A.N. and Others v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: MS JUSTICE M. H. CLARK,
• Judgment Date: 31 July 2013
• Neutral Citation: [2013] IEHC 480
• Court: High Court
• Date: 31 July 2013

[2013] IEHC 480

THE HIGH COURT

Record No. 869 J.R./2012

N (A) & Ors v Min for Justice

JUDICIAL REVIEW

Between:

A.N., M.C. AND C.C. (A MINOR, SUING BY HIS MOTHER AND NEXT FRIEND M.C.)

APPLICANTS

-AND-

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

IMMIGRATION ACT 1999 S3(11)

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

U (H) & ORS v MIN FOR JUSTICE UNREP CLARK 29.9.2010 2010/50/12611 2010 IEHC 371

SIVSIVADZE & ORS v MIN FOR JUSTICE & ORS UNREP KEARNS 21.6.2012 2012/42/12601 2012 IEHC 244

H (MAU) [PAKISTAN] v MIN FOR JUSTICE & ORS UNREP CLARK 28.6.2012 2012/44/12962 2012 IEHC 572

M (JC) & L (M) [DRC] v MIN FOR JUSTICE & ORS UNREP CLARK 12.10.2012 2012 IEHC 485

O (A) & ORS v MIN FOR JUSTICE 2003 1 IR 1 2003/31/7267

BEOKU-BETTS v SECRETARY OF STATE FOR THE HOME DEPT 2009 1 AC 115 2008 3 WLR 166 2008 4 AER 1146 2008 HRLR 38

H (Z) [TANZANIA] v SECRETARY OF STATE FOR THE HOME DEPT 2011 2 AC 166 2011 2 WLR 148 2011 2 AER 783 2011 UKSC 4

SANADE (BRITISH CHILDREN: ZAMBRANO: DERECI), IN RE; SANADE & ORS v SECRETARY OF STATE FOR THE HOME DEPT UNREP 16.2.2012 2012 UKUT 48 (IAC)

ZAMBRANO v OFFICE NATIONAL DE L'EMPLOI (ONEM) 2012 QB 265 2012 2 WLR 886 2011 AER (EC) 491 2011 ECR I-1177 2011 2 CMLR 46 2011 2 FCR 491

SMITH v MIN FOR JUSTICE & ORS UNREP SUPREME 1.2.2013 2013 IESC 4

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 7

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 20

SMITH v MIN FOR JUSTICE & ORS UNREP COOKE 5.3.2012 2012/42/12684 2012 IEHC 113

TROCI & HEALY v MIN FOR JUSTICE & ORS UNREP O'KEEFFE 7.12.2012 2012 45 13423 2012 IEHC 542

IMMIGRATION ACT 1999 S3(6)

OGUEKWE v MIN FOR JUSTICE 2008 3 IR 795 2008 2 ILRM 481 2008/51/10890 2008 IESC 25

IMMIGRATION ACT 1999 S3

UK BORDERS ACT 2007 S32 (UK)

DERECI & ORS v BUNDESMINISTERIUM FUR INNERES 2012 AER (EC) 373 2012 1 CMLR 45

MCCARTHY v SECRETARY OF STATE FOR THE HOME DEPT 2011 AER (EC) 729 2011 ECR I-3375 2011 3 CMLR 10

LOFINMAKIN & AMONUSI v MIN FOR JUSTICE & ORS UNREP COOKE 1.2.2011 2011/31/8618 2011 IEHC 38

HARRISON (JAMAICA) v SECRETARY OF STATE FOR THE HOME DEPT; B (A) (MOROCCO) v SECRETARY OF STATE FOR THE HOME DEPT 2013 2 CMLR 23 2012 EWCA CIV 1736

F (M) v SECRETARY OF STATE FOR THE HOME DEPT UNREP 31.10.2012 2012 UKUT 393 (IAC)

SECRETARY OF STATE FOR THE HOME DEPT v IZUAZU UNREP 30.1.2013 2013 UKUT 45 (IAC)

OGUNDIMU v SECRETARY OF STATE FOR THE HOME DEPT UNREP 18.2.2013 2013 UKUT 60 (IAC)

UNER v THE NETHERLANDS 2006 3 FCR 340 2007 45 EHRR 14 2006 ECHR 873

IMMIGRATION

Deportation

Application for judicial review - Certiorari - Challenge to decision of Minister refusing to revoke deportation order - Right to respect for family life - Best interests of child - Failure to provide sufficient information in s 3(11) application - Application of European Union law - Purely internal matter - Whether irrebuttable presumption that where deportation has potential to impact EU citizen child, even where no question of constructive deportation, it will never be reasonable to expect child to relocate outside EU - Factors in determining whether disproportionate interference with right to respect for family life - U(H) & Others v Minister for Justice and Equality [2010] IEHC 371, (Unrep, Clark J, 29/9/2010); Sivsivadze v Minister for Justice and Equality [2012] IEHC 244, (Unrep, Kearns P, 21/6/2012); H(MAU) v Minister for Justice and Equality [Pakistan] [2012] IEHC 572, (Unrep, Clark J, 28/6/2012); M(JC) and L(M) v Minister for Justice and Equality [2012] IEHC 485, (Unrep, Clark J, 12/10/2012); O(A) and L(D) v Minister for Justice, Equality and Law Reform [2003] 1 IR 1; Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39, [2009] 1 AC 115; H(Z) (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166; Sanade (British Children - Zambrano - Dereci) v Secretary of State for the Home Department [2012] UKUT 00048 (IAC); Zambrano v ONEM (Case C-34/09), ECR [2011] I-1177; Smith v Minister for Justice and Equality [2013] IESC 4, (Unrep, SC, 1/2/2013); Smith v Minister for Justice and Equality [2012] IEHC 113, (Unrep, Cooke J, 5/3/2012); Troci & Healy v Minister for Justice and Equality [2012] IEHC 542, (Unrep, O'Keeffe J, 7/12/2012); Oguekwe v Minister for Justice, Equality and Law Reform [2008] IESC 25, [2008] 3 IR 795; ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] AC 166; Dereci v Bundesministerium fur Inneres (Case C-256/11), [2011] ECR I-0000; McCarthy v Secretary of State for the Home Department (Case C-434/09), [2011] ECR I-03375; Lofinmakin v The Minister [2011] IEHC 38, (Unrep, Cooke J, 1/2/2011); DH (Jamaica) v Secretary of State for the Home Department [2012] EWCA Civ 1736; MF (Article 8 - new rules) Nigeria [2012] UKUT 00393 (IAC); Izuazu (Article 8 - new rules) [2013] UKUT 45 (IAC); Ogundimu (Article 8 - new rules) Nigeria [2013] UKUT 60 (IAC) and A£ner v The Netherlands (App No 46410/99) (2006) 45 EHRR 421 considered - Immigration Act 1999 (No 22), s 3 - Treaty on the Functioning of the European Union, art 20 - Charter of Fundamental Rights of the EU, art 7 - European Convention on Human Rights 1950, art 8 - Application refused; injunction granted prohibiting deportation for eight weeks to facilitate making of further s 3(11) application (2012/869JR - Clark J - 31/7/2013) [2013] IEHC 480

N(A) v Minister for Justice and Equality

Facts: The applicants sought an order quashing the decision of the Minister to affirm a deportation order made against AN who was a national of Albania. He had married MC in 2012 and the third applicant CC was MC”s son from a previous relationship. The Minister had found that it would be open to MC to reside with AN in Albania. It was argued inter alia that the Minister had failed to have adequate regard to the fact that the probable effect of the deportation was to leave MC to raise her son alone. The Minister failed to adequately consider the obstacles that the applicants faced in relocating to Albania and that the Minster failed to adequately consider the effect of the deportation of AN on the family as a whole.

Held by Clark J. that no information was before the Minister which would warrant the conclusion that it would be unreasonable to expect MS and her child to relocate to Albania. The applicants had not established an entitlement to the relief sought and the application would fail. There was nothing to preclude the Minister from considering whether it was reasonable to expect an EU citizen to relocate outside of the EU to maintain life with a non-EEA national in the event of their deportation.

1 The applicants seek an order quashing the decision of the respondent Minister dated the 9 ^th August, 2012, to affirm a deportation order made against the first applicant A.N. on the 21 ^st December, 2011. A.N., who is a national of Albania, has been in Ireland since 2008. He married the second applicant M.C. on the 29 ^th February, 2012. The third applicant C.C., who was born on the 17 ^th December, 2011, is M.C.'s son from a previous relationship. M.C. and her son are Irish citizens. Their challenge to the Minister's refusal to revoke is based on Article 8 of the European Convention on Human Rights (ECHR). Leave to apply for judicial review was granted on an ex parte basis on the 23 ^rd October, 2012 and the substantive hearing took place on the 3 ^rd July, 2013. Ms Rosario Boyle S.C. with Mr Anthony Lowry B.L. appeared for the applicants and Mr Robert Barron S.C. with Ms Kilda Mooney B.L. appeared for the respondent.

Background

2 A.N. who states that he was born in 1985 is a failed asylum seeker from Albania who came to Ireland in 2008 leaving his parents, sister and three brothers in Albania. His claim that he was the victim of a blood feud was found not credible. For reasons which are not clear he did not apply for subsidiary protection. In his affidavit grounding these proceedings A.N. says he had instructed his then Solicitors to make representations on his behalf to remain in the State but they failed to make such an application. He has not exhibited any documentation in support of this averment. Moreover, despite making this very serious allegation against his former legal representatives, they have not been made a notice party to these proceedings. A second firm of solicitors informed the Minister that they were now acting for him in July 2011 and then informed the Minister of his change of address in October 2011 without making any application for subsidiary protection or leave to remain on his behalf.

3 On the 21 ^st November, 2011, A.N. and M.C. gave notice of their intention to marry to their local Civil Registration Office. This fact was not notified to the Minister. Similarly, he was not informed when on the 17 ^th December, 2011, M.C. gave birth to her son C.C. Thus when he made the deportation order four days later, the Minister was totally unaware that A.N. intended to marry an Irish citizen.

4 By letter dated the 11 ^th January, 2012, the Minister informed A.N. that he had made a deportation order in respect of him on the 21 ^st December, 2011, and informed him that he was required to leave the State by the 28 ^th January, 2012, and to remain outside the State thereafter. It is no surprise that the examination of file appended to that letter (dated the 24 November, 2011,) treats A.N. as a single man with no family connections in the State.

5 On the 18 ^th January, 2012, Kelleher O'Doherty Solicitors wrote to the Minister on behalf of A.N. seeking revocation of the deportation order as they were awaiting a decision in respect of "his outstanding application" by which it can be inferred that they believed that a subsidiary protection decision was awaited. They were informed that...