S (F) v Min for Justice and Others
Jurisdiction | Ireland |
Judge | Mr. Justice Cooke |
Judgment Date | 07 December 2010 |
Neutral Citation | [2010] IEHC 433 |
Court | High Court |
Date | 07 December 2010 |
[2010] IEHC 433
THE HIGH COURT
BETWEEN
AND
IMMIGRATION ACT 1999 S3
EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8
IMMIGRATION ACT 1999 S3(11)
OGUEKWE v MIN FOR JUSTICE 2008 3 IR 795
A (G) & A (K) v MIN FOR JUSTICE & REFUGEE APPLICATIONS COMMISSIONER UNREP MCMAHON 22.5.2009 2009/1/154 2009 IEHC 235
CONSTITUTION ART 40
CONSTITUTION ART 41
CONSTITUTION ART 42
A (M) v MIN FOR JUSTICE & ORS UNREP CLARK 26.5.2009 2009/1/211 2009 IEHC 245
O v MIN FOR JUSTICE & ORS [BABY O CASE] 2002 2 IR 169
DADA v MIN FOR JUSTICE UNREP O'NEILL 3.5.2006 2006/14/2921 2006 IEHC 140
IRFAN v MIN FOR JUSTICE UNREP COOKE 23.11.2010 2010 IEHC 422
A (M) v MIN FOR JUSTICE UNREP 17.12.2009
MARCKX v BELGIUM 1980 2 EHRR 330
BOYLE v UK 1994 19 EHRR 179
KROON v NETHERLANDS 1994 19 EHRR 263
X, Y & Z v UNITED KINGDOM 1997 24 EHRR 143 1997 2 FLR 892 1997 3 FCR 341
IMMIGRATION LAW
Deportation
Family rights - Informal fosterage - Minor Irish citizen in foster care on informal basis with deportee - Finding by respondent that family life did not exist between minor Irish citizen and deportee - Role of court in review of refusal to revoke deportation order - Whether respondent unlawfully failed to consider impact of deportation on constitutional rights and rights to family life of minor Irish citizen - Whether matters put before respondent were such as would have made implementation of deportation order illegal, or would have constituted sufficient reason to require the respondent to refrain from implementing order on some other compellable ground - Whether respondent furnished with information as to nature and quality of relationship between minor Irish citizen and deportee - Whether obligations of deportee to minor Irish citizen contractual or based on other legal relationship - Baby O v Minister for Justice, Equality and Law Reform [2002] 2 IR 169; Dada v Minister for Justice, Equality and Law Reform [2006] IEHC 140 (Unrep, O'Neill J, 3/5/2006); Ifran v. Minister for Justice, Equality and Law Reform [2010] IEHC 422 (Unrep, Cooke J, 23/11/2010); Marckx v Belgium 2 EHRR 330; Boyle v United Kingdom 19 EHRR 179; Kroon v Netherlands 19 EHRR 263; X, Y & Z v United Kingdom 24 EHRR 143 considered - Immigration Act 1999 (No 22), s 3 - European Convention on Human Rights, art 8 - Application refused (2010/1266JR - Cooke J - 7/12/2010) [2010] IEHC 433
S(F) v Minister for Justice, Equality and Law Reform
Facts The second named applicant who was a national of Nigeria sought to challenge by way of judicial review the decision on the part of the respondent refusing to revoke an existing, valid deportation order made under s. 3 of the Immigration Act, 1999 in respect of the applicant. The first named applicant was the wife of the second named applicant and all the other applicants, with the exception of the fourth named applicant were the children of the first and second named applicants. The fourth named applicant was the daughter of a friend of the first named applicant and had been in the foster care of the first and second named applicants since March 2008 when her own mother suffered a stroke rendering her unable to take care of the child. The current application seeking judicial review was made following the compromise of earlier judicial review proceedings and the refusal of leave in a second set of proceedings. However, a stay had been placed on the dismissal of those proceedings to enable the applicant to submit a new application pursuant to s. 3(11) of the 1999 Act. A new application was made and was refused and that application was the subject of the present proceedings. Essentially the applicant submitted that the refusal by the respondent to revoke the deportation order was unlawful in that he failed to consider or to consider adequately the case made on behalf of the fourth named applicant to the effect that she enjoyed personal rights under the Constitution as an Irish citizen and a right to the protection of her family life under Article 8 of the Convention as the foster child of the first and second applicants. It was submitted that the finding by the respondent that family life did not exist between the fourth and the second named applicant was based upon a mistaken understanding of the concept of 'family life' in Article 8 of the European Convention on Human Rights.
Held by Cooke J. in refusing the application: That the position of the fourth named applicant was included in the examination by the respondent of the impact of a deportation on the constitutional rights of the Irish born citizen children. It was accepted that the concept of "family life" had been interpreted in the caselaw of the Strassbourg court as capable of including relationships wide than those based upon immediate relationships of blood and marriage, the applicant herein failed to put forward detailed evidence regarding the nature, quality and character of the family life in question. Consequently, the conclusion that "family life" did not exist between the fourth and second named applicants was clearly open to the respondent on the information placed before him and therefore correct so far as those facts go. The respondent did not fail to consider fully and correctly the substance of the relationship which formed the subject of the representations made to him in the request for revocation.
Reporter: L.O'S.
1. This is a further case in which a failed asylum seeker seeks to resist implementation of a deportation order made against him by asserting that this would constitute an unlawful interference with the rights of a minor Irish citizen under the Constitution and the European Convention of Human Rights. It presents, however, the unusual feature in that the Irish citizen child in question (the fourth named applicant "P.") is not the daughter of the deportee in question (the second named applicant). She is the daughter of a friend of the deportee's wife (the first named applicant,) who has been in foster care on an informal basis with the first and second named applicants since her own mother ("Mrs I.", who is not a party to the proceedings,) suffered a stroke in March 2008, and has since been unable to care for her. The third, fifth, sixth and seventh named applicants are the natural children of the first and second named applicants and the essential issue raised in this case turns upon the proposition that P. is a member of the family of those applicants and that in deciding to refuse to revoke a decision to deport the second named applicant, the Minister has unlawfully failed to consider the impact of the deportation on the personal constitutional rights of P., together with her rights to family life under the Convention; and to reach and give a rational and proportionate conclusion in balancing her rights against those which the Minster purports to protect on behalf of the State in deciding the implement the deportation order.
2. This is the third time on which the second named applicant has had recourse to judicial review before the High Court in his endeavours to resist deportation and it is therefore necessary to describe briefly the personal history of the applicants.
3. The first and second named applicants are natives of Nigeria. The first named applicant arrived in the State on the 26 th October, 2004 and gave birth to the third named applicant two days later on the 28t h October, 2004. Exactly two years later on the 26 th October, 2006, the second named applicant arrived in the State illegally and claimed asylum. The application was unsuccessful. Before the second named applicant arrived in the State his then partner the first named applicant, had been granted permission to remain temporarily in the State under the IBCO5 Scheme as the mother of the third named applicant. That permission is currently extended until 2013.
4. On the 26 th March, 2007, the first named respondent (the Minister) gave notice of his proposal to make a deportation order against the second named applicant and invited representations. In response, on the 18 th April, 2007, the second named applicant made an application for subsidiary protection together with an application for leave to remain in the State on humanitarian grounds. In essence, the second named applicant relied on the fact that he was the parent of the third named applicant, an Irish citizen child. By letter of the 4 th September, 2008, the Refugee Legal Service on behalf of the applicants brought to the attention of the Minister the fact that they were "fostering a child of a friend who had suffered a stroke" (the fourth named applicant, P.). Attached to this was a letter from a medical social worker confirming that Mrs I had suffered a stroke and was in hospital unable to look after P.. P. was then five years old and her mother was a widow.
5. On the 4 th February, 2009, a deportation order was made against the second named applicant and when it was notified to him, there was included a detailed memorandum entitled "Examination of File" setting out the analysis that had been made of his representations for leave to remain and the evaluation of the statutory considerations which the Minister is required to take into account in making such decision under s. 3 of the Immigration Act 1999. In that memorandum there is set out a detailed assessment of the private and family life entitlements of the second named applicant...
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