Ofobuike (A Minor) v Min for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 13 January 2010
• Neutral Citation: [2010] IEHC 89
• Docket Number: [NO.114 J.R./2008]
• Court: High Court
• Date: 13 January 2010

[2010] IEHC 89

THE HIGH COURT

[NO.114 J.R./2008]

Ofobuike v Min for Justice

MR JUSTICE COOKE

APPROVED TEXT

JUDICIAL REVIEW

BETWEEN

MIRABEL OFOBUIKE (A MINOR ACTING BY HER FATHER AND NEXT FRIEND, CHUKS BASIL OFOBUIKE) AND CHUKS BASIL OFOBUIKE

APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

IMMIGRATION ACT 1999 S3(1)

CONSTITUTION ART 41

CONSTITUTION ART 40.3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

R (MAHMOOD) v SECRETARY OF STATE FOR THE HOME DEPT 2001 1 WLR 840 2001 1 FLR 756 2001 2 FCR 63 2001 HRLR 14

FAJUJONU v MIN FOR JUSTICE & AG 1990 2 IR 151

O (A) & ORS v MIN FOR JUSTICE 2003 1 IR 1 2003/31/7267

OGUEKWE v MIN FOR JUSTICE 2008 3 IR 795 2008 2 ILRM 481 2008/51/10890 2008 IESC 25

DIMBO v MIN FOR JUSTICE UNREP SUPREME 1.5.2008 2008/12/2530 2008 IESC 26

IMMIGRATION ACT 1999 S3

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

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)

IMMIGRATION ACT 1999 S3(6)(I)

IMMIGRATION ACT 1999 S3(6)(J)

IMMIGRATION ACT 1999 S3(6)(K)

REFUGEE ACT 1996 S5

CRIMINAL JUSTICE (UNITED NATIONS CONVENTION AGAINST TORTURE) ACT 2000 S4

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

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8(2)

IMMIGRATION ACT 1999 S3(6)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)(B)

IMMIGRATION

Deportation

Family reunification - Father - Impact on child and family - Whether proportionate and reasonable assessment made of impact - Failure to give fact specific consideration to welfare rights and best interests of child applicant - Whether breach of Convention rights - Whether deportation of father breached rights of family - Whether decision to deport reasonable and proportionate - R (Mahmood) v Home Secretary [2001] 1 WLR 840; Fajujonu v Minister for Justice [1990] 2 IR 151; AO & DL v Minister for Justice [2003] 1 IR 1; Oguekwe v Minister for Justice [2008] IESC 25 [2008] 3 IR 795; Dimbo v Minister for Justice [2008] IESC 344 (Unrep, SC, 14/11/2006) considered - Leave refused (2009/114JR - Cooke J - 13/1/2010) [2010] IEHC 89

Ofabuike (a minor) v Minister for Justice, Equality and Law Reform

Mr. Justice Cooke

1 The second named applicant (hereinafter referred to as "the applicant") is a Nigerian national. He is the father of the first named applicant who was born in the State on the 21^st September, 2002 and is an Irish citizen. (She is hereinafter referred to as "Mirabel"). Mirabel's mother, Helen Ofobuike, is married to the applicant and has had permission to reside in the State under the IBC 05 Scheme as the parent of an Irish citizen child. She is also the mother of their other daughter Zara Ofobuike, who is not an Irish citizen.

2 The applicant claims to have been in the State on a number of occasions in 2002, 2004 and 2005, although he says he was still living in Nigeria at the time. In July, 2007, he claims to have moved to Ireland to be with his wife and children and it appears that he entered the State illegally and claimed asylum here on 1^st August, 2007.

3 A report of the Refugee Applications Commissioner dated the 2^nd October, 2007, recommended that the applicant be not declared to be a refugee, essentially upon the ground that his claim to a fear of persecution if returned to Nigeria as a member and fundraiser for a separatist organisation, MASSOB (Movement for the Actualisation of the Separate State of Biafra,) was not credible. On appeal to the Refugee Appeals Tribunal this negative recommendation was affirmed by a decision of the 25^th January, 2008. Again, the Tribunal member found the personal account given by the applicant of his flight from Nigeria in 2007 using false documents on a trip arranged for him by a trafficker, difficult to reconcile with the fact that he held a valid Nigerian passport and had obtained visas for several visits to the United Kingdom on business in the years from 2002 to 2005, given that he claimed that his problems with the Nigerian authorities had commenced in 2001 when he had been detained and questioned. In particular, he was disbelieved when he claimed to have fled Nigeria in February, 2007 having been warned by a friend who was an Assistant Police Commissioner, that it was unsafe for him to remain in Nigeria, when he then returned from London to Nigeria to sort out financial issues prior to leaving again for Ireland in July, 2007.

4 Following the rejection of the appeal to the Tribunal, the applicant was notified of the Minister's intention to make a deportation order in respect of him and on the 24^th April, 2008, an application was made on his behalf for subsidiary protection and for leave to remain in the State on humanitarian grounds. These applications were refused and on the 15^th January, 2009, a deportation order pursuant to s. 3(1) of the Immigration Act 1999, was made in respect of him. This was notified to the applicant and to his legal representatives by a letter of the 15^th January, 2009, which enclosed, by way of statement of the Minister's reasons for making the order, a memorandum of some 22 pages setting out the examination and analysis of the representations made on the applicant's behalf and the consideration given to the statutory matters required to be taken into account in making such an order.

5 The applicants now seek leave to apply for judicial review of the decision to make that order (the "Contested Decision",) and particularly for an order ofcertiorari to quash it. In the statement of grounds, nine grounds are proposed to be advanced as to the illegality of the order. None of these grounds is directed at the consideration given by the Minister to the individual position of the applicant himself. In effect, the grounds are directed at the proposition that the consideration given on making the order failed adequately to assess and to weigh proportionately and reasonably the impact of the deportation of the applicant on the rights of Mirabel and of the members of the Ofobuike family present in the State.

6 In particular, in grounds 5.1 and 5.2 it is alleged that the Contested Decision infringes Article 41 of the Constitution in that the Minister failed to make appropriate inquiry about and then to weigh properly and to consider the circumstances of Mirabel as an Irish citizen, her relationship with the applicant as her father and primary carer; and with her mother and sister who have permission to remain in the State; and fails to analyse the effect of separating that family by deporting the applicant in the event that Mirabel, her mother and sister decide to remain.

7 In grounds 5.3, 5.4 and 5.5 it is alleged, in effect, that Article 40.3 of the Constitution has been infringed by the failure to give any "fact specific consideration" to the welfare rights and best interests of the child applicant. The finding that Mirabel is of an adaptable age and could move to Nigeria is inadequate and gives no consideration to her position in Nigeria or to the fact that she has been doing well at school in Dublin. She has a fundamental right to grow up in Ireland and the Contested Decision identifies no compelling reason for refusing to permit the applicant to remain and play an active role in her upbringing here.

8 Under the heading of ground 5.8 it is alleged that the Contested Decision infringes Article 8 of the European Convention of Human Rights in that no substantive consideration has been given to the questions that Article requires to the addressed and no reason is given as to why it is necessary to interfere with the life of this family by preventing the applicant residing in the State.

9 In ground 5.7 it is alleged that the Contested Decision fails to state any reason why it is proportionate in this particular case not to permit the parent of an Irish citizen child to reside in the State when residency has been granted to thousands of other parents in the same situation, including the applicant's wife as mother of Mirabel.

10 Ground 5.8 alleges that the Contested Decision is unreasonable and that it fails to vindicate the personal rights of each applicant. Ground 5.9 is concerned with the extension of time required for the present applicant for leave.

11 The grounds thus articulated in the statement of grounds were further developed both in the written legal submissions lodged and in oral argument, with particular reference to the recent case law of the High Court and Supreme Court relating to the issues that arise when a deportation order is made in respect of the non-national parent of an Irish citizen child. In addition, as appears below, counsel for the applicants took issue with the reference made in the analysis note to the decision of the United Kingdom Court of Appeal inR. (Mahmood) v. Home Secretary [2001] 1 W.L.R. 840. In relying upon that authority for the proposition that there were no insurmountable obstacles to this family living together in Nigeria, counsel submitted that the Minister had applied a wrong test and thereby erred in law in a manner which vitiated the validity of the Contested Decision.

12 The particular cases referred to in argument and upon which the issues raised in these grounds effectively turn included the following:-

Fajujonu v. Minister for Justice [1999] 2 I.R. 151 ;

A.O. and D.L. v. Minister for Justice [2003] 1 I.R. 1 ;

Oguekwe v. Minister for Justice [2008] 3 I.R. 795 and

Dimbo (A Minor) v. Minister for Justice (Supreme Court, 1^st May, 2008).

13 It is useful, therefore, to attempt to summarise the law thus stated as to the rights of the Irish citizen child in these circumstances and as...