O.O.A. v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 29 July 2016
• Neutral Citation: [2016] IEHC 468
• Court: High Court
• Docket Number: [2014 No. 528 J.R.]
• Date: 29 July 2016

BETWEEN

O.O.A.

AND

O.P.O.O.O.A.A. (A MINOR SUING BY HER FATHER AND NEXT FRIEND O.O.A.)

APPLICANTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

[2016] IEHC 468

Humphreys J.

[2014 No. 528 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Asylum, Immigration & Nationality – Deportation order – Refusal of application for revocation of deportation order – Competing rights.

Facts: Following refusal to quash the deportation order, the applicant claimed that the respondent had erred in refusing the revocation of the deportation order. The applicant argued that the decision would be invalid being disproportionate. The applicant claimed that it failed to fairly balance the competing rights involved in the case.

Mr. Justice Richard Humphreys held that the application to quash the refusal of the revocation of the deportation order would be dismissed. The Court further held that the undertaking not to deport the applicant would be discharged with effect from the oral pronouncement of the Court. The Court observed that there had not been any clear illegality in the present case which would render the decision disproportionate.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 29th day of July, 2016

1 The first named applicant came to Ireland on 28th December, 2006, and claimed asylum. The claim was rejected by the Refugee Applications Commissioner on 3rd January, 2007.

2 He married Ms. A.A. on 4th July, 2007, and the second named applicant was born to the parties to the marriage on 2nd December, 2007. Ms. A.A. is a British citizen, and the first named applicant applied for residence on the basis of asserting EU Treaty rights. This application was first refused on 24th October, 2008 and a second application was refused on 5th October, 2010. An appeal of this second decision was refused on 17th May, 2011.

3 On 20th February, 2012, a further application for residence based on the Zambrano decision ( Case C-34/09, Ruiz Zambrano v. Office National de l'Emploi, Court of Justice of the European Union, 8th March, 2011) was refused.

4 On 23rd December, 2013, a deportation order was made against the first named applicant, which was not challenged.

5 Shortly thereafter, in February, 2014, and in a context where the relationship between the couple had broken down, the applicant applied to the District Court for access to the second named applicant, and simultaneously made an application for revocation of the deportation order.

6 On 19th March, 2014, a consent order was made by the District Court, granting the first named applicant access for two hours every second Friday, together with provision for the payment of maintenance.

7 The application for revocation of the deportation order under s. 3 (11) of the Immigration Act 1999 was refused on 22nd July, 2014. The present proceedings, challenging that refusal, were instituted on 5th September, 2014.

8 The Employment Permits (Amendment) Act, 2014 did not commence until 1st October, 2014, which has the effect that the present application is not covered by s. 5 of the Illegal Immigrants (Trafficking) Act 2000, as amended by the 2014 Act.

Is the applicant entitled to argue that he is entitled 'to make a straightforward application to stay in the State because of his relationship with his son'?

9 In her very able submissions, Ms. Sunniva McDonagh S.C. (with Mr. Ian Whelan B.L.) for the applicants complains that the first named applicant has no procedure whereby his family rights can be recognised outside of the deportation process, and relies on the decision of Barr J. in Luximon v. Minister for Justice and Equality [2015] IEHC 227 (Unreported, High Court, 20th March, 2015) (currently under appeal to the Court of Appeal). Mr. Dermot Manning B.L. for the respondent has objected that this particular claim is not pleaded. Despite that objection, there was no application for an amendment of the pleadings on behalf of the applicants. In those circumstances, this argument cannot be advanced, because I consider that it does indeed fall outside the scope of the pleadings.

10 In any event, if I were entitled to consider this claim, I do not consider that the first named applicant is entitled to a procedure of the type claimed: see the decision of Hardiman J. in Hussein v. Minister for Justice, Equality and Law Reform (Unreported, Supreme Court, 10th November, 2015). That decision strikes a different note from that of Barr J. in Luximon and indeed from my own decision in Li v. Minister for Justice, Equality and Law Reform (No. 1) [2015] IEHC 638 (Unreported, High Court, 21st October, 2015) on this point. Apart from obligations to consider rationality and natural justice, there are no statutory constraints on the Minister's power under s. 4(7) of the Immigration Act 2004 ( Hussein, para. 14).

Is the decision invalid because it is disproportionate or fails to fairly balance the competing rights involved?

11 Ms. McDonagh submits that the rights of the child were not identified properly in the decision, particularly the right to the society of his father. It is submitted that there was a failure to give due weight to these rights, having regard to the rupture in the relationship that would be effected by the deportation.

12 Furthermore, it is submitted that the decision must be proportionate, and the present decision is said not to be.

13 The difficulty for the applicant is that he is not a settled migrant. In those circumstances, and in accordance with C.I. v. Minister for Justice and Equality [2015] IECA 192 (Unreported, Court of Appeal, 12th July, 2015) per Finlay Geoghegan J. (Ryan P. and Peart J. concurring) at para. 41, it would take ' wholly exceptional' circumstances to engage art. 8 rights for persons with no permission to reside in the State. There is no compelling reason to take the view that Article 41 confers a greater right on the first named applicant, even recognising the somewhat stronger language of Article 41 as compared with art. 8.

14 An assessment of whether the right of the child to the society of his or her parent is properly counterbalanced by the legitimate entitlement of the State to operate an orderly immigration control system, is primarily a matter for the Minister. The court must attach ' significant weight' to a decision which is prima facie valid, and which embodies the Minister's balancing exercise in that regard (see Okunade v. Minister for Justice and Equality [2012] IESC 49 (Unreported, Supreme Court, 16th October, 2012) per Clarke J. (Denham C.J., Hardiman, Fennelly and O'Donnell JJ. concurring) at para. 10.2; see also, Sivsivadze v. Minister for Justice and Equality [2015] IESC 53 (Unreported, Supreme Court, Murray J., 23rd June, 2015); and Z.H. (Tanzania) v. Secretary of State for the Home Department [2011] 2 A.C. 166 per Lady Hale at para. 33).

15 The applicants' submission, (relying inter alia on Beoku-Betts v. Secretary of State for the Home Department [2008] 3 W.H.R. 166 per Lady Hale at para. 168) overstates the obligation to give priority to family rights in the balancing exercise the Minister must undertake.

16 A rational immigration system would become impossible if illegal immigrants were able to evade removal from the State merely by having children. Admittedly, the first named applicant has done more than merely beget the second named applicant, as he also has an entitlement to two hours access per fortnight with him (although there was curiously no evidence whatsoever as to the extent to which the access had been taken up). I will assume in favour of the first named applicant that the fact that the application for access was made simultaneously with the application to revoke the deportation order was purely co-incidental and not an indication that the access application is merely a stratagem, adopted on legal advice, to defeat a lawful and unchallenged deportation order.

17 As MacMenamin J. (Laffoy and Charleton JJ. concurring) said in P.O. v. Minister for Justice [2014] IESC 64 (Unreported, Supreme Court, 29th January, 2014) at para. 30, '[t]here is a clear public interest in the orderly operation of the asylum system'. Likewise, Clark J. in Alli v. Minister for Justice [2009] IEHC 594 (Unreported, High Court, 2nd December 2009) referred at para. 100 to ' the legitimate aim of the State to maintain control of its own borders and operate a regulated system for the control, processing and monitoring of non-national persons in the State'.

18 The case made by the applicants essentially raises, yet again, the question as to who is running the immigration system, the Minister for Justice and Equality or the courts? For the court to quash this decision, in the name of its own view as to the requirements of proportionality, would amount to a usurpation of the constitutional function of the executive power of the State, and a substitution, for the Minister's view, of the court's 'two cents' as to how the immigration system should be managed, whether that opinion is well informed or (much more likely) not, and whether driven by sentimentality, conscious or unconscious attitudes to migration, anarchic revelry at the prospect of people ' vot[ing] with their feet' (as quoted in B.L. (Nepal) v. Refugee Appeals Tribunal [2015] IEHC 489 (Unreported, High Court, 28th July, 2015) per Eagar J. at para. 7), or some other undefined and probably ill-informed, or at least entirely subjective and unaccountable, criterion.

19 It is at one level fair comment to say that the deportation of an individual, who will thereby be separated from his or her spouse or child, is experiencing their ' hours of deepest need' ( X.A. v. Minister for Justice and Equality [2011] IEHC 397 (Unreported, High Court, 25th October, 2011) per Hogan J. at para. 33). I accept for the purposes of this judgment that the first named applicant's interest in his child is...