O'Leary & Lemiere v Min for Justice

JurisdictionIreland
JudgeMr. Justice Hogan
Judgment Date30 June 2011
Neutral Citation[2011] IEHC 256
CourtHigh Court
Date30 June 2011

[2011] IEHC 256

THE HIGH COURT

[No. 1148 J.R./2010]
O'Leary & Lemiere v Min for Justice

BETWEEN

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

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
RESPONDENT

IMMIGRATION ACT 2004 S4(7)

CONSTITUTION ART 41

M (T) & ORS v MIN FOR JUSTICE UNREP EDWARDS 23.11.2009 2009/37/9192 2009 IEHC 500

CONSTITUTION ART 42

MCGEE v AG & REVENUE CMRS 1974 IR 284

R (E) v R (J) 1981 ILRM 125 1981/7/1106

MURRAY v IRELAND & AG 1991 ILRM 465 1991/4/999

ART 26 OF THE CONSTITUTION & MATRIMONIAL HOME BILL 1993, IN RE 1994 1 IR 305 1994 1 ILRM 241 1994/5/1347

CONSTITUTION ART 41.1.1

ROGERS, IN RE UNREP SUPREME 16.7.1970 1966-75/Q-R/4815

X (R) & ORS v MIN FOR JUSTICE UNREP HOGAN 10.12.2010 2011 1 ILRM 444 2010/54/13491 2010 IEHC 446

O (G) & ORS v MIN FOR JUSTICE UNREP BIRMINGHAM 19.6.2008 2010 2 IR 19 2008/47/10172 2008 IEHC 190

NORTH WESTERN HEALTH BOARD v W (H) & W (C) 2001 3 IR 635 2001/17/4705

OGUEKWE v MIN FOR JUSTICE 2008 3 IR 795 2008 2 ILRM 481 2008/51/10890 2008 IESC 25

S (P) & E (B) v MIN FOR JUSTICE UNREP HOGAN 23.3.2011 2011 IEHC 92

MEADOWS v MIN FOR JUSTICE & ORS 2010 2 IR 701 2011 2 ILRM 157 2010 IESC 3

F (ISO) & ORS v MIN FOR JUSTICE UNREP COOKE 17.12.2010 2010/19/4624 2010 IEHC 457

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 14

MCD (J) v L (P) & M (B) 2010 2 IR 199 2010 1 ILRM 461 2009/34/8411 2009 IESC 81

EEC DIR 2004/38

MCCARTHY v SECRETARY OF STATE FOR THE HOME DEPT 2011 AER (EC) 729 2011 3 CMLR 10 2011 INLR 450

1

1. In this application for leave to apply for judicial review, the applicants seek to quash a decision of the Minister for Justice, Equality and Law Reform of 27 th July, 2010, pursuant to s. 4(7) of the Immigration Act 2004 whereby he refused to give the third and fourth applicants ("the Lemieres") permission to reside in the State. As we shall presently see, at the heart of this case lies the question of whether the extent to which the relationship between adult parents and an adult child are protected by Article 41 and, if so, the implications of this for the State's immigration policy.

2

2. The Lemieres are South African citizens. Ms. Lemiere is now aged 68 and Mr. Lemiere is 72. In 1994 Mr. Lemiere took early retirement from his position with South African Railways and Harbours Board. He and his wife expected that they would be able to live relatively comfortably on the pension package that was offered to him, but, unfortunately, this did not prove possible for reasons which I will presently explain. The Lemieres had four children, two sons and two daughters. One son, Vincent, sadly died in 1989. One of the two daughters, Chantelle, has become a UK citizen and lives there with her Portuguese husband. Another son, Brenton, also lives in the UK with his partner. While he has South African citizenship, he also enjoys indefinite leave to remain in the UK.

3

3. The first applicant, Desiree O'Leary, is the other daughter of the Lemieres and was originally of South African nationality. Her husband, Diarmaid, the second applicant and is an Irish citizen by birth. The couple married in Durban in 1982 and Ms. O'Leary subsequently acquired Irish citizenship by marriage in August 1983. The O'Learys have lived in Ireland since 1995 and they have two adult daughters. Mr. O'Leary is an engineer and Ms. O'Leary has been a College lecturer in UCD since 2000.

4

4. The O'Leary's are relatively well circumstanced in that they own their own family home and have a small mortgage. There was frequent contact between the O'Learys and the Lemieres over the last fifteen years or so. Thus, for example, the Lemieres regularly travelled to Ireland during the summer months to stay with them for an extended holiday. During those visits, they assisted their daughter and son-in-law with minding the children and general household duties.

5

5. By the mid-2000s, however, the Lemeries were experiencing financial strain. The security situation in South Africa had deteriorated and each of them had significant health problems. The Lemieres then lived in a pleasant house in a suburb in Kwa Zulu Natal. While they had paid off their mortgage, the difficulty for them was that the area had poor public transport links and security was a constant and immediate daily problem. Their house was a frequent target for burglars, despite the elaborate security precautions which they had taken. In addition, even getting access to cash was a problem, since not all businesses and shops will accept credit cards and robberies at automated teller machines are virtually a daily hazard of life for elderly South Africans.

6

6. For some time, Ms. O'Leary has sought to provide financial assistance to her parents. Ms. Lemiere was added as a cardholder to Ms. O'Leary's credit card account sometime and it is clear from the copious credit card statements that have been provided to me that significant drawings have been made on that card over the years by Ms. Lemiere in order to pay for outgoings such as medical and pharmaceutical bills, groceries and petrol.

7

7. The Lemieres are required to pay ZAR2,952 of their monthly income of ZAR5,426 on medical insurance. Given that South Africa does not have a system of public health care and social supports which remotely compares with our own, this must objectively be regarded as a vital necessity for the Lemieres in view of their age and health condition. This leaves a balance of some ZAR2,500, i.e., approximately €250 a month. Making all due allowance for the cheaper cost of living in South Africa, this still a sum which is, for example, well below the after tax income of someone earning the minimum wage in Ireland. The O'Learys had supplemented this figure with regular monthly payments, starting with €130 per month in 2002, which figure had risen to €500 per month in 2007.

8

8. In July 2008 the Lemieres were simultaneously afflicted by severe health problems which required both of them to be hospitalized. On this occasion, both of them were needed appreciable care and attention. Given the very limited social support network prevailing in South Africa, both of them would have been effectively housebound and unable to fend for themselves following their discharge from hospital. Fortunately, their two daughters were in a position to travel at short notice to South Africa to look after them and to drive them to their various post-operative medical appointments.

9

9. It is scarcely a surprise that in the wake of these events that the O'Learys decided that it was best that the Lemieres came to stay with them, at least for a substantial period of time. They arranged for and paid for flights from South Africa to Ireland. Here one must note that South Africa is a visa exempt country, so that there was simply no procedure whereby the Lemieres could have applied for residency in advance. It would appear nevertheless that the Lemieres intended to apply for permanent residency once they arrived in Ireland

10

10. When they arrived at Dublin Airport on 29 February 2009, Mr. and Ms. Lemiere were dealt with by different immigration officials. Mr. Lemiere was given one's months permission to stay and told that he must report to the Garda National Immigration Bureau ("GNIB"), whereas Ms. Lemiere's passport was endorsed with a six month permission to stay. Following contact with the GNIB, the matter was referred to the Department of Justice.

11

11. On 1 st May 2009 the Lemieres requested, through their solicitor, an extension to their permission to stay. On 21 st May 2009 the Department refused to extend the permission and requested them to leave the State by 31 st May 2009. There was then further correspondence between the Lemieres's solicitors and the Department. This culminated in a temporary extension of the Lemieres' permission to remain and a direction that they should leave the State and re-enter with the purpose of obtaining the relevant passport endorsement permitting them to live and reside with relatives.

12

12. The Lemieres then duly left Ireland on 11 th August, 2009, and then returned to Ireland on 26 th August, 2009. Ms. O'Leary travelled to Frankfurt for this purpose to accompany them back to Dublin. At immigration control in Dublin Airport, the Lemieres were told that there was no express stamp for this purpose, but the purpose of the visit was nevertheless recorded on the computer system.

13

13. There next followed a further exchange of correspondence with the Department. The Department initially refused permission for long term residence, but following a review of the file, permission was granted to reside in the State until 31 st July, 2010, subject to the condition that they could not have recourse to public funds, state services or benefits.

14

14. Undaunted, the applicants then sought to have the decision revoked insofar as it required the Lemieres to leave the State by that date. I should break off this narrative to record that the Lemieres actually returned to South Africa in February, 2010 where they sold their house for a sum of approximately €110,000. While they had let the property, it was nonetheless a target for vandals and the security problems were appreciable.

15

15. The Lemieres then returned to Ireland in June, 2010 where they have been residing with the O'Learys since that date. The Department of Justice, Equality and Law Reform refused to extend the permission to stay beyond the end of July, 2010 for reasons I will presently consider. Strictly speaking, the Lemieres have been residing illegally in the State since that date, but no action has been taken against them during the currency of the present...

To continue reading

Request your trial
6 cases
  • X v Minister for Justice & Equality
    • Ireland
    • Supreme Court
    • 9 June 2020
    ...made to what was described as a wider definition of family in cases such as O'Leary and Ors v. Minister for Justice and Equality (No. 1) [2011] IEHC 256, and R.X. v. Minister for Justice [2011] ILRM 444. The point was made that the rights under the Constitution are not confined to citizens,......
  • I. Gorry v Minister for Justice and Equality
    • Ireland
    • Court of Appeal (Ireland)
    • 27 October 2017
    ...relevant considerations such as prevention of crime or, as Hogan J. observed in O'Leary v. Minister for Justice, Equality and Law Reform [2011] IEHC 256, ensuring that non-nationals do not become a charge on our system of social security. The latter considerations might properly give rise t......
  • Ervis Troci and Another v The Minister for Justice & Equality and Ors
    • Ireland
    • High Court
    • 7 December 2012
    ...FOR JUSTICE UNREP CLARK 13.10.2011 2011/45/12744 2011 IEHC 417 O'LEARY & LEMIERE v MIN FOR JUSTICE UNREP HOGAN 30.6.2011 2011/41/11934 2011 IEHC 256 O'LEARY & LEMIERE v MIN FOR JUSTICE 2013 1 ILRM 509 2012 IEHC 80 EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8(2) HUANG v S......
  • O'Leary and Others v The Minister for Justice, Equality and Law Reform
    • Ireland
    • High Court
    • 24 February 2012
    ...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 2010/1148JR - Cooke - High - 24/2/2012 - 2013 1 ILRM 509 2013 41 12071 2012 IEHC 80......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT