Oviawe and Others v Minister for Justice and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 14 November 2006
• Neutral Citation: [2006] IEHC 342
• Date: 14 November 2006
• Court: High Court
• Docket Number: [No. 504 J.R./2006]

OVIAWE v MIN FOR JUSTICE & ORS

JUDICIAL REVIEW

BETWEEN

MERCY OVIAWE, MARRIAN OVIAWE, EMMANUEL OVIAWE (SUING THROUGH HIS MOTHER AND NEXT FRIEND MERCY OVIAWE), MICHAEL OVIAWE (SUING THROUGH HIS MOTHER AND NEXT FRIEND MERCY OVIAWE) LUCKY OVIAWE (SUING THROUGH HIS MOTHER AND NEXT FRIEND MERCY OVIAWE), PEACE OVIAWE (SUING THROUGH HIS MOTHER AND NEXT FRIEND MERCY OVIAWE), FAITH OVIAWE (SUING THROUGH HIS MOTHER AND NEXT FRIEND MERCY OVIAWE) UNITY OVIAWE (SUING THROUGH HIS MOTHER AND NEXT FRIEND)

APPLICANTS

AND

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

RESPONDENTS

AND

THE HUMAN RIGHTS COMMISSION

NOTICE PARTY

[2006] IEHC 342

[No. 504 J.R./2006]

THE HIGH COURT

BODE v MIN FOR JUSTICE UNREP FINLAY GEOGHEGAN 14.11.2006 2006 IEHC 341

CRIMINAL JUSTICE (THEFT & FRAUD) OFFENCES ACT 2001 S4

CONSTITUTION ART 40.3

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3(1)

Ms. Justice Finlay Geoghegan

1 This application was heard of one of eight similar applications for judicial review challenging the validity of decisions taken by the respondent under the administrative procedures known as IBC/05. The principal judgment was delivered by me today in Bode and Ors. v. The Minister for Justice, Equality and Law Reform, 2006 No. 102 JR. That judgment insofar as it relates to IBC/05 should be considered to form part of this judgment. The grounds relied upon to challenge the respondent's decision in this judgment was in some respects identical and in other respects similar to the grounds of challenge in the Bode proceedings.

2 The first named applicant is a national of Nigeria who arrived in the State in March 2002. The seventh and eighth named applicants were born in the State on 29th July, 2002 and are Irish citizens. They are the twin son and daughter of the first named applicant. The remaining applicants are other children of the first named applicant who have resided with her in the State since 2002.

3 The first named applicant submitted an application on IBC/05 seeking permission to remain in the State on the basis of her parentage of her Irish born children in February 2005.

4 By letter of 16th November 2005 the application of the first named applicant was refused. The reason given was in the following terms

"The Minister stated in his announcement that persons of good character who give honest and complete details can expect to be granted permission to remain in the State. I am advised by the Garda National Immigration Bureau that in January 2001 and January 2004 you were convicted of offences contrary to Section 4 of the Theft Act, 2001. On that basis, I am not satisfied that you are person of good character as set out in the Minister's announcement and, accordingly, your application for permission to remain in the State under the revised arrangements is hereby refused."

5 It is common case that Mrs. Oviawe was convicted in the State in January 2004 of offences contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act, 2004. The charges related to the theft of goods to the value of €99.00. Mrs. Oviawe pleaded guilty to the convictions. She was sentenced in total to three months which was suspended for 12 months on her bond of €300 to keep the peace and be of good behaviour.

6 It is also common case that Mrs. Oviawe in her application form IBC/05 disclosed her conviction for shoplifting.

7 It is undisputed that in the case of Mrs. Oviawe, as was the position with Mr. Bode that her application under IBC/05 was considered and determined without any consideration of the constitutionally protected personal rights of her citizen children.

8 By order of the High Court of 8th...