Lisa Nwole and Others v Minister for Justice, Equality and Law Reform and Another

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 26 May 2004
• Neutral Citation: [2004] IEHC 433
• Court: High Court
• Date: 26 May 2004

[2004] IEHC 433

THE HIGH COURT

Record Number: No. 656 JR/2002

NWOLE v MIN FOR JUSTICE & COMMISSIONER OF AN GARDA SIOCHANA

JUDICIAL REVIEW

BETWEEN:

Lisa Nwole (suing by her mother and next friend, Angela Nwole)

Chichi Nwole (suing by her mother and next friend, Angela Nwole)

Uloma Nwole (suing by her mother and next friend, Angela Nwole)

Christie Nwole (suing by her mother and next friend, Angela Nwole), and

Whitney Nwole (suing by her mother and next friend, Angela Nwole)

Applicants

AND

The Minister for Justice, Equality and Law Reform, and The Commissioner of An Garda Siochana

Respondents

IMMIGRATION ACT 1999 S3(6)

FREEDOM OF INFORMATION ACT 1997

PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS (UN HIGH COMMISSION HANDBOOK) PARA 213

ALIENS ORDER 1946

IMMIGRATION ACT 1999 S(3)(2)(f)

REFUGEE ACT 1996 S2

REFUGEE ACT 1996 S8(5)

REFUGEE ACT 1996 S9A(1)

IMMIGRATION ACT 1999 11(1)(e)

NORTH WESTERN HEALTH BOARD v W (H) & W (C) 2001 3 IR 622

CONSTITUTION ART 41

CONSTITUTION ART 42

CONSTITUTION ART 40.3

MURPHY v INDEPENDENT RADIO & TELEVISION COMMISSION (IRTC) 1999 1 IR 12 1998 2 ILRM 360

UK IMMIGRATION RULES (HOUSE OF COMMONS) PAPER 395 RULE 349

REFUGEE ACT 1996 S8(1)(a)

REFUGEE ACT 1996 S9(1)

PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS (UN HIGH COMMISSION HANDBOOK) PARA 185

PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS (UN HIGH COMMISSION HANDBOOK) PARA 214

UN CONVENTION ON THE RIGHTS OF THE CHILD 1990 PARA 215

ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, RE 2000 2 IR 360

REFUGEE ACT 1996 8(1)(a)(i)

EMEKOBUM & ORS v MIN FOR JUSTICE UNREP HIGH 18.7.2002 2002/10/2387

UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD 1990 ART 3.2

UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD 1990 ART 5

UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD 1990 ART 12.1

UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD 1990 ART 12.2

UNITED NATIONS CONVENTION ON THE STATUS OF REFUGEES 1951

IMMIGRATION AND ASYLUM

Deportation

Minors - Deemed failed asylum seekers - Accompanied by mother - Whether application of minors for asylum subsumed into that of their parent - Whether duty to interview minor asylum seekers when accompanied by parent - Whether on assumption that a mother makes family application Minister is entitled to treat it as an application on behalf of dependent children - Whether rights of child infringed by manner of processing asylum application of accompanied minor - North Western Health Board v H W [2001] 3 IR 622 considered - UN Convention on Rights of the Child - Refugee Act 1996 (No 17), s 8 -Relief refused (2002/656JR - Peart J - 26/5/2004) [2004] IEHC 433

N (L) v Minister for Justice

Facts: The applicants were all minors, being the daughters of Angela Nwole. The mother’s application for asylum was refused and subsequently the Minister signed a separate deportation order in respect of the mother and each daughter. The applicants sought orders of certiorari quashing the deportation orders on grounds that the deportation orders were invalid in that the applicants were not on that date persons whose applications for asylum had been refused by the Minister within the meaning of s. 2(2)(f) of the Immigration Act 1999.

Held by Peart J. in refusing the application that the deportation orders made against each of the applicants were valid since they were made in respect of persons whose applications for asylum had been refused. The Minister was entitled to treat the mother’s application as an application also on behalf of her children and, there being no separate matters to take into consideration, he was entitled to regard the application on behalf of the children as also refused.

Reporter: R.W.

1 Mr Justice Michael Peart delivered the 26th day of May 2004:

2 The applicants named in these proceedings are all minors, being the daughters of Angela Nwole, (hereinafter referred to as "mother") who is acting as their next friend in these proceedings. They are all Nigerian nationals who arrived together in the State on 10 ^th May 1998 as a family unit. The father of these children is not married to mother, and remained in Nigeria. At the time of arrival in this State, the eldest daughter was aged 12 years, and the others were aged 8, 6 (twins) and 4 respectively.

3 Mother completed an application form for asylum (Form ASY1) on the 11 ^th May 1998, and on 13 ^th May 1998 completed the usual Questionnaire form in which she named the applicants as being her children, giving their dates and place of birth, as well as indicating that they were with her in Ireland. I will deal in more detail later with the content of this Questionnaire.

4 Following the completion of this document mother attended for interview on the 30 ^th March 1999. In due course she was notified that her application for refugee status had been refused, by letter dated 18 ^th February 2000. She eventually lodged an appeal against this refusal, and on the 25 ^th July 2000 a Recommendation was made by the Refugee Appeals Authority, following an oral hearing, that the appeal be dismissed on the basis that she had not satisfied the Authority that she had a well-founded fear of persecution on a Convention ground.

5 By letter dated 23 ^rd August 2000 mother was notified of this recommendation, and of the fact that it was being upheld, and that as a result, the Minister proposed to make a Deportation Order in respect of her pursuant to s. 3 of the Immigration Act, 1999. She was invited to make any representations as to why she should be allowed to remain in the State, within a period of 15 days, and was advised of other options open to her, such as leaving the State voluntarily or consenting to the making of the Deportation Order. It is stated in an affidavit of Kevin Tunney, solicitor for the applicants, sworn on the 16 ^th October 2002, that submissions may have been made subsequent to that letter, but these are not before the Court, and it would appear that different solicitors were acting for her at that time.

6 For some reason unknown to me there followed a period of almost two years during which nothing appears to have happened on foot of what had been described in the letter dated 23 ^rd August 2000 as a proposal to make a deportation Order. That letter had been addressed to mother only and not to her children. But in any event a further letter was received from the Minister, which is dated 1 ^st July 2002, and this letter is addressed to mother and each of her daughters. All names are included as addressees. A copy of this letter was sent also to the solicitors presently acting, namely Cathal O'Neill & Co.

7 This letter refers to and attaches a further copy of the earlier letter dated 23 August 2000. Inter alia, it states as follows:

"I refer to the attached copy of the letter issued to you by the Minister for Justice, Equality and Law Reform indicating that he proposed to make a deportation order in respect of you under the powers given to him under Section 3 of the Immigration Act, 1999."

8 The purpose of this notice is to confirm that the Minister proposes to make Deportation Orders in respect of you and your daughters, being all of the six persons named above, in accordance with the power given to him by Section 3 of the Immigration Act, 1999.

9 The reasons for the Minister's proposal were set out in the letter attached and, lest there be any misunderstanding, it is hereby clarified that the reasons for the proposal to make the deportation orders are that you, the six named persons, failed in your asylum application."

10 This letter goes on to set out the various options of making submissions, leaving voluntarily or consenting to the making of the Deportation Orders, but refers always to "you and your daughters" even though the letter itself is addressed to both mother as well as her daughters. In other words, even though it is a letter addressed to all, the writer is actually speaking to or communicating with mother only.

11 The solicitors wrote to the Minister by letter dated 8 ^th July 2002 which is headed "Angela Nwole and children" and states:

"We acknowledge receipt of your letter dated the 1 ^st of July herein with enclosures."

12 Please note that representations have already been made by us in this case and our client wishes such representations to be considered by the Minister."

13 By further letter dated 16 ^th July 2002 these solicitors wrote again to the Minister enclosing address notification forms duly completed, and this letter is headed "Angela Nwole and children". These forms had been sent by the Minister with his letter dated 1 ^st July 2002, which, it will be recalled, was addressed to mother as well as each daughter. It is fairly clear to me from a perusal of each address form completed in respect of the daughters, that mother signed each form on their behalf in respect of each daughter.

14 The Minister signed a separate Deportation Order in respect of mother and each daughter on the 2 ^nd August 2002, and wrote a single letter dated 9 ^th August 2002 (a copy of which was also sent to the present solicitors) which is addressed to mother and all daughters, in which he sent a copy of each Deportation Order, and informed them that the reason why he had decided to make the orders was that they "are persons whose refugee status has been refused" as well as that having regard to the factors set out in s.3(6) of the Immigration Act, 1999, including representations made on their behalf, he was satisfied that the interests of public policy and the common good in maintaining the integrity of the asylum and immigration systems outweigh such features of their case as might tend to support their being granted leave to remain in the State. That letter, in the usual way, required them all...