M.B. and Others v Minister for Justice and Law Reform

• Jurisdiction: Ireland
• Judge: MS JUSTICE M. CLARK
• Judgment Date: 30 July 2010
• Neutral Citation: [2010] IEHC 320
• Court: High Court
• Date: 30 July 2010

[2010] IEHC 320

THE HIGH COURT

[No. 75 J.R./2010]

B (M) & Ors v Min for Justice

JUDICIAL REVIEW

BETWEEN

M.B., M.B., AND M.B. (THREE MINOR CHILDREN, SUING BY THEIR FATHER AND NEXT FRIEND A.B.), A.B. and I. B. [Nigeria]

APPLICANTS

AND

THE MINISTER FOR JUSTICE AND LAW REFORM

RESPONDENT

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

KLASS & ORS v GERMANY 1979-80 2 EHRR 214

ABDULAZIZ CABALES & BALKANDALI v UK 1985 7 EHRR 471

VILVARAJAH v UK 1992 14 EHRR 248

N v FINLAND 2006 43 EHRR 12

CG & ORS v BULGARIA 2008 47 EHRR 51

ABDOLKHANI & KARIMNIA v TURKEY ECHR 22.9.2009 APPLICATION NO 30471/08

HARRIS O'BOYLE & WARBRICK LAW ON EUROPEAN CONVENTION ON HUMAN RIGHTS 2ED OXFORD 2009

MCD (J) v L (P) M (B) UNREP SUPREME 10.12.2009 2009/34/8411 2009 IESC 81

MUMINOV v RUSSIA ECHR 11.12.2008 APPLICATION NO 42502/06

IZHEVEBEKHAI EPI & ORS v MIN FOR JUSTICE UNREP FEENEY 30.1.2008 2008/29/6388 2008 IEHC 23

Y (HL) v MIN FOR JUSTICE & ORS UNREP CHARLTON 13.2.2009 2009/58/14845 2009 IEHC 96

UGBO & BUCKLEY v MIN FOR JUSTICE UNREP HANNA 5.3.2010 2010 IEHC 80

ADEBAYO v CMRS GARDA SIOCHANA 2004/1/602004 IEHC 359

ALLI & ASIBOR v MIN FOR JUSTICE & ORS UNREP CLARK 02.12.2009 2009/3/608 2009 IEHC 595

IMMIGRATION ACT 1999 S3(6)

OFOBUIKE (A MINOR) & ORS v MIN FOR JUSTICE & ORS UNREP COOKE 13.01.2010 2010 IEHC 89

OGUEKWE v MIN FOR JUSTICE & ORS 2008 2 ILRM 481

IMMIGRATION ACT 1999 S3(6)(C)

N v UK 2008 47 EHRR 39

SOERING v UK 1989 11 EHRR 439

SMITH & GRADY v UK 1992 14 EHRR 248

BENSAID v UK 2001 33 EHRR 10

CHAHAL v UK 1997 23 EHRR 413

EEC DIR 2005/85

IMMIGRATION ACT 1999 S3(11)

REFUGEE ACT 1996 S17(7)

B (A MINOR) v MIN FOR JUSTICE & ORS UNREP COOKE 14.07.2010 2010 IEHC 296

A (APA)(A MINOR) & ORS v MIN FOR JUSTICE & ORS UNREP COOKE 20.07.2010 2010 IEHC 297

REFUGEE ACT 1996 S5

IMMIGRATION ACT 1999 S3(11)

ABDOLKHANI & KARIMNIA v TURKEY ECHR 22.9.2009 APPLICATION NO 30471/08

IMMIGRATION

Deportation

Interlocutory injunction - Father of Irish citizen children - Leave to remain application - Admission regarding lies in asylum application - Claim of strong connection with State based on status as father of citizen children - Request to have regard to constitutional and convention rights of children - Examination of file of father - Consideration of school standards and education in Nigeria - Analysis of proposed interference with family life of applicant - Interests of State - Legitimate aim of deportation - Proportionality of deportation - Information on education in Nigeria - Extension of time for judicial review - Explanation for delay - Lawyer delay - Justice of case - Impact of deportation on rights of children - Power to consider documents not before Minister - Obligation to have regard to representations - Whether substantial grounds for review - Whether failure to consider impact of deportation on private life of children - Failure to furnish country of origin information in support of assertions regarding education - Adequacy of remedy of judicial review - Available remedies - Absence of test of anxious scrutiny - Necessity for candour - Klass v Germany (1979-80) 2 EHRR 214; Abdulaziz v United Kingdom (1985) 7 EHRR 471; Vilvarajah v United Kingdom (1992) 14 EHRR 248; N v Finland (2006) 43 EHRR 12; CG v Bulgaria (2008) 47 EHRR 51; Abdolkhani v Turkey (No 30471/08); McD v L [2009] IESC 81 (Unrep,. SC, 10/12/2009); Muminov v Russia (No 42502/06); Izhevbekhai v Minister for Justice, Equality and Law Reform [2008] IEHC 23 (Unrep, Feeney J, 30/1/2008); Yang v Minister for Justice, Equality and Law Reform [2009] IEHC 96 (Unrep, Charleton J, 13/2/2009); Ugbo v Minister for Justice, Equality and Law Reform [2010] IEHC 80 (Unrep, Hanna J, 5/3/2010; Adebayo v Minister for Justice, Equality and Law Reform [2004] IEHC 359 (Unrep, Peart J, 27/10/2004) Alli v Minister for Justice, Equality and Law Reform [2009] IEHC 595 (Unrep, Clark J, 2/12/2009); Ofobuike v Minister for Justice, Equality and Law Reform [2010] IEHC 89 (Unrep, Cooke J, 13/1/2010); Oguekwe v Minister for Justice, Equality and Law Reform [2008] IESC 25 [2008] 2 ILRM 481; Soering v United Kingdom (1989) 11 EHRR 438; Smith and Grady v United Kingdom (1999) 29 EHRR 493; Bensaid v United Kingdom (2001) 33 EHRR 10; Swedish Engine Drivers Union v Sweden (1979-80) 1 EHRR 617; Chahal v United Kingdom (1997) 23 EHRR 413 and Bakare v Minister for Justice, Equality and Law Reform [2010] IEHC 296 (Unrep, Cooke J, 14/7/10) considered - Leave refused (2010/75JR - Clark J - 30/7/2010) [2010] IEHC 320

B(M) v Minister for Justice, Equality and Law Reform

Relief sought

1 1. The applicants seeks to quash by an order of certiorari the deportation order made by the Minister on the 8 ^th day of December 2009 against the fourth applicant Mr. B. who is the husband of the fifth applicant and the father of the first, second and third applicants. An interim injunction staying the effect of the deportation order was made on an ex parte basis on the 3 ^rd day of February 2010. The respondent disputes the entitlement of the applicants to an injunction. The hearing of the interlocutory injunction and the applicants' leave application took place together on the 16 ^th, 17 ^th and 18 ^th June, 2010. Mr Paul O'Shea, B.L. appeared for the applicants and Ms Sara Moorhead, S.C. with Mr Anthony Moore, B.L. for the respondent.

Brief Background and History of Asylum claims

2 2. The applicants are a family of Nigerian origin. The three minor children were all born in Ireland and two of them are Irish citizens. The mother arrived in Dublin in 2003 in a pregnant condition and claimed asylum on the basis of her asserted fear of persecution at the hands of her husband's parents. She stated that her husband was dead having been killed by his parents for marrying a Christian. Following the birth of the first citizen child in 2003 the mother abandoned her asylum claim and in 2005 she benefited from the terms of the IBC05 scheme. Her leave to remain has been renewed periodically and she remains lawfully resident in the State.

3 3. The first child was three years and two months old when in September 2006 her father came to Ireland and three months later in December 2006 he applied for asylum. He said he was afraid to apply during the previous three months. He claimed that he was born in 1970 and is a Pentecostal Christian of Yoruba ethnicity. He says he was educated to third level in geography and worked as a self-employed concrete block maker. He claimed to fear persecution at the hands of his parents who are "Muslim fanatics". They objected to his marriage to a Christian and refused to allow his wife to live in the family home. He claimed that his parents had told his wife that he was dead and that he was initially unaware that she had gone to Ireland. However he made contact with his wife in Ireland before she delivered their first child and so, she was aware at an early stage that he was alive.

4 4. The applicant says that after his wife left, he lived with various friends in different parts of Nigeria but later returned to live with his family. The delay in joining his wife and child occurred because he had to accumulate the money to pay for his travel which he did by disposing of his block making business three years after she left Nigeria. He paid € 4000 to travel without a passport or visa via Istanbul. This story was not found credible either by the Refugee Applications Commissioner or the Refugee Appeals Tribunal. The couple's second child (a Nigerian citizen) was born in August 2007 and their third child (an Irish citizen) was born in 2008.

5 5. In September, 2007 the Minister notified the father that he had decided not to grant him a declaration of refugee status and proposed to deport him.

Leave to Remain Application

6 6. Representations were made to the Minister seeking leave for the father to remain in Ireland. Those submissions admitted that he had lied in his asylum application and urged that he should be permitted to remain in Ireland with his family and that his status as the father of citizen children gave him a strong connection with the State. It was stated that he was a business man who made and sold concrete blocks in Nigeria and would therefore be able to work in Ireland. He was anxious to be granted permission to remain in order to assist his wife in the upbringing of his children, to contribute to Irish society and repay the kindness he had received since his arrival. It was submitted that as a parent of Irish citizen children he should not be forced to choose between leaving his children and returning to Nigeria and bringing them to a country "where the children's education or health would be prejudiced or whose norms of human rights are inferior to that espoused by Bunreacht na hÉireann." It was submitted that "the State can hardly regard Nigeria as an appropriate location for this family";, that "an Irish citizen merits increased significance being placed on the environment and society that they can be expected to live in abroad with their non national parents, and that there are certain conditions under which they cannot be expected to live due to their Irish citizenship" and that "the Minister has an increased responsibility towards them that he would not have to non national children."

7 7. The Minister was requested to have regard to the children's rights under the Constitution and the European Convention on Human Rights (ECHR) and it was submitted that it would be in the children's best interests to have the care, love and company of both parents. The children's birth certificates were furnished together with a letter confirming the enrolment of the first child in school and letters urging that the father was a loving and caring...