OL.O. and Others v Minister for Justice, Equality and Law Reform

• Jurisdiction: Ireland
• Judge: MR. JUSTICE HEDIGAN
• Judgment Date: 09 October 2008
• Neutral Citation: [2008] IEHC 307
• Court: High Court
• Date: 09 October 2008

[2008] IEHC 307

THE HIGH COURT

[No. 1372 JR/2007]

O (O L) (A Minor) v Min for Justice

BETWEEN

OL. O. (A MINOR, SUING BY HIS MOTHER AND NEXT FRIEND E. O.), OR. O. (A MINOR, SUING BY HER MOTHER AND NEXT FRIEND, E. O.) AND F. D. O.

APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

IMMIGRATION ACT 1999 S3

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8

CONSTITUTION ART 40.3

CONSTITUTION ART 40.3.1

OGUEKWE v MIN FOR JUSTICE UNREP FINLAY-GEOGHEGAN 14.11.2006 2006/46/9827

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

BOULTIF v SWITZERLAND 2001 33 EHRR 50

ÜNER v THE NETHERLANDS 2007 45 EHRR 14

A (M) v MIN FOR JUSTICE & ORS 2007 3 IR 421

O v MIN FOR JUSTICE & ORS [BABY O CASE] 2002 2 IR 169

KOUAYPE v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (EAMES) UNREP HIGH CLARKE 9.11.2005 2005/35/7364

SHUM v IRELAND 1986 ILRM 593

NNYANZI v UNITED KINGDOM UNREP ECHR 8.4.2008 APP NO 21878/06

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8.2

S (BI) & ORS v MIN FOR JUSTICE UNREP HIGH DUNNE 30.11.2007 2007/54/11584

R (RAZGAR) v SECRETARY OF STATE FOR THE HOME DEPARTMENT 2004 2 AC 368

O (JW) & ORS v MINISTER FOR JUSTICE & ORS UNREP HIGH HEDIGAN 13.12.2007 2007/45/9509

O (A) & L (D) v MIN FOR JUSTICE 2003 1 IR 1

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

LAURENTIU v MIN FOR JUSTICE 1999 4 IR 26

BENSAID v UNITED KINGDOM 2001 33 EHRR 10

I (H) & B (R) v MIN FOR JUSTICE UNREP HIGH HEDIGAN 13.12.2007 2007/29/5930

O'KEEFFE v BORD PLEANÁLA 1993 1 IR 39

O (H) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP HIGH HEDIGAN 19.7.2007 2007/45/9473

M (S) (A MINOR) & ORS v REFUGEE APPLICATIONS CMSR & ORS UNREP HIGH HEDIGAN 17.5.2007 2007/38/7856

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

REFUGEE ACT 1996 S5

DADA v MIN FOR JUSTICE UNREP HIGH O'NEILL 3.5.2006 2006/14/2921

DIMBO v MIN FOR JUSTICE UNREP HIGH FINLAY-GEOGHEGAN 14.11.2006 2006/15/3094

FAJUJONU v MIN FOR JUSTICE 1990 2 IR 151

Abstract:

Immigration - Deportation - Deportation order in respect of second cousin of Irish born children - Constitution - Right to private life - Whether constitutional and Convention rights of children requiring that their second cousin not be deported - Whether necessary to specifically recite in decision to deport that private life rights of children considered - Whether substantial grounds for contending that decision invalid and ought to be quashed - European Convention on Human Rights, Article 8

Facts: the applicants had been granted leave to apply for judicial review of the decision of the respondent deporting the third applicant from the State. They contended that the respondent had failed to consider the first and second minor applicant’s rights under Article 40.3 of the Constitution and their private lives under Article 8 of the European Convention on Human Rights in as mush as the third applicant had been helping their mother to care for the first and second minor applicants. They also contended that the decision to deport was disproportionate.

Held by Hedigan J in refusing the reliefs sought that the proposed deportation did not interfere with the applicant children’s rights to reside in the State or to have the society, care and company of their parents and it was not necessary to specifically recite in the decision to deport that the best interests of the children had been considered in making that decision. The proposed deportation of the children’s mother’s cousin was not an interference with their private life so as to engage Article 8 of the European Convention on Human Rights.

Reporter: P.C.

1 The first and second named applicants are Irish citizens and the third named applicant is a national of Nigeria. The Minister for Justice, Equality and Law Reform ("the Minister") decided to make a deportation order in respect of the third named applicant on 20 ^th September, 2007. The applicants are seeking to have that decision quashed. They are also seeking a declaration that the Minister's decision was unlawful, and an injunction prohibiting the removal of the third named applicant from the State.

I. Factual Background

2 The first and second named applicants ("the applicant children") are brother and sister. They were born in the State and are now aged seven and eight years, respectively. They live with their mother, who is a national of Nigeria and is lawfully resident in Ireland. Their father has left the family. Also residing with them are their four half-siblings, who are Nigerian nationals. All of the half-siblings are adults, now aged 19-24. The young daughter of the eldest half-sibling also lives with the family.

3 The third named applicant is currently living with this family group. She is the mother of five children, all under the age of 14, who live in Nigeria with their father. She arrived in the State in March, 2006 and moved in with the applicant children's family roughly two months later. The third named applicant says that she is a cousin of the children's mother, although there is some ambiguity about their exact relation.

4 It is claimed that the third named applicant plays an important role in the upbringing of the applicant children, alongside their mother. Her role is described as being comparable to that of a 'nanny'. It is said that she is particularly important to the first named applicant, who was born with Downs Syndrome, has a congenital heart disease, and suffered from leukaemia at a young age; he then underwent chemotherapy and now has a damaged heart chamber. It is said that his mother is depressed and finds it difficult to cope with him and his siblings, although it seems clear that she is a devoted and loving mother who is dedicated to the well-being of her children.

II. Procedural Background

5 Soon after her arrival in the State, the third named applicant applied for asylum in the ordinary way. Her application was given priority and she quickly received a negative recommendation from the Office of the Refugee Applications Commissioner ("ORAC"), which was affirmed on appeal to the Refugee Appeals Tribunal ("RAT").

6 After her appeal was rejected, she forwarded two letters to the Minister, one from a Social Worker and the other from a General Practitioner. The Social Worker's letter stated that the third named applicant was "a source of huge support to her cousin" and that it would be "of great benefit" to her cousin's family if her situation could be considered under humanitarian grounds. The GP's letter detailed the health problems of the first named applicant and stated that "a supportive family member would be essential to the well being of the family". It has emerged that the latter may not have reached the Minister but I do not think that much turns on this discrepancy.

7 Thereafter, by letter dated 10 ^th November, 2006, the Minister notified the third named applicant that he proposed to make a deportation order and invited her to make representations as to why she should not be deported, and/or to apply for subsidiary protection. Representations seeking leave to remain were made on her behalf, along with an application for subsidiary protection, on 1 ^st December, 2006. Attached were a statement of the children's mother and a personal statement of the third named applicant.

8 The application for subsidiary protection was unsuccessful and her file came to be analysed under section 3 of the Immigration Act 1999 by an officer of the Repatriation Unit of the Minister's Department In the section 3 analysis, dated 24 ^th August, 2007, consideration was given to the third named applicant's rights under Article 8 of the European Convention on Human Rights ("the Convention"). Under the heading "private life", the officer accepted that the proposed deportation may interfere with the third named applicant's private life, in relation to her work, education and social ties formed since arriving in Ireland. The officer stated, however, that such interference is in accordance with law, pursues a pressing social need and a legitimate aim, and is necessary in a democratic society.

9 Under the heading "family life", the officer set out details of the third named applicant's family in Nigeria and her involvement with her cousin's family in Ireland. The officer concluded that her removal from the State would not interfere with her Article 8 rights, having made the following observations:-

"Although [the third named applicant] may help her cousin, there is nothing on file to suggest [she] is the primary care-giver of these children. There is nothing on file to suggest that [the children's mother] is medically unfit and would not be physically capable of looking after the children if [the third named applicant] was to be removed. It should also be noted that [the children's mother] has been residing in the State with her children since 2000 and managed to look after her children without [the third named applicant's help for 6 years."

10 A handwritten note added to the section 3 analysis by an Assistant Principal of the Repatriation Unit on 27 ^th August 2007 makes the additional observation that a number of adult siblings lived with the applicant children's family group and that they could assist their mother to care for the applicant children. The Assistant Principal concluded that there were no grounds for granting leave to remain, and recommended that the Minister make a deportation order. As I have noted, the Minister signed a deportation order on 20 ^th September, 2007. This decision was notified to the third named applicant by letter dated 5 ^th October, 2007. On 30 ^th November, 2007, the applicants were granted leave to apply for judicial review of the Minister's decision.

III. The Applicants' Submissions

11 The applicants' complaints in respect of the...