Olakunori (A Minor) v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 29 July 2016
• Neutral Citation: [2016] IEHC 473
• Court: High Court
• Docket Number: [2015 No. 178 J.R.]
• Date: 29 July 2016

BETWEEN

FAVOUR PECULIAR OLAKUNORI (A MINOR SUING BY HER MOTHER AND NEXT FRIEND B.I.A.), B.I.A., R.A. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND B.I.A.)

AND

P.O.A. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND B.I.A.)

APPLICANTS

AND

MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

[2016] IEHC 473

Humphreys J.

[2015 No. 178 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Asylum, Immigration & Nationality – IBC05 Scheme – Naturalised Irish citizen – Refusal of Visa – s. 5 of the Illegal Immigrants (Trafficking) Act 2000 – s. 18 of the Refugee Act 1996.

Facts: Following refusal of the appeal against the order of refusal of visa, the applicant, through judicial review proceedings, sought quashing of the order of refusal of the Visa. The applicant contended that the respondent had taken irrelevant matters into account in the finding of inconsistency in relation to information provided. The applicant argued that the respondent had applied incorrect tests in refusing the Visa.

Mr. Justice Richard Humphreys held that the application to quash the order of refusal of the Visa would be dismissed. The Court further observed that it would not be fatal as long as the correct test had been applied in substance. The Court held that where a decision had been based on a number of independent grounds each capable of supporting the result, the decision would not be quashed if any one or more grounds stood unaffected by any error in any impugned grounds.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 29th day of July, 2016

1 The applicants in this case consist of a mother and three of her six children. The mother, who is the second named applicant in this case, was born in Nigeria in 1965.

2 Her first daughter, who is not a party to these proceedings, was born in 1986 to her and a Mr. Omwanighe, the first of four fathers referred to in this case.

3 In 1989 and 1991, two further daughters, who are also not involved in this case, were born to the mother and Mr. Moses Aghedo.

4 On 4th December, 1999, the first named applicant was born to the mother and Mr. Festus Olakunori.

5 When this child was less than four months old, the mother left her behind in Nigeria and came to Ireland, where she applied for asylum on 23rd March, 2000. The first named applicant's name on this application was given as Miss Peculiar A.

6 In 2002 and 2003, the third and fourth named applicants were born to the mother and Mr. Besi Olawepor. Under the system in place at the time, since reformed, they acquired Irish citizenship.

7 In 2005, the mother obtained lawful residence in Ireland under the ‘IBC05 Scheme’.

8 Four years later, in 2009, the mother sought a visa for the first named applicant, so that she could join her mother in Ireland. This was refused.

9 On 30th August, 2012, the mother became a naturalised Irish citizen.

10 In December 2013, the Minister adopted a policy document on non-EEA family reunification. As I outlined in Li v. Minister for Justice and Equality (No. 1) [2015] IEHC 638 (Unreported, High Court, 21st October, 2015) at para. 60, policy documents of this kind promote greater consistency in decision-making and serve the objective of equality before the law. At pp. 27 and 28 of the document, the economic impact of admission decisions on the State is considered. It is clear that this impact is a factor in decision-making, as is the capacity of the sponsor to support the person for whom admission is sought. In a footnote, the document quantifies the cost of admission per child as being in the region of €8,000 per child for the provision of educational services. The mother expressly accepts (para. 23 of written submissions) that she does not meet the financial thresholds set out in the policy document. I was informed by Ms. Diane Duggan B.L., for the respondent, led by Ms. Nuala Butler S.C., who also addressed the court, that, in 2015, approximately 2,600 applications by children to join their parents in Ireland were made to Irish embassies and missions worldwide, a very substantial number of which were accepted.

11 Mr. Michael Lynn S.C., who appeared (with Mr. Anthony Lowry B.L., who also briefly addressed me on the s. 5 issue referred to below) for the applicants, in a very able submission, accepts that the court can legitimately take this sort of information, which is peculiarly within the knowledge of the respondent, by way of statement from counsel without the necessity of an affidavit. While he might have liked greater particularisation of this information, this was something he accepted that he could have pursued prior to the hearing. He accepts that this information is legitimately before this court and can be dealt with by way of comment by either side, as appropriate.

12 On 30th June, 2014, the mother applied again to the Minister for a visa to enable the first named applicant to join her in Ireland. This is the application that gives rise to the present proceedings. The first named applicant's name on this application was given as Miss Favour Peculiar Olakunori.

13 This application was refused at first instance on 12th November, 2014. The applicant appealed on 22nd December, 2014.

14 That appeal was refused on 7th January, 2015, although the refusal was not communicated to the second named applicant until 11th March, 2015. The present judicial review proceedings were commenced on 1st April, 2015, without any pre-action letter having been sent to the Minister.

15 The appeal was refused on four grounds which I am informed by Ms. Duggan are independent of each other. Those grounds were:-

(i) insufficient documentation relating to the mother's custody rights;

(ii) inconsistency in the information provided regarding the name of the first named applicant;

(iii) likelihood of a charge on public funds arising; and

(iv) likelihood of a charge on public resources arising (which I understand from Ms. Duggan relates to indirect costs, such as those of public education, arising from the presence in the State of a person who is not directly financially dependent on the social welfare system).

Anonymity

16 As the second named applicant's asylum claim is tangentially relevant to the matters I have to consider, it appears necessary and appropriate to redact her name. I have also redacted the names of family members sharing the same surname out of a certain abundance of caution although protection of the identity of asylum seekers is not a blanket prohibition on naming any family members whatever. No basis has been put forward by the parties to suggest that naming family members with different surnames will identify the second named applicant to anyone not already aware of her identity.

Does s. 5 of the Illegal Immigrants (Trafficking) Act 2000 apply?

17 This is a challenge to the refusal of a visa, rather than refusal of a permission to land in the State. Does it come within s. 5 of the Illegal Immigrants (Trafficking) Act 2000? The only relevant part of that section, as amended by s. 34 of the Employment Permits (Amendment) Act 2014, relates to a refusal under s. 4 of the Immigration Act 2004. That section, in turn, refers to the refusal of a permission to be in the State, either by way of initial leave to land, by way of subsequent grant or extension of a permission to be in the State. Furthermore, it refers to such permissions as being granted by ‘ an immigration officer…on behalf of the Minister’ (s. 4(1) and (3)) or alternatively refers to the attachment of conditions by ‘ an immigration officer’ (s. 4(6)), or alternatively, to renewal or variation ‘ by the Minister, or by an immigration officer on his or her behalf’).

18 The references to ‘ an Irish visa’ or a ‘ valid Irish visa’ in the section (see s. 4(3)(e), (5)(b) and (8)), strongly suggests that a visa is something separate from a permission under s. 4, that is, that the refusal of the visa is not the refusal of a permission. This accords with the purpose of a visa, namely that it permits travel to the frontier of the State but does not guarantee entry. I had better make clear that I was not altogether alive to this distinction when I gave the judgment in Li, which uses the terms visa and permission almost interchangeably. However on further consideration, I think that they are not interchangeable terms.

19 In my view, it follows from the wording of s. 4 that a visa is not a permission under that section, firstly because they are separate instruments, and secondly, because it is not granted by an immigration officer on behalf of the Minister. Thus, an action challenging the refusal of a visa does not come within the scope of s. 5 of the 2000 Act. Ms. Butler submits that, while regulated to a limited extent by statute, a visa arises from the executive power of the State and not from any statutory authority and therefore falls outside s. 5, a submission which I accept.

20 On one view, this may be seen as a gaping hole in s. 5, but it is certainly not the only such anomaly and, in any event, it is not one I either can or should address by creative interpretation of the statute. What I can do, however, is respectfully suggest (as I did in K.R.A. v. Minister for Justice and Equality (No. 1) [2016] IEHC 289 (Unreported, High Court, 12th May, 2016)) that the wording of s. 5 might be reviewed with a view to reducing the amount of uncertainty and inconsistency arising from it.

21 I now turn to the various grounds of challenge advanced by Mr. Lynn under an unusually lengthy list of headings. Ms. Duggan initially was concerned as to whether all of these headings had been properly pleaded but, upon further consideration, waived any pleading objection. I am grateful to her and to Ms. Butler, who consented to an amendment for the purpose of particularising the claim in relation to the best interests of the child, for dealing with this issue in...