Olivia Agbonlahor and Others v The Minister for Justice Equality and Law Reform and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Feeney
• Judgment Date: 18 April 2007
• Neutral Citation: [2007] IEHC 166
• Court: High Court
• Docket Number: [2006 No. 147 JR]
• Date: 18 April 2007

Agbonlahor v Minister for Justice, Equality and Law Reform

JUDICIAL REVIEW

BETWEEN

OLIVIA AGBONLAHOR, GREAT AGBONLAHOR (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND OLIVIA AGBONLAHOR) AND MELISSA AGBONLAHOR (A MINOR SUING BY HER MOTHER AND NEXT FRIEND OLIVIA AGBONLAHOR)

APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

[2007] IEHC 166

[No. 147 JR/2006]

THE HIGH COURT

IMMIGRATION

Deportation

Family rights - Right to private life - Whether deportation order breached applicants' family rights - Whether deportation order breached applicants' right to private life - Whether breach of rights proportionate - Whether absence of sufficient health care facilities in receiving state breached rights - Test to be applied where deportation might breach right to private or family rights - Abdulaziz v UK (1985) 7 EHRR 471; R (Mahmood) v. Home Secretary [2001] 1 WLR 840 and N v Home Secretary [2005] 2 AC 296 followed; AO & DL v Minister for Justice [2003] 1 IR 1; Bensaid v UK (2001) 33 EHRR 25; Raninen v Finland (1998) 26 EHRR 563 and R (Razgar) v Home Secretary [2004] 2 AC 368 considered; D v UK (1997) 24 EHRR 423 distinguished - European Convention on Human Rights Act 2003 (No 20), s 3(1), sch 1 - European Convention on Human Rights, articles 3 and 8 (2006/147JR - Feeney J - 18/4/2007) [2007] IEHC 166Agbonlahor v Minister for Justice, Equality and Law Reform

The applicants were granted leave to apply by way judicial review for an order of certiorari of the decision of the first respondent on the grounds that the decision not to revoke the deportation orders in respect of the applicants was a violation of the applicants' rights under Article 8(1) of the First Schedule of the European Convention on Human Rights Act 2003.

Held by Feeney J. in refusing the relief sought that on the evidence before the first respondent, his decision not to revoke the deportation orders in respect of the applicants was not a violation of their rights under Article 8.

Reporter: R. W.

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 SCHED I

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

RANINEN v FINLAND 1998 26 EHRR 563

BENSAID v UNITED KINGDOM 2001 33 EHRR 10 205

ABDULAZIZ, CABALES & BALKANDALI v UNITED KINGDOM 1985 7 EHRR 471

MAHMOOD, R v SECRETARY OF STATE FOR THE HOME DEPARTMENT 2001 1 WLR 840 OSAYANDE & LOBE v MIN FOR JUSTICE 2003 1 IR 1 2003 31 7267

R (RAZGAR) v SECRETARY FOR THE HOME DEPARTMENT 2004 2 AC 368 2004 3 WLR 58 TLR 21.6.2004

COSTELLO-ROBERTS v UNITED KINGDOM 1993 19 EHRR 112

N v SECRETARY OF STATE FOR THE HOME DEPARTMENT 2005 2 WLR 1124 2005 2 AC 296

D v UNITED KINGDOM 1997 24 EHRR 423

OSAYANDE & LOBE v MIN JUSTICE 2003 1 IR 1

2 2 1.1 The first named Applicant is the mother of the second and third named Applicants who are her two children. They are all Nigerian nationals. The application herein is made on behalf of the first named Applicant Olivia and her twin minor children were born in Italy on the 2nd March, 2001. The first named Applicant and her husband arrived in Italy from Nigeria in 1996. Her husband is a journalist and a writer and the first named Applicant claims that as a result of an expose of a Nigerian "drug baron" living in Italy, written by her husband, that they started to receive threatening phone calls. In January of 2003, the first named Applicant was attacked by Nigerians in Turin, Italy resulting in her right hand being injured with a machete. The first named Applicant claims that she reported the attack to the police but that she was again threatened, during February, 2003, by two Nigerian men and that while attempting to escape from them ran in front of a bus. The first named Applicant determined that the safety of herself and her twins required that they leave Italy. Her husband refused to leave. On the 5th March, 2005, while her husband was on a work assignment the first named Applicant took her two children and left Italy and came to Ireland where she applied for refugee status.

3 3 1.2 The basis of the application for asylum related to the alleged threats from the Nigerian ex-patriot community in Italy together with the alleged threat of female genital mutilation to the third named Applicant if the family were to return to Nigeria. The Refugee Applications Commissioner considered the application of the first named Applicant on her own behalf and on behalf of her two minor children and by letter of the 30th September, 2003 the first named Applicant was notified that the Refugee Applications Commissioner had recommended that the three Applicants would not be declared to be refugees. An appeal was pursued before the Refugee Appeals Tribunal and on the 20th April, 2004 the first named Applicant was notified by letter that her appeal from the decision of the Refugee Applications Commissioner had failed and the decision of the Commissioner was affirmed.

4 4 1.3 By letter dated the 31st August, 2004, the Applicants were notified that the first named Respondent ("the Minister") was proposing to make deportation orders in respect of the first named Applicant and her two children. On the 15th September, 2005, the Minister made deportation orders in respect of the three Applicants. Written representations were made on behalf of the Applicants by letter dated the 27th September, 2005. The submissions were made through the Refugee Legal Service to the Minister and were to the effect that the Applicants be permitted to remain in the State on humanitarian grounds. Such representations proved unsuccessful and the first named Applicant was notified that she should present herself to the Garda National Immigration Bureau on the 4th October, 2005, for deportation from the State. The Refugee Legal Service succeeded in obtaining a deferral of the intended deportation on the grounds that the second named Applicant had been given an appointment for an assessment at a Regional Autistic Spectrum Disorder Clinic on the 4th October, 2005. On the 18th October, 2005 the Minister put a stay on the deportation order pending a review of the case. The second named Applicant was assessed by Dr. Gillian Bannon, on the 26th October, 2005. Dr. Bannon is a psychiatrist with the Regional Autistic Spectrum Disorder Service and she diagnosed that the second named Respondent was suffering from Attention Deficit Hyperactivity Disorder (ADHD) in addition to an intellectual disability and Dr. Bannon also considered that the second named Applicant may be presenting with some sensory integration issues. Dr. Bannon concluded that the most significant aspect of the child's difficulties was his behaviour difficulties. Dr. Bannon made a number of recommendations.

5 5 1.4 On the 4th November, 2005, the solicitors who were then acting for the Applicants, Brophys, wrote to the Minister requesting that he exercise his power under s. 3(11) of the Immigration Act, 1999 and amend or revoke the deportation orders. The principal ground relied upon related to the disability and needs of the second named Applicant, Great Agbonlahor. In a letter of the 4th November, 2005 it was contended that the condition ADHD requires intervention without which the person suffering from this disorder will "frequently end up in prison, presenting as a classically antisocial individual with serious personality difficulties". It was submitted to the Minister that the removal of the Applicants and in particular the second named Applicant would interfere with the right to respect for his private life guaranteed by Article 8 of the European Convention on Human Rights. Further representations were made by letter of the 16th November, 2005 wherein it was indicated that the Applicant's solicitors had contacted Professor Kanu, lecturer in the Department of Special Education, University of Ibadan, Nigeria and that Professor Kanu had indicated that there was only one private school catering for children with special needs known to her and that that catered for children with Down's Syndrome. It was further submitted that as a result of Great's condition that he would be ostracised from society within Nigeria and the same would apply to his mother and sister.

6 6 1.5 A memorandum was prepared within the Department in the light of the representations received and on 20th January, 2006, the Minister personally considered the entire documentation, including all the representations made on behalf of the applicants. The Minister concluded that the deportation order would not be revoked. On 31st January, 2006 the applicants were informed of the Minister's decision. In making the decision, the Minister specifically noted that the second named Applicant was not autistic. It was initially feared that the child was autistic and this had led the Minister to undertake the review. He further noted that the asylum application, which was based on an alleged fear of persecution in Italy where the Applicant's husband/father continued to live, was without foundation and that it was on that basis that the permission to remain in the State was refused and the decision in relation to the deportation order was confirmed.

7 7 1.6 Following the notification of the Minister's decision High Court proceedings were commenced. Ex-parte relief was granted by the High Court on 7th day of February, 2006 and the application seeking leave came on for hearing thereafter resulting in a judgment of the High Court on 3rd day of March, 2006. Leave was sought on a number of grounds and the court ultimately granted leave on one ground. Herbert J. concluded his judgment of 3rd February, 2006 on p. 34 by stating:

"The court will therefore grant leave to these applicants to seek an order of certiorari by...