Oguekwe -v- Minister for Justice Equality and Law Reform, [2008] IESC 25 (2008)

Docket Number:489/06
Party Name:Oguekwe, Minister for Justice Equality and Law Reform
Judge:Denham J.
 
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THE SUPREME COURT

[S.C. No: 489/2006]

Murray C.J.

Denham J.

Fennelly J.

Kearns J.

Finnegan J.

Between/

Chuka Paul Oguekwe, Blessing Oguekwe,

Prince Roniel Oguekwe,

(a minor suing by his father and next friend,

Chuka Paul Oguekwe)

Applicants/Respondents

and

The Minister for Justice, Equality and Law Reform

Respondent/Appellant

and

The Human Rights Commission and the Attorney General Notice Parties

Judgment delivered the 1st day May, 2008 by Denham J.

  1. Two Issues

    There are two issues before the Court in this case. First, there is an appeal from the determination of the High Court to quash the decision of the Minister under the Irish Born Child 05 Scheme. Secondly, there is an appeal from the judgment of the High Court quashing the decision of the Minister to make a deportation order under s.3 of the Immigration Act, 1999, as amended.

  2. First Issue

    The first issue in this case is the decision of a Minister of the Government, made in an administrative scheme, established as an exercise of executive power, to deal with a unique group of foreign nationals. It was submitted, on the one hand, that, inter alia, in this scheme the Constitutional and Convention rights of applicants were required to be considered in accordance with law. On the other hand, it was submitted that neither Constitutional nor Convention rights arose to be considered. Thus the nature of the scheme is at the core of this aspect of the appeal, and, with it, the nature of any judicial review. Also, at the kernel of the matter is the fact that the position of a foreign national, who failed in an application under the scheme, remains the same as it was prior to the application, Constitutional and Convention rights remaining yet to be considered. The central issue is the refusal by the Minister of the first named applicant's application under the IBC 05 Scheme. In this, and the related judgments, the term 'foreign national' means a national other than an Irish citizen.

  3. Eight Cases

    The Minister for Justice, Equality and Law Reform, the respondent/appellant, hereinafter referred to as 'the Minister', has appealed from the judgments of the High Court (Finlay Geoghegan J.) in seven cases where the High Court quashed the decision of the Minister to refuse applications for permission to remain in the State to foreign national parents of Irish born children under a scheme which he had introduced. In an eighth case, the Minister is appealing against the order for costs made in the High Court. No submissions have yet been on this latter case. In two cases, this being one of them, the High Court also quashed the decision of the Minister to make a deportation order, under s.3 of the Immigration Act, 1999, as amended, which the Minister has also appealed, and which is the second issue in this judgment.

  4. These related cases are:

    (i) Bode v. The Minister, Appeal No. 485/2006

    (ii) Oguekwe v. The Minister, Appeal No. 489/2006

    (iii) Dimbo v. The Minister, Appeal No. 484/2006

    (iv) Fares v. The Minister, Appeal No. 483/2006

    (v) Oviawe v. The Minister, Appeal No. 480/2006

    (vi) Duman v. The Minister, Appeal No. 482/2006

    (vii) Adio v. The Minister, Appeal No. 481/2006

    (viii) Edet v. The Minister, Appeal No. 005/2007

    The Minister was represented in all the cases by the same counsel. The same affidavit of Maura Hynes, a Principal Officer in the Department of Justice, Equality and Law Reform, was filed in all cases on behalf of the Minister. Similar written submissions were filed on behalf of the Minister in all cases.

  5. Judgment on the appeals in Bode, Fares, Oviawe, Duman and Adio were delivered by the Court on the 20th December, 2007. The general facts and law relating to this first issue in all eight cases were set out in the Bode judgment. The particular facts, law, and decision of this case are set out herein.

  6. Parties

    In this case the first named applicant/respondent is Chuka Paul Oguekwe, hereinafter referred to as 'the first named applicant'. He is married to Blessing Oguekwe, the second named applicant/respondent, hereinafter referred to as 'the second named applicant'. Prince Roniel Oguekwe, the third named applicant/respondent, and hereinafter referred to as 'the third named applicant', was born in Ireland on the 9th June, 2003. The Minister for Justice, Equality and Law Reform is the respondent/appellant and is referred to as 'the Minister'. The Human Rights Commission was given leave to participate as amicus curiae on the appeal by order of 23rd day of March, 2007, and is referred to as 'the Commission'. The Attorney General was joined as a Notice Party.

  7. Particular Facts

    The particular matter raised on the first issue in the case relates to the requirement of continuous residence under the IBC 05 Scheme, which issue was considered also in the Bode case.

    The second named applicant entered the State in April, 2003 and applied for asylum. She gave birth to the third named applicant on the 9th June, 2003. The first named applicant is married to the second named applicant. The first and second named applicants are nationals of Nigeria. The first named applicant entered the State on the 3rd February, 2005. He stated in his affidavit that he came to Ireland so that he could apply for residency on the basis of the third named applicant's citizenship and reside with him. He made his application for residency under the IBC 05 Scheme on the 9th February, 2005.

    By letter dated 10th March, 2005, the Minister stated that the application had been refused on the ground that the first named applicant had not shown that he had resided in the State with his Irish citizen son, or that he had played an active part in his upbringing, on a continuous basis since his birth.

    The second named applicant also applied under the IBC 05 Scheme and was successful. She was informed of this decision on the 3rd May, 2005.

  8. High Court Proceedings

    The applicants brought High Court proceedings to challenge the refusal by the Minister of the first named applicant's application under the IBC 05 Scheme.

  9. The High Court Order on the IBC 05 Scheme

    The High Court held that the applicants were entitled to an order of certiorari in respect of the refusal of the first named applicant's application under the IBC 05 Scheme, for the reasons given in the judgment of the High Court in the Bode case.

  10. Appeal

    The Minister has appealed against the judgment and orders of the High Court.

  11. Decision on IBC 05 Ministerial decision

    I would allow the appeal of the Minister, on this issue. My general reasons are set out in the Bode judgment. In that judgment the nature of the IBC 05 Scheme was described in detail. It was an administrative scheme established by the Minister, exercising executive power, to deal with a unique group of foreign nationals in a generous way, on the criteria of the scheme. The parameters of the scheme were clearly stated and included the requirement of continuous residence.

    The first named applicant entered Ireland on the 3rd February, 2005. (The third named applicant had been born in Ireland on 9th June, 2003). The first named applicant stated that he wished the third named applicant to grow up in Ireland. He averred that, 'I came to Ireland so that I could apply for residency on the basis of Prince's Irish citizenship and reside here with him.'

    It was a manifest requirement of the IBC 05 Scheme that there be "Evidence of continuous residence in the State since the birth of the child (utility bills, lease/rental agreements etc.)" By letter dated 10th March, 2005, the first named applicant was informed that the Minister had decided to refuse his application under the IBC 05 Scheme. The reason given was:-

    "The reason for the Minister's decision is that you have not shown that you have resided in the State with your Irish citizen son, or that you have played an active role in his upbringing, on a continuous basis since his birth."

    On the evidence the first named applicant was not in the State when his son was born, or when the scheme was announced. He did not meet the criteria of the scheme because of his lack of continuous residence. Thus it was open to the Minister to find, indeed, I believe he could come to no other conclusion, that the first named applicant's application did not meet the criteria of the scheme.

    Bearing in mind the analysis of the IBC 05 Scheme in Bode, and the extent of judicial review of such an administrative scheme, I would allow the Minister's appeal on this matter. The Constitutional and Convention rights of the applicants remain to be considered.

  12. Second Issue, Deportation Order pursuant to s.3 Immigration Act, 1999, as amended

    The second issue in this appeal is a review of the decision of the Minister on the 9th November, 2005, to make a deportation order, under s.3 of the Immigration Act, 1999, as amended, hereinafter referred to as 'the Act of 1999'.

  13. History

    The history of the first named applicant in Ireland is relevant. The first named applicant is a Nigerian national. He entered the State on the 3rd February, 2005 and applied for a declaration of refugee status on the 4th February, 2005. A letter was received by the Minister on the 8th February, 2005, stating that he wished to withdraw from the asylum process and to remain in the State on the basis of the IBC 05 Scheme. On the 9th February, 2005, the first named applicant was notified of the recommendation of the Office of the Refugee Applications Commissioner that the first named applicant should not be declared a refugee. The Minister received an application from the first named applicant to remain in the State under the IBC 05 Scheme on the 11th February, 2005. The Minister refused this application, for the reason set out earlier in this judgment. On the proposal to deport on the notification of refusal under the IBC 05 Scheme, the first named applicant was also notified that the 15 day period for response to the proposal to deport letter, issued on the 25th February, 2005, began...

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