Onyemaechi (A Minor) v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 17 October 2017
• Neutral Citation: [2017] IEHC 682
• Docket Number: [2017 No. 779 J.R.]
• Court: High Court
• Date: 17 October 2017

BETWEEN

CHIBUIKE ONYEMAECHI

MARY CYNTHIA MATHEW

FAVOUR ONYEMAECHI

(A MINOR SUING BY HER MOTHER AND NEXT FRIEND MARY CYNTHIA MATHEW)

DANIEL ONYEMAECHI

(A MINOR SUING BY HIS MOTHER AND NEXT FRIEND MARY CYNTHIA MATHEW)

JOSH ONYEMAECHI

(A MINOR SUING BY HIS MOTHER AND NEXT FRIEND MARY CYNTHIA MATHEW)

CHIMEZIRIM ONYEMAECHI

(A MINOR SUING BY HIS MOTHER AND NEXT FRIEND MARY CYNTHIA MATHEW)

APPLICANTS

AND

MINISTER FOR JUSTICE AND EQUALITY

THE ATTORNEY GENERAL

IRELAND

RESPONDENTS

[2017] IEHC 682

[2017 No. 779 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Asylum Immigration and Nationality – S. 3 (11) of the Immigration Act 1999 – Deportation Order – Substantive relief – Registration of birth certificates

Facts: The first named applicant sought an injunction restraining his deportation. The first named applicant contended that the first named respondent/Minister had acted contrary to fair procedures as he did not consider the impact of the deportation on the children of the first named applicant. The first named applicant also contended that a balance of convenience had favoured the maintenance of the status quo.

Mr. Justice Richard Humphreys dismissed the application. The Court held that an application filed under s. 3(11) of the Immigration Act 1999 did not preclude the deportation nor the Minister was required to determine such an application prior to the deportation. The Court observed that the Minister had already confirmed with the Department of Justice that there was no legal obstacle from the Minister's point of view in deporting the first named applicant. The Court opined that the first named applicant had sought an injunction as a substantive relief and interlocutory principles could not be applied in order to obtain the substantive relief. The Court ruled that the first named applicant could return to the Court in the event the Minister made a decision on the first named applicant's application for the revocation of the deportation application. The Court opined that the children of the asylum seekers were not a shield against the deportation.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 17th day of October, 2017

1 The father in this case is a national of Nigeria and met the mother in Nigeria in mid-2006. A deportation order was made against the father in the State on 27th February, 2006, which does not appear to have been challenged. He was due to present on 10th March, 2006, but evaded for a nine-year period from then until he presented on the 13th March, 2015. Apparently he left Ireland in 2006. The mother avers that he returned in November, 2008. The mother was pregnant when she travelled to Ireland in March, 2008, and the first child was born here in November, 2008. Three further children were born in 2009, 2011 and 2013. The first named applicant presented on 9th June, 2015 and then evaded for in excess of another further year.

2 In 2015 he applied by way of a first s. 3(11) application to revoke the deportation order. The analysis, which recommended refusal, dated 10th July, 2015, noted that he had failed to provide birth certificates for the children. He subsequently presented in August and October, 2016. On the 7th November, 2016, it was noted in the context of a second s. 3(11) application that four birth certificates were provided but they did not identify the first named applicant as the father, so that application was also refused. He then presented on the 22nd November, 2016, and in January, 2017. On the 9th January, 2017, the births where re-registered with the first named applicant's name. He failed to present in February, 2017, and then presented between March and September 2017. He was due to present again on the 4th October, 2017, but failed to do so and a decision was made to arrest him. He was arrested on the 7th October, 2017, and is currently detained in Cloverhill Prison.

3 On the 9th October, 2017, the re-registered birth certificates were sent to the Minister – 9 months after the re-registration. On the 12th October, 2017, a third s. 3(11) application was made. Such an application was made at the eleventh hour, and particularly when an applicant is already in custody, is prima facie abusive.

4 I heard oral evidence from D/Garda Michael Byrne who was cross-examined on his affidavit and having seen and heard him in the witness box, I accept his evidence. Exceptionally, I permitted oral evidence from the applicant's brother, given that the hearing is being conducted at short notice. He gave a somewhat strange story about Gardaí calling to the house about an alleged paedophile on 6th October, 2017. His evidence, unlikely as it is, appears to be quite peripheral to any issue I have to decide in that respect. He gave an account of an interaction with D/Garda Byrne that I reject having heard and seen them both.

5 I have heard helpful submissions from Mr. Gary O'Halloran B.L. for the applicant and Ms. Sinead McGrath B.L. for the respondent.

Relief sought

6 The only substantive relief being pursued is an injunction restraining the deportation of the first named applicant. That is sought as a substantive relief and not as interlocutory relief. An order of mandamus compelling the Minister to determine the revocation application was sought in the papers as issued but it is agreed that that is not necessary because the Minister is stating that that application will in due course be determined.

Grounds of the application

7 The first ground is that the Minister is acting contrary to fair...