A. [a minor] & Anor -v-MJLER & Anor, [2009] IEHC 235 (2009)

Docket Number:2009 193 JR
Judge:McMahon J.
 
FREE EXCERPT

THE HIGH COURT

JUDICIAL REVIEW 2009 193 JR

BETWEEN

G.A.

(A MINOR ACTING BY HIS FATHER AND NEXT FRIEND, K.A.)

AND K.A. APPLICANTSAND

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM

AND

THE REFUGEE APPLICATIONS COMMISSIONERRESPONDENT

JUDGMENT of Mr. Justice McMahon delivered on the 22nd day of May, 2009

Background

The first named applicant is an Irish citizen born in this State on the 24th September, 2004. He is the son of the second named applicant who is a citizen of Nigeria born on the 4th October, 1969. The first named applicant has a twin brother who is also an Irish citizen by virtue of his birth in the State.

The second named applicant was married to M.A., the mother of the first named applicant, in Ivory Coast in 2003. M.A. is a citizen of Ivory Coast where the second named applicant lived at that time. They both left Ivory Coast in 2004. Mrs. A. travelled to Ireland and was granted permission to remain in this State under the "IBC 05" residency scheme. The second named applicant had gone back to Nigeria and was not living in the State at the time the "IBC 05" scheme was in operation. The second named applicant came to Ireland in November 2007, to reunite with his family and he has resided with his wife, children and two stepchildren as a family unit since then. Mrs. A. has established herself in a business and is able to earn an income from this activity. It is alleged that the second named applicant assists in the home and in the education and the social activities of the children. A deportation order was made against the second named applicant by the respondent on the 27th January, 2009.

This is an application for leave for judicial review of the decision to make a deportation and is made pursuant to the provisions of s. 5 of the Illegal Immigrants (Trafficking) Act 2000 (as amended by ss. 10 and 13 of the Immigration Act 2003).

The standard

The appropriate standard to be applied by this Court in a leave application is that which is set down in s. 5 (2) (b) of the Illegal Immigrants (Trafficking) Act 2000, namely, that the applicant is required to establish substantial grounds. In McNamara v. An Bord Pleanála (Unreported, High Court, Barr, J., 10th May, 1996), Carroll, J., who was the learned trial judge, expanded on the standard to be applied by the court:- "….In order for a ground to be substantial it must be reasonable, it must be arguable, it must be weighty. It must not be trivial or tenuous...."Arguments advanced on behalf of the applicants

Counsel for the applicants advances arguments in favour of this application under the following headings:-(a) The personal rights of the first named applicant as an Irish citizen child.

(b) The family rights of both applicants under Article 41 of the Constitution.

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