Odeh v The Minister for Justice and Equality No.3

JurisdictionIreland
CourtHigh Court
JudgeMr Justice David Keane
Judgment Date04 June 2019
Neutral Citation[2019] IEHC 375
Date04 June 2019
Docket Number[2016 No. 724 J.R.]

[2019] IEHC 375

THE HIGH COURT

JUDICIAL REVIEW

Keane J.

[2016 No. 724 J.R.]

BETWEEN
JEFF OKUOMOSE ODEH, RHODA ODEH

AND

ANGELOU OWEN ODEH (A minor suing by his father and next friend, JEFF OKUOMOSE ODEH)
APPLICANTS
AND
THE MINISTER FOR JUSTICE AND EQUALITY
RESPONDENT

(No. 3)

Judicial review – Deportation order – Proportionality – Applicants seeking an order of certiorari quashing the deportation order against the first applicant made by the respondent – Whether the decision was unfair, unreasonable and disproportionate

Facts: The applicants applied to the High Court seeking an order of certiorari quashing the deportation order against the first applicant, Mr Odeh (the father), made by the respondent, the Minister for Justice and Equality, on 15 August 2016, under s. 3(1) of the Immigration Act 1999. First, the applicants submitted that the decision was unfair, unreasonable and disproportionate in not weighing, either properly or at all, the constitutional and European Union law rights of the third applicant (the child) against the societal interests and rights of others that were invoked to justify the deportation of the father as necessary – i.e. the common good in upholding the integrity of the immigration laws of the State, maintaining effective control of the State’s borders, and ensuring the State’s economic well-being – in determining that the child could leave the territory of the Union to continue enjoying family life with the father. This ground asserted that this finding involved the child ‘having to leave the State and indeed the territory of the Union’ and that this consequence had been ignored by the Minister. The ground asserted that the Minister ignored the constitutional rights of the child in reaching that determination. Second, the applicants submitted that the decision was unfair, unreasonable and disproportionate either in prioritising the consideration of the applicants’ rights under Article 8 of the European Convention on Human Rights over that of the rights of the family under Article 41 of the Constitution or in wrongly conflating the two. The applicants also contended that the Minister’s proportionality assessment was simply wrong and that the deportation order should be condemned on that basis.

Held by Keane J that the first ground was based upon both a false premise and the identification of a false dichotomy between the Zambrano principle (Gerardo Ruiz Zambrano v Office national de l’emploi (C-34/09) EU:C:2011: 124 at para. 42) as a matter of EU law and the factors that govern a consideration of the deportation of the parent of an Irish citizen child under the Constitution, the Convention, statute and case-law, as identified by the Supreme Court in Oguekwe v Minister for Justice [2008] 3 IR 795. Keane J held that the second ground of challenge was based on a mistake of fact, i.e. that the decision considered the applicants’ Convention rights to the exclusion of their constitutional rights; the file note considered both the Convention jurisprudence and the constitutional rights of the child as part of its analysis. Keane J held that the applicants failed to meet the test of Keegan and O’Keefe unreasonableness.

Keane J held that the application for judicial review would be refused.

Application refused.

JUDGMENT of Mr Justice David Keane delivered on the 4th June 2019
Introduction
1

This is the judicial review of a deportation order against the first applicant, made by the Minister for Justice and Equality (“the Minister”) on 15 August 2016, under s. 3(1) of the Immigration Act 1999, as amended (“the Act of 1999”).

Background
2

The first applicant (“the father”) is a male Nigerian national, born in 1967.

3

The second applicant (“the mother”) is a female Nigerian national, born in 1972, who shares a surname with the first applicant, evidently by coincidence, as they are neither related nor married to one another, although it is contended that they are in a stable relationship.

4

The mother claimed asylum on her arrival in the State unaccompanied in June 2002 when she was five months pregnant. The third applicant (“the child”) is her son who was born in the State in October 2002 and is, in consequence, an Irish citizen.

5

The mother later withdrew her asylum application and applied for lawful residence in the State under the “IBC 05” scheme, an administrative residency scheme for parents of Irish citizen children born on the island of Ireland prior to the imposition of a limitation on the acquisition of citizenship in that way by the Irish Nationality and Citizenship Act 2004. The mother's application under the scheme was unsuccessful and she reapplied for asylum. Her asylum application was rejected both at first instance and on appeal, and a deportation order issued against her on 15 December 2009. The Minister revoked that deportation order on 4 March 2010 on humanitarian grounds - focussed on the interests of her Irish citizen child - and granted her permission to live and work in the State for three years. The Minister has since twice renewed that three-year permission and the current one is due to expire on 27 September 2019.

6

The father entered the State unlawfully on an unknown date prior to 28 May 2015, when he applied for permission to reside here on the basis that his removal from the territory of the European Union would lead to a situation in which the child would have to leave that territory in order to accompany him, thereby depriving the child of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a European Union citizen. That is an invocation of what is now known as the Zambrano principle; Gerardo Ruiz Zambrano v Office national de l'emploi (C-34/09) EU:C:2011: 124 at para. 42.

7

In the course of that application process, and in his grounding affidavit in these proceedings, the father claimed that he entered the State from Northern Ireland on 12 May 2015, having travelled there on a false passport from Nigeria via London. Through his solicitors, the father submitted a copy of his Nigerian passport to the Irish Naturalisation and Immigration Service (“INIS”) on 28 May 2015. It records on its face that it was issued in Rome on 20 April 2015, a fact for which no explanation has been offered.

8

In a letter to the father's solicitors, dated 15 July 2015, the INIS noted that the child's birth certificate did not identify his father. On 9 November 2015, the child's birth was re-registered to record the father's name as that of his father on his birth certificate.

9

The father acknowledges that he had no contact with the mother or with the child from the time of the mother's arrival in the State in 2002 until his arrival in the State in 2015.

10

A letter from the principal of the child's national school, dated 6 June 2015, states that the child was then at sixth class level in a special class for pupils with autistic spectrum disorder. A letter from the principal of the child's secondary school, dated 9 March 2016, confirms that the child has been attending the autism unit there since September 2015. It appears that no other information concerning the nature or severity of the child's condition has ever been provided.

11

Since his arrival in the State, the father has been relying on the mother for his subsistence and has been playing some limited role in the child's life, although it has been acknowledged for the purpose of the present application that, as the Minister found, he was not at any material time a primary carer for him.

12

Through the INIS, the Minister wrote to the father on 19 May 2016, refusing his application for a residence permission as the parent of an Irish citizen child and notifying him of the proposal to make a deportation order against him. That decision was based upon a six-page examination of the father's file, analysing the circumstances of the father and the child and applying the jurisprudence of the Court of Justice of the European Union (“CJEU”) in Zambrano and Dereci v Bundesministerium für Inneres (C-256/11) EU:C:2011:734 in concluding that the refusal of residence permission to the father would not lead to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of the child's status as a Union citizen. The basis for that conclusion was that the father was not a primary carer for the child, who had been residing in the State with his mother for many years prior to the father's arrival and could continue to do so after his father's departure.

13

That decision was never challenged.

14

Through his solicitors, the father made a submission against his deportation to the Minister on 15 July 2017. Beyond the bald assertion that the Minister's refusal of permission to remain was “flawed in fact and in law”, that submission was as follows:

“Our client is married to the mother of this child and resides in a secure family unit with the child. He resides as a secure family unit with his child. He is fully involved in the life of his child, as evidenced by the letters from his wife and other independent parties. He has the offer of employment open to him in the event that he is permitted to reside and work in the State. He is integrated and established in the State and it is intended that further submissions will follow.”

15

For clarity, several points must be made. First, the father was not married to the mother. Second, the word “secure” was evidently used in error instead of the word “stable.” Third, no evidence of the asserted offer of employment was provided. And fourth, no further submissions followed.

16

On 8 August 2016, a departmental official produced a 15-page examination of the applicant's file, culminating in a recommendation in favour of deportation (“the file note”). A deportation order was made on 15 August 2016. That is the order challenged in these proceedings. It was furnished to...

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