A (A P)(A Minor) and Others v Min for Justice and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 20 July 2010
• Neutral Citation: [2010] IEHC 297
• Court: High Court
• Date: 20 July 2010

A (A P)(A Minor) & Ors v Min for Justice & Ors

JUDICIAL REVIEW

MR JUSTICE COOKE

APPROVED TEXT

BETWEEN

A. P. A. (A MINOR,) A. S. (A MINOR,) A. R. A. AND T. A.

APPLICANTS

AND

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

RESPONDENTS

AND

THE HUMAN RIGHTS COMMISSIION

NOTICE PARTY

[2010] IEHC 297

[No. 843 J.R./2010]

THE HIGH COURT

IMMIGRATION

Deportation

Judicial review - Procedure - Effect of application - Whether institution of judicial review proceedings challenging validity of deportation order acts as automatic stay on order pending outcome of proceedings - Abdolkhani & Karimnia v Turkey (App No 30471/08), (Unrep, ECHR, 22/9/2009), Adebayo v Commissioner of An Garda Síochána [2006] IESC 8, [2006] 2 IR 298 and Conka v Belgium (App No 51564/99), (2002) 34 EHRR 1298 considered; Muminov v Russia (App No 42502/06), (Unrep, ECHR, 11/12/2008) and Jabari v Turkey (App No 40035/98), (2000) 29 EHRR CD 178 applied - Rules of the Superior Courts 1986 (SI 15/1986), O 84 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - European Convention on Human Rights Act 2003 (No 20), ss 2 and 3 - European Convention on Human Rights, article 13 - Leave refused (2008/843JR - Cooke J - 20/7/2010) [2010] IEHC 297

A(PA) v Minister for Justice Equality and Law Reform

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

ADEBAYYO v CMRS GARDA SIOCHANA 2006 2 IR 298

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 13

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8

IMMIGRATION ACT 1999 S3

CONLON v MOHAMMED 1989 ILRM 523

CONSTITUTION ART 40

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 2

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 3

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3(1)

CONKA v BELGIUM 2002 34 EHRR 54

ABDOLKHANI & KARIMNIA v TURKEY ECHR 22.09.2009 APPLICATION NO 30471/2008

JABARI v TURKEY 2001 29 EHRR CD 178

RSC O.84 r20(7)

DIMBO v MIN FOR JUSTICE UNREP SUPREME 1.05.2008 2008/12/2530 2008 IESC 26

OGUEKWE & ORS v MIN FOR JUSTICE 2008 3 IR 795 2008 2 ILRM 481 2008/51/10890 2008 IESC 25

CONSTITUTION ART 8

MOKRANI v FRANCE ECHR 15.07.2003 APPLICATION NO 52206/99

1 1. This is an application for an interlocutory injunction to restrain the deportation of the third named applicant ("the father",) in circumstances where the application for judicial review was commenced within the fourteen day period prescribed by s. 5 of the Illegal Immigrants (Trafficking) Act 2000 and the Minister has declined to give an undertaking not to deport him pending the return date of the notice of motion for the leave application.

2 2. Because of the very large number of similar applications recently made to this Court, it is impossible to deal simultaneously with the application for an interlocutory injunction and the application for leave to seek judicial review quite apart from the inequity of permitting the application for injunction to act as a mechanism to accelerate the application for leave ahead of the very many other similar applications which await hearing by the Court. In those circumstances an issue has arisen as to the approach which the Court should take to the application for interlocutory relief. In particular, the argument is made that because the application has been commenced within fourteen days and no extension of time will be required, the applicant is entitled, as it were, almost as of right to have a stay put upon the implementation of the deportation order so that he is not expelled from the State before he can effectively exercise his right of access to the High Court in order to challenge the validity of the deportation order. In this connection counsel for the applicant has relied upon observations made in judgments in the Supreme Court in the case of Adebayo v. Commissioner of An Garda Síochána [2006] 2 I.R. 298, to the effect that an application for judicial review of a deportation order when commenced within the fourteen day period ought to operate as a stay upon the implementation of the order until the issue as to the validity of the deportation order has been determined. Reliance is also placed upon Article 13 of the European Convention of Human Rights to the effect that the State is under an obligation to provide an effective remedy when an administrative decision is challenged by reference to an alleged violation of a right or freedom under the Convention. It is submitted that such an effective remedy requires that the commencement of a proceeding to avail of the remedy should have suspensory effect upon the deportation decision.

3 3. While the domestic arrangements of the father are somewhat complex, the immediate background to the present application can be briefly stated. He is a native of Nigeria who arrived in the State in March, 2007 and was unsuccessful in a claim for asylum. He is a polygynist. He is married to one woman residing in Nigeria with whom he has two daughters who live in Nigeria. He is also the father of two sons by another woman to whom he is not married who live with their mother in Nigeria. Under Nigerian law he claims also to be married to the fourth named applicant ("the mother"). Together they have two sons who live in Nigeria and one daughter, the first named applicant ("the Irish daughter"), who was born in Ireland after her mother's arrival here. This daughter is an Irish citizen. The mother arrived here in 2003 while pregnant and the first named applicant was born here on 7 ^th December, 2003. On that basis she has had permission to reside with her Irish citizen daughter under the IBC 05 Scheme since 14 ^th June, 2005 and that permission is currently extended until 2013. The father and mother therefore voluntarily lived separately in Ireland and Nigeria between the dates of their respective arrivals in the State in 2003 and 2007. The second named applicant ("the step daughter",) is the daughter of the mother from a previous marriage who arrived in the State with her mother and has leave to remain on a similar basis. She is now approaching her 18 ^th birthday and has recently sat her Leaving Certificate.

4 4. Although it is not directly relevant to the issue as to the nature or extent of the constitutional rights of the Irish daughter as an Irish citizen vis-à-vis her father or the right to respect for family life under Article 8 of the ECHR, it is to be noted that Irish law does not recognise a polygamous marriage as a valid marriage. (See Conlon v Mohammed [1989] ILRM 523.)

5 5. Having failed in his asylum application the father duly received the usual "proposal letter" from the Minister under s. 3 of the Immigration Act 1999 to the effect that the Minister was considering the making of a deportation order against him. On foot of the invitation contained in that letter representations were made on his behalf by his former solicitors on 18 ^th February, 2008, against the making of such an order and putting forward reasons why the applicant should be granted temporary leave to remain upon humanitarian grounds.

6 6. On 16 ^th June, 2010, the father received a letter dated 10 ^th June, 2010 enclosing a deportation order dated 3 ^rd June, 2010 together with the "Examination of File" memorandum dated 5 ^th May, 2010, setting out the analysis and appraisal made on behalf of the Minister as the basis of the reasons for making such an order. The father has, accordingly, been required to report to the office of the Garda National Immigration Bureau for the purpose of making arrangements for his removal from the State on foot of the deportation order. It is in these circumstances that the judicial review proceeding has been commenced and the present application is made for an injunction to restrain the implementation of that deportation order upon the basis that it is unlawful. In the affidavit grounding the present application emphasis is placed upon the fact that "it should have been clear from the representations made on my behalf that my wife would be unwilling to travel to Nigeria with the first two applicants herein in the event of my being deported there".

7 7. It is necessary to deal first with the argument to the effect that, at least until the determination of the application for leave, the father is entitled as of right to an injunction either because an application under s. 5 of the 2000 Act should be construed as operating to stay the order or because Article 13 of the Convention requires that the application to the High Court should have a suspensory effect on the order if it is to be an effective remedy.

8 8. As mentioned, the former proposition received some consideration in two judgments of the Supreme Court in Adebayo v. Commissioner of An Garda Síochána [2006] 2 I.R. 298. The judgments in that case were primarily concerned with issues relating to contempt of court and the jurisdiction of the High Court to make an order under Article 40 of the Constitution when the person concerned was outside the State. It is only in relation to those issues, therefore, that the law expounded in the judgments could be said to provide any authoritative guidance for this Court. Geoghegan J. however, considered - in expressly tentative terms but in some detail - the possibility that s. 5 should be treated as operating to place a stay on a deportation order when the judicial review application is commenced within the fourteen day limit. He said:

"… I find it inconceivable that the Oireachtas ever intended that a person having exercised his statutory entitlement to bring the application within the fourteen days may, nevertheless, be deported in the meantime against his will unless he obtains an interim injunction, a procedure not mentioned or in any way provided for under the Act itself …my view is based on the interpretation of the (Act of 2000) itself. This Act is...