A (P) and E (E) (minor) . v Minister for Justice, Equality & Law Reform & Others and Human Rights Commission (notice party)

• Jurisdiction: Ireland
• Court: High Court
• Judge: MR. JUSTICE HEDIGAN
• Judgment Date: 18 November 2008
• Neutral Citation: [2008] IEHC 359
• Date: 18 November 2008

[2008] IEHC 359

THE HIGH COURT

[1031 JR/2005]

A (P) & E (FOE) (A Minor) v Refugee Applications Commissioner & Ors

BETWEEN

P. A. AND F. O. E. E. (A MINOR, SUING BY HIS MOTHER AND NEXT FRIEND, P. A.)

APPLICANTS

AND

THE REFUGEE APPLICATIONS COMMISSIONER, THE REFUGEE APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

AND

HUMAN RIGHTS COMMISSION

NOTICE PARTY

IMMIGRATION ACT 1999 S3

REFUGEE ACT 1996 S5

IMMIGRATION ACT 1999 S3(6)(h)

IMMIGRATION ACT 1999 S3(6)(c)

IMMIGRATION ACT 1999 S3(6)(d)

IMMIGRATION ACT 1999 S3(6)(i)

IRISH NATIONALITY & CITIZENSHIP ACT 2004

IMMIGRATION ACT 1999 S3(6)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8

KOUAYPE v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (EAMES) UNREP HIGH CLARKE 9.11.2005 2005/35/7364

LUPASCU v MIN FOR JUSTICE & ORS UNREP HIGH PEART 21.12.2004 2004/28/6549

UNHCR HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS 1992

N (A) & ORS v MIN FOR JUSTICE & ANOR UNREP SUPREME FINNEGAN & FENNELLY 18.10.2007 2007/43/9091

ADEGBEMI v MIN FOR JUSTICE & AG UNREP HIGH MCCARTHY 23.11.2007 2007/1/78

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8(2)

BEEREHAB v THE NETHERLANDS 1989 11 EHRR 322

BOULTIF v SWITZERLAND 2001 33 EHRR 50

CILIZ v THE NETHERLANDS 2000 2 FLR 469

BODE v MIN FOR JUSTICE UNREP HIGH FINLAY-GEOGHEGAN 14.11.2006 2006/6/1136

P (F) & L (A) & B (C) v MIN FOR JUSTICE & AG 2002 1 IR 164

W (EA) v REFUGEE APPEALS TRIBUNAL & ANOR UNREP HIGH HEDIGAN 4.11.2008 2008 IEHC 343

L (D) v REFUGEE APPEALS TRIBUNAL & ANOR UNREP HIGH HEDIGAN 11.11.2008 2008 IEHC 351

BODE v MIN FOR JUSTICE UNREP SUPREME DENHAM 20.12.2007 2007/6/1033

IMMIGRATION

Deportation

Irish born child - Mother - Standard of review - Statutory prerequisites to making of deportation order - Whether Minister gave adequate consideration to required factors - Principle of family unity - Misapplication - Whether error in manner in which principle of family unity applied - Right to respect for private and family life - Whether practical and reasonable for Minister to assume that applicant would take son with her if deported - Whether deportation would interfere with the applicants' right to respect for family and private life - Whether interference justified - EAW v Refugee Appeals Tribunal [2008] IEHC 343 (Unrep, Hedigan J, 4/11/2008), DL v Refugee Appeals Tribunal [2008] IEHC 351, (Unrep, Hedigan J, 11/11/2008), CA v Minister for Justice [2007] IEHC 393 (Unrep, McCarthy J, 23/11/2007), AN v Minister for Justice [2007] IESC 44 (Unrep, SC, 18/10/2007), Kouaype v Minister for Justice [2005] IEHC 380 (Unrep, Clarke J, 9/11/2005) and Lupascu v Minister for Justice [2004] IEHC 400 (Unrep, Peart J, 21/12/2004) followed; Beerehab v Netherlands (1988) 11 EHRR 322, Boultif v Switzerland (2001) 33 EHRR 1179, Ciliz v Netherlands (Unrep, ECHR, 11/7/2000) and Bode v Minister for Justice [2007] IESC 62, (Unrep, SC, 20/12/2007) distinguished; FP v Minister for Justice [2002] 1 IR 164 considered - Immigration Act 1999 (No 22), s 3(6) - Refugee Act 1996 (No 45), s 5 - Irish Nationality and Citizenship Regulations 2005 (SI 1/2005) - European Convention on Human Rights Act 2003 (No 20), ss 2 and 3 - European Convention on Human Rights, art 8(1) - Relief refused (2005/1031 JR - Hedigan J - 18/11/2008) [2008] IEHC 359

A(P) v Refugee Applications Commissioner

Facts: the respondent had made a deportation order in respect of the applicant, a failed asylum seeker who was the mother of a child whose application for asylum was still pending in the State at the time of the making of the order. She was granted leave to seek to have the order quashed on the basis, inter alia, that it was made in breach of the principle of family unity in that it would have the effect of separating her from her child. It was also submitted that the order interfered with the applicant’s rights to a private and family life under Article 8 of the European Convention on Human Rights.

Held by Mr Justice Hedigan in refusing the relief sought that the respondent was entitled to assume that the applicant would take her child with her if deported and there was no obligation on the respondent to make any inquiries as to whether the child would go with his mother. The unity of the family was, therefore, never in danger. Accordingly, there was no potential interference with the applicant’s rights under Article 8 of the European Convention on Human Rights.

Reporter: P.C.

1 MR. JUSTICE HEDIGAN, delivered on the 18th day of November, 2008 .

2 1. The first named applicant is the mother of the second named applicant. The are seeking judicial review of the decision of the Minister for Justice, Equality and Law Reform ("the Minister") to sign a deportation order in respect of the first named applicant. Leave was granted by Finlay Geoghegan J. on 3 ^rd March, 2008.

Background

3 2. The first named applicant, who is a national of Nigeria, claims that threats were made to her life in 2005 arising from her husband's involvement with a cult. She fled Nigeria on 13 ^th March, 2005 and arrived in Ireland the following day. Soon afterwards, on 8 ^th June, 2005, she gave birth to the second named applicant. He is now three years old. He is a citizen of Nigeria.

4 3. The Office of the Refugee Applications Commissioner (ORAC) recommended in May, 2005 that the first named applicant should not be declared a refugee. That decision was affirmed by the Refugee Appeals Tribunal (RAT) in June, 2005. She was notified by letter dated 30 ^th June, 2005, that the Minister was proposing to make a deportation order in respect of her, and was invited to make an application for leave to remain in the State. Representations were made on her behalf by the Refugee Legal Service (RLS) on 18 ^th and 25 ^th July, and 8 ^th August, 2005. Reference was made therein to the fact that she and her infant son were living together. It is was submitted that her deportation would be in breach of the European Convention on Human Rights, but that submission was not phrased in terms of her relationship with her son.

5 4. The first named applicant's file was considered under section 3 of the Immigration Act 1999 and section 5 of the Refugee Act 1996 by two officials of the Minister's Department on 27 ^th and 28 ^th July, 2005 and it was recommended that she should be deported. The analysis and recommendation were approved by an Assistant Principal of the Repatriation Unit on 29 ^th July, 2005 and the Minister made a deportation order in respect of the first named applicant on 15 ^th September, 2005.

6 5. Nothing turns on the analysis of the file under section 5 of the Refugee Act 1996; the applicants' complaints centre upon the consideration given to the matters set out in section 3 of the Immigration Act 1999.

The Section 3 Analysis

7 6. The analysis carried under section 3 of the Immigration Act 1999 was carried out in two stages, with the first official having regard to all but sections 3(6) (h) and (i) of the Act of 1999. As to section 3(6) (c) ("family and domestic circumstances"), the first official noted that the first named applicant gave birth to a son in June, 2005. As to section 3(6) (d), she noted that the applicant's connection with the State is grounded in her application for asylum. The second official noted, with respect to section 3(6) (h) ("humanitarian considerations"), that the first named applicant suffers from hypertension and kidney problems, and that the second named applicant was born by Caesarean Section. With respect to section 3(6) (i) ("representations made by or on behalf of the person"), she observed that the RLS made representations regarding "the child born in Ireland" seemingly on the basis that the second named applicant is entitled to Irish citizenship. She noted that under the Irish Nationality and Citizenship Act 2005, the child is not entitled to Irish citizenship. She remarked that even if he was an Irish citizen, his right to the care and company of his mother would not be absolute. She concluded that the fact that the child is not an Irish citizen "lends further weight to the conclusion that deporting the parent, along with the child, is not contrary to our national or international obligations", and she observed that the child is entitled to Nigerian citizenship.

Position of the Second Named Applicant

8 7. A deportation order having been made in respect of his mother, an individual application for asylum was made on behalf of the second named applicant on 27 ^thSeptember, 2005. His application was refused by...