S C [Minor] & Ors -v- Minister for Justice Equality & Law Reform, [[2004] IEHC 399 (2004)

Docket Number:2003 556 JR & 2003 557 JR
Party Name:S C [Minor] & Ors, Minister for Justice Equality & Law Reform
Judge:Quirke J.
 
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[2004] IEHC 399

THE HIGH COURT

JUDICIAL REVIEW[2003 No. 556 J.R.]BETWEENS.C. AND R.C. AND C.C.

(A MINOR) SUING BY HER MOTHER AND NEXT FRIEND S.C. APPLICANTSAND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORMRESPONDENT AND

[2003 No 557 J.R.]BETWEEN

T.C. (NEE MCC) AND A.C. APPLICANTS AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM RESPONDENT

JUDGMENT of Mr. Justice Quirke delivered on the 21st day of December 2004.

These two cases concern broadly similar decisions made by the Minister for Justice Equality and Law Reform on the 1st April, 2003, and they have, for convenience, been heard together.

By orders of the High Court (O'Neill J.) dated 28th July, 2003, the applicants in both cases were given leave to apply by way of judicial review for certain declaratory and other relief including in particular orders of certiorari quashing decisions of the respondent made on the 1st April, 2003, to refuse to revoke deportation orders which have been made and remain in force in respect of the applicants R.C. and A.C.

FACTUAL BACKGROUND - R.C.

  1. R.C. who is an Albanian Kososovar national arrived in this jurisdiction on 22nd September, 1999. He applied for asylum within this State and was refused by the Office of the Refugee Applications Commissioner on 7th September, 2001. By that time he had met and commenced a relationship with S.C. who was and remains an Irish citizen.

  2. In December, 2001, R.C. changed residence and went to live with S.C. in the latter's family home where he was accepted as a member of S.C.'s family and assumed a quasi parental role in respect of S.C.'s son from an earlier relationship.

  3. On 20th February, 2002, the Refugee Appeals Tribunal upheld the refusal of asylum in respect of R.C. A "fifteen day letter" dated 19th March, 2002, was posted to R.C.'s last known place of address which notified him of the outcome of the appeal and of his statutory and other rights and options arising out of that decision.

  4. The address to which the "fifteen day letter" was sent was an address in Walkinstown at which R.C. had lived prior to his establishing a home with S.C. It was a term of R.C.'s permission to reside within this State that he should notify any change of address to the Garda National Immigration Bureau. He failed to do so.

  5. A deportation order was made in respect of R.C. on 20th June, 2002. A letter was sent to R.C. (and his solicitor James Sweeney) on 28th June, 2002, requiring the presence of R.C. at the Garda National Immigration Bureau on 5th July, 2002, in order to make arrangements for his deportation. The letter addressed to R.C. was sent to his former address in Walkinstown. It was returned to the respondent on 30th July, 2002, marked "not called for". R.C. in evidence indicated that he was not informed by his solicitor James Sweeney that a deportation order affecting him had been made and was unaware of its existence until February 2003.

  6. S.C. and R.C. averred in evidence that they became engaged to be married early in 2002 intending to marry shortly thereafter. On the 30th March, 2002, R.C. purchased an engagement ring which he presented to S.C. The applicants claimed in evidence that the wedding was postponed because S.C. became pregnant.

  7. On 1st February, 2003, C.C. (a minor) was born at the Rotunda Hospital in Dublin. It is not disputed that she is the child of both R.C. and S.C.

  8. In early February, 2003, R.C. attended at the Garda National Immigration Bureau for the purpose of having his identity card amended. Whilst he was present in the bureau he was arrested on foot of the deportation order dated 20th June, 2002 and was removed to Cloverhill prison where he was detained in custody.

  9. By letter dated 19th February, 2003, Mr. Eugene Smartt, a solicitor who had been retained (by S.C.), on behalf of R.C. wrote to the respondent advising that R.C. was the father of an Irish born child whose mother was engaged to be married to R.C. and that both mother and child resided within the jurisdiction and were Irish citizens.

  10. The letter indicated to the respondent that R.C. wished to apply for permission to remain in the State as the parent of an Irish child and as a person who had acted in loco parentis in respect of another child within the State, (S.C.'s child from her former relationship).

  11. The respondent was advised that R.C. wished to make submissions in accordance with s. 3 of the Immigration Act, 1999 and was asked to take no further action in respect of the deportation of R.C. pending the lodgement of an application. The markings on the copy indicate that the letter was faxed to the respondent on the 19th February, 2003.

  12. On 20th February, 2003, R.C. was deported to Albania.

  13. S.C. travelled to Albania in March, 2003 and was married to R.C. in accordance with Albanian law on 25th March, 2003. The validity of that marriage in Albania is not in dispute.

  14. By letter dated 14th May, 2003, the applicants' solicitors wrote to the respondent formally applying for revocation of the deportation order which subsisted (and subsists) in respect of R.C. on the basis that R.C.'s circumstances had changed. It was explained that since the issue of the deportation order R.C. had married an Irish citizen and that there was a child of the marriage who had been 12 days old on the date of R.C.'s arrest prior to deportation.

  15. A report and recommendation dated 22nd May, 2003, signed by Ms. Lisa O'Connor of the Immigration and Citizenship Division of the respondent was submitted to Mr. Joseph Mortell of the respondent's Immigration Operations Division.

    On 27th May, 2003, it was decided on behalf of the respondent by Mr. Mortell that the application to revoke the deportation order in respect of R.C. should be refused. The decision is contained in a document of the same date which was adduced in evidence during the course of the proceedings. The document comprising the decision (and the report and recommendation which gave rise to the document) did not become available to the applicants (and to the court) until the proceedings had commenced and were at hearing.

    Accordingly the applicants sought leave and were permitted to amend the grounds upon which they were relying in support of their application.

  16. The report and recommendation dated 22nd May, 2003 and signed by Ms. Lisa O'Connor referred to the birth of C.C. on 1st February, 2003 and to the fact that R.C. was the father of an "IBC" (Irish born child) but made no other reference to C.C. The document dated 27th May, 2003, signed by Mr. Mortell and comprising the decision used to revoke the deportation order in respect of R.C. made no reference to C.C.

  17. During the course of the trial of these proceedings it was fairly and properly acknowledged by Ms. Moorehead on behalf of the respondent that the rights and interests of C.C. were not factors which were taken into account in any respect by either Ms. Lisa O'Connor or by Mr. Joseph Mortell during their respective consideration of R.C.'s application for revocation of the deportation order.

  18. R.C. re-entered the State on 18th July, 2003 and has been living in Ireland with S.C. their daughter and her son between that date and the date of the hearing of these proceedings.

    FACTUAL BACKGROUND - A.C.

  19. A.C. who is a Romanian national arrived in this jurisdiction on the 30th August, 1999. He applied for asylum within this State and was refused by the Office of the Refugee Applications Commissioner on 8th May, 2001. This decision was affirmed on appeal by the Refugee Appeals Tribunal on 22nd April, 2002. In or about Christmas of 1999 A.C. had met T.C. and had commenced a relationship with her.

  20. With effect from March of 2000 A.C. and T.C. lived together with T.C.'s three children spending part of each week in A.C.'s residence in Beechmount Drive Dundalk, Co. Louth and a further part in A.C.'s residence at Monasterboyce Co. Louth. A.C. and T.C. averred in evidence that A.C. assumed a quasi parental role in respect of T.C.'s three children from earlier relationships.

  21. T.C. indicated in evidence that she and A.C. had discussed marriage and that A.C. began to investigate the possibility of obtaining a divorce. A.C. was, at that time, married but separated.

  22. A letter was sent to A.C. (and to his solicitors Messrs. McCourt and Company) on the 12th August, 2002, requiring his presence at Dundalk Garda Station on Friday 16th August, 2002, at 2.30 pm in order to make arrangements for his deportation.

    The letter addressed to A.C. was returned to the respondent marked "not called for."

    A.C. failed to attend at Dundalk Garda Station on 16th August, 2002, as required and was classed as having avoided deportation on 16th August, 2002.

    A.C. was in T.C.'s home in September, 2002 when he was arrested on foot of the deportation order. He was deported on 16th September, 2002.

  23. Later in September, 2002 T.C. visited Romania where she discovered that A.C. was in the process of securing a divorce. In January of 2003 T.C. visited Romania again and on 30th January, 2003, A.C. and T.C. were married in accordance with Romanian law. The validity of that marriage in Romania is not in dispute.

  24. On 24th February, 2003, A.C. applied to the respondent for a visa permitting him to travel to this jurisdiction to join his spouse T.C. and to reside within the State. This application was refused on 26th March, 2003, on the grounds that there was a deportation order in force in respect of A.C.

  25. Joseph Mortell who was a Higher Executive Officer in Immigration Operations...

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