O. [a minor] & Anor -v- MJELR, [2008] IEHC 307 (2008)

Docket Number:2007 1372 JR
Party Name:O. [a minor] & Anor, MJELR
Judge:Hedigan J.

THE HIGH COURT2007 No. 1372 JR





THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM RESPONDENTJUDGMENT of Mr. Justice Hedigan delivered on the 9th day of October, 2008.

1. The first and second named applicants are Irish citizens and the third named applicant is a national of Nigeria. The Minister for Justice, Equality and Law Reform ("the Minister") decided to make a deportation order in respect of the third named applicant on 20th September, 2007. The applicants are seeking to have that decision quashed. They are also seeking a declaration that the Minister's decision was unlawful, and an injunction prohibiting the removal of the third named applicant from the State.

I. Factual Background

2. The first and second named applicants ("the applicant children") are brother and sister. They were born in the State and are now aged seven and eight years, respectively. They live with their mother, who is a national of Nigeria and is lawfully resident in Ireland. Their father has left the family. Also residing with them are their four half-siblings, who are Nigerian nationals. All of the half-siblings are adults, now aged 19-24. The young daughter of the eldest half-sibling also lives with the family.

3. The third named applicant is currently living with this family group. She is the mother of five children, all under the age of 14, who live in Nigeria with their father. She arrived in the State in March, 2006 and moved in with the applicant children's family roughly two months later. The third named applicant says that she is a cousin of the children's mother, although there is some ambiguity about their exact relation.

4. It is claimed that the third named applicant plays an important role in the upbringing of the applicant children, alongside their mother. Her role is described as being comparable to that of a 'nanny'. It is said that she is particularly important to the first named applicant, who was born with Downs Syndrome, has a congenital heart disease, and suffered from leukaemia at a young age; he then underwent chemotherapy and now has a damaged heart chamber. It is said that his mother is depressed and finds it difficult to cope with him and his siblings, although it seems clear that she is a devoted and loving mother who is dedicated to the well-being of her children.

II. Procedural Background

5. Soon after her arrival in the State, the third named applicant applied for asylum in the ordinary way. Her application was given priority and she quickly received a negative recommendation from the Office of the Refugee Applications Commissioner ("ORAC"), which was affirmed on appeal to the Refugee Appeals Tribunal ("RAT").

6. After her appeal was rejected, she forwarded two letters to the Minister, one from a Social Worker and the other from a General Practitioner. The Social Worker's letter stated that the third named applicant was "a source of huge support to her cousin" and that it would be "of great benefit" to her cousin's family if her situation could be considered under humanitarian grounds. The GP's letter detailed the health problems of the first named applicant and stated that "a supportive family member would be essential to the well being of the family". It has emerged that the latter may not have reached the Minister but I do not think that much turns on this discrepancy.

7. Thereafter, by letter dated 10th November, 2006, the Minister notified the third named applicant that he proposed to make a deportation order and invited her to make representations as to why she should not be deported, and/or to apply for subsidiary protection. Representations seeking leave to remain were made on her behalf, along with an application for subsidiary protection, on 1st December, 2006. Attached were a statement of the children's mother and a personal statement of the third named applicant.

8. The application for subsidiary protection was unsuccessful and her file came to be analysed under s. 3 of the Immigration Act 1999, by an officer of the Repatriation Unit of the Minister's Department. In the s. 3 analysis, dated 24th August, 2007, consideration was given to the third named applicant's rights under Article 8 of the European Convention on Human Rights ("the Convention"). Under the heading "private life", the officer accepted that the proposed deportation may interfere with the third named applicant's private life, in relation to her work, education and social ties formed since arriving in Ireland. The officer stated, however, that such interference is in accordance with law, pursues a pressing social need and a legitimate aim, and is necessary in a democratic society.

9. Under the heading "family life", the officer set out details of the third named applicant's family in Nigeria and her involvement with her cousin's family in Ireland. The officer concluded that her removal from the State would not interfere with her Article 8 rights, having made the following observations:-

"Although [the third named applicant] may help her cousin, there is nothing on file to suggest [she] is the primary care-giver of these children. There is nothing on file to suggest that [the children's mother] is medically unfit and would not be physically capable of looking after the children if [the third named applicant] was to be removed. It should also be noted that [the children's mother] has been residing in the State with her children since 2000 and managed to look after her children without [the third named applicant]'s help for 6 years."

10. A handwritten note added to the s. 3 analysis by an Assistant Principal of the Repatriation Unit on 27th August, 2007, makes the additional observation that a number of adult siblings lived with the applicant children's family group and that they could assist their mother to care for the applicant children. The Assistant Principal concluded that there were no grounds for granting leave to remain, and recommended that the Minister make a deportation order. As I have noted, the Minister signed a deportation order on 20th September, 2007. This decision was notified to the third named applicant by letter dated 5th October, 2007. On 30th November, 2007, the applicants were granted leave to apply for judicial review of the Minister's decision.

III. The Applicants' Submissions

11. The applicants' complaints in respect of the impugned decision are as follows:-

a. That the Minister failed to consider the applicant children's rights under Article 40.3 of the Constitution;

b. That the Minister failed to consider the applicant children's right to respect for private life under Article 8 of the Convention;

c. That the Minister failed to engage in a balancing exercise; and

d. That there was a breach of fair procedures.

12. I will address each of these in turn.

(a) Consideration of the children's constitutional rights

13. It is submitted that the applicant children's personal rights under Article 40.3.1° of the Constitution should have been given consideration by the Minister in the terms set out by the High Court and Supreme Court in Oguekwe v. Minister for Justice, Equality and Law Reform [2007] IEHC 345; [2008] IESC 25. That case involved, inter alia, a challenge to the Minister's decision to deport the Nigerian father of an Irish citizen child. Finlay Geoghegan J. in the High Court noted that Irish citizen children enjoy certain rights under Article 40.3 of the Constitution, including:-

"1. The right to live in the State.

2. The right to be reared and educated with due regard to his/her welfare including a right to have his/her welfare considered in the sense of what is in his/her best interests in decisions affecting him/her."

14. She went on to find that when consideration is being given to the deportation of one or both of the Irish citizen child's parents, the Minister's decision-making process must comply with the following principles:-

"(i) It must consider the facts relevant to the personal rights of the citizen child protected by Article 40.3 of the Constitution, if necessary by an appropriate enquiry in a fair...

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