP SUPREME 2.5.2007 2007/9/1805 2007 IESC 19

EAST DONEGAL CO-OPERATIVE LIVESTOCK MART LTD v AG 1970 IR 317

AGBONLAHOR v MIN FOR JUSTICE UNREP FEENEY 18.4.2007 2007/3/447 2007 IEHC 166

DICKSON v UNITED KINGDOM 2008 46 EHRR 41

N v SECRETARY OF STATE FOR THE HOME DEPT 2005 2 AC 296 2005 2 WLR 1124 2005 4 AER 1017

S (R) (ZIMBABWE) v SECRETARY OF STATE FOR THE HOME DEPT UNREP EWCA 18.7.2008 2008 EWCA CIV 839

DA SILVA v NETHERLANDS 2007 44 EHRR 34

SLIVENKO v LATVIA 2004 39 EHRR 24

KONSTATINOV v NETHERLANDS 2007 2 FCR 194

S (BI) & ORS v MIN FOR JUSTICE UNREP DUNNE 30.11.2007 2007/54/11584 2007 IEHC 398

R (MAHMOOD) v SECRETARY OF STATE FOR THE HOME DEPT 2001 1 WLR 840

R (RAZGAR) v SECRETARY OF STATE FOR THE HOME DEPT 2004 2 AC 368 2004 3 WLR 58 2004 3 AER 821

HUANG v SECRETARY OF STATE FOR THE HOME DEPT 2007 4 AER 15 2007 2 AC 167 2007 2 WLR 581

IMMIGRATION ACT 1999 S3

IMMIGRATION

Deportation

Judicial review - Reasonableness - Applicants husband and wife - One spouse unsuccessful asylum seeker - Other spouse legally resident in State - Applicants engaged in fertility treatment - Test to be applied - Delay - Whether deportation order breached right to respect for family life - Whether deportation order proportionate - Whether law relating to reasonableness in review of deportation decisions compatible with European Convention on Human Rights - Whether lapse of time and consequent dilution in uncertain relationship with State a factor to be considered in balancing exercise - Whether respondent had duty to engage in detail with applicant or give reasons of an elaborate kind - Irish Trust Bank Ltd v Central Bank of Ireland [1976] IR 50, O'Keeffe v An Bord Pleanála [1993] 2 IR 39 applied; BJN v Minister for Justice [2008] IEHC 8 (Unrep, McCarthy J, 18/1/2008), Z v Minister for Justice [2002] 2 ILRM 215, L (D) v Minister for Justice [2003] 1 IR 124, Laurentiu v Minister for Justice [1999] 4 IR 26, Baby O v Minister for Justice [2002] 2 IR 169, N v Minister for Justice [2008] IEHC 107 (Unrep, Charleton J, 24/4/2008), O v Minister for Justice [2008] IEHC 405 (Unrep, McCarthy J, 28/11/2008), Clinton v An Bord Pleanala (No 2) [2007] IESC 19 [2007] 4 IR 701, East Donegal Co-operative v Attorney General [1970] IR 317, Agbonlahor v Minister for Justice [2007] IEHC 166 [2007] 4 IR 309, Dickson v United Kingdom App No 44362/04 (Unrep, ECHR, 4/12/2007), N v Secretary of State for the Home Department [2005] 2 AC 296, Da Silva v The Netherlands App No 50435/99 (Unrep, ECHR, 31/1/2006), Konstatinov v The Netherlands App No 16351/03 (Unrep, ECHR, 26/4/2007), S v Minister for Justice [2007] IEHC 398 (Unrep, Dunne J, 30/11/2007), R (Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840, R (Razgar) v Secretary of State for the Home Department [2004] 1 AC 368 and Huang v of State for the Home Department [2007] 4 All ER 15 considered; Itare v Minister for Justice [2007] IEHC 180 (Unrep, McGovern J, 2/3/2007) and C v Minister for Justice [2007] IEHC 176 (Unrep, McGovern J, 2/3/2007) not followed - European Convention on Human Rights Act 2003 (No 20), s 5 - Immigration Act 1999 (No 22), s 3 - European Convention on Human Rights, arts 8 and 13 - Relief refused (2006/218JR - McCarthy J - 5/3/2009) [2009] IEHC 107

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

The applicants were both Nigerian citizens. The second applicant had lived legally in this jurisdiction since 2000 and the first applicant unsuccessfully applied for asylum and was made the subject of a deportation order in 2005. Representations were made on behalf of the applicant but the deportation order was affirmed. Further representations were made pertaining to the fact that the second applicant had a consultation with a gynaecologist in respect of fertility treatment. The respondent replied to those representations stating that the first applicant’s medical condition had been taken into consideration when the deportation order was affirmed. The applicant sought an order of certiorari by way of judicial review quashing the decision of the respondent re-affirming the deportation order relating to the first applicant, a declaration that the decision of the respondent was ultra vires and further a declaration that the rule of law governing the scope of judicial review relating to deportation decisions was incompatible with the European Convention on Human Rights. The applicants were granted leave on the grounds that the respondent acted in violation of the applicants’ rights to respect for the family life as protected by Article 8 of the Convention, it was disproportionate to affirm the deportation order, the respondent took into account irrelevant considerations and/or failed to take into account relevant considerations and finally the applicants’ human rights would be compromised by the impugned decisions herein such that they were entitled to a judicial examination of the decisions, the reasoning behind the decisions and the evidence upon which the decisions were based.

Held by McCarthy J. in dismissing the application: That there was no restriction upon the applicants obtaining fertility treatment in Nigeria. Furthermore, the service of medical treatment for infertility would not engage Article 8 of the convention. Thus, in any balancing of rights, a rational decision make would have been entitled to ignore that factor completely as it did not engage any rights. However, it was taken into account by the respondent in this case. Affording a complete respect to the constitutional or Convention rights of the applicants, as a family, the decision of the respondent was perfectly rational. The respondent had no duty to engage in detail with an applicant in a case like this and had no duty to furnish elaborate reasons. All relevant matters under s. 3 of the Act of 1999 were considered and it was perfectly clear what the reasoning of the respondent was.

Reporter: L.O’S.

1 1. The applicants are both Nigerian citizens. The second applicant has apparently lived legally in this jurisdiction since or on or about the 2 ^nd May, 2000, having arrived here at the age of seventeen in 1997. Her entitlement to be present in the jurisdiction falls to be renewed annually. The first applicant arrived in the jurisdiction on or about the 16 ^th July, 2001 and thereupon applied for asylum. That application was unsuccessful and ultimately on 7 ^th February, 2005 the Minister for Justice made a deportation order in exercise of the powers conferred upon him by s. 3(1) of the Emigration Act, 1999. Subsequent to that order, the applicant commenced proceedings in this court, apparently in relation in relation thereto and I am informed that those proceedings were compromised: I have no knowledge of the terms thereof. I infer, however, that it was agreed that the first applicant should be afforded an opportunity to make fresh representations for leave to remain in the jurisdiction, notwithstanding the fact that his application for refugee status had been refused. One infers that the settlement must have contemplated that the Minister would retake the decision to refuse leave to remain or else such fresh representations would have been pointless. Presumably if the Minister reconsidered his earlier decision, he would revoke the deportation order.

2 2. In any event representations were made in writing on behalf of the applicant to the Minister on 29 ^th December, 2005. These were duly considered by the Minister, who on 20 ^th January, 2006 affirmed the earlier deportation order (or to put the matter another way, refused to revoke it and afford leave to remain to the first applicant). The decision was communicated to the first applicant's solicitors by letter dated the 17 ^th February, 2006. In any event on 20 ^th February, 2006 further representations were made by his solicitors on behalf of the first applicant to the Minister. This pertained to the fact that the second applicant had a consultation with a gynaecologist at the National Maternity Hospital on 6 ^th April, 2006 in respect of fertility treatment, then apparently being undergone by her. The Minister replied to that letter on 22 ^nd February pointing out that the first applicant's medical condition had been taken into...