O.O. (Nigeria) v The Minister for Justice and Equality
|Mr. Justice Richard Humphreys
|12 March 2019
| IEHC 175
|[2018 No. 846 J.R.]
|12 March 2019
 IEHC 175
THE HIGH COURT
[2018 No. 846 J.R.]
Immigration and asylum – Deportation – Order of certiorari – Applicants seeking an order of certiorari challenging a decision refusing to revoke a deportation order – Whether the respondent should be released from his undertaking not to deport the applicants
Facts: The applicants filed proceedings on 18th October, 2018, the primary relief sought being an order of certiorari challenging a decision of September, 2018, refusing to revoke a deportation order.
Held by the High Court (Humphreys J) that the applicants had no entitlement to be in the State and, while the separation of powers can be a flexible doctrine, it is not so flexible as to give the court any legitimate role in interfering with the clear entitlement of the first respondent, the Minister for Justice and Equality, to remove them.
Humphreys J held that the proceedings would be dismissed and that the Minister would be released from his undertaking not to deport the applicants.
The applicants are a Nigerian family, being a mother born in 1964 and two adult children, born in 1994 and 1996. The mother arrived in Ireland in 2002, entering the country unlawfully, a fact about which she later misled the Refugee Applications Commissioner when she claimed that she had only arrived in 2006.
When she applied for asylum on 7th November, 2006, presumably the reason why she misstated her date of arrival was for the purpose of making her asylum application more prompt, and therefore more credible. She claimed in the application to have left Nigeria on 3rd November, 2006, travelling from Lagos to Amsterdam, and falsely claiming to have arrived in Dublin on 4th November, 2006. All pure fabrication.
The Refugee Applications Commissioner rejected the asylum application. The applicants appealed to the Refugee Appeals Tribunal.
An oral hearing took place on 21st February, 2007. Ms. Muireann Grogan B.L. appeared for the applicants. The tribunal rejected the appeal on 28th August, 2007.
Submissions were then made under s. 3 of the Immigration Act 1999 by Rehoboth Solicitors on 30th October, 2007, the applicants” first set of solicitors. Subsidiary protection was also applied for. That was rejected by the Refugee Applications Commissioner on 23rd November, 2006.
Deportation orders were made against the applicants on 14th August, 2008. Ceemax solicitors, a second set of solicitors acting on behalf of the applicants, made a first application to revoke the deportation orders under s. 3(11) of the Immigration Act 1999, by letter dated 10th December, 2008, in which they requested revocation ‘ on compassionate grounds’ and pleaded disruption of the children's education. The Minister decided to refuse that application on 2nd April, 2009, a decision that appears to have been communicated to the applicants on or about 2nd September, 2009. They were then required to present to the GNIB on 8th November, 2009 and failed to do so as required, thus evading the deportation order for an ongoing period until the time of institution of the present proceedings.
In 2012 and 2014 the children came of age. They failed to present to the GNIB in their own right, or indeed to engage with the Minister in any other meaningful way. On 8th March, 2015 the applicants” third and present set of solicitors, Trayers & Co., issued a second s. 3(11) application, which purported to apply to the mother and her ‘ minor children’, although they were in fact adults, as noted above, at that time.
On 12th March, 2015, the Department wrote to the applicants” solicitors, indicating that the first-named applicant had failed to present as required, requesting an up-to-date address and asking the applicants” solicitors to advise their client to present immediately. This advice doesn't seem to have triggered the required action by the applicants however.
Further representations were made to the Minister on 24th June, 2016 and 18th June, 2018. By letter dated 19th September, 2018, received on or about 24th September, 2018, the Minister notified the applicants that the second s. 3(11) application was being refused. Since that decision, the evasion continued for a period. The present proceedings were filed on 18th October, 2018, the primary relief sought being an order of certiorari challenging the decision of September, 2018, refusing to revoke the deportation order. Following the filing of the proceedings, the applicants started presenting again on 22nd October, 2018, because, as their counsel informs me, they were informed that they could not maintain the proceedings without regularising their position.
On the same date, the ex parte application for leave was moved before Barrett J., who directed that it be heard on notice on 25th October, 2018. It was the further adjourned and ultimately came before me on 28th January, 2019 when I granted leave. I have now received helpful submissions from Mr. Garry O'Halloran B.L. for the applicants and from Mr. John P. Gallagher B.L. for the respondents.
The context here is that the applicants are the subject of an unchallenged deportation order. Merely because they get the idea later to seek to revoke it does not entitle the court to quash a refusal to do so, save in exceptional circumstances. The fact that this is their second revocation application, the first one having been refused and that refusal having been unchallenged, does not particularly help their position. Such exceptional circumstances have not been demonstrated here.
ECHR caselaw establishes that, for the purposes of art. 8 of that instrument (applicable in Irish law in the terms envisaged in the European Convention on Human Rights Act 2003), deportation of persons other than settled migrants infringes the Convention only in exceptional circumstances (see at 408 per Finlay Geoghegan J., ). That principle can, broadly speaking, be generalised for the purposes of Irish law beyond the art. 8 context to say the deportation of unsettled migrants is unlawful only in exceptional circumstances, such as where considerations of refoulement might arise. No such circumstances exist here.
If I am wrong about all the foregoing, I will consider the specific grounds pleaded.
Ground 1 contends that ‘ The decision of the Minister to affirm the deportation orders is disproportionate due to the failure to strike a fair balance when assessing the relative weight of the competing factors. In particular, while properly highlighting factors adverse to the Applicants relating to immigration history and including a history of evasion, the Minister failed to acknowledge the existence of any rights attaching to the Applicants.’
The premise of this ground is incorrect. The applicants do not have any right that is breached by a refusal to revoke a...
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