S (B) and Others v Min for Justice

JurisdictionIreland
CourtHigh Court
JudgeMs. Justice M. H. Clark
Judgment Date13 October 2011
Neutral Citation[2011] IEHC 417

[2011] IEHC 417

THE HIGH COURT

[334 J.R./2009]
S (B) & Ors v Min for Justice
JUDICIAL REVIEW

BETWEEN

B S,
O S AND
T S (A MINOR, SUING BY HIS MOTHER AND NEXT FRIEND O S)
APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
RESPONDENT

IMMIGRATION ACT 1999 S3(11)

CONSTITUTION ART 41

CONSTITUTION ART 42

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

UNER v NETHERLANDS 2006 3 FCR 340 2007 45 EHRR 14

AJAYI & ORS v UNITED KINGDOM UNREP ECJ 22.6.1999 (APP NO 27663/95)

R (MAHMOOD) v SECRETARY OF STATE FOR THE HOME DEPT 2001 1 WLR 840 2001 1 FLR 756 2001 2 FCR 63 2001 HRLR 143

R v SECRETARY OF STATE FOR THE HOME DEPT, EX PARTE ISIKO UNREP 20.12.2000 2000 EWCA CIV 346

ALDULAZIZ & ORS v UNITED KINGDOM 1985 7 EHRR 471

O (A) & ORS v MIN FOR JUSTICE 2003 1 IR 1 2003/31/7267

ALLI v MIN FOR JUSTICE 2010 4 IR 45 2009/3/608 2009 IEHC 595

ASIBOR v MIN FOR JUSTICE UNREP CLARK 2.12.2009 2009/4/774 2009 IEHC 594

ZAMBRANO v OFFICE NATIONAL DE L'EMPLOI (ONEM) 2011 AER (EC) 491 2011 2 CMLR 46 2011 2 FCR 491

SHUM v IRELAND & AG 1986 ILRM 593 1986/4/1484

OSHEKU v IRELAND & ORS 1986 IR 733 1987 ILRM 330 1986/7/1474

FAJUJONU & ORS v MIN FOR JUSTICE & ORS 1990 2 IR 151

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

DIMBO v MIN FOR JUSTICE UNREP SUPREME 1.5.2008 2008/12/2530 2008 IESC 26

CIRPACI v MIN FOR JUSTICE 2005 4 IR 109 2005 2 ILRM 547 2005/10/2112 2005 IESC 42

IMMIGRATION LAW

Deportation

Family rights - Irish citizen child -Approach in determining rights - Applicant married and wife pregnant with Irish citizen child - Respondent unaware - Applicant deported - Application to revoke deportation order - Revocation refused - Whether respondent misunderstood or mischaracterised nature of application to revoke order - AO & DL v Minister for Justice [2003] 1 IR 1; Ruiz Zambrano v Office national de l'emploi (Case C-34/09) [2012] QB 265; Dereci v Bundesminister für Inneres (Case C-256/11), (Unrep, Grand Chamber, 15/11/2011) and McCarthy v Secretary of State for the Home Department (Case C-434/09), [2011] All ER (EC) 729; Fajujonu v Minister for Justice [1990] 2 IR 151, Oguekwe v Minister for Justice [2008] IESC 25, [2008] 3 IR 795; Dimbo v Minister for Justice, Equality and Law Reform [2008] IESC 26, (Unrep, Supreme Court, 1/5/2008) and T.C. v Minister for Justice [2005] IESC 42, [2005] 4 IR 109 applied - Ä£ner v the Netherlands (2007) 45 EHHR 14; Ajayi v the United Kingdom [1999] ECHR no. 27663/95, 22 June 1999; R (Mahmood) v Home Secretary, [2001] 1 WLR 840; R v Secretary of State for the Home Department ex parte Isiko [2001] Imm AR 291; Abdulaziz v The United Kingdom (1985) 7 EHRR 471; Alli (a minor) v Minister for Justice [2009] IEHC 595, [2010] 4 IR 45; Asibor v Minister for Justice, Equality and Law Reform [2009] IEHC 594, (Unrep, Clark J, 2/12/2009); Pok Sun Shun v Ireland [1986] ILRM 593 and Osheku v Ireland [1986] IR 733 approved - Immigration Act 1999 (No 22), s 3 - European Convention on Human Rights Act 2003 (No 20) - European Convention on Human Rights 1950, art 8 - Constitution of Ireland 1937, arts 41 and 42 - Certiorari granted (2009/334JR - Clark J - 13/10/2011) [2011] IEHC 417

S(B) v Minister for Justice, Equality and Law Reform

Facts The first-named applicant was a Nigerian citizen who had been refused asylum and deported. The second applicant (OS) was married to the first-named applicant and had become a naturalised citizen in the State. OS had a relationship with a third party (Mr. S) and had a son together. Both the mother OS and her son resided in Ireland while the father (Mr. S) lived in Nigeria (having been previously deported from Ireland). The second-named applicant sought to have the deportation order against Mr. S quashed so that he could apply to return and live in Ireland. The Minister had received submissions regarding the revocation of the relevant deportation order but had refused to do so. It was submitted that the Minister had failed to consider the rights of children to the company of their father and the upholding of the deportation order was disproportionate and excluded of Mr. S permanently from Ireland.

Held by Clark J in granting the relief sought. The identification of the constitutional rights involved and the significantly changed circumstances was not followed by a true examination of the case. A fair and just consideration would have included an assessment of the length of time the family had spent in the State and whether the children were at school in the State. The effect of the decision not to revoke the deportation order meant that if the family were to live together in a unit, they must abandon their right to live in Ireland and go to Nigeria. The balance in this case must fall in favour of the family's constitutional rights to live in the country of their citizenship. The Minister failed to appreciate that this was an application to revoke a deportation order in order that a life time ban from entering the State might be lifted thus permitting Mr. S to apply for a visa to join his long time legally resident family here.

Reporter: R.F.

1

1. The first two applicants are a married couple and the third applicant is their Irish citizen son. This is their application to quash by order of certiorari the decision of the Minister for Justice, Equality and Law Reform (the Minister) of the 12 th March, 2010 refusing to revoke the deportation order of the 4 th December, 2002 which was carried into effect on the 13 th February, 2003.

2

2. Leave to seek judicial review was granted on an ex parte basis the 30 th March 2010. The grounds on which such leave was granted were essentially that the legal and/or constitutional rights of the applicants and/or their family rights under the European Convention on Human Rights have been infringed. The actual grounds appear at the end of this judgment.

3

3. The substantive hearing took place on the 1 st and 2 nd July, 2010 and was adjourned to and finally heard on the 13 th and 14 th July 2011. Ms Sunniva McDonagh, S.C. with Mr Colm O'Dwyer, B.L. appeared for the applicants and Ms Sara Moorhead, S.C. and Ms. Siobhan Stack B.L. appeared for the respondent.

Background
4

4. The background to this somewhat unusual case is that the first applicant was deported as a failed asylum seeker as far back as early 2003. He is a Nigerian citizen born in 1983 and he currently resides in the greater Lagos area of Nigeria. The second applicant who is also Nigerian was born there in July 1982. She came to Ireland in 1999/2000 and in April 2000 she gave birth to her first son M who is an Irish citizen by birth. She was granted leave to remain on the basis of M's birth. Mr. S's arrival in Ireland seems unconnected with that of the second applicant. He entered the country illegally and claimed asylum and then lived in Ireland during the period 2001 to 2003. The first and second applicants seem to have formed a relationship during 2002 and were married on the 8 th January, 2003. The third named applicant T is their Irish born son. The wife avers that the first applicant is not M's father with whom she has no contact and that he remains in Nigeria. At the time of writing this judgment the second applicant has become an Irish citizen by naturalisation.

5

5. Mr. S's asylum history is less than satisfactory. After his arrival he went "under the radar"; he did not respond to any correspondence and did not attend his interviews before the ORAC nor did he in any way seek to advance his asylum claim. Inevitably, that claim was deemed withdrawn and the Minister declared his application refused. Mr. S contacted the Refugee Legal Services in July 2002 to seek advice on the renewal of his residence permit and was then informed that the Minister had already determined to refuse his application for refugee status and that he intended making a deportation order. The RLS therefore applied on his behalf on the 13 th August, 2002 for leave to remain in Ireland on humanitarian grounds. However, they had little information on which to make such representations and were forced to rely on the thin biographical details provided in Mr. S's original claim. If Mr. S had formed a relationship with the second applicant by then, he certainly made no mention of any such relationship to the RLS.

6

6. Not surprisingly, the leave to remain application was refused and on the 4 th December, 2002 the Minister made a deportation order against him. The above recited facts were then complicated by the fact that the two applicants called into the RLS offices after the submissions had been forwarded to the Minister, when they enquired whether the fact that they were in a relationship would make any difference to Mr. S's application for leave to remain. Clearly, the fact of a mere relationship would carry little weight for leave to remain and it is therefore understandable that no further submissions were made to the Minister on his behalf. The applicants again attended the RLS offices after they were made aware that the Minister had made an order to deport Mr. S and this time informed the RLS that they intended to marry in January 2003 and that the second applicant was pregnant. This information was not relayed to the Minister and no application to revoke was made.

7

7. On the 8 th January, 2003 Mr S and the second applicant were married and on 13 th February, 2003 Mr S was arrested without warning and deported the following day. On the 16 th July, 2003 Mrs S gave birth to their Irish citizen son, the third named applicant T. Mr S is named as his father on the child's birth certificate.

8

8. As the deportation order was never challenged, the applicants do not make the case that the Minister was at fault in determining to deport the first applicant on the...

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