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

• Jurisdiction: Ireland
• Judge: MS. JUSTICE M. H. CLARK,
• Judgment Date: 26 May 2009
• Neutral Citation: [2009] IEHC 245
• Court: High Court
• Date: 26 May 2009

[2009] IEHC 245

THE HIGH COURT

[No. 1145 J.R./2008]

A (M) v Min for Justice & Ors

JUDICIAL REVIEW

BETWEEN

M.A.

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE REFUGEE APPLICATIONS COMMISSIONER, ATTORNEY GENERAL AND IRELAND

RESPONDENTS

AND

HUMAN RIGHTS COMMISSION

NOTICE PARTY

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

REFUGEE ACT 1996 S13(6)

IMMIGRATION ACT 1999 S3(6)

UN CHARTER ON THE STATUS OF CHILDREN ART 41

MARCKX v BELGIUM 1979 2 EHRR 330

OLSSON v SWEDEN 1989 11 EHRR 259

REFUGEE ACT 1996 S5

REFUGEE ACT 1996 S4

CRIMINAL JUSTICE (UN CONVENTION AGAINST TORTURE) ACT 2000 S4

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8(1)

BEOKU-BETTS v SECRETARY OF STATE FOR THE HOME DEPT 2008 3 WLR 166

EM (LEBANON) v SECRETARY OF STATE FOR THE HOME DEPT 2008 3 WLR 931

OGUEKWE v MIN FOR JUSTICE & ORS 2008 3 IR 795 2008 2 ILRM 481 2008 IESC 25

S (B I) & ORS v MIN FOR JUSTICE & ORS UNREP DUNNE 2007 54 11584 2007 IEHC 398

POK SUM SHUN v MIN FOR JUSTICE & ORS 1986 ILRM 593

FITZPATRICK v MIN FOR JUSTICE UNREP RYAN 26.1.2005 2005/25/5246 2005 IEHC 9

O (Y) v MIN FOR JUSTICE & ORS UNREP CHARLETON 11.3.2009 2009 IEHC 148

SEZEWN v NETHERLANDS 2006 43 EHRR 621

MASON v THE AUSTRIA ECHR 23.6.2008 APP NO 1638/2003

A & FAMILY v SWEDEN 1994 18 EHRR CD 209

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 41

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

F(P) v MIN FOR JUSTICE EQUALITY & LAW REFORM UNREP RYAN 26.01.2005(TRANSCRIPT UNAVAILABLE)

S (B I) v MIN FOR JUSTICE & ORS UNREP DUNNE 30.11.2007 2007 IEHC 398

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8(2)

BERREHAB v NETHERLANDS 1989 11 EHRR 322

MUSTAQUIM v BELGIUM 1991 13 EHRR 802

BOUGHANEMI v FRANCE 1996 22 EHRR 228

RADOVANOVIC v AUSTRIA ECHR 22.4.2004 APP NO 42703/98

R (MAHMOOD) v SECRETARY OF STATE FOR THE HOME DEPT 2001 1 WLR 840

IMMIGRATION & ASYLUM ACT 1999 S65(UK)

HUMAN RIGHTS ACT 1998 S6(1)(UK)

IMMIGRATION

Deportation

Judicial review - Breach of private and family rights - Asylum and leave to remain refused - Whether respondent considered rights of remaining family members - EM (Lebanon) v Secretary of State for the Home Department [2008] 3 WLR 931 followed; Oguekwe v Minister for Justice, Equality and Law Reform [2008] IESC 25 [2008] 3 IR 795, BIS (Sanni) v Minister for Justice, Equality and Law Reform [2007] IEHC 398 (Unrep, Dunne J, 30/11/2007), Pok Sum Shun v Ireland [1986] ILRM 595, PF v Minister for Justice, Equality and Law Reform (Unrep, Ryan J, 26/1/2005), YO v Minister for Justice, Equality and Law Reform [2009] IEHC 148 (Unrep, Charleton J, 11/03/2009), Sezewn v The Netherlands (2006) 43 EHRR 621, Mason v The Austria (App No 1638/03, 23/6/2008 [GC]), A v Sweden (1994) 18 EHRR CD 209, Berrehab v Netherlands (1988) 11 EHRR 328, Olsson v Sweden (1989) 11 EHRR 259, Moustaquim v Belgium (1991) 13 EHRR 802, Boughanemi v France (1996) 22 EHRR 228, and Radovanovic v Austria (App. No. 42703/98, 22/4/2004) considered; R (Mahmood) v Home Secretary for the Home Department [2001] 1 WLR 840 distinguished; Beoku - Betts v Secretary of State for the Home Department [2008] 3 WLR 166 not followed - Constitution of Ireland, Art 41 - European Convention on Human Rights, art 8 - European Convention on Human Rights Act 2003 (No 20), s 3 - Immigration Act 1999 (No 22), s 3 (6) - Refugee Act 1996 (No 17), s 5 - Criminal Justice (UN Convention against Torture) Act 2000 (No 11), s 4 - Deportation order quashed (2008/1145JR - Harding Clark J - 26/5/2009) [2009] IEHC 245

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

IMMIGRATION

Asylum

Family life - Family members dependant on applicant - Right to respect for family life - Breach of fundamental rights - Whether interference with family life - Whether requirement to consider effect of deportation on family members - Weight to be attached to effect on family members - Whether deportation in breach of respect to family life - Rights of community - Balancing of rights of individual with rights of state and community - Whether effect of separation after deportation order on applicant's siblings considered - Definition of family life - Whether reasonable to expect family members to follow - Lack of any parental involvement - Whether special consideration given to family circumstances - Marckx v Belgium 1979 ECHR 2, Olsson v Sweden [1989] 11 EHRR 259, EM (Lebanon) v Secretary of State for the Home Department [2008] 3 WLR 931, Berrehab v Netherlands (1988) 11 EHRR 328, Moustaquim v Belgium (1991) EHRR 802, Boughanemi v France (1996) 22 EHRR 228, Radovanovic v Austria (App no 42703/98, 22/04/2004), Advic v United Kingdom 20 EHRR CD125, R(Mahmood) v Secretary of State for the Home Department [2001] WLR 840, Oguekwe v Minister for Justice [2008] IESC 25 [2008] 3 IR 795, S(BI) v Minister for Justice [2007] IEHC 398 (Unrep, Dunne J, 30/11/2007), Pok Sum Shum v Minister for Justice [1986] ILRM 595, PF v Minister for Justice (Unrep, Ryan J, 26/01/2005), YO v Minister for Justice [2009] IEHC 148 (Unrep, Charleton J, 11/3/2009) considered; Bekko-Betts v Secretary for the Home Department [2008] 3 WLR 166 distinguished - Immigration Act 1999 (No 22), s 3 (6) - Criminal Justice (UN Convention Against Torture) Act 2000, s 4 - Refugee Act 1996 (No 17), s 5 - European Convention on Human Rights Act 2003 (No 20), s 5 - European Convention on Human Rights and Fundamental Freedoms 1950, art 8 - Certiorari granted (2008/1145JR - Clark J - 26/05/2009) [2009] IEHC 245

A (M) v Minister for Justice

Facts The applicant had allegedly been abandoned in the State by her parents from Nigeria along with her half brothers. There was a written statement before the Minister submitted in support of her application for leave to remain in the State pursuant to section 3(6) of the Immigration Act 1999 which was to the effect that she was, in essence, acting in loco parentis in respect of her half brothers. The respondent, when making his decision to deport the applicant, found that the deportation would not have such grave consequences as to engage the operation of Article 8. The applicant was granted leave to seek an order of certiorari quashing the deportation order made in respect of her on the grounds that the respondent had failed to consider properly the effect of same upon the family life of the applicant's two half brothers who were also living in the State in breach of Article 8 of the European Convention on Human Rights. It was submitted that the respondent should have considered the half brothers as potential victims.

Held by Harding Clark J in granting the relief sought on the grounds that respondent had failed to make a sufficiently considered assessment of whether the proposed deportation would breach Article 8 of the European Convention on Human Rights that the State could deport members of a family even if such deportation could rupture family relationships and such deportations would generally be in compliance with Article 8 of the European Convention on Human Rights.

That no inference could be drawn from the style of the written consideration relied upon by the respondent in support of the contention that he did not have regard to all the information before him on the possible impact of a deportation order on other members of the proposed deportee's family.

That, in order to assess whether the proposed deportation of one or more members of a family would breach Article 8, it was necessary to ask whether the proposed deportation was: (a) in accordance with law; (b) in pursuance of one of the legitimate aims set out in Article 8(2) of the Convention and; (c) necessary in a democratic society and that assessment had to be carried out on a case by case basis and would depend on the facts and circumstances of the case.

That the applicant and her half brothers were, in essence, orphans and there had been nothing in the written considerations leading to the decision to deport that those special facts had been appreciated and therefore the respondent had not fully considered the effect on the younger brothers' separation from their sister should she be deported.

Reporter: P.C.

1 JUDGMENT OF MS. JUSTICE M. H. CLARK, delivered on the 26th day of May, 2009.

2 1. This is the substantive hearing of an application for judicial review of the decision of the Minister for Justice, Equality and Law Reform ("the Minister") to make a deportation order in respect of the applicant. The applicant seeks an order of certiorari quashing that decision. Leave was granted by O'Keeffe J. on 9 ^th December, 2008 on two grounds:-

3 2 "1. The first named respondent acted ultra vires and in breach of natural and constitutional justice in making the deportation decision in

4 (a) finding that the rights residing with the Applicant, her family and her step-brothers' foster family, pursuant to Article 8 of the European Convention on Human Rights were not actively engaged;

5 (b) failing to make a considered assessment of the proportionality of the decisions.

6 2. The first named respondent failed to express in clear and unambiguous language that he had sufficient consideration of the relevant criteria, namely the Article 8 rights of the family in this jurisdiction."

7 2. The hearing took place at the King's Inns, Court No. 1, on 12 ^th and 13 ^th May, 2009. Ms. Rosario Boyle S.C. and Mr. Garry O'Halloran B.L. appeared for the applicant and Ms. Emily Farrell B.L. appeared for the respondents.

Factual Background

8 3. The applicant is a national of Nigeria who was born in Lagos in June, 1989 and she is now almost 20 years of age. According to her narrative, until 2004...