Lofinmakin (A Minor) and Others v Minister for Justice and Others

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Cooke
Judgment Date01 February 2011
Neutral Citation[2011] IEHC 38
Date01 February 2011

[2011] IEHC 38

THE HIGH COURT

[No. 946 J.R./2009]
Lofinmakin (An Infant) & Ors v Min for Justice & Ors
JUDICIAL REVIEW
MR JUSTICE COOKE
APPROVED TEXT

BETWEEN

OREOLU OLUWABUANMI SEMILORE JEDIDIAH LOFINMAKIN (AN INFANT ACTING BY HER FATHER AND NEXT FRIEND AKINTOLA LOFINMAKIN) AND EGEBUN-OLUWAMOTUNOLA PEACE ORE-OLUWA LOFINMAKIN (AN INFANT ACTING BY HER FATHER AND NEXT FRIEND AKINTOLA LOFINMAKIN) AND AKINTOLA LOFINMAKIN AND RACHEL YINKA AMONUSI
APPLICANTS

AND

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

AND

THE HUMAN RIGHTS COMMISSION
NOTICE PARTY

IMMIGRATION ACT 1999 S3

IMMIGRATION ACT 1999 S3(11)

RSC O.84

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

CARMODY v MIN FOR JUSTICE & ORS 2010 1 IR 635 2010 1 ILRM 157 2009/8/1838 2009 IESC 71

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S1

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5

G (MY) v MIN FOR JUSTICE & REFUGEE APPLICATIONS CMSR UNREP HERBERT 28.4.2010 2010 IEHC 127

B (M) & ORS v MIN FOR JUSTICE UNREP CLARK 30.7.2010 2010 IEHC 320

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

MEADOWS v MIN FOR JUSTICE & ORS UNREP SUPREME 21.1.2010 2010 IESC 3

DIMBO v MIN FOR JUSTICE UNREP SUPREME 1.5.2008 2008/12/2530 2008 IESC 26

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

MUMINOV v RUSSIA 2011 52 EHRR 23

SWEDISH ENGINE DRIVERS UNION v SWEDEN 1978 ECC 1 1979-80 1 EHRR 617

G (C) v BULGARIA 2008 47 EHRR 51

SOERING v UNITED KINGDOM 1989 11 EHRR 439

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

VILVARAJAH & ORS v UNITED KINGDOM 1992 14 EHRR 248

HUMAN RIGHTS ACT 1998 (UK)

BENSAID v UNITED KINGDOM 2001 33 EHRR 10 11 BHRC 297

SMITH & GRADY v UNITED KINGDOM 2000 29 EHRR 493 1999 IRLR 734

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

B (J)(A MINOR) & ORS v MIN FOR JUSTICE UNREP COOKE 14.7.2010 2010 IEHC 296

IMMIGRATION ACT 1999 S3(6)

IMMIGRATION ACT 1999 S3(3)(A)

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 24

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 51

ZAMBRANO v OFFICE NATIONAL DE L'EMPLOI (ONEM) UNREP ECJ 30.9.2010 (CASE NO C-34/09)

IMMIGRATION

Deportation

Temporary permission to be in State - Expiry of temporary entry permit - Remained illegally in State - Effective remedy - Residence in Germany - Alleged right to permanent residence in Germany - Whether remedy of judicial review fulfilled requirements of Convention - Declaration of incompatibility with European Convention - Declaration only where no other legal remedy adequate and available - Failure to include plea of lack of remedy - Refusal to amend grounds - Meaning of effective remedy - Purpose of judicial review - Flexibility of remedy - Proportionality - Whether Convention right required second level appeal from administrative decision - Whether de novo hearing required - Flexibility of judicial review - Carmody v Minister for Justice [2009] IESC 71 [2010] 1 IR 635 and East Donegal Co-Operative v Attorney General [1970] IR 317 applied - Guo v Minister for Justice [2010] IEHC 127 (Unrep, Herbert J, 28/4/2010), B(M) v Minister for Justice [2010] IEHC 320 (Unrep, Clark J, 30/7/2010) and B(J)(a minor) v Minister for Justice [2010] IEHC 296 (Unrep, CookeJ, 14/7/2010) followed - Meadows v Minister for Justice [2010] IESC 3 (Unrep, SC, 21/1/2010), Oguekwe v Minister for Justice [2008] 3 IR 795, Dimbo v Minister for Justice [2008] IESC 26, (Unrep, SC, 1/5/2008), Muminov v Russia (2011) 52 EHRR 23, Swedish Engine Drivers' Union v Sweden (1979-80) 1 EHRR 617, CG v Bulgaria (2008) 47 EHRR 51, Soering v United Kingdom (1989) 11 EHRR 439, Vilvarajah v United Kingdom (1992) 14 EHRR 248, Bensaid v United Kingdom (2001) 33 EHRR 10, Smith and Grady v United Kingdom (2000) 29 EHRR 493 considered - Zambrano v. Office national de l'emploi (ONEm) Case C-34/09 (Unrep, European Court of Justice, 8/3/2011) distinguished - Immigration Act 1999 (No 22), s 3 - Illegal Immigrants (Trafficking) Act 2000 (no 29), s 5 - European Convention on Human Rights Act 2003 (No 20), s 5(1) - Rules of the Superior Courts 1986 (SI 15/1986), O 84 - European Convention on Human Rights, arts 8 and 13 - Charter of Fundamental Rights of the European Union, art 24 - Leave refused (2009/946JR - Cooke J - 1/2/2011) [2011] IEHC 38

Lofinmakin (an infant) v Minister for Justice

Facts: The third and fourth adult applicants were born in Nigeria and lived there until adulthood. The applicant husband had moved to Germany to establish himself in Business there. He married a UK national and was divorced from her by default in 2004. He claimed to have married the fourth applicant in Nigeria in 2004 and in Ireland in 2008. The fourth applicant arrived in Ireland in 1999 and gave birth to the first named applicant in 2000 and second applicant in 2003. The husband applicant made a number of unspecified visits to his wife and children after 2003 and his last visa expired in 2007. The mother of the Irish Born children had being granted permission to remain in Ireland. The third named applicant sought certiorari to quash a decision of the respondent to deport him. He alleged inter alia that the decision was irrational and unreasonable and that it failed to take into account the best interests of the children.

Held by Cooke J. that the applicants relationship with his wife commenced in 1999 four years prior to his divorce and continued on the basis that he was residence and carrying on business in Germany. They both knew that they had no entitlement to permanent residence in Ireland. The Irish marriage took place a year after the extension to his final visa had been refused, when he knew his position was precarious and he had not been a settled migrant. The leave sought would be refused.

Reporter: E.F.

1

1. The third and fourth named applicants are husband and wife and the parents of the two minor applicants. The parents are natives of Nigeria. The minors are Irish citizens having been born to the fourth named applicant in the State respectively on 18 th May, 2000, and 17 th March, 2003. The mother, the fourth named applicant, arrived in the State in December, 1999. She currently has permission to reside in the State with her children under the IBCO5 scheme.

2

2. The third named applicant, ("Mr. Lofinmakin") says he is a businessman who took up residence in Germany in 1996, where he lived and worked for more than ten years. He claims to be entitled to permanent residence in Germany although some doubt exists in this regard, because he may have forfeited that entitlement due to his having been absent from that country for more than six months.

3

3. Mr. Lofinmakin claims to have visited his wife in Ireland on a frequent basis since her arrival here in December 1999. These visits were made on foot of temporary entry permits until the expiry of the last relevant permission on the 1 st June, 2007, since when he has remained illegally in the State.

4

4. An application on his behalf on the 23 rd May, 2007, for an extension to that last permission was refused by the respondent on the 30 th May, 2007. A somewhat tentative application for residence as the spouse of an EU citizen was also made and refused upon the ground that he was not the spouse of an EU citizen. Mr. Lofinmakin has thus been present in the State illegally since June 2007. He is not therefore an asylum seeker. When his current illegal presence in the State commenced he had been in the country for three months (2 nd March, 2007 to 1 st June 2007,) and at the time his children were respectively seven and four years old.

5

5. In response to a letter under s. 3 of the Immigration Act 1999, proposing to deport Mr. Lofinmakin, representations were made on his behalf on the 13 th October, 2008. These were considered but rejected and on the 20 th August, 2009, a deportation order was made. It is against this order ("the Contested Decision") that an application is now made for leave to apply to the High Court for an order of certiorari to quash the decision to make that order.

6

6. Upon the hearing of the application for leave two matters were before the Court. The first was the application by the applicants for leave to seek judicial review of the Contested Decision and the second was a motion brought on behalf of the respondent to dismiss the proceedings as frivolous and/or vexatious or an abuse of process. The latter motion was based upon the proposition that since the making of the deportation order, the applicants' solicitors had requested that it be not implemented pending clarification with the German authorities of the question as to whether the residence entitlement of Mr. Lofinmakin was still valid. This request was treated by the respondent as an application to revoke the deportation order under s. 3(11) of the Act of 1999. It was submitted that the validity of the deportation order had thus been acknowledged by the request that it be revoked. The request was rejected by the respondent on the 3 rd November, 2009. Having heard submissions on this issue the Court refused the respondents' motion, essentially on the ground that it would be unnecessarily oppressive of the applicants to construe the letter of the 14 th September, 2009, as acknowledging the validity of the deportation order when, twenty four hours later, the present judicial review proceedings had been commenced. It is not, as has happened in many other cases, an instance in which a failed asylum seeker has first exhausted an attempt to have deportation revoked and then belatedly sought to challenge the validity of the deportation order. Having...

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