Odenis Rodrigues Dos Santos and Others v Minister for Justice and Equality and Others

JurisdictionIreland
JudgeMr. Justice Colm Mac Eochaidh
Judgment Date30 May 2013
Neutral Citation[2013] IEHC 237
CourtHigh Court
Date30 May 2013

[2013] IEHC 237

THE HIGH COURT

[No. 343 J.R./2012]
Dos Santos & Ors v Min For Justice
JUDICIAL REVIEW
IN THE MATTER OF THE REFUGEE ACT 1996 (AS AMENDED), IN THE MATTER OF THE IMMIGRATION ACT 1999 (AS AMENDED) AND IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000

BETWEEN

ODENIS RODRIGUES DOS SANTOS, ANTONIA ALEXANDRE DE MORAIS, ITALO ALEXANDRE DUARTE, CAMILA ALEXANDRE DUARTE (A MINOR SUING BY HER FATHER AND NEXT FRIEND, ODENIS RODRIGUES DOS SANTOS), KARINE ALEXANDRE RODRIGUES (A MINOR SUING BY HER FATHER AND NEXT FRIEND, ODENIS RODRIGUES DOS SANTOS), GIOVANNA ALEXANDRE RODRIGUES (A MINOR SUING BY HER FATHER AND NEXT FRIEND, ODENIS RODRIGUES DOS SANTOS), JOAO ALEXANDRE RODRIGUES (A MINOR SUING BY HIS FATHER AND NEXT FRIEND, ODENIS RODRIGUES DOS SANTOS)
APPLICANTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY, THE ATTORNEY GENERAL AND IRELAND
RESPONDENTS

IMMIGRATION ACT 1999 S3

CONSTITUTION ART 40.3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 2

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 4

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 9

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 10

ASLAM v MIN FOR JUSTICE UNREP HOGAN 29.12.2011 2011/4/886 2011 IEHC 512

BU(A) v BE(J) 2010 3 IR 737 2011/5/1013 2010 IESC 38

IMMIGRATION ACT 1999 S3(6)

ABDUKHAREEM v MIN FOR JUSTICE UNREP GILLIGAN 7.7.2006 (EX TEMPORE)

SIVSIVADE & ORS v MIN FOR JUSTICE UNREP KEARNS 21.6.2012 2012/42/12601 2012 IEHC 244

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3(1)

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT (EX-PARTE BRIND) 1991 1 AC 696

BAKER v CANADA (MIN OF CITIZENSHIP & IMMIGRATION) 1999 2 SCR 817

OKUNADE v MIN FOR JUSTICE & ORS 2013 1 ILRM 1 2012/37/10891 2012 IESC 49

S (C) v MIN FOR JUSTICE 2005 1 IR 342

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 51

AGBONHALOR v MIN FOR JUSTICE 2007 4 IR 309

P (F) v MIN FOR JUSTICE 2002 1 IR 164

KOUAYPE v MIN FOR JUSTICE 2011 2 IR 1

REFUGEE ACT 1996 S5

T (L A) v MIN FOR JUSTICE UNREP HOGAN 2.11.2011 2011/47/13240 2011 IEHC 404

A (AP)(A MINOR) & ORS v MIN FOR JUSTICE & ORS UNREP COOKE 20.7.2010 2010 IEHC 297 2010/1/66

K (KI)[PAKISTAN] v MIN FOR JUSTICE UNREP COOKE 25.11.2011 2011/29/7843 2011 IEHC 444

MIN FOR STATE FOR IMMIGRATION & ETHNIC AFFAIRS v TEOH 1995 3 LRC 1

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

CONSTITUTION ART 15.2.1

CONSTITUTION ART 29.6

O LAIGHLEIS, IN RE 1960 IR 93

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

KAVANAGH v GOVERNOR OF MOUNTJOY PRISON 2002 3 IR 97

S (N) v ANDERSON 2008 3 IR 417

CONVENTION RELATING TO THE STATUS OF REFUGEES 1951 (GENEVA CONVENTION) ART 31

G (R G) v DPP 2008 3 IR 733

CONSTITUTION ART 30

K-M(FL)(A MINOR) & ORS v MIN FOR JUSTICE & ORS UNREP CHARLETON 16.3.2009 2009/29/7201 2009 IEHC 125

CONSTITUTION ART 42.A.4.1

IMMIGRATION ACT 1999 S3(6)(A)

IMMIGRATION ACT 1999 S3(6)(B)

IMMIGRATION ACT 1999 S3(6)(C)

IMMIGRATION ACT 1999 S3(6)(D)

IMMIGRATION ACT 1999 S3(6)(E)

IMMIGRATION ACT 1999 S3(6)(F)

IMMIGRATION ACT 1999 S3(6)(G)

IMMIGRATION ACT 1999 S3(6)(H)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8(1)

R (RAZGAR) v HOME SECRETARY 2004 2 AC 368

OGUEKWE v MIN FOR JUSTICE 2008 3 IR 795

E (O) & E (A H)(AN INFANT) v MIN FOR JUSTICE UNREP 2008 3 IR 760 2008/22/4761 2008 IEHC 68

UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD ART 3(1)

O DOMHNAILL v MERRICK 1984 IR 151

HORGAN v AN TAOISEACH & ORS 2003 2 IR 468

R. SULLIVAN DRIEDGER ON THE CONSTRUCTION OF STATUTES 3ED 1994 P330

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

Asylum & Immigration law - Judicial review - Certiorari - Best interests - Minor applicants - Restraining deportation - Whether deportation could be restrained

Facts: The applicants who were Brazilian nationals sought an order of certiorari quashing the decisions of the respondent Minister making deportation orders against them. They argued that the Minister had not expressly considered whether the making of the deportation order was based upon the best interests of the minor applicants or not.

Held by MacEochaidh J. that the balance was tipped in favour of restraining deportation until the determination of the proceedings.

1

1. This is a decision on an application for leave to seek judicial review of deportation orders made by the Minister for Justice and Equality (the "Minister") in respect of all of the above named applicants.

Reliefs sought
2

2. The applicants in this case are seeking an order of certiorari quashing the decisions of the respondent Minister making deportation orders against them and a declaration that section 3 of the Immigration Act 1999 is unconstitutional and/or incompatible with the European Convention on Human Rights as it requires the respondents to regard such orders as indefinite and therefore lifelong.

3

3. The applicants also seek an interim or interlocutory injunction restraining the Minister, his servants or agents from taking any steps to deport the applicants pending the determination of these proceedings and an order granting an extension of time for the pursuance of such proceedings.

Background
4

4. The applicants are Brazilian nationals and form a family unit of father, mother and their five children, residing in Roscommon Town. Three of the children are minors, being under the age of eighteen, and are suing through their father in these proceedings. One of the children reached the age of majority on 2 nd September 2012 but was a minor when the deportation order was made against her. The first named applicant arrived in the State on 24 th September 2002 in order to work and notwithstanding the fact that his work permit had expired on 24 th September 2003, continued to reside and work here. His wife and children subsequently joined him in June 2006 and February 2007 and he seeks to assert that he has established deep roots in Ireland and that his children are wholly integrated into Irish society.

5

5. The first named applicant sought permission to remain in Ireland through his solicitor by letter on 14 th October 2009. The Irish Naturalisation and Immigration Service ("INIS") in response informed his solicitor that a "Section 3" letter had issued in respect of him on the 12 th May 2008, however it is not clear that such letter was received by the first named applicant. In light of this, the Minister, as an "exceptional measure", granted an extension of ten days in which submissions could be made on behalf of the first named applicant by his solicitor.

6

6. The applicants' solicitor submitted updated details in respect of the schooling being received by the applicant children to the INIS. The INIS responded and made clear that it was their position that the first named applicant had been served with a notification to deport on 6 th May 2008 and that he has been an 'illegal' in the State since his work permit expired on 24 th September 2003. Further, it is clear from the correspondence that the INIS was not aware that the first named applicant had made arrangements to bring his wife and five children to the country subsequent to his arrival here or that they had actually been residing together for some time in Roscommon.

7

7. Contrary to this, the first named applicant submitted that the Gardaí in Roscommon were in fact aware of his and his family's presence in the town. Furthermore, the first named applicant's passport was in fact being held by the Immigration Officer at Roscommon Garda Station and had been so held for the previous three or four years.

8

8. Following further correspondence between the relevant parties in respect of the present circumstances of the family, the above named applicants were formally notified by letter on 26 th March 2012 that deportation orders had been made by the Minister in respect of each of them.

Applicants' Submissions
9

9. The applicants submit that in making the deportation orders the Minister concentrated almost exclusively on the immigration status of the applicants and the rights of the State regarding immigration control. As such, it is asserted that the Minister failed to consider and vindicate the constitutional and Convention rights of the applicants' and failed to consider the practical implications of the interference with their private lives. In particular, it is claimed that the Minister failed to respect the applicants' rights under Art. 40.3 of the Constitution, Arts. 2 and 8 of the European Convention on Human Rights ("ECHR") and Arts. 4, 9 and 10 of the EU Charter of Fundamental Rights and made reference to the case of Aslam v. Minister for Justice and Equality [2011] IEHC 512 in this regard. Further, the applicant submits that the Minister failed to act in the best interests of the child by failing to vindicate the minor applicants' rights under the UN Convention on the Rights of the Child (the "UN Convention").

10

10. The applicants also submit that the Minister failed to consider the distinct rights of the children to have their views heard, a right which they contend has been recognised by Denham J. in the Supreme Court case of A.Bu. v. J. Be. [2010] IESC 38. Further, they contend that the Minister failed to consider the practical consequences of removing the minor applicants from their schooling and present safe environment and therefore failed to respect and vindicate their rights under Article 40.3 of the Constitution and also failed to make a reasoned assessment of the interference with their rights pursuant to Article 8 of the ECHR. It is also contended that the Minister acted in breach of the principle of acting 'in the best interests of the child' on which the court received more detailed submissions...

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