Osayande v Minister for Justice and Others

• Jurisdiction: Ireland
• Judge: MR. JUSTICE T.C. SMYTH
• Judgment Date: 08 April 2002
• Neutral Citation: 2002 WJSC-HC 5724
• Court: High Court
• Date: 08 April 2002

2002 WJSC-HC 5724

THE HIGH COURT

RECORD NO. 2001/659 JR

RECORD NO. 2001/658 JR

OSAYANDE v. MINISTER FOR JUSTICE & ORS

JUDICIAL REVIEW

DUBLIN

Between

ANDREW OSAYANDE AND OSAZE JOSHUA OSAYANDE (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND, FLORA OSAYANDE)

Applicants

and

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

Respondent

Between/

DAVID LOBE, JANA LOBEOVA, ALADAR LOBE (A MINOR SUING BY HIS FATHER AND NEXT FRIEND DAVID LOBE), LUKAS LOBE (A MINOR SUING BY HIS FATHER AND NEXT FRIEND, DAVID LOBE) AND JANA LOBE (A MINOR SUING BY HIS FATHER AND NEXT FRIEND, DAVID LOBE), AND KEVIN LOBE (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND, JANA LOBEOVA)

Applicants

and

THE MINISTER FOR JUSTICE, QUALITY AND LAW REFORM

Respondent

Citations:

DUBLIN CONVENTION (IMPLEMENTATION) ORDER 2000 SI 343/2000 ART 3

DUBLIN CONVENTION (IMPLEMENTATION) ORDER 2000 SI 343/2000 ART 10(1)(e)

DUBLIN CONVENTION (IMPLEMENTATION) ORDER 2000 SI 343/2000 ART 8

IMMIGRATION ACT 1999 S3(6)

IMMIGRATION ACT 1999 S3(6)(j)

REFUGEE ACT 1996 S17(6)

REFUGEE ACT 1996 S17(9)

REFUGEE ACT 1996 S5

FAJUJONU V MIN FOR JUSTICE 1990 2 IR 151

CHILD CARE ACT 1991

DUBLIN CONVENTION (IMPLEMENTATION) ORDER 2000 SI 343/2000 ART 15

DUBLIN CONVENTION (IMPLEMENTATION) ORDER 2000 SI 343/2000 ART 9

DUBLIN CONVENTION (IMPLEMENTATION) ORDER 2000 SI 343/2000 ART 33

CONSTITUTION ART 41

CONSTITUTION ART 2

CONSTITUTION ART 40.3.1

CONSTITUTION ART 41.1.1

CONSTITUTION ART 41.2

CONSTITUTION ART 42

CONSTITUTION ART 42.3.2

H (J), RE 1985 IR 375

NORTH WESTERN HEALTH BOARD V W(H) & W (C) 2001 3 IR 635

CONSTITUTION ART 41.1

MCGEE V AG 1974 IR 284

ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999 2000 2 IR 360

P & L & B V MIN FOR JUSTICE 2002 1 ILRM 38

Z v MIN FOR JUSTICE 2002 2 ILRM 215

CONSTITUTION ART 40

M, STATE V AG 1979 IR 73

OSHEKU V IRELAND 1986 IR 733

POK SUN SHUN V IRELAND 1986 ILRM 593

ALIENS ACT 1935

LAURENTIU V MIN FOR JUSTICE 2000 1 ILRM 1

HEANEY V IRELAND 1994 3 IR 593

COX V IRELAND 1992 2 IR 503

REFUGEE ACT 1996 S22

DUBLIN CONVENTION (IMPLEMENTATION) ORDER 2000 SI 343/2000 ART 11(5)

REFUGEE ACT 1996 S22(1)

EAST DONEGAL CO-OP V AG 1970 IR 317

COOKE V WALSH 1984 IR 710

CASSIDY V MIN FOR INDUSTRY 1978 IR 297

REFUGEE ACT 1996 S30(2)

EUROPEAN COMMUNITIES ACT 1972

CONSTITUTION ART 29.6

ADAM & IORDACHE V MIN FOR JUSTICE 2001 2 ILRM 452

ANISIMOVA V MIN FOR JUSTICE 1998 1 ILRM 523

DUBLIN CONVENTION (IMPLEMENTATION) ORDER 2000 SI 343/2000 ART 4

DUBLIN CONVENTION (IMPLEMENTATION) ORDER 2000 SI 343/2000 ART 5

DUBLIN CONVENTION (IMPLEMENTATION) ORDER 2000 SI 343/2000 ART 6

DUBLIN CONVENTION (IMPLEMENTATION) ORDER 2000 SI 343/2000 ART 7

DUBLIN CONVENTION (IMPLEMENTATION) ORDER 2000 SI 343/2000 ART 3(7)

DUBLIN CONVENTION (IMPLEMENTATION) ORDER 2000 SI 343/2000 ART 10

DUBLIN CONVENTION (IMPLEMENTATION) ORDER 2000 SI 343/2000 ART 18(2)

DUBLIN CONVENTION (IMPLEMENTATION) ORDER 2000 SI 343/2000 ART 16

DUBLIN CONVENTION (IMPLEMENTATION) ORDER 2000 SI 343/2000 ART 17

DECISION NO 1/97 9.9.1997 OJ L281 40 14.10.1997

DECISION NO 1/97 9.9.1997 OJ L281 40 14.10.1997 ART 21

DECISION NO 1/97 9.9.1997 OJ L281 40 14.10.1997 ART 21(1)

ADAN V SECRETARY OF STATE FOR THE HOME DEPARTMENT 1998 2 WLR 702

IMMIGRATION ACT 1999 S3

REFUGEE ACT 1996 S1

REFUGEE ACT 1996 S2

REFUGEE ACT 1996 S5

REFUGEE ACT 1996 S25

DUBLIN CONVENTION (IMPLEMENTATION) ORDER 1997 SI 360/1997 REG 8(1)

REFUGEE ACT 1996 S22(2)(a)(i)

DUBLIN CONVENTION (IMPLEMENTATION) ORDER 2000 SI 343/2000 REG 3(1)

DUBLIN CONVENTION (IMPLEMENTATION) ORDER 2000 SI 343/2000 REG 3(2)

REFUGEE ACT 1996 S16

REFUGEE ACT 1996 S12

REFUGEE ACT 1996 S13

IMMIGRATION ACT 1999 S3(11)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(3)

Synopsis:

IMMIGRATION

Judicial review

Constitutional law - Nationality - Refugee and asylum - Right to reside in State - Whether family of citizen entitled to remain with child in State - Refugee Act, 1996 - Illegal Immigrants (Trafficking) Act, 2000 - Child Care Act, 1991 - Bunreacht na hÉireann, 1937 - Dublin Convention (Implementation) Order, 2000 SI 343/2000 (2001/659 & 658JR - Smyth J - 08/04/2002)

Osayande v Minister for Justice, Equality and Law Reform

Facts: The cases dealt with situations whereby children had been born in the State to parents who were seeking asylum in the State. It was proposed by the Minister for Justice to make deportation orders in respect of the members of the families who did not possess citizenship (i.e. excluding those children born in the State). On behalf of the applicants it was contended that there was a prima facie right of the parents of an Irish born child to reside with that child within the State. It was contended that there was a mandatory obligation on the State to recognise the rights of a family in such a situation under the Constitution. The applicants also sought to challenge the Dublin Convention (Implementation) Order, 2000 as being ultra vires the Refugee Act, 1996.

Held by Smyth J in refusing all reliefs sought. The respondent had taken into account the constitutional rights of the Irish-born children and their families. The respondent was entitled to require that the residence of the parents and their non-Irish children be terminated and to make deportation orders. The challenge to the Dublin Convention (Implementation) Order, 2000 was also dismissed.

JUDGMENT DELIVERED BY

1 MR. JUSTICE T.C. SMYTH ON MONDAY, 8TH APRIL 2002 - DAY 4

2 I hereby certify the following to be a true and accurate transcript of my shorthand notes of the evidence in the above-named action

APPEARANCES

FOR THE APPLICANTS:

MR. SHIPSEY SC

MR. HOGAN SC

MR. DIGNAM BL

Instructed by:

MS. MARIA MAGUIRE

REFUGEE LEGAL SERVICES

FOR THE RESPONDENT:

MR. McCARTHY SC

MR. H. MOHAN SC

MS. E. BARRINGTON BL

Instructed by:

CHIEF STATE SOLICITORS OFFICE

OSMOND HOUSE

LITTLE SHIP STREET

DUBLIN 8

3 JUDGMENT OF MR. JUSTICE T.C. SMYTH DELIVERED ON MONDAY, 8TH APRIL 2002

Introduction

4 These cases are a random sample of a large number of cases of which I believe and consider these to be a representative character.

5 These cases cannot be viewed solely from the point of view of either the rights of;

6 (a) the Irish citizen as an individual or as a member of a family unit which has within it non-nationals or;

7 (b) the non-national as an individual or as a member of a family unit which has within an Irish citizen or;

(c) the family or;

8 (d) the powers of the Oireachtas or the Minister to control the immigration of aliens into the State.

9 The case involves a consideration of all four, the responsibilities and their rights, inherent, constitutional, statutory, conventional and the jurisprudence of our courts as it has developed in respect of all four and the balancing envisaged and expanded upon in the decided cases.

THE FACTS

THE CASE OF LOBE

10 On 31st March 2001, Mr. David Lobe, a Czech national, the first-named Applicant (hereinafter referred to as “Mr. Lobe”), arrived in the State with his pregnant wife, Jana Lobe, the second-named Applicant (hereinafter referred to as “Mrs. Lobe”). They were accompanied by their then three minor children, Aladar (D. of B. 31st October 1990), Jana (D. of B. 9th February 1992), and Lukas (D. of B. 21st November 1997), the third, fourth and fifth named Applicants. All these Applicants claimed asylum on 3rd April 2001. Mrs. Lobe was provided with a set of documentation including a notice under Article 3 of the Dublin Convention (Implementation) Order 2000, by which she was informed of the fact that she might be transferred to another Dublin Convention (hereinafter referred to as “the Convention”) country. (Affidavit of Mr. John Lohan, sworn on 16th November 2001, was not refuted or disputed in any affidavit sworn by Mr. or Mrs. Lobe, or their solicitor, sworn after 16th November 2001.)

11 On 3rd April 2001, a claim for asylum was made by Mr. and Mrs. Lobe and their three children. A completed application form for refugee status questionnaire in the Czech language was submitted, and a copy of that document translated into English is exhibited with Mr. Lohan's affidavit, and the translation is certified as of 17th July 2001. The questionnaire completed by Mrs. Lobe indicates that she had one brother and three sisters, all of whom (with the exception of one sister who resided in the Czech Republic) resided in Great Britain. The papers reveal that Mr. Lobe's parents are in Ireland, but though they are immigrants there is no evidence as to their status in the State. Mr. Lobe has one brother and one sister in the State, but again there is no evidence of their status in the State. Mr. Lobe has one brother who resides in the Czech Republic. In respect to question 68 of the questionnaire, which queries:

Q. 68 "Which countries did you travel through on your way to Ireland and how long did you spend in each one?"

Mrs. Lobe answered:

A.		"Through Great Britain, 16 [?] hours in the bus and four hours on the boat."
Q.	69	"Have you ever claimed asylum in any of the countries transited or in any other country? — Give details."
A.		"Yes, in England because of refusal of asylum."

12 [To this is a translator's note —"This is the literal translation. It is not clear what the Applicant means."]

13 As a result of the response received in relation to asylum having been sought in England, the Refugee Applications Commissioner (hereinafter referred to as “the Commissioner”) made a request to the United Kingdom for information in relation to the Applicants on 10th April 2001. On 6th June 2001, a reply was received from the authorities in the United Kingdom which identified Mr. Lobe on the basis of a fingerprint check. The United Kingdom confirmed that Mr. Lobe had applied for asylum in the United Kingdom on 30th March 1999...