O-A (O O) and Others v Min for Justice

• Jurisdiction: Ireland
• Judge: MS. JUSTICE M. H. CLARK,
• Judgment Date: 28 January 2011
• Neutral Citation: [2011] IEHC 78
• Court: High Court
• Date: 28 January 2011

O-A (O O) & Ors v Min for Justice

JUDICIAL REVIEW

BETWEEN

O. O. O-A, A. O-A, A. O-A (A MINOR), N. M. A. O-A (A MINOR) AND S. O. S. O-A (A MINOR, SUING BY THEIR NEXT FRIEND AND FATHER O. O. O-A)

APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

[2011] IEHC 78

[No. 348 J.R./2009]

THE HIGH COURT

IMMIGRATION

Deportation

Proportionality - Rationale -Whether proportionality an issue in judicial review of decision affecting fundamental rights - Irish citizen children - Whether deportation amounting to unlawful interference with family rights - No examination of conditions in country of origin in assessment of interference with constitutional rights of citizen children - Whether failure to consider submissions - Balance rights of children and rights of State - Whether reasoned decision required - Whether possible to discern rationale for determination that constitutional rights fully considered - Whether unreasonable and disproportionate to expect family to move to Nigeria to enjoy family life - AO and DL v Minister for Justice [2003] 1 IR 1, Fajujonu v Minister for Justice [1990] 2 IR 151, Ryan v Attorney General [1965] IR 294, Igiba (a minor) v Minister for Justice [2009] IEHC 593 (Unrep, Clark J, 2/12/2009) and State (Keegan) v Stardust Victims Compensation Tribunal [1986] IR 642 applied; O v Minister for Justice [2009] IEHC 448, (Unrep, Cooke J, 14/10/2009), Meadows v Minister for Justice [2010] IESC 3, (Unrep, SC, 21/1/2010), Alli (a minor) v Minister for Justice [2009] IEHC 595, (Unrep, Clark J, 2/12/2009), Asibor (a minor) v Minister for Justice [2009] IEHC 594, (Unrep, Clark J, 2/12/2009) and Bode v Minister for Justice [2008] 3 IR 663 considered; Dimbo v Minister for Justice [2008] IESC 26, (Unrep, SC, 1/5/2008) and Osunde v Minister for Justice [2009] IEHC 448, (Unrep, Cooke J, 14/10/2009) distinguished - Refugee Act 1996 (No 17), s 5 - European Convention on Human Rights, Art 8(2) - Immigration Act 1999 (No 22), s 3 - Certiorari granted (2009/348JR - Clark J - 28/01/2011) [2011] IEHC 78

O-A(O) v Minister for Justice

Facts The applicants in this case were a family comprising a father, mother and three children. The parents and one of the children were nationals of Nigeria and the other two children were citizens of Ireland. The applicants challenged the respondent's decision to make a deportation order against the first named applicant (father), whose applications for refugee status and leave to remain in Ireland were rejected. The applicant had made submissions to the respondent regarding the proposed deportation order and relied on the Constitutional and Convention rights of his children. He also submitted country of origin information regarding the conditions for women and children in Nigeria. Facts and legal issues raised in this case were previously argued and determined in Alli (a minor) v. Minister for Justice [2009] I.E.H.C. 595 and Asibor (a minor) v. Minister for Justice & Others [2009] I.E.H.C. 594, which were heard together as test cases. It was held in those cases that the respondent's use of the term "insurmountable obstacles" in his assessment of the reasonableness of the deportation of one parent from the State, where other family members were lawfully resident, was analogous to the test of reasonableness and was the appropriate test for considering whether or not a family could be expected to join a deportee in his county of origin and to maintain a family life there. However, the applicants argued that the decision in those cases was wrongly decided and that the legal landscape had changed since the decision of the Supreme Court in Meadows v. The Minister for Justice [2010] I.E.S.C. 3. In particular it was argued that proportionality was now an issue which must be addressed by the Court when judicially reviewing the lawfulness of any decision which affects fundamental rights. It was submitted on behalf of the applicants, at the hearing of the proceedings herein, that the respondent failed to consider the submissions made to him by the applicants in relation to the general conditions facing women and children in Nigeria and they submitted that this was demonstrated by the lack of reference in the examination of the file to county of origin information. It was also submitted that in light of the Supreme Court's decision in Meadows, it would be unreasonable and therefore disproportionate to expect the second to fifth named applicants to return to Nigeria if they wished to enjoy family life with the first named applicant.

Held by Clark J. in granting an order of certiorari and remitting the matter to the respondent for fresh consideration: That it was not possible to properly discern the rationale and basis for the respondent's determination that the constitutional rights at issue herein had been fully considered because there was no express reference made to the submissions of the applicants relating to the general conditions facing women and children in Nigeria and no reason was expressed for disregarding those submissions. Consequently, the decision of the respondent, which had the potential to seriously encroach on and diminish the minor applicants' constitutional rights, was defective in failing to provide any reason for ignoring submissions made relating to conditions in Nigeria.

The decision in Meadows did not affect the decision in Alli and Asibor. Immigration policy in a general sense can clearly be a substantial reason for refusing leave to remain, even to fathers of citizen children. However, that is not to say that the facts of any particular case may not render the refusal of leave to remain unreasonable in that particular case and proportionality forms part of a sound evaluation of the reasonableness of an administrative decision. That had been the position since before the decision in Meadows.

Reporter: L.O'S.

ALLI (A MINOR) & ANOR v MIN FOR JUSTICE UNREP CLARK 2.12.2009 2009/3/608 2009 IEHC 595

ASIBOR (A MINOR) & ORS v MIN FOR JUSTICE UNREP CLARK 2.12.2009 2009/4/774 2009 IEHC 594

MEADOWS v MIN FOR JUSTICE UNREP SUPREME 21/1/2010 2010 IESC 3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

CONSTITUTION ART 40

CONSTITUTION ART 41

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 14

IMMIGRATION ACT 1999 S3(6)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006

REFUGEE ACT 1996 S13

OGUEKWE v MIN FOR JUSTICE 2008 3 IR 795

REFUGEE ACT 1996 S5

CONSTITUTION ART 42

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

FAJUJONU v MIN FOR JUSTICE 1990 2 IR 151

IMMIGRATION ACT 1999 S3(6)(I)

IMMIGRATION ACT 1999 S3

IMMIGRATION ACT 1999 S3(4)(A)

OFFENCES AGAINST THE STATE ACT 1939

RYAN v AG 1965 IR 294

POK SUN SHUM v IRELAND 1986 ILRM 593

OSHEKU v IRELAND 1986 IR 733

IGIBA (A MINOR) & ORS v MIN FOR JUSTICE UNREP CLARK 2.12.2009 2009/28/6831

O (A N) & ORS v MIN FOR JUSTICE 2010 2 IR 144

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

ASSOCIATED PROVINCIAL PICTURE HOUSES LTD v WEDNESBURY CORPORATION 1948 1 KB 223

O'KEEFFE v BORD PLEANÁLA 1993 1 IR 39

BODE v MIN FOR JUSTICE 2008 3 IR 663

1 1. The applicants in this case are a family comprising a father (O), mother (A) and three children (A, N and S). The father, mother and middle child are nationals of Nigeria, while the two other children are citizens of Ireland. The family challenges the respondent Minister's decision to make a deportation order against the father, whose applications for refugee status and leave to remain in Ireland have been rejected.

2 2. Facts and legal issues similar to those raised in this case were argued and determined in Alli (a minor) v. Minister for Justice [2009] I.E.H.C. 595, (Unreported, High Court, Clark J., 2 ^nd December, 2009) ( 'Alli') and Asibor (a minor) v. Minister for Justice & Ors. [2009] I.E.H.C. 594, (Unreported, High Court, Clark J., 2 ^nd December, 2009) ( 'Asibor'), which were heard together as test cases. The grounds on which leave was granted in those two cases are identical to the grounds pleaded in this case and in approximately 100 other similar cases where deportation orders were stayed pending the decisions in Alli and Asibor.

3 3. The primary issue to be determined in Alli and Asibor was whether the Minister's use of the term "insurmountable obstacles" in his assessment of the reasonableness of the deportation of one parent from the State, where the other members of the family were lawfully resident, was the incorrect standard. A further issue for determination was how the Minister should have considered the proportionality of the effect of the father's deportation on the family. This Court found that the phrase "insurmountable obstacles", as used in the jurisprudence of the European Court of Human Rights ('ECtHR') and adopted by the Minister, is analogous to a test of reasonableness and is the appropriate test when considering whether or not a family can be expected to join a deportee in his country of origin and to maintain a family life there.

4 4. It would, therefore, appear that the legal principles determined in those cases would be binding on the applicants in this current challenge. However, the applicants urge the Court that the decision in Alli and Asibor was wrongly decided and that the legal landscape has changed since the decision of the Supreme Court in Meadows v. The Minister for Justice [2010] I.E.S.C. 3, (Unreported, Supreme Court, 21 ^st January, 2010) ( 'Meadows'). In particular, it is argued that proportionality is now an issue which must be addressed by the Court when judicially reviewing the lawfulness of any decision which affects fundamental rights. It was submitted that had the Meadows decision been available to this Court, Alli and Asibor would have been differently decided. It was argued that those...