O'Leary and Others v The Minister for Justice, Equality and Law Reform

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Cooke
• Judgment Date: 24 February 2012
• Neutral Citation: [2012] IEHC 80
• Date: 24 February 2012

[2012] IEHC 80

THE HIGH COURT

[No. 1148 J.R./2010]

O'Leary & Lemiere v Min for Justice

MR JUSTICE COOKE

APPROVED TEXT

JUDICIAL REVIEW

BETWEEN

DESIREE O'LEARY, DIARMAID O'LEARY, MARGARET LEMIERE AND LEON LEMIERE

APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

IMMIGRATION ACT 2004 S4(7)

CONSTITUTION ART 41

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 14

EEC DIR 2004/38

POK SUN SHUM v MIN FOR JUSTICE 1986 ILRM 593

OSAYANDE LOBE v MIN FOR JUSTICE UNREP SUPREME 23.1.2003 2003/31/7267 2003 IESC 3

OGUEKWE v MIN FOR JUSTICE 2008 3 IR 795

ALLI (A MINOR) v MIN FOR JUSTICE 2010 4 IR 45

CONSTITUTION ART 41

CALDARAS v MIN FOR JUSTICE UNREP O'SULLIVAN 9.12.2003 2004/6/1247

OLENCZUK v MIN FOR JUSTICE UNREP SMYTH 25.1.2002 2002/22/5645

JORDAN & ANOR v O'BRIEN 1960 IR 363

MCCOMBE v SHEEHAN 1954 IR 183

RENT RESTRICTIONS ACT 1946 S39(3)(A)

X (R) v MIN FOR JUSTICE 2011 1 ILRM 444 2010/54/13491 2010 IEHC 446

BOULTIF v SWITZERLAND UNREP ECHR 2.11.2001 APP NO 54273/00

UNER v NETHERLANDS UNREP ECHR 18.10.2006 APP NO 46410/99

GUL v SWITZERLAND UNREP ECHR 19.2.1996 APP NO 23218/94

RODRIGUES DA SILVA v NETHERLANDS UNREP ECHR 31.1.2006 App NO 50435/99

OMEREGIE v NORWAY UNREP ECHR 31.10.2008 APP NO 265/07

CONSTITUTION ART 40.1

CONSTITUTION ART 41

CONSTITUTION ART 45.1

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 1

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS)(NO2)REG 2006 SI 656/2006 REG 7(1)(B)

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS)(NO2)REG 2006 SI 656/2006 SCHED 2

IMMIGRATION ACT 2004 S4(6)

IMMIGRATION ACT 2004 S4(7)

IMMIGRATION ACT 2004 S4(3)

IMMIGRATION LAW

Residence

Refusal of permission to reside - Judicial review - Unreasonableness - Irrelevant considerations - South African parents of Irish citizen adult - Constitution - European Convention on Human Rights - Family rights - Whether entitlement to remain in the State - Whether constitutional and convention rights could be invoked in respect of parents of adult citizens - Whether definition of family included more than nuclear family - Whether decision proportionate to family rights - Whether decision vitiated by illegality due to unreasonableness, disproportionality or inadequate explanation - Whether decision maker more concerned with articulating grounds supporting refusal rather than giving an overall assessment in a fair and balanced manner - Whether undue emphasis placed on absence of legislative provision providing for indefinite permission to reside - Whether finding of improper motive and lack of good faith consistent with relevant material - Whether undue emphasis placed on financial dependency - Whether respondent abdicated duty - Whether respondent gave necessary consideration to personal involvement of applicant in lives of their children and grandchildren - Caldaras v Minister for Justice (Unrep, O'Sullivan J, 9/12/2003), Olenczuk v Minister for Justice (Unrep, Smyth J, 25/1/2002), Jordan v O'Brien [1960] IR 363, McCombe v Sheehan [1954] IR 183, RX v Minister for Justice [2010] IEHC 446 (Unrep, Hogan J, 10/12/2010) considered - Immigration Act 2004 (No 1), s 4 - Constitution of Ireland 1937, art 41 - European Convention on Human Rights 1950, art 8 - Decision quashed (2010/1148JR - Cooke J - 24/2/2012) [2012] IEHC 80

O'Leary v Minister for Justice, Equality and Law Reform

Family reunification - Citizenship through marriage by daughter - Invitation to live with daughter - Refusal to extend permission to stay - Provision of support to elderly parents - Whether Article 41 rights engaged by ministerial decision - Public policy considerations - Charges on public funds - Integrity of immigration system - Necessity for underlying facts to be assessed in fair and reasonable manner - Reasons for refusal - Grounds advanced on behalf of applicants - Whether applicants dependent on daughter - Crime levels in South Africa - State of health of applicants - Impact of decision on family - Conduct of applicants - Whether substantial grounds for review - M v Minister for Justice, Equality and Law Reform [2009] IEHC 500, (Unrep, Edwards J, 23/11/2009) distinguished - McGee v Attorney General [1974] IR 284; ER v JR [1981] ILRM 125; Murray v Ireland [1991] ILRM 465; Re Article 26 and the Matrimonial Homes Bill [1994] 1 IR 304; Rogers v Smith (Unrep, SC, 16/7/1970); RX v Minister for Justice [2010] IEHC 452, [2011] 1 ILRM 444; Marckx v Belgium (1979) 2 EHRR 33; Boughanemi v France (1996) 22 EHRR 228; GO (a minor) v Minister for Justice [2008] IEHC 190, [2010] 2 IR 19; North Wetern Health Board v HW [2001] 3 IR 365; Oguekwe v Minister for Justice [2008] IESC 25, [2008] 3 IR 795; S v Minister for Justice [2011] IEHC 92, (Unrep, Hogan J, 23/3/2011); Meadows v Minister for Justice [2010] IESC 3 ; F(ISO) v Minister for Justice (No 2) [2010] IEHC 457, (Unrep, Cooke J, 17/12/2010); McD v L [2009] IESC 82, [2010] 2 IR 199 and Shirley McCarthy v SHDD Case C-434/09 considered - Immigration Act 2004 (No 1), s 4 - Leave granted (2010/1148JR - Hogan J - 30/6/2011) [2011] IEHC 256

O'Leary v Minister for Justice, Equality and Law Reform

Facts: The applicants had obtained leave by way of judicial review to quash a decision of the respondent to grant the third and fourth applicants permission to reside in the State. It was alleged that the decision was inter alia a disproportionate interference with their rights pursuant to Article 41 of the Constitution, that the decision was not fair and reasonable and was in breach of Article 8 ECHR. The first named applicant was originally from South Africa and became an Irish citizen upon marriage to the second applicant. The remaining applicants were her father and mothers who were nationals of South Africa. The remaining applicants wanted to remain with their daughter and her Irish family for the rest of their lives. They had ostensibly entered the State for a holiday and were found to have manipulated the immigration system, having sold their house in South Africa resulting in them having no residence to return to South Africa.

Held by Cooke J. that the erroneous view that the legislation could not accommodate the type of permission which the applicant sought, combined with the unjustified attribution of improper motive and lack of good faith, were sufficient grounds to warrant quashing the decision. Adult citizens and their own citizen children were entitled to rely upon Article 41 in these circumstances. The decision-maker erred in treating the application as based upon primarily financial considerations. It was an unbalanced approach. Inadequate consideration had been given to balancing conflicting interests. The relief sought would be granted quashing the decision of the respondent.

Reporter: E.F.

1 1. By order of the Court (Hogan J.) of the 5 ^th day of My, 2011, liberty was granted to the above named applicants to seek judicial review of the decision by the respondent of the 29 ^th July, 2010, made under s. 4(7) of the Immigration Act 2004, whereby he refused to grant the third and fourth named applicants ("the Lemieres") permission to reside in the State. The grounds upon which leave was thus granted were set out in that order as follows:

1 ) The decision by the respondent to refuse to extend the third and fourth named applicants' permission to reside in the State pursuant to s. 4(7) of the Immigration Act 2004 ("the contested decision") is a disproportionate interference with the applicants' rights under Article 41 of the Constitution.

2 ) The contested decision was not based upon a fair and reasonable assessment of the underlying facts and considerations in the case.

3 ) The contested decision is in breach of the applicants' rights under Articles 8 and 14 of the European Convention of Human Rights.

4 ) The contested decision fails to properly vindicate the applicants' rights under Article 41 of the Constitution because it provides less protection for their family rights than the protection afforded to other citizens of the European Union under Directive 2004/38/EC.

2 2. The background out of which the application for judicial review arises has been set out in considerable detail by Hogan J. in his judgment ("the leave judgment") granting leave of the 30 ^th June, 2011, so that it is sufficient to summarise the essential details here. The first and second named applicants ("the O'Learys") are husband and wife and Irish citizens. The first named applicant ("Mrs O'Leary") is originally from South Africa and became an Irish citizen on marriage to the second named applicant. The remaining applicants are her father and mother who are nationals of South Africa. Her father is in his early 70s and her mother is a few years younger. The O'Learys are settled residents in Ireland with two adult daughters. She is a university lecturer and Mr. O'Leary is an engineer.

3 3. As explained in greater detail in the judgment of Hogan J., the Lemieres, as they advanced in age in recent years, experienced increasing difficulties, both financially and in terms of health and personal security in South Africa. Their income was insufficient to support them, especially where health insurance and medical expenses were concerned and their house was subjected to repeated burglaries and vandalism. They both had severe health problems which required hospital treatment and left them unable to fend for themselves upon discharge. In recent years, the Lemieres have had to rely for financial support upon their three children who reside inEurope and particularly upon the O'Learys in this country. Over the years, they have made frequent visits to their children in the United Kingdom and in this country.

4 4. As South African nationals the Lemieres do not require a visa to visit their...