S.L. and Others v Minister for Justice and Equality and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice McDermott |
| Judgment Date | 17 January 2014 |
| Neutral Citation | [2014] IEHC 16 |
| Court | High Court |
| Date | 17 January 2014 |
[2014] IEHC 16
THE HIGH COURT
BETWEEN
AND
IMMIGRATION ACT 1999 S3
IMMIGRATION ACT 1999 S3(11)
IMMIGRATION ACT 1999 S3(6)
REFUGEE ACT 1996 S5
CRIMINAL JUSTICE (UNITED NATIONS CONVENTION AGAINST TORTURE) ACT 2000 S4
EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8(1)
EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8
REFUGEE ACT 1996 S18
REFUGEE ACT 1996 S5
CONSTITUTION ART 41
EUROPEAN CONVENTION ON HUMAN RIGHTS ART 14
CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 7
POK SUN SHUM v MIN FOR JUSTICE 1986 ILRM 593
FITZPATRICK v MIN FOR JUSTICE UNREP RYAN 26.1.2005 2005/25/5246 2005 IEHC 9
S (B I) & ORS v MIN FOR JUSTICE UNREP DUNNE 30.11.2007 2007/54/11584 2007 IEHC 398
OSHEKU v IRELAND 1986 IR 733 1987 ILRM 330
CIRPACI (ORSE MCCORMACK) v MIN FOR JUSTICE 2005 4 IR 109 2005 2 ILRM 547 2005/10/ 2112 2005 IESC 42
O (A) & L (D) v MIN FOR JUSTICE 2003 IR 1 2003/31/7267
SMITH v MIN FOR JUSTICE & ORS UNREP SUPREME 1.2.2013 2013 IESC 4
A (A) v UK 2011 NLJR 1336 2011 ECHR 1345 2011 AER (D) 112 (SEP) (APPLICATION NO 8000/08)
OKUNADE v MIN FOR JUSTICE 2012 3 IR 152 2013 1 ILRM 1 2012/37/10891 2012 IESC 49
BOUCHELIKIA v FRANCE 1998 25 EHRR 686 1997 ECHR 1
BOUJLIFA v FRANCE 2000 30 EHRR 419 1998 HRCD 21 1997 ECHR 25404/94
MASLOV v AUSTRIA 2009 INLR 47 2007 1 FCR 707 2008 47 EHRR 20 2008 ECHR 546
BOUSARRA v FRANCE 2012 ECHR 1999 (APPLICATION NO 25672/07)
A (K) [NIGERIA] v REFUGEE APPEALS TRIBUNAL & ORS UNREP COOKE 12.3.2012 2012 IEHC 109
Asylum & Immigration law - Judicial review - Deportation - Nigeria - Fair procedures - Article 8 ECHR - Article 41 Constitution
Facts: The first named applicant was a Nigerian national whose mother had been killed in Nigeria in 2001. All other members of his family were lawfully resident in the State and would each obtain citizenship. The respondent sought to deport him and it was argued that his deportation would be contrary to Article 8 ECHR. A formal application was made pursuant to s. 3(11) Immigration Act 1999 to revoke the deportation order. The Court considered whether the deportation order was in breach of Article 41 of the Constitution and Article 8 ECHR.
Held by McDermott J. that the applicants had failed to establish that the decision to affirm the deportation order was fundamentally flawed on the grounds advanced. The application would be dismissed. The decision of the first named respondent could not be said to be wrong in law or irrational. All the facts relevant arising with respect to Article 8 ECHR and Article 41 of the Constitution had been considered appropriately.
1. The first named applicant is a Nigerian national born on 15 thNovember, 1985. His natural mother was killed in a motor accident on 4 th May, 2001, in Nigeria. He and his sister, R.L., who was born on 10 th March, 1987, resided and were raised by an uncle. The applicant's natural father, the second named applicant, A.L., does not appear to have had any contact or engagement with him during the course of his childhood. His father married the third named applicant, P.L., with whom he had four children who are the fifth to eighth named applicants. R.L., the first applicant's sister, is the fourth named applicant.
2. The fifth and sixth named applicants were born in Nigeria on 19 th July, 1994 and 29 th October, 1997, respectively and arrived in Ireland in 1998 with their parents. The seventh and eighth named applicants were born in Ireland on 1 st December, 1998, and 1 st December, 2001 respectively. Though the court is informed that some form of application for family reunification was made in February, 2002 to reunite the two children with their father by the second and third named applicants on the basis that they were not being properly cared for, no further details are available in respect of this application or in respect of the contact between the children and their father and extended family.
3. The fourth named applicant, the first named applicant's sister, arrived in the state and was granted refugee status in January, 2007.
4. The first named applicant arrived in Ireland on a two month visitor's visa on 12 th October, 2008. He was entitled to remain lawfully within the state until 10 th December, 2008. He applied for an extension of his visa on 15 th August, 2008, which was refused on 22 nd December, 2008. He was informed that he could apply for a further visa at a later stage. He then chose to remain in the state because he wished to be with his family. At that time he was 23 years old. At that stage all of the other members of the family were lawfully resident in the state and in time each would obtain citizenship.
5. Unsurprisingly, the first named respondent informed the first named applicant that it was proposed to consider his deportation on 26 th January, 2009. Representations were made on his behalf pursuant to s. 3 of the Immigration Act 1999, for leave to remain. On 8 th June, 2010, the applicant was notified that a deportation order had been made in his case on 3 rd June, 2010. The letter contained a copy of the deportation order and the examination of file note prepared for and submitted to the Minister in the course of that process. The deportation order has not been the subject of a challenge by way of judicial review.
6. On 23 rd June, 2010, some fifteen days after notification of the order, the first named applicant sought its revocation. It is instructive to outline the contents of the examination of file before examining the s. 3(11) application. The examination considered each of the matters which are required to be taken into account under s. 3(6) of the Immigration Act 1999. It was noted that though he had entered the state on foot of a travel visa ostensibly to visit his father and extended family members who were lawfully resident in the state, he now sought leave to remain on the basis that he wished to be with his family members who were now domiciled here. He was illegally in the state. No detail of past employment in Nigeria was produced by his solicitors, though he had a national diploma in Business Studies together with a letter from the Lagos State Polytechnic. No explanation was furnished by the applicant as to why he failed to comply with the conditions of his entry visa. It was also noted that on 15 th December, 2008, a request had been made for a stamp for residency which appears to have been refused. A request to be allowed leave to remain temporarily in the state on the basis of "exceptional circumstances" was submitted by his solicitors. At that time the first named applicant's father and step-mother had temporary permission to remain in the state and both had applied for "naturalisation". Clearly no issue arose in respect of s. 5 of the Refugee Act 1996, and s. 4 of the Criminal Justice (UN Convention against Torture) Act 2000.
7. It was accepted that the deportation of the first named applicant would engage his rights with respect for private and family life under Article 8(1) of the European Convention on Human Rights. It was stated that full consideration had been given to the relationship between the first named applicant and the other applicants, and it was not accepted that the decision to deport him constituted an interference with his right to respect for family life under Article 8. In particular, the examination of file relied upon the case law of the European Court of Human Rights to the effect that relationships between adult relatives do not necessarily attract the protection of Article 8 without further elements of dependency involving more than the normal emotional ties. Of course, family life existed between father and son and the first named applicant and the other members of the family. However, it was not accepted that an extensive relationship between the family members had been established by the first named applicant because he had only lived in the state since late 2008. He had lived all his life in Nigeria. It is clear that other relevant factors, including the identification of the first named applicant's relations, the nature and extent of their relationships, the age of the applicant, where and with whom he has resided in the past, and the forms of contact he has maintained with members of the family with whom he claims to have a family life were all considered. It was not accepted that the first named applicant's circumstances suggested anything more than the existence of "normal emotional ties".
8. It is clear that the Minister was furnished with all of the information relating to the family circumstances of the applicant before reaching his decision. There is ample provision under s. 18 of the Refugee Act 1996 (as amended), to enable applications for family reunification to be made within the terms of the Act. It was at all times open to the second named applicant in particular to seek family reunification with his two children in Nigeria at any stage. Though there is some suggestion that an attempt was made in February, 2002, the court has not been furnished with any details as to whether this application was pressed or whether a review of any refusal was sought. Furthermore, it was open to the first named applicant, an adult, to comply with the lawful terms of the visa upon which he entered the state and return to Nigeria...
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