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

• Jurisdiction: Ireland
• Judge: Mr. Justice Michael Peart
• Judgment Date: 22 February 2019
• Neutral Citation: [2019] IECA 123
• Court: Court of Appeal (Ireland)
• Docket Number: [2016 465]
• Date: 22 February 2019

BETWEEN/

O.O.A.

AND

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

APPELLANTS/APPLICANTS

- AND -

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

[2019] IECA 123

[2016 465]

THE COURT OF APPEAL

Immigration – Deportation order – Revocation – Applicants seeking an order of certiorari quashing the respondent’s decision to refuse to revoke a deportation order – Whether the impugned decision treated the best interests of the child as a primary consideration

Facts: The High Court (Humphreys J), by order dated the 10th October, 2016, refused to quash the decision of the respondent, the Minister for Justice and Equality, of the 22nd July 2014, by which the respondent rejected an application under s. 3(11) of the Immigration Act 1999 to revoke the deportation order made in respect of the first applicant. By notice of appeal dated the 19th October 2016, the applicants sought: (i) an order setting aside the order of Humphreys J of the 10th October 2016; (ii) an order of certiorari quashing the respondent’s decision of the 22nd July 2014 to refuse to revoke the deportation order; and (iii) the costs of the proceedings. In essence, the applicants’ appealed on the grounds that the High Court judge erred in law and/or in fact: (i) in finding that the impugned decision was lawful in circumstances where it did not identify the best interests of the child and/or did not treat those interests as a primary consideration and/or did not have regard to new information affecting that consideration; (ii) in finding that the impugned decision gave due consideration to the constitutional and Convention rights of the child as required by the prevailing Irish jurisprudence; and (iii) in inferring his own reasons and rationale into what was an opaque decision in breach of the applicants’ constitutional right of access to the courts, and thus conducting a merits-based appeal of the decision.

Held by the Court of Appeal (Peart J) that the respondent was perfectly entitled to balance the various interests at stake and arrive at a conclusion that the weightier interests in this case were those of the State in ensuring the wellbeing of its economy and the integrity of its immigration control system, which was precisely what occurred in the s. 3(11) decision. Peart J held that he was not satisfied that the best interests of the child were treated other than as a primary consideration.

Peart J held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT of Mr. Justice Michael Peart delivered on the 22nd day of February 2019

1 This is an appeal by the above-named applicants against an order of the High Court (Humphreys J.) dated the 10th October, 2016.

2 By his order, the High Court judge refused to quash the respondent's decision of the 22nd July 2014, by which the respondent rejected an application under s.3(11) of the Immigration Act 1999 to revoke the deportation order made in respect of the first named applicant.

Background

3 On the 28th December, 2006, the first named applicant arrived in Ireland and claimed asylum. His claim was rejected by the Refugee Applications Commissioner on the 3rd January, 2007.

4 On the 4th July 2007, the first named applicant married Ms. A.A., a British national. The second named applicant was born to the couple on the 2nd December 2007. The first named applicant applied for residence on the basis of asserting EU Treaty rights. This application was refused on the 24th October, 2008. A second application was refused on the 5th October 2010 and again on appeal on the 17th May, 2011. On the 20th February 2012, a third application for residence, this time based on the decision in Ruiz Zambrano v. Office National de l'Emploi ( Case C-34/09) [2012] Q.B. 265, was refused.

5 On the 23rd December, 2013, a deportation order was made in respect of the first named applicant pursuant to s.3 of the Immigration Act 1999, which was not challenged.

6 In February 2014, shortly after the issue of the deportation order, and in circumstances where the marriage between the couple had broken down, the first named applicant applied to the District Court for access to the second named applicant. At the same time, he made an application under s.3(11) of the Immigration Act 1999 for revocation of the deportation order which had been made against him.

7 On the 19th March, 2014, a consent order was made by the District Court, which permitted the first named applicant access to his son for two hours every second Friday, and made provision for the payment of maintenance in the sum of €15 per week.

8 On the 22nd July, 2014, the application for revocation of the deportation order was rejected. On the 4th September, 2014, the instant proceedings, which challenge that refusal, were initiated.

Reliefs claimed

9 By an order of the High Court (Baker J.) dated the 5th September 2014, the applicants were granted leave to apply for judicial review. They did so by notice of motion dated the 10th September 2014, by which they sought the following reliefs:

(i) an order of certiorari quashing the respondent's decision of the 22nd July 2014 refusing to revoke the deportation order;

(ii) an order of mandamus compelling the respondent to reconsider the first named applicant's application seeking the revocation of the deportation order;

(iii) such further or other order as the Court may deem fit; and

(iv) the costs of the proceedings.

High Court judgment

10 For reasons explained in his judgment of the 29th June, 2016, Humphreys J. in the High Court dismissed the application in its entirety.

11 First, the High Court judge dismissed the argument advanced in the submissions of the applicants, relying upon the decision of Barr J. in Luximon v. Minister for Justice and Equality [2015] IEHC 227, that the first named applicant has no procedure by which his family rights can be recognised outside of the deportation process. This argument was rejected on the grounds that it fell outside the scope of the pleadings, although the High Court judge stated that in any event he considered that the first named applicant would not be entitled to a procedure of the type claimed.

12 Second, it was submitted on behalf of the applicants that the impugned decision did not properly identify and accord weight to the rights of the second named applicant as a child, and especially his right to the society of his father, and also was disproportionate having regard to these rights. It appears that particular reliance was placed upon Article 8 of the European Convention on Human Rights and Article 41 of the Constitution in this regard.

13 These submissions were rejected by the High Court judge, who noted that, per the judgment of Finlay Geoghegan J. in C.I. v. Minister for Justice and Equality [2015] IECA 192, it would require ‘wholly exceptional circumstances’ to engage Article 8 rights for persons who have no permission to reside in the State, such as the first named applicant. In addition, the High Court judge considered that there was ‘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 Article 8.’

14 More generally, the High Court judge emphasised that an assessment as to whether the legitimate entitlement of the State to operate an orderly immigration control system outweighed the above-mentioned rights of the child was ‘primarily a matter for the Minister’. He continued, at para. 18 of his judgment, to state that for the court to quash the impugned decision, on the basis of its own view as to what was proportionate, ‘would amount to an 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’. Indeed, he concluded at para. 21 that to quash such a decision, proof of a ‘clear illegality’ would be required, which was absent in the case before him insofar as there was little proof of a significant involvement on the part of the first named applicant in the life of his child, and certainly nothing which would reach the level required for a decision to be placed in the category of the unreasonably disproportionate.

15 Third, the applicants sought to rely upon the decision in Ruiz Zambrano v. Office National de l'Emploi ( Case C-34/09) [2012] Q.B. 265, and in particular upon the proposition that the rights to free movement of an EU citizen under Article 20 of the Treaty on the Functioning of the European Union (TFEU) may be engaged where a person on whom the citizen is dependent is deported. The High Court judge found that, while there was modest evidence of dependency in this case, anything proved fell ‘well short of the level of dependency that would, in practice, have the effect of impairing the EU law rights of the second named applicant’, thus failing the test laid out in Nicolas v. Minister for Justice and Equality [2014] IEHC 526. This was especially so in circumstances where the second named applicant remained in the custody of his mother, who was perfectly entitled to remain in the State.

16 Fourth, finally, and perhaps most relevantly for the purposes of the present appeal, the High Court judge considered the submission of the applicants that, by virtue of Article 8 of the Convention, the respondent was under an obligation to consider the best interests of the child as ‘a primary consideration’. It was the contention of the applicants that the respondent had failed in this obligation in the impugned s.3(11) decision, in which she had not considered or even identified the best interests at stake.

17 While the High Court accepted that the best interests of the child in a case such as the one before him must be a primary consideration, he held that those interests could not be decisive....