O’C. (R) v Minister for JusticeEquality & Law Reform

JurisdictionIreland
CourtHigh Court
JudgeMR. JUSTICE HEDIGAN
Judgment Date26 November 2008
Neutral Citation[2008] IEHC 367
Date26 November 2008

[2008] IEHC 367

THE HIGH COURT

[1156 JR/2008]
O'C (R) & R (V) v Min for Justice

BETWEEN

R. O'C. (A MINOR, SUING BY HER FATHER AND NEXT FRIEND, V. R.) AND V. R.
APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
RESPONDENT

IMMIGRATION ACT 1999 S3

REFUGEE ACT 1996 S5

IMMIGRATION ACT 1999 S3(11)

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8

E (O) & E (AH) v MIN FOR JUSTICE UNREP HIGH IRVINE 4.3.2008 2008 IEHC 68

OGUEKWE & ORS v MIN FOR JUSTICE UNREP SUPREME DENHAM 1.5.2008 2008 IESC 25

AMADASUN v MIN FOR JUSTICE & ORS UNREP HIGH PEART 16.12.2004 2004/2/259

BOULTIF v SWITZERLAND 2001 33 EHRR 50

ÜNER v THE NETHERLANDS 2007 45 EHRR 14

POK SUN SHUN & ORS v IRELAND & ORS 1986 ILRM 593

O (O) (A MINOR) & ORS v MIN FOR JUSTICE UNREP HIGH HEDIGAN 9.10.2008 2008 IEHC 307

O (G) & ORS v MIN FOR JUSTICE UNREP HIGH BIRMINGHAM 19.6.2008 2008 IEHC 190

OSHEKU v IRELAND, AG & MIN FOR JUSTICE 1986 IR 733

LAURENTIU v MIN FOR JUSTICE 1999 4 IR 26

OSAYANDE & LOBE v MIN FOR JUSTICE 2003 1 IR 1

T (G) v MIN FOR JUSTICE UNREP HIGH PEART 27.7.2007 2007/57/12325

IMMIGRATION

Deportation

Revocation - Changed circumstances - Father of two Irish citizen children - Family rights under Constitution and Convention - Treatment of constitutional and Convention rights - Whether any failure to provide substantial reason for deportation - Whether applicant had active role in children's lives - Proportionality - Whether Minister acted reasonably and rationally in accordance with fair procedures - Whether rights of Irish citizen children balanced against integrity of the State's immigration laws - Whether reason given formulaic or generalised Whether balancing exercise carried out in accordance with natural and constitutional justice - Reasonableness and rationality of decision when viewed in the round - Oguekwe v Minister for Justice [2008] IESC 25 (Unrep, SC, 1/5/2008) and Amadasun v Minister for Justice [2004] IEHC 378, [2007] 3 IR 421 approved and distinguished; OE v Minister for Justice [2008] IEHC 68 (Unrep, Irvine J, 4/3/2008, Boultif v Switzerland (2001) 33 ECHR 1179 and Üner v Netherlands (Unrep, ECHR, 18/10/2006) considered; Pok Sun Shum v Minister for Justice [1986] ILRM 593, OO v Minister for Justice [2008] IEHC 307 (Unrep, Hedigan J, 9/10/2008), GO v Minister for Justice [2008] IEHC 190 (Unrep, Birmingham J, 19/6/2008), Osheku v Ireland [1986] I.R. 733, Laurentiu v Minister for Justice [1999] 4 IR 26 and AO and DL v Minister for Justice [2003] 1 IR 1 applied - Refugee Act 1996 (No 45), s 5 - Immigration Act 1999 (No 22), s 3 - European Convention on Human Rights, art 8 - Relief refused (2008/1156 JR - Hedigan J - 26/11/2008) [2008] IEHC 367

O'C(R) v Minister for Justice, Equality and Law Reform

Facts: the respondent had made a deportation order in respect of the applicant, a failed asylum seeker who was the father of Irish Citizen children. He sought to have the order quashed on the basis, inter alia, that it was made in breach of the principle of family unity in that it would have the effect of separating him from his children in breach of their rights to a private and family life under Article 8 of the European Convention on Human Rights and Article 40 of the Constitution.

Held by Mr. Justice Hedigan in refusing the relief sought that the rights of Irish citizen children had to be balanced against the right of the State to maintain the integrity of the State’s immigration laws. That account had been taken of each and every representation made by the applicant and a thorough and fair balancing of the applicants’ family rights under the Constitution and the European Convention on Human Rights with the rights of the State and the interests of the common good had been conducted by the respondent. That it was for the respondent to determine where the balance lay and the role of the Court was to assess whether the balancing exercise had been carried out in accordance with natural and constitutional justice.

Reporter: P.C.

1

The applicants are seeking an order of certiorari quashing the decision of the Minister for Justice, Equality and Law Reform ("the Minister"), dated 10 th October, 2008, to affirm a deportation order that was made in respect of the second named applicant on 20 th February, 2006. Leave was granted on 20 th October, 2008by Finlay Geoghegan J. on foot of an ex parte application made on behalf of the applicants.

Factual Background
2

The second named applicant is a national of Georgia. He lived in South Ossetia, a breakaway republic in Georgia, until 2003. Since arriving in Ireland, he has had successive relationships with two Irish citizens, L.K. and M. Each relationship gave rise to the birth of a daughter; L was born to L.K on 7 th January, 2005 while R was born to M on 22 nd November, 2006. Thus, L is now nearly four, while R has just turned two. The children and their mothers are Irish citizens. The second named applicant is no longer in a relationship with either of the mothers; he continues, however, to have a close relationship with his daughters. Both mothers have since married other men; the children reside with their mothers and step-fathers.

Procedural Background
3

The second named applicant applied for asylum upon arrival in the State in October, 2003. He received a negative recommendation from the Office of the Refugee Applications Commissioner (ORAC) in September, 2004. His appeal to the Refugee Appeals Tribunal was rejected as it was submitted out of time, and he was notified on 28 th October, 2004 that the Minister was proposing to deport him. He made no representations seeking leave to remain and, although the Refugee Legal Service (RLS) contacted the Minister on his behalf on 30 th December, 2004, to indicate that his first Irish citizen partner, L.K, was about to give birth, the second named applicant did not contact the Minister after the birth of his daughter, L.

4

In July, 2005, the second named applicant's file was analysed under section 3 of the Immigration Act 1999 and section 5 of the Refugee Act 1996 by two officers of the Repatriation Unit; at that stage, no consideration was given to the position of his daughter. A deportation order was made on 20 th January, 2006, which was notified to him by letter dated 1 st February, 2006. That letter directed him to report to the Garda National Immigration Bureau (GNIB) on 9 th February, 2006 but he failed to do so and was classed as an evader. He was at large for some 18 months, during which time he appears to have worked illegally, first as a building contractor and later as a gardener. He was apprehended by the Gardaí in August, 2008 in Waterford when stopped for not wearing a seat belt in the back of a car. He was asked for ID and then transferred to Cloverhill prison where he was detained for the purpose of deportation.

5

On 12 th September 2008, the applicants' solicitors made an application on behalf of the second named applicant under section 3(11) of the Refugee Act 1996 seeking the revocation of the deportation order. In a decision dated 10 th October, 2008, the Minister decided to affirm the deportation order. The second named applicant was granted conditional release on 13 th October, 2008 and, following the refusal of this Court to grant an interlocutory injunction restraining his deportation, he was deported on 24 th October, 2008 to the UK and from there to Georgia.

The Section 3(11) Application
6

Revocation of the deportation order was sought on the basis of what his solicitors presented as the "changed circumstances" of the second named applicant in the light of the birth of his two Irish citizen children. It was indicated in the first set of representations faxed to the Minister on the morning of 12 th September, 2008 that he had "involvement and contact" with both children and had instructed the RLS in respect to formalising Access and Custody Orders in the District Court. Enclosed was a letter written by R's mother ( M) on 4 th September, 2008, indicating that he and R are very close and that he has regular contact with R (apart from 5 months spent by mother and daughter in Australia in 2007, during which time he was in email and telephone contact with them). M stated that her husband, who she married in June, 2008, has taken on a parenting role with respect to R while accepting the relationship that she has with the second named applicant.

7

On the afternoon of 12 th September, 2008, the applicants' solicitors forwarded more detailed submissions, addressing the best interests of the Irish citizen children, the applicants' constitutional and Convention rights, the obligation to give a "substantial reason" for the deportation of the parent of an Irish-born child, the rights of the State, and humanitarian considerations. Appended thereto was a Statutory Declaration of the second named applicant's joint-guardianship of R, and two letters of references to the effect that he has a strong relationship with his children.

8

On 19 th September, 2008, the applicants' solicitors forwarded a letter written by L's mother ( L.K.), setting out the second named applicant's close relationship with L and also with L.K.'s son from a previous relationship. That letter noted that L was withdrawn as she had not seen her father for some time. On 24 th September, 2008, the solicitors forwarded copies of District Court applications made with respect to the guardianship of L and on 1 st October, 2008, they forwarded a further letter of reference which indicated that the second named applicant had been working occasionally as a gardener since being laid off as a building contractor.

Consideration of the Application for Revocation
9

An officer of Repatriation Unit analysed the application for revocation on 8 thOctober, 2008. In the document containing his...

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