S. & Ors -v- MJELR, [2007] IEHC 398 (2007)

Docket Number:2006 1110 JR
Party Name:S. & Ors, MJELR
Judge:Dunne J.





JUDGMENT delivered by Ms. Justice Dunne on the 30th day of November 2007

The first named applicant is from Nigeria and has failed in an application for asylum in this jurisdiction. The second and third named applicants are his siblings who were born in Ireland and reside here with their parents.

The first named applicant arrived in Ireland at Dun Laoghaire on the 22nd April, 2006 without any documentation. He was accompanied by his father. Initially it was stated that the first named applicant was fourteen years of age and residing in Donegal with his father but almost immediately it was admitted that he was nineteen years of age and had arrived in England a few weeks previously and that his father went to England to accompany him into Ireland. He was refused leave to land as he did not have the appropriate documents in relation to his identity and nationality and he immediately sought asylum. He was admitted into the State for the purpose of claiming asylum. He stated in the ASY1 form that he came to Ireland to join his parents who are entitled to reside here.

Following his claim for asylum, he attended for interview with the Office of Refugee Applications Commissioner (ORAC) on 5th May, 2006. His claim for asylum was rejected by a decision dated 17th May, 2006. An appeal to the Refugee Appeals Tribunal was unsuccessful.

On 22nd June, 2006 the first named applicant was sent a letter advising him that the respondent proposed to make a deportation order. That letter, as is usual, set out a number of options open to the first named applicant, namely, that he could leave the State voluntarily before the Minister made a deportation order; he could consent to the making a deportation order or he could make representations to remain temporarily in the State.

In setting out those options it was stated in the letter in relation to the first option:

except in very exceptional circumstances if you exercise this option you will not be made the subject of a deportation order, thus allowing you to seek to legally enter the State (eg on a tourist visa, work permit, etc.) at some point in the future.

It was further noted in relation to the third option, namely the option of making representations to remain in the State that:

"if following consideration of the application, the Minister decides to refuse you temporary leave to remain you may be made subject to a deportation order the consequences of which are outlined above. You may not be given the option of leaving voluntarily or consenting to deportation."

In response to that letter the first named applicant's solicitor, Donal Gallagher, sent submissions by way of a leave to remain application. The application for leave to remain was refused and a letter dated 25th August, 2006 was sent to the first named applicant notifying him of this and enclosing a deportation order. It is that order that the applicants seek to challenge.

Having been granted leave to apply for judicial review, an amended statement required to ground an application for judicial review dated 20th December, 2006 was delivered. The grounds relied on were as follows:"1. The respondent has failed to protect and vindicate the right to family life and privacy of the applicants in making the deportation order herein. Deportation in the circumstances would be in breach of the second and third named applicants rights under the Constitution, EC law and under the European Convention on Human Rights, and in particular Article 8 thereof, and/or failed to impair the said right as little as possible in all the circumstances.

2. The respondent would fail to take … relevant matters into account if the deportation order against the first named applicant herein proceeded and would thereby act in breach of fair procedures and natural and constitutional justice. Without prejudice, the respondent:(a) Failed to consider the effect the deportation would have on the relationship between the first named applicant and the second and third applicants and on his relationship with other family members;

(b) Failed to consider that the first named applicant may not be allowed to re-enter the State under the terms of the said deportation order to have contact with his family, who have their home in the State;

(c) Failed to consider whether the disruptive effect could be minimised.3. The decision to deport was made in breach of the requirements of natural and constitutional justice and was disproportionate in all the circumstances. Without prejudice, the respondent failed to give proper and/or adequate reasons why deportation was necessary in all the circumstances." In the statement of grounds of opposition of the respondent it was stated that "the first named applicant has been living in Nigeria for some time with his adult sister and his grandmother. In the circumstances he does not enjoy "family life" within the meaning of Article 8 of the European Convention on Human Rights with the second and third named applicants or with those members of his family who are lawfully resident in Ireland." The statement of opposition went on to point out that the applicant never got permission to enter or remain in Ireland. He procured entry to the State by the making of an application for asylum after being refused leave to land.

The statement of opposition then went on to set out that it was the policy of the respondent to ensure that non nationals who enter the State without the requisite permission to enter and/or remain in the State, leave the State so as to obtain the necessary permission to enter and remain in the State. It was pointed out that this policy was pursued in the interest of maintaining the borders of the State and in maintaining the integrity of the asylum and immigration systems.

The statement of opposition went on to indicate that all of the circumstances relating to the applicants were considered by the respondent in relation to this particular matter and that having so considered them the deportation order was made.

It is necessary to set out some further details about the background of the first named applicant and his family and their circumstances.

It appears that the parents of the applicants came to Ireland in 2001 from Nigeria. The first named applicant has an older sister called Abiola born in 1985 who is still in Nigeria. The first named applicant and his older sister lived with their grandmother in Nigeria after their parents left Nigeria for Ireland. The first named applicant has made allegations as to maltreatment by his grandmother but he attended school while living there and subsequently he attended university in Nigeria. Around 2004 the first named applicant moved out of his grandmother's house and lived in the house of a man who had employed him. The first named applicant's mother and father visited him in Nigeria in 2003. He has a younger sister and brother the second and third named applicants respectively, Z. born on the 3rd June, 2001 and I. born on the 12th August, 2004 in Ireland.

I do not propose to set out the details as to the basis of the first named applicant's claim for asylum. His claim to be a refugee was refused and the decisions of ORAC and the Refugee Appeals Tribunal have not been challenged in these proceedings.

In the grounding affidavit of the first named applicant he stated as follows:"I say that I would like to be in a position to have regular access to my family in Ireland and I am disappointed that same was not properly considered before the decision to deport me was made. I do not believe that they will be in a financial or emotional state to visit me in Nigeria and I say that the relationship I have with them may be fatally ruptured." Jacqueline Kelly the applicant's solicitor in an affidavit sworn by her on the 12th September, 2006 having referred to the background stated:"I say that the examination on file did not refer to the applicant's family or the fact that he would be separated from them. It did not refer to the fact that the deportation order instructed the first named applicant to remain outside the State. That will mean that he will not see his siblings or other family members as they will not be in a position to travel to Nigeria, as they have made Ireland their home.

12. I say and have been instructed that the first named applicant would have considered voluntarily repatriating to Nigeria had he been given the choice following the refusal of the humanitarian leave to remain application, but that he was not given such a choice." A replying affidavit was sworn by Dan Kelleher an Assistant Principal Officer in the Department of Justice, Equality and Law Reform. In his affidavit he exhibited relevant documentation including the decision of the Refugee Appeals Tribunal, the representations made on behalf of the first named applicant and the documentation annexed to the examination of file carried out by Ms. Audrey G. Walsh on the 17 July, 2006.

Submission on behalf of the applicants

The applicants in their submissions have challenged the decision of the respondent on a number of grounds which can be summarised as follows:1. The respondent failed to consider the impact on the second and third named applicants of requiring the applicant to remain outside the State.

2. There was a disproportionate breach of the applicants' rights under Article 8 of the EHCR and under the Constitution.

3. The respondent failed to give the applicant an opportunity to voluntarily repatriate or consent to a deportation order after the rejection of leave to remain application and/or the failure to consider giving such an option. The first two submissions referred to above are clearly interconnected and therefore I propose to deal...

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