O (A N) and Others v Min for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 14 October 2009
• Neutral Citation: [2009] IEHC 448
• Date: 14 October 2009
• Court: High Court
• Docket Number: [No. 622 J.R./2008]

[2009] IEHC 448

THE HIGH COURT

[No. 622 J.R./2008]

O (A N) & Ors v Min for Justice

JUDICIAL REVIEW

BETWEEN/

AN.O., E.O., (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND AM.O.) L.O. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND AM.O.) AND AE.O (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND AM.O.)

APPLICANTS

AND

MINISTER FOR JUSTICE, EQUALITY & LAW REFORM

RESPONDENT

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

IMMIGRATION ACT 1999 S3(6)

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S13(6)(A)

REFUGEE ACT 1996 S2

REFUGEE ACT 1996 S5

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S6A(1)

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S6B(4)

IMMIGRATION ACT 2004 S5(1)

IMMIGRATION ACT 2004 S5(3)

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S6A

IMMIGRATION ACT 1999 S3(6)(B)

BODE v MIN FOR JUSTICE 2008 3 IR 663 2007/6/1033 2007 IESC 62

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

DIMBO v MIN FOR JUSTICE UNREP SUPREME 1.5.2008 2008/12/2530 2008 IESC 26

IMMIGRATION ACT 1999 S3(3)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(3)(A)

IMMIGRATION ACT 1999 S3

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

R (MAHMOOD) v SECRETARY OF STATE FOR THE HOME DEPT 2001 1 WLR 840 2001 1 FLR 756

IMMIGRATION

Deportation

Foreign national parent of Irish born child and step parent of Irish citizen child - Factors to be taken into account when making deportation order - Whether substantial reason for making deportation order - Whether deportation order proportionate - Whether factual matrix considered in making deportation order - Dimbo v Minister for Justice [2008] IESC 26 (Unrep, SC, 1/5/2008) applied - Irish Nationality and Citizenship Act 1956 (No 26), ss 6A and 6B - Refugee Act 1996 (No 17), ss 2 and 5 - Immigration Act 1999 (No 22), s 3 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - European Convention on Human Rights Act 2003 (No 20), s 3 - Immigration Act 2004 (No 1), s 5 -European Convention on Human Rights, article 8 - Judicial review refused (2008/622JR - Cooke J - 19/5/2009) [2009] IEHC 448

O(AN) v Minister for Justice Equality and Law Reform

Facts: The first named applicant from Nigeria had alleged that he feared being killed by his wife's family and had his application for asylum rejected. The second named applicant was Nigerian and had permission to reside in Ireland until 2010. The applicant sought an order for certiorari quashing a deportation order made by the respondent against the first named applicant. The applicant alleged that there was no substantial reason for the deportation of the first named applicant, that there was an error on the face of the record thereby affecting the decision and that the deportation of the first named application was in breach of Article 8 ECHR.

Held by Cooke. J. that the issue remained as to whether in the literal sense "relevant matters" had been addressed. The Minister's decision could not be said to be obviously disproportionate in the circumstances. The Minister had weighed a series of factors relating to the personal circumstances of the Irish citizen child and the family unit as against the State's interests. There was no failure to vitiate the decisions in the present case. The reasons formulated by the Minister were reasons of substance and could not be interfered with asunlawful or invalid. The application for judicial review would be refused.

Reporter: E F.

JUDGMENT of

Mr. Justice Cooke

1 delivered on the 14th day of October, 2009.

2 1. By order of Finlay Geoghegan J. of 20^th October, 2008, the applicants were granted leave to apply for, inter alia, an order of certiorari to quash a deportation order dated 6^th May, 2008, made by the respondent against the first named applicant. Leave was granted to apply for that order and related reliefs on the basis of the grounds set forth in s. 5 of the Statement of Grounds then before the court and dated 28^th May, 2008 at subparagraphs A, B, D and E of paragraph 5.

3 2. The applicants have also brought a motion to amend that Statement of Grounds by the addition of a further ground. Upon the commencement of the hearing the Court allowed the amendment with the result that the grounds now before the Court are as follows:-

4 a A. The respondent does not identify a substantial reason for the deportation of the first named applicant;

5 b B. Error on the face of the record whereby the respondent states that allowing the applicant to remain in the State would inevitably lead to similar decisions in other cases where in the instant case a particular and unique set of circumstances apply;

6 c C. The deportation of the first named applicant would interfere with the applicant's right to respect for their private and family life and their home and accordingly, breach article 8 of the European Convention on Human Rights and Fundamental Freedoms 1950. Such interference is:

7 (i) Not in accordance with laws governing its circumstances, that is the right of parents of European Union and Irish citizens;

8 (ii) Not shown to be necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

9 d D. The respondent has failed to have regard to the duration of the applicant's residence in the State;ultra vires s. 3(6) of the Immigration Act 1999;

10 e E. Error on the face of the record whereby the respondent states that the fifth named applicant is not an Irish citizen.

11 3. The background to the application is as follows and is unusual in that at the outset of the asylum process and before the Refugee Applications Commissioner, the first named applicant never claimed to be a refugee and did not assert that he had any fear of persecution if returned to Nigeria. As recorded in the Commissioner's Section 13 Report of 24^th October, 2006, the first named applicant acknowledged that he had never been persecuted in Nigeria and had no fear for himself if returned there. He claimed that he had come to Ireland in October 2006 to be with the second named applicant (his then partner,) and his family and he did not want to return to Nigeria because he did not want to leave them. According to the second named applicant she met the first named applicant in the United Kingdom in "early 2004".

12 4. The second named applicant is also Nigerian and has been in the State since 2002 and currently has permission to reside here until 2010. She married the first named applicant on 8^th March, 2007. The third named applicant who was born in the State on 2^nd January, 2003 is her son by a former partner who is not named on the child's birth certificate. The fourth and fifth named applicants are the children of the first and second named applicants and were born in the State respectively on 6^th July, 2005 and the 3^rd May, 2007.

13 5. In the Section 13 report of the Commissioner dated 24^th October, 2006, the Commissioner understandably considered that the first named applicant's desire to remain in Ireland with his family was not sufficiently serious to constitute a severe violation of his basic human rights so as to amount to persecution. Nevertheless, a full examination of the background circumstances was carried out which led to the conclusion that the applicant showed no minimal basis for the contention that the applicant was a refugee. Section 13(6)(a) of the Refugee Act 1996 therefore applied.

14 6. Against this report the first named applicant appealed to the Refugee Appeals Tribunal. The notice of appeal as lodged by Messrs. Watters & Co., his solicitors, gave as a basis of the appeal "the appellant claimed asylum on the basis of fearing persecution in Nigeria from family members of his fiancé" and "we are instructed that the appellant faces the risk of being killed by his fiancé's parents if he returns to Nigeria".

15 7. The Refugee Appeals Tribunal decision of 12^th December, 2006, rejected that appeal and held that the basis of the appeal namely, fear of the criminal intentions of his wife's family did not come within s. 2 of the 1996 Act.

16 8. With the covering letter of 15^th May, 2008, from the Repatriation Unit of the Department's Irish Naturalisation and Immigration Service sending the first named applicant the deportation order, a copy of the file note examining the applicant's case for the purpose of the order was included and constitutes, in effect, with that letter, the Minister's statement of his reasons for his decision to make that order. After reciting the accounts of their personal histories and reasons for leaving Nigeria as given by the first and second named applicants, the note examines the applicants' case in detail under a number of headings including:-

17 · The possible application of the prohibition on refoulement under s. 5 of the 1996 Act;

18 · Humanitarian considerations under s. 3(6) of the Immigration Act1999 (as amended);

19 · Consideration of the positions of the children involved both as Irish citizen children and Irish born non-citizen children;

· Consideration of the rights of the applicant's family; and

20 · Consideration of the rights to private life and to family life under article 8 of the European Convention on Human Rights.

21 9. The file note concluded by recommending to the Minister that a deportation order be made on the basis that any interference with any such rights as the applicants were entitled to assert would not be contrary to Irish law and would be lawful because it pursues the pressing social need and legitimate aim of maintaining the State's control of its borders and would be proportionate to that legitimate aim.

22 10. It...