Oboh v Minister for Justice and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 02 March 2011
• Neutral Citation: [2011] IEHC 102
• Court: High Court
• Date: 02 March 2011

Oboh v Min for Justice & Ors

BETWEEN

FREDERICK STANLEY OBOH (A MINOR SUING BY HIS FATHER AND NEXT FRIEND STANLEY EFFIONG OBOH), AND HARRIS STANLEY OBOH (A MINOR SUING BY HIS FATHER AND NEXT FRIEND STANLEY EFFIONG OBOH) AND STANLEY EFFIONG OBOH AND PRISCA STANLEY OBOH

APPLICANTS

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, ATTORNEY GENERAL AND IRELAND

RESPONDENTS

AND

HUMAN RIGHTS COMMISSION

NOTICE PARTY

[2011] IEHC 102

[No. 511 J.R./2009]

THE HIGH COURT

IMMIGRATION

Deportation

Family rights - First applicant minor Irish citizen - Deportation order challenged on grounds that it would separate family - Child's constitutional right to care and company of parents principally for benefit of child - File assessment - Substantial grounds - Whether substantial grounds established to contend that first respondent did not conduct full and fair assessment of applicants' case - Credibility - Falsehoods in third applicant's application for asylum and in grounding affidavit - Whether third applicant distentitled to relief by reason of falsehoods and lack of candour - Whether falsehoods central to fundamental case of applicants - State (Vozza) v O'Floinn [1957] IR 227; Dimbo v Minister for Justice, Equality and Law Reform [2006] IEHC 344 (Unrep, HC, Finlay Geoghegan J, 14/11/2006); I(K) v Minister for Justice, Equality and Law Reform [2011] IEHC 66 (Unrep, HC, Hogan J, 22/2/2011); Alli v Minister for Justice, Equality and Law Reform [2009] IEHC 595 (Unrep, HC, Clark J, 2/12/2009) considered - Immigration Act 1999 (No 22), s 3 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Constitution of Ireland 1937, Art 41 - European Convention on Human Rights, art 8 - Leave granted (2009/511JR - Hogan J - 2/3/2011) [2011] IEHC 102

Oboh v Minister for Justice, Equality and Law Reform

Facts The applicants sought leave to challenge by way of judicial review the validity of the deportation order made by the respondent in respect of the third named applicant on the grounds that the deportation of the third applicant would effectively break up and separate the applicants as a family and would thus effect a disproportionate interference with the guarantees contained in both Article 41 of the Constitution and Article 8 of the European Convention on Human Rights. The fourth named applicant was married to the third named applicant and had been granted leave to remain by the respondent. The first and second named applicants were the children of the third and fourth named applicants and the first named applicant was an Irish citizen. It was accepted by the applicants that the third and fourth named applicants provided false information on affidavit regarding the date of the third named applicant's arrival in this State. The file assessment carried out on behalf of the respondent for the purposes of s. 3(6) of the Immigration Act, 1999 prior to the making of the deportation order stated that the first named applicant did not have the care and company of his father for a period of two years and nine months prior to the arrival of the third named applicant in this State. It went on to state that if the fourth named applicant decided to stay in Ireland with the minor applicants, "the disruption to their family life would not have the same impact as it would had they been living as a family unit for a much longer time". The applicants had submitted that the minor applicants had hugely benefited from having a father figure in their lives. There was no suggestion that this submission was false.

Held by Hogan J. in granting leave: That this judgment was supplementary to the judgments already delivered in Efe v. Minister for Justice, Equality and Law Reform (Unreported, High Court, 25th February, 2011) and Alli-Balugon v. Minister for Justice, Equality and Law Reform (Unreported, High Court, 1st March, 2011). However, there was one important difference between those cases and this case, namely the swearing of false affidavits by the third and fourth named applicants herein. However, that lack of candour was not relevant to the question of relief in these proceedings. The exact date on which the third named applicant entered the State was not directly relevant to the resolution of the issues raised regarding the potential break-up of the family. Furthermore, the application herein was properly to be viewed from the standpoint of the innocent minor applicants, who must, where possible, be shielded from the consequences of the behaviour of their parents. Consequently, the applicants' lack of candour did not disentitle them to relief. Having regard to the file assessment herein, the applicants established substantial grounds for contending that the respondent did not conduct a full and fair assessment of the impact of the deportation of the fourth named defendant on the minor applicants.

Reporter: L.O'S.

EFE v MIN FOR JUSTICE UNREP HOGAN 25.2.2011 (EX TEMPORE)

ALLI-BALUGON v MIN FOR JUSTICE UNREP HOGAN 1.3.2011 (EX TEMPORE)

CONSTITUTION ART 41

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

VOZZA, STATE v DISTRICT JUSTICE O FLOINN & JUDGE MCCARTHY 1957 IR 227

REFUGEE ACT 1996 S20(2)

I (K) v MIN FOR JUSTICE UNREP HOGAN 22.2.2011 2011 IEHC 66

DIMBO v MIN FOR JUSTICE UNREP FINLAY-GEOGHEGAN 14.11.2006 2006/15/3094 2006 IEHC 344

N v HEALTH SERVICE EXECUTIVE (HSE) & ORS 2006 4 IR 374 2006/42/8914 2006 IESC 60

CONSTITUTION ART 42.5

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

S (I) (A MINOR) & ORS v MIN FOR JUSTICE & ORS UNREP HOGAN 21.1.2011 2011 IEHC 31

IMMIGRATION ACT 1999 S3(6)

ALLI v MIN FOR JUSTICE UNREP CLARK 2.12.2009 2009/3/608 2009 IEHC 608

OFOBUIKE v MIN FOR JUSTICE UNREP COOKE 13.1.2010 2010 IEHC 89

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)

1 1. This judgment is supplementary to the judgments which I have already delivered in Efe v. Minister for Justice, Equality and Law Reform (Unreported, High Court, 25 ^th February, 2011) and Alli-Balugon v. Minister for Justice, Equality andLaw Reform (Unreported, High Court, 1 ^st March, 2011). For reasons I will presently set out, I have concluded that the applicants should be granted leave to apply for judicial review on limited grounds.

2 2. While the principal issues in this case are very similar to those which arose in Efe and Alli-Balugon, there is one important difference in that it is not now disputed but that the third and fourth applicants both swore false affidavits in the course of the proceedings. One of the principal issues which arises in this case is, therefore, whether this acknowledged deceit should deprive the applicants of their entitlement to seek relief by way of judicial review. I will address this question shortly, but it is first necessary to set out the background facts of the case.

3 3. The first applicant is the son of the third and fourth applicants. He is an Irish citizen by virtue of his birth here on 11 ^th May, 2003, his mother, Ms. Oboh, having arrived here some weeks previously on 17 ^th April, 2003. The second applicant was also born in the State on 29 ^th September, 2006, but he would not appear to be an Irish citizen in view of the provisions of the Irish Nationality and Citizenship Act 2004. The third applicant, Ms. Oboh, is married to the fourth applicant, Mr. Oboh, and they are the parents of the two children. In 2005 Ms. Oboh was granted permission to reside in the State pursuant to the terms of the IBC 05 Scheme. She had previously unsuccessfully sought asylum and not unnaturally faced deportation, but this was overtaken by the terms of the permission which the Minister had generously given her under that scheme. Both of her two sons have lived here all their lives.

4 4. Mr. Oboh is a Nigerian national who initially claimed in his first affidavit to have arrived here on 20 ^th February, 2006, but whom, as we shall presently see, actually arrived some months earlier in November, 2005. He subsequently made a claim for asylum which was rejected by the Refugee Appeals Tribunal on 16 ^th September, 2008. The Minister for Justice, Equality and Law Reform subsequently made an order providing for the deportation of Mr. Oboh on 9 ^th April, 2009. The applicants now challenge the validity of that deportation order on the familiar grounds that to do so would effectively break up and separate the family and thus effect a disproportionate interference with the guarantees contained in both Article 41 of the Constitution and Article 8 ECHR. I propose to return to this question presently.

The falsehoods contained in the applicants' application and in his grounding affidavit

5 5. In his asylum application, Mr. Oboh claimed to have been a member of a vigilante group known as the "Bakassi Boys." He claimed that he was first induced to have become involved with this group because it sought to protect local residents from attacks from marauders from neighbouring Cameroon. He contended that he subsequently left this group because it was assaulting local people. He later claimed that his grandmother's house was set alight by Cameroonians and that both his grandmother and his daughter, Stephanie, perished in the fire on 6 ^th August, 2003.

6 6. Mr. Oboh also claimed that he was attacked and left for dead by members of the Bakassi Boys (or their surrogates) in Lagos on 2 ^nd February, 2006, and that it was this attack which prompted him to leave and to seek asylum in Ireland. To this end he furnished what purported to be a medical report from a medical centre in Lagos attesting to his injuries.

7 7. It is not now disputed but that this account is an entire fiction. While the medical report is supposed to be on the headed paper of the medical centre in question, the fact that no telephone number is given would excite the...