MEO v Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 05 September 2011
• Neutral Citation: [2011] IEHC 545
• Court: High Court
• Date: 05 September 2011

[2011] IEHC 545

THE HIGH COURT

[No. 956 J.R./2010]

O (ME) v Min for Justice

BETWEEN/

MEO

APPLICANT

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

N v SECRETARY OF STATE FOR THE HOME DEPT 2005 2 AC 296 2005 2 WLR 1124 2005 4 AER 1017 2005 UKHL 31

K (S) [ETHIOPIA] v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP HOGAN 7.7.2011 2011/29/7886 2011 IEHC 301

MEADOWS v MIN FOR JUSTICE & ORS 2010 2 IR 701 2011 2 ILRM 157 2010 IESC 3

CONSTITUTION ART 40.3.2

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

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)

X (R) & ORS v MIN FOR JUSTICE 2011 1 ILRM 444 2010/54/13491 2010 IEHC 446

KINSELLA v GOVERNOR OF MOUNTJOY PRISON UNREP HOGAN 12.6.2011 2011/31/8437 2011 IEHC 235

FINUCANE v MCMAHON & ORS 1990 1 IR 165

M (E) v MIN FOR JUSTICE 2008 4 IR 417 2009/38/9328 2005 IEHC 403

O (O) v MIN FOR JUSTICE & ORS 2004 4 IR 426 2004/39/9098 2004 IEHC 426

D (T) (A MINOR) & ORS v MIN FOR EDUCATION & ORS 2001 4 IR 259 2001/5/1050

AGBONLAHOR v MIN FOR JUSTICE & ORS 2007 4 IR 309 2007/3/447 2007 IEHC 166

D v UNITED KINGDOM 1997 24 EHRR 423 2 BHRC 273 42 BMLR 149 1997 ECHR 25

ODULANA v MIN FOR JUSTICE UNREP CLARK 25.6.2009 (EX TEMPORE)

GARVEY v IRELAND & ORS 1981 IR 75 1979 113 ILTR 61

N v UNITED KINGDOM 2008 47 EHRR 39 25 BHRC 258 2008 IMM AR 657 2008 INLR 335

B (B) v FRANCE UNREP 7.9.1998 1998 ECHR 84

C (SS) v SWEDEN 2000 29 EHRR CD245

BENSAID v UNITED KINGDOM 2001 33 EHRR 10 11 BHRC 297

NDANGOYA v SWEDEN UNREP ECHR 22.6.2004 (APPLICATION NO 17868/03)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)

IMMIGRATION LAW

Deportation

Application for leave to seek judicial review - Nigeria - Proposed deportation of HIV positive failed asylum seeker in receipt of anti-retroviral therapy and care - Whether applicant could secure effective access to treatment if returned - Whether applicant would suffer considerable societal discrimination if returned - Country of origin information - Whether decision vitiated by material error of fact - Statement that concerns regarding access to anti-retroviral therapy on return unfounded - Whether substantial grounds for contending reasoning did not meet requisite standard - Whether deportation would violate Constitutional and Convention rights - Overlap of Constitutional and Convention issues - Public policy implications - K v Refugee Appeals Tribunal [2011] IEHC 301, (Unrep, Hogan J, 7/7/2011); Meadows v Minister for Justice, Equality and Law Reform [2010] IESC 3, [2010] 2 IR 701; Carmody v Minister for Justice, Equality and Law Reform [2009] IESC 91, [2009] 1 IR 635; RX v Minister for Justice, Equality and Law Reform [2010] IEHC 446, (Unrep, Hogan J, 12/10/2010); Kinsella v Governor of Mountjoy Prison [2011] IEHC 235, [2012] 1 IR 467; Finucane v McMahon [1990] 1 IR 165; Makumbi v Minister for Justice [2005] IEHC 403, (Unrep, Finlay Geoghegan J, 15/11/2006); OO v Minister for Justice [2004] IEHC 426, [2004] 4 IR 426; TD v Minister for Education and Science [2001] 4 IR 287; Agbonlahor v Minister for Justice [2007] IEHC 166, [2007] 4 IR 309; D v United Kingdom (1997) 24 EHRR 423; Odulana v Minister for Justice, Equality and Law Reform (Unrep, ex tempore, Clark J, 25/6/2009); Garvey v Ireland [1981] IR 75; N v United Kingdom (2008) 47 EHRR 39; BB v France (Application No 30930/96) Reports 1998-VI; SCC v Sweden (Application No 46553/99)(Unrep, 15/2/2000); Bensaid v United Kingdom (2001) 33 EHRR 10; Ndangoya v Sweden (Application No 17868/03) (Unrep, 22/6/2004) and N v Home Secretary [2005] UKHL 31, [2005] 2 AC 296 considered - Constitution of Ireland 1937, Art 40.3.2 - Convention for the Protection of Human Rights and Fundamental Freedoms 1950 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5(3) - Leave granted (2010/956JR - Hogan J - 5/9/2011) [2011] IEHC 545

O(ME) v Minister for Justice, Equality and Law Reform

Facts: The Court considered the circumstances where a failed asylum seeker, a Nigerian national, who was HIV positive and in receipt of anti -retroviral therapy, could be deported to her country of origin and whether such deportation was in breach of Article 40.3.2 of the Constitution or Articles 3 and 8 ECHR.

Held by Hogan J. that the applicant had established substantial grounds for leave. She had established that there were substantial grounds in relation to the ECHR and constitutional grounds. Her rights possibly could be breached if she were deported to Nigeria where she would be deprived of life saving treatment.

1 1. May a failed asylum seeker who is HIV positive and in receipt of anti-retroviral therapy and care in this State which is essential for her survival and care be deported to her country of origin where the availability of the necessary medical treatment in that country is, at best, uncertain? This is the essential question presented in this application for leave to apply for judicial review. It is another example of the human tragedies which are so often thrown up by the asylum system and which present often impossible dilemmas for Ministers, administrators and the courts alike.

2 2. If the State is indeed under a duty - whether by reason of the Constitution or by virtue of the European Convention of Human Rights Act 2003 - to vindicate the applicant's right to life by ensuring that life-saving drugs are made available to her, then this raises significant public policy concerns. If that were the law, then it would raise the distinct possibility that many other persons living in developing countries and who were suffering from acute and life threatening illness might be tempted to come to this State by making a false asylum claim in order to secure such treatment: see, e.g., in particular the views expressed in this regard by Lord Hope in N. v. Home Secretary [2005] UKHL 31, [2005] 2 A.C. 296.

3 3. Other than mentioning these concerns at the present stage, I will refrain at this juncture from expressing any view thereon in view of the fact that they will be presumably addressed at the full hearing as, for reasons which will become clearer in the course of this judgment, I propose to grant the applicant leave to apply for judicial review.

4 4. The applicant, Ms. MEO, is a Nigerian citizen who arrived in Ireland on the 21 ^st November, 2006, and sought asylum. She is aged 44 years and her medical circumstances are poor. She is separated from husband and she is unsure of the location of her three adult children. Her parents are deceased and her one sibling, a sister, died from cancer in 2009.So far as can be judged, she is largely isolated in the world. For reasons I will later develop, it is of some importance to note that while she is an active member of both a local support group for HIV sufferers and a local church group in this jurisdiction, it would seem that she has no family members and no established network of friends in Nigeria. While I will deal later with the details of her medical condition, I will first outline the circumstances by which her application for asylum and subsidiary protection came to be refused.

5 5. On the 10 ^th January, 2007, the Office of the Refugee Applications Commissioner ("ORAC") recommended that she not be declared a refugee. This was followed by an oral hearing before the Refugee Appeals Tribunal on the 14 ^th April, 2007. On the 29 ^th May, 2007, the Refugee Appeals Tribunal affirmed the earlier ORAC decision. On the 19 ^th July, 2007, submissions were made to the Minister to the effect that the applicant was entitled to subsidiary protection but this was rejected on the 24 ^th June, 2008.

6 6. There then followed a series of exchanges between the parties which culminated in the Minister making a deportation order on the 12 ^th March, 2009. Those proceedings were subsequently challenged in separate judicial review proceedings before this Court. The proceedings were, however, compromised and the applicant was given a further opportunity to make representations in support of an application for leave to remain in the State. Her solicitors made a series of further representations dealing principally with her medical condition and the likely consequences for her if she were to be, in fact, deported to Nigeria. Following an examination of file the relevant departmental officials recommended that a deportation order be made and the Minister made such an order on the 17 ^th June, 2010. It is this deportation order that is the subject of the present application for leave to apply for judicial review.

7 7. The applicant's medical condition is not in dispute. It is accepted that the applicant is HIV positive and is in receipt of anti-retroviral therapy and care. It is important to emphasis that anti-retroviral therapy is essential for this applicant and she will require life long treatment requirement. If applicant were not to have such treatment, the consequences would in all probability be fatal. This point was made by the applicant's treating consultant, Professor Samuel McConkey, in his medical report of the 17 ^th July, 2007:-

"She is likely to need anti-retroviral treatment for the rest of her life and without this it is likely that she will deteriorate within a year or two to AIDS and death. This is illustrated in the decline in the CD4 count soon after she came here which show that without control of her virus, the HIV infection rapidly causes a severe immune suppression."

8 8. Unfortunately, her medical problems are not confined to any retroviral therapy because the applicant suffers a range of other severe medical and mental health problems. Sadly, the HIV infection has brought with it a range of complications the treatment of...