Lobe v The Minister for Justice, Equality and Law Reform

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Mr. Justice Geoghegan,Keane C.J.,Murray,J.
• Judgment Date: 23 January 2003
• Neutral Citation: [2003] IESC 3
• Date: 23 January 2003

[2003] IESC 3

THE SUPREME COURT

Keane C.J.

Denham J.

Murray J.

McGuinness J.

Hardiman J.

Geoghegan J.

Fennelly J.

109/02 & 108/02

OSAYANDE & LOBE v. MIN FOR JUSTICE

BETWEEN

DAVID LOBE, JANA LOVEOVA, ALADAR LOBE, (A MINOR SUING BYHIS FATHER AND NEXT FRIEND, DAVID LOBE), LUKAS LOBE (A MINOR SUING BYHIS FATHER AND NEXT FRIEND, DAVID LOBE) JANA LOBE (A MINOR SUING BY HISFATHER AND NEXT FRIEND, DAVID LOBE) AND KEVIN LOBE (A MINOR SUING BY HISMOTHER AND NEXT FRIEND, JANA LOVEOVA)

APPLICANTS/APPELLANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAWREFORM

RESPONDENT/RESPONDENT

BETWEEN

ANDERW OSAYANDE AND OSAZE JOSHUA OSAYANDE (A MINOR SUINGBY HIS MOTHER AND NEXT FRIEND, FLORA OSAYANDE)

APPLICANTS/APPELLANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAWREFORM

RESPONDENT/RESPONDENT

Citations:

FAJUJONU V MIN JUSTICE & ANOR 1990 2 IR 151

CONSTITUTION ART 2

CONSTITUTION ART 9

CONSTITUTION ART 40.1

CONSTITUTION ART 40.3

H (J), RE 1985 IR 375

NORTH WESTERN HEALTH BOARD V W (H) 2001 3 IR 622

OSHEKU V IRELAND 1986 IR 733

POK SUN SHUN V IRELAND 1986 ILRM 593

LAURENTIU V MIN JUSTICE 1999 4 IR 27

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

POKU V UNTED KINGDOM 1996 22 EHRRCD 94

THE QUEEN EX PARTE MAHMOOD V SECRETARY OF STATE FOR HOME DEPARTMENT 2001 UKHRR 307 2001 1 WLR 840

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S6

BROWNLIE PRINCIPLES OF PUBLIC INTERNATIONAL LAW 5ED 1998 391

MURRAY & MURRAY V IRELAND 1991 ILRM 465

M, STATE V AG 1979 IR 73

PERDIDO V IMMIGRATION & NATURALIZATION SERVICE 1969 US APP 5TH CIR

ACOSTA V GAFFNEY 558 F2D 1153 CA 3ED 1977

SCHLEIFFER V MEYERS 644 F 2D 656 1981 US APP 7TH CIR

SCHNEIDER V RUSK 1964 377 US 163

KENT V DULLES 1958 357 US 116

ADOPTION (NO 2) BILL 1987, RE 1989 IR 656

ALIENS ACT 1935

CONSTITUTION ART 40

CONSTITUTION ART 41

CONSTITUTION ART 42

BOUZAGOU, STATE V STATION SERGEANT FITZGIBBON STREET 1985 IR 426

DUBLIN CONVENTION (IMPLEMENTATION) ORDER 2000 SI 343/2000

REFUGEE ACT 1996 S22

DUBLIN CONVENTION 1990 ART 8

KWEEDER V MIN JUSTICE 1996 1 IR 381

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(3)(A)

OSAYANDE & LOBE V MIN JUSTICE UNREP SMYTH 8.4.2002 2002/22/5724

P & L & B V MIN FOR JUSTICE 2002 1 ILRM 38

CONSTITUTION ART 40.3.1

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S6(1)

IMMIGRATION ACT 1999 S3(2)(E)

IRISH NATIONALITY & CITIZENSHIP ACT 2001

REFUGEE ACT 1996 S5

EUROPEAN COMMUNITIES (ALIENS) REGS 1977 SI 393/1977 REG 14

EUROPEAN COMMUNITIES (RIGHT OF RESIDENCE FOR NON ECONOMICALLY ACTIVE PERSONS) REGS 1997 SI 57/1997 REG 19

DUBLIN CONVENTION 1990 ART 7

ABDULAZIZ & CABALES & BALKANALI V UNITED KINGDOM 1985 7 EHRR 471

CONSTITUTION ART 41.1.1

CONSTITUTION ART 41.1.2

KEEGAN, STATE V STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642

O'KEEFFE V AN BORD PLEANALA 1993 1 IR 39

Z V MIN JUSTICE 2002 2 IR 135 2002 2 ILRM 215

CONSTITUTION ART 41.1

CONSTITUTION ART 42.1

KELLY ON THE IRISH CONSTITUTION 3ED 989 - 1060

SHATTER ON FAMILY LAW 3ED CHP 1

RYAN V AG 1965 IR 294

MCGEE V AG 1974 284

G V AN BORD UCHTALA 1980 IR 32

ILLEGITIMACY ACT 1931

ADOPTION ACT 1974

GUARDIANSHIP OF INFANTS ACT 1964 S3

CHILD CARE ACT 1991 S3

CONSTITUTION ART 42.5

F (M) V SUPERINTENDENT BALLYMUN GARDA STATION 1991 1 IR 189

NORTHAMPTON CO COUNCIL V ABF & MBF 1982 ILRM 164

NICOLAOU, STATE V BORD UCHTALA 1966 IR 567

EASTERN HEALTH V AN BORD UCHTALA 1994 3 IR 217 1993 ILRM 577

GONZALEZ CUVEAS V IMMIGRATION & NATURALIZATION SERCIVE 515 F 2D 1222 1975 US APP 5TH CIR

HEANEY V IRELAND 1994 3 IR 593

CHAULK V R 1990 3 SCR 1303

COX V IRELAND 1992 2 IR 503

CONSTITUTION SAORSTAT EIREANN ART 3

IRISH NATIONALITY & CITIZENSHIP ACT 1935

NATIONALITY & STATUS OF ALIENS ACT 1914 (UK)

CONSTITUTION ART 9.1.2

CONSTITUTION ART 29.4

UNITED NATIONS CONVENTION ON THE STATUS OF REFUGEES 1951 ART 8

PROTOCOL ON THE STATUS OF REFUGEES 1967 (NEW YORK)

ALIENS ORDER 1946 SI 395/1946

IMMIGRATION ACT 1999 S3(1)

REFUGEE ACT 1996 S5(2)

REFUGEE ACT 1996 S3(2)(E)

REFUGEE ACT 1996 S3(3)(6)(B)

REFUGEE ACT 1996 S3(3)(6)(C)

REFUGEE ACT 1996 S22(2)(B)

DUBLIN CONVENTION 1990 ART 2

DUBLIN CONVENTION 1990 ART 3

YOGATHAS, R V HOME SECRETARY 2002 4 AER 800

ADAM & IORDACHE V MIN JUSTICE 2001 3 IR 53 2001 2 ILRM 452 2001/1/7

VILVARAJAH V UNITED KINGDOM 1992 14 EHRR 248

DPP, PEOPLE V O'SHEA 1982 IR 384

CONSTITUTION ART 34.4.3

MOUSTAQUIM V BELGIUM 1991 13 EHRR 802

BELDJOUDI V FRANCE 1992 14 EHRR 801

D (T) V MIN EDUCATION 2001 4 IR 259

BYRNE & BINCHY ANNUAL REVIEW OF IRISH LAW 1989

HUMAN RIGHTS ACT 1998 (UK)

REFUGEE ACT 1996 S22(2)(E)

MOORE V EAST CLEVELAND 431 US 494

REFUGEE ACT 1996 S3

UNIVERSAL DECLARATION OF HUMAN RIGHTS 1951

BOULTIEF V SWITZERLAND 33 EHRR 50 1179

DALIA V FRANCE 1981 ECR 1998-I 91

MEHEMI V FRANCE 1997 ECR 1997-VI 1971

GUL V SWITZERLAND 1996 22 EHRR 93

ASSOCIATED PROVINCIAL PICTURE HOUSES LTD V WEDNESBURY CORPORATION 1948 1 KB 223

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 10(1)(E)

X Y & Z V UK DEC NO 9285/81 6.7.82 DR 29 P505

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S6(1)(A)

Synopsis:

IMMIGRATION

Asylum

Constitutional law - Judicial review - Refugee and nationality - Right to reside in State - Whether family of citizen entitled to remain with child in State - Refugee Act, 1996 - Illegal Immigrants (Trafficking) Act, 2000 - Child Care Act, 1991 - Bunreacht na hÉireann, 1937 - Dublin Convention (Implementation) Order, 2000 (SI 343) - Nationality and Citizenship Act, 1956 (108 & 109/2002 - Supreme Court - 23/1/2003)

Lobe v The Minister for Justice, Equality and Law Reform - [2003] 1 IR 1

The cases dealt with situations whereby children had been born in the State to parents who were seeking asylum in the State. It was proposed by the Minister for Justice to make deportation orders in respect of the members of the families who did not possess citizenship (i.e. excluding those children born in the State). On behalf of the applicants it was contended that there was a prima facie right of the parents of an Irish born child to reside with that child within the State. It was contended that there was a mandatory obligation on the State to recognise the rights of a family in such a situation under the Constitution. The applicants also sought to challenge the Dublin Convention (Implementation) Order, 2000 as being ultra vires the Refugee Act, 1996. In the High Court Mr. Justice Smyth refused all reliefs sought. The respondent had taken into account the constitutional rights of the Irish-born children and their families. The respondent was entitled to require that the residence of the parents and their non-Irish children be terminated and to make deportation orders. The challenge to the Dublin Convention (Implementation) Order, 2000 was also dismissed. The applicants appealed to the Supreme Court. It was contended on behalf of the applicants that the children who had been born in the State had an unqualified right to remain and had a right to the care and company of their parents. The deportation of the other members, who did not have citizenship would constitute an attack on the rights of minors as members of a family.

Held by the Supreme Court in dismissing the appeal. Keane CJ held that the issue was whether children who were Irish citizens had the constitutional right to the care and company of other members of their family in circumstances where those other members had no legal right to reside in the State. It could not be said that the parents in this case could assert a choice to reside in the State on behalf of their children. The decision in Fajujonu, whereby a family were permitted to stay, was distinguishable on its facts from the present cases. The Executive was entitled to take the view that the immigration system should not be undermined by persons hoping to take advantage of the delay in processing their claim by relying on the birth of a child as basis for permitting them to remain in the State indefinitely. The orders of the High Court would be affirmed and the appeals dismissed. Denham J held that the Irish citizenship of an Irish child did not give rise to an absolute right to have his or her family reside in the State. Murray J held that the Minister's decision had been shown to be reasonable and rational in determining that there existed good and sufficient reasons in the interests of the common good in making the deportation order. McGuinness J held that it was clear that the personal rights of a child or a family were not absolute and for proper and proportionate reasons these rights must yield to the requirements of the common good. Hardiman J held that the applicants had not demonstrated that the decisions in question were at variance with reason or commonsense. If the court was to consider whether the decisions were acceptable in terms of policy it would be a breach of the doctrine of separation of powers. Geoghegan J held that it was clear based on previous caselaw that parents who were not citizens and who had children born in the State did not have a constitutional right to remain in the State. Fennelly J held (dissenting) that the reasons given by the Minister for the deportation could not prevail over the constitutional rights of the children. The State had not concerned itself with the rights of the parents involved and Fennelly J would have allowed the appeals.

1 23rd day of January2003. by Keane C.J.

Keane C.J.

Introduction

2 The facts in these two cases, which were heard together in the High Court and this court, are not in dispute.

3 The first and second named applicants in the first case (hereafter "Mr. & Mrs. Lobe") arrived in the State on March31 ^st 2001 with their three children. All of them are nationals of the Czech Republic. At the time of her arrival, Mrs. Lobe was pregnant. An application having been made for asylum in this State, the applicants were informed...