Osheku v Ireland

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Gannon
Judgment Date01 January 1987
Neutral Citation1986 WJSC-HC 1474
Docket Number[1983 No. 2986P]
Date01 January 1987

1986 WJSC-HC 1474

THE HIGH COURT

No. 2986P/1983
OSHEKU v. IRELAND, AG & MIN JUSTICE

BETWEEN

SUNDAY OSHEKU, CAROLINE OSHEKU SUING BY HER FATHER AND NEXT FRIEND THOMAS McKEOWN, OSIGBENBA MARTIN OSHEKU AN INFANT SUING BY HIS GRANDFATHER AND NEXT FRIEND THOMAS McKEOWN
PLAINTIFFS

AND

IRELAND, THE ATTORNEY GENERAL AND THE MINISTER FOR JUSTICE
DEFENDANTS

Citations:

ABDELKEFI V MIN FOR JUSTICE 1984 ILRM 138

ALIENS (AMDT) ORDER 1975 SI 128/1975

ALIENS ACT 1935

ALIENS ACT 1935 S12

ALIENS ACT 1935 S4

ALIENS ACT 1935 S5

ALIENS ORDER 1946 SRO 395/1946 S13

CONSTITUTION ART 40

CONSTITUTION ART 41

CONSTITUTION ART 41.1.1

CONSTITUTION ART 41.1.2

CONSTITUTION ART 42

CONSTITUTION ART 9

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 14

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S16

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S8

SHUM V IRELAND & AG 1986 ILRM 593

Synopsis:

ALIENS

Residence

Licence - Revocation - Deportation threatened - ~Quia timet~ action - Plaintiff alien married Irish woman after arrival in the State - Child of marriage born in the State - Protection of family afforded by the Constitution - On 11/6/79 conditional permission to enter State granted to Nigerian citizen - Marriage on 26/6/81 - After 11/7/79 plaintiff alien remained in the State in breach of condition - Application of plaintiff husband for certificate of naturalisation not yet determined - Plaintiff husband seeking to prevent deportation - Held that the marriage of the plaintiff husband did not change his status as an alien or the conditions on which he had been permitted to enter the State - Held that the relevant provisions of the Act of 1935 and the regulations of 1946 were conducive to the public good and in conformity with the objectives specified in the preamble to the Constitution - Held, accordingly, that the personal rights of the plaintiff wife and infant under Articles 40 and 41 of the Constitution must be treated as subservient to the provisions of enactments which promote the common good - Held that an order of the Minister for Justice, made in the due exercise of the discretion conferred by regulation 13 of the Order of 1946, deporting the first plaintiff from the State would not infringe any rights of the plaintiffs under Articles 40 and 41 of the Constitution - Refusal of declarations and orders sought by the plaintiffs - Aliens Act, 1935, s.5 - Aliens Order, 1946, reg. 13 - Constitution of Ireland, 1937, Articles 40, 41 - (1983/2986 P. - Gannon J. - 27/6/86) - [1986] IR 733 - [1987] ILRM 330

|Osheku v. Ireland|

CONSTITUTION

Personal rights

Public good - Conflict - Aliens - Deportation threatened - ~Quia timet~ action - Plaintiff alien married Irish woman after arrival in the State - Child of marriage born in the State - Protection of family afforded by the Constitution - On 11/6/79 conditional permission to enter State granted to Nigerian citizen - Marriage on 26/6/81 - After 11/7/79 plaintiff alien remained in the State in breach of condition - Application of plaintiff husband for certificate of naturalisation not yet determined - Plaintiff husband seeking to prevent deportation - Held that the marriage of the plaintiff husband did not change his status as an alien or the conditions on which he had been permitted to enter the State - Held that the relevant provisions of the Act of 1935 and the regulations of 1946 were conducive to the public good and in conformity with the objectives specified in the preamble to the Constitution - Held, accordingly, that the personal rights of the plaintiff wife and infant under Articles 40 and 41 of the Constitution must be treated as subservient to the provisions of enactments which promote the common good - Held that an order of the Minister for Justice, made in the due exercise of the discretion conferred by regulation 13 of the Order of 1946, deporting the first plaintiff from the State would not infringe any rights of the plaintiffs under Articles 40 and 41 of the Constitution - Refusal of declarations and orders sought by the plaintiffs - Aliens Act, 1935, s.5 - Aliens Order, 1946, reg. 13 - Articles 40, 41 and Preamble _ (1983/2986 P - Gannon J. - 27/6/86) - [1986] IR 733 - [1987] ILRM 330

|Osheku v. Ireland|

1

Judgment of Mr. Justice Gannon delivered the 27th day of June 1986

2

The plaintiffs are husband and wife and infant son. At the time of the institution of these proceedings the wife was a minor but has since attained the age of majority and proceeds in her own name. The infant was born in Dublin on the 4th of June, 1982, the parents having married in Dublin on the 26th of June, 1981. The wife was born in Dublin and she and the infant plaintiff are citizens of Ireland. The husband is not an Irish citizen. He was born in Nigeria and came to Ireland on the 11th of June, 1979. At the time of his arrival at Dublin Airport from Rome he informed the Immigration Officer on duty that he had come on a holiday, that he would not stay in Ireland more than one month, and that he would not take up residence or undertake employment in Ireland. He has remained in Ireland Since June 1979. He has been in residence in Dublin continuous since then until June, 1985, and he has taken up employment in Dublin from time to time, and attended night classes as a student. His presence as a resident in Ireland since the 11th of July, 1979 has not been in accordance with law.

3

Notwithstanding the circumstances of his entry as an alien into this State and the circumstances of his continued residence in the State the first named plaintiff and his family, namely his wife and son, have commenced these proceedings. The primary Order sought is an Order restraining the Minister for Justice deporting the first named plaintiff from the State. To support that Order all three plaintiffs claim a number of declarations asserting alleged constitutional rights and challenging the validity under the Constitution of the Aliens Act 1935and of Statutory Orders thereunder and of the Irish Nationality and Citizenship Act 1956. The defendants dispute the standing of the plaintiffs as claimants in the Court and their claims to be entitled to challenge the constitutionality of the Aliens Act 1935and the Orders thereunder and of the Irish Nationality and Citizenship Act 1956or to invoke the provisions of the Constitution for support of the continued infringement of the statutory provisions. The proceedings were commenced by plenary summons on the 2nd of May, 1983. By leave of the Court, sought and consented to at the hearing, amendments to the pleadings, raising issues relative to the Irish Nationality and Citizenship Act 1956, were permitted. Because of the nature of the issues raised in the pleadings the essential matters of fact of which proof was required related to the status of the first named plaintiff, the circumstances of his entry into the State, his continued residence and activities thereafter, his relationship to the other plaintiffs, and his encounters with the authorities of the State concerned with immigrant aliens.

4

The evidence of Mr. Osheku was that he was 33 years of age, was born in Nigeria and lived in Banda State midwest Nigeria, and he gave his religion as Catholic. He arrived at Dublin Airport on the 11th of June, 1979 by aeroplane from Rome, prior to which he was doing a language course at Perugia. He had a return ticket for Italy and came for a holiday with no intention of staying here, nor of studying nor of working here. He so informed the Immigration Officer at Dublin Airport by whom he was given permission to remain one month in Ireland at a Youth Hostel in Donnybrook, Dublin. His passport was stamped with the conditions of staying for one month and not accepting employment nor engaging in business in the State. The money he said he had with him comprised £500 sterling, D.M. 200 and U.S.$100 After one week in the Youth Hostel he got lodgings at Mount Eden Road, Donnybrook. Having decided to remain in Dublin to study he waited until October, without informing the immigration authorities, and enrolled in the City of Dublin Vocational Education College in Mount Street for evening classes in English, Mathematics and Economics. About the 10th of October, 1979 he went to the Aliens Office, Dublin Castle where he was asked what he was doing and what income he had and was requested to bring his passport and evidence from the school of his attendance He went back to the Aliens Office in January, 1980 with the passport. He was given two weeks in which to leave the country and his passport was returned to him. He had taken employment as a night watchman with Efficiency Security Company but did not inform the immigration authorities of this. He did not leave the country nor return to the immigration authorities. He said that he enrolled in the Vocational College at Bolton Street in October, 1980 for a three year course of night classe or refrigeration mechanics. He sat for examinations in 1982 and 1983 without success. He continued in employment with the security company until 1982 when he changed to the same class of employment with a different company. His employment in that and other casual work ceased about August, 1982 when he enrolled for Social Welfare Unemployment Assistance at Werburg Street. Since then he has been receiving that Social Welfare Assistance. He said he has not since been in employment.

5

The plaintiff also said in evidence that in July, 1980 after he had been just over one year in Ireland and working mostly as a night watchman he met the 2nd plaintiff. She was the 17½ years and had been a waitress in the Granary Restaurant. They were married in the Registry Office, Kildare Street, Dublin on the 26th of June, 1981 and went to live at 22 Effra Road. At that time he was working with the security firm and attending evening classes in Bolton Street College. His...

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