PO v Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin,Ms. Justice Laffoy,Mr Justice Charleton
• Judgment Date: 16 July 2015
• Neutral Citation: [2015] IESC 64
• Docket Number: [S.C. No. 166 of 2014],[Appeal No. 166/2014]
• Court: Supreme Court
• Date: 16 July 2015

Between

P.O. and S.O. (An Infant Suing by his Mother and Next Friend, P.O.)

Appellants

and

The Minister for Justice & Equality, Ireland and the Attorney General

Respondents

[2015] IESC 64

MacMenamin J.

Laffoy J.

Charleton J.

[Appeal No. 166/2014]

THE SUPREME COURT

Immigration – Asylum – Deportation Order – Judicial Review – Ministerial duties when making discretionary decisions – Application of Art 8 ECHR (right to private and family life)

The Appellants were mother and son who sought asylum in Ireland from Nigeria. The mother arrived in Ireland in 2006 and gave birth to her son shortly after arriving. The son had therefore been born and brought up for 8 years in Ireland, however, did not have Irish citizenship as he was entitled to Nigerian citizenship. The mother"s husband and family resided in Nigeria and there were no other family members in Ireland. It was not claimed that the mother and her husband were in any way estranged. The mother"s asylum claim centred on a claim that she faced persecution by the family of a friend after converting that friend to Christianity and that she would not be afforded adequate protection by the Nigerian Police. This claim was dismissed on the grounds of credibility. The Appellants, rather than appealing this determination in the Refugee Appeals Tribunal, brought judicial review proceedings which were discontinued 3 years later. Deportation orders against the Appellants were subsequently signed and the Appellants unsuccessfully sought revocation of the orders. The decision not to revoke the orders was challenged in these proceedings and leave to seek an order of certiorari was granted in the High Court. The High Court dismissed the claim at the substantive hearing and the Minister"s decision was affirmed. The Appellants now sought to appeal the High Court"s decision.

Held by Mr Justice MacMenamin, other Justices also giving judgments, that the High Court was correct to dismiss the claim for judicial review. There was no breach of fair procedures by the Minister. The documentation relied upon by the Appellants was extremely generalised and applied to the general situation in Nigeria rather than their specific situation. The High Court Judge was correct in finding that the Minister was not constrained to relying solely upon the information relied upon by the Appellant but rather was entitled to use more recent and up to date information about the situation in Nigeria. The onus is upon the Appellants to demonstrate there had been some fundamental mistake or error in the consideration of that new information by the Minister which they had not done. The more up to date information used by the Minister was publicly available and did not present an entirely different picture of the situation in Nigeria than that presented by the Appellants. The Minister"s duty is to focus clearly on the overall circumstances of each case – an absence of guidelines or policies in reaching such decisions does not vitiate a Ministerial decision as the Minister is obliged to operate within the boundaries of natural and constitutional justice as well as in line with international obligations. Article 8 ECHR had been considered in making the decision to deport the Appellants. Article 8 was engaged in so far as the second Appellant had been born and lived his entire life in Ireland, however, he is entitled to Nigerian citizenship and both his parents are Nigerian. The first Appellant is still in contact with her husband in Nigeria and neither Appellants have any other family in Ireland. This would not be a situation where the making of a deportation order would effectively rupture family life. Additionally, the issue of immigration control arises – the Appellants had no right to remain in Ireland after 2010 and under Article 8(2) considerations of public order weigh in favour of exclusion. There is a clear public interest in the orderly operation of the asylum system. Even if Article 8 rights had been engaged – there had been no breach of those rights.

Judgment of Mr. Justice John MacMenamin dated the 16th day of July, 2015

1 This judgment should be read in conjunction with a ruling delivered by this Court on the 29th day of January, 2015, which sets out much of the procedural background. An account of the background narrative can be found in the judgment of Charleton J. (which I gratefully adopt for this purpose) also delivered today.

2 Essentially, two questions arise in this appeal. The primary question, and first in order of sequence, is as to whether the High Court judge (McDermott J.) was correct in refusing an application for an order, by way of judicial review, quashing the respondent's refusal to revoke a deportation order made by him in respect of the appellants. The second issue follows closely from the first. It is as to whether the appellants are entitled to an injunction restraining their deportation, in circumstances when there is in existence a valid and unchallenged deportation order. Should this Court determine that McDermott J.'s judgment [ 2014 IEHC 141], is correct, then, absent any other new and supervening exceptional circumstance or new and previously unavailable and unprocurable evidence, the application for an injunction cannot succeed. There is no fair issue. The Court decided to hear both matters together.

Background Facts

3 At the outset, I would seek to focus on a number of relevant facts. The first named appellant is the mother of the second named appellant. She arrived in this country on the 11th September, 2006. Her son was born in this country on 20th October, 2006, soon after the mother's arrival. S.O. has lived in this State ever since. He is not a citizen of Ireland. He is entitled to Nigerian citizenship. An unusual feature of this case is that the appellant's husband, and his family, remain living in Nigeria. It is not suggested that the first named appellant and her husband are separated, divorced or estranged. Consequently, the Court here is faced with the situation where, absent any entitlement on the father's part to reside in Ireland, any family reunification will, in fact, only be achieved in Nigeria. There is no suggestion that either the appellant's own family, her husband, or any of his family, are the subject matter of any persecution in Nigeria.

4 The second named and minor appellant, S.O., has known no other residence than Ireland. However, as the legal authorities, both in this State, and the European Court of Human Rights, make clear, a court must, in cases of this type, examine carefully the entitlement of adult parents to remain in the receiving State, prior to addressing what are contingent rights..

5 On the 20th September, 2006 the appellant unsuccessfully applied for asylum. Her claim was based on an allegation of persecution by the family of a friend. The appellant contended her friend disappeared after she had converted her to Christianity. She claimed the Nigerian police were not disposed to act on foot of this persecution. The asylum claim was rejected on credibility grounds. The appellants did not appeal the determination to the Refugee Appeals Tribunal. Instead, they brought judicial review proceedings which were discontinued some three years later. The apparent basis for the appellants' decision to discontinue the judicial review was because the proceeding would inevitably have failed by reason of the fact that the appellants had not exhausted their right of appeal to the Refugee Appeals Tribunal.

6 The appellants were sent a 'three options' letter on the 20th January, 2014. This outlined the approaches the appellants might adopt. It indicated that, in default, deportation would be considered. When considering deportation, the Minister must consider a range of criteria identified in s.3(6) of the 1999 Act regarding the duration and circumstances of the appellant's stay in the State. The appellants did not make any application for subsidiary protection. When deportation orders were signed against the appellants on the 9th May, 2012, they were then notified. On foot of the order, they were obliged to leave the State on the 3rd June, 2012. They subsequently sought revocation of the orders by letter of 21st September, 2012. However, those orders were affirmed by the Minister on 25th February, 2013. That decision was challenged in these proceedings, where leave to seek an order of certiorari was granted in the High Court.

7 However, at the substantive hearing, McDermott J. dismissed the claim. He upheld the Minister's refusal of the revocation application. The various claims in the judicial review are now considered.

Different Country of Origin Information

8 The appellants' case is that the Minister's decision should be quashed, inter alia, because the procedure breached fair procedures, in that the respondent's officials had placed reliance on deficient country of origin information, and because he had not placed sufficient weight on country of origin information submitted on the appellants' behalf. As McDermott J. pointed out, in order to substantiate the claim that the Minister had relied on incorrect country of origin information, the appellants would have to demonstrate that there had been some fundamental error in the use or interpretation of the available information, or that the conclusion reached was manifestly at variance with the content and effect of the documentation.

Material Not Bearing on the Appellants' Situation

9 A significant feature of this case was that the documentation upon which reliance was placed by the appellants was extremely generalised. There was no suggestion that the appellants' documentation contained material which was directly referable to their particular situation. Rather, the documents and reports submitted on behalf of the appellants contained generalised concerns as to the political and social situation in...