S.M.A. (Nigeria) v The Minister for Justice and Equality
| Jurisdiction | Ireland |
| Judge | Mr. Justice Richard Humphreys |
| Judgment Date | 11 February 2020 |
| Neutral Citation | [2020] IEHC 86 |
| Date | 11 February 2020 |
| Docket Number | [2020 No. 39 J.R.] |
| Court | High Court |
[2020] IEHC 86
Richard Humphreys J.
[2020 No. 39 J.R.]
THE HIGH COURT
JUDICIAL REVIEW
Deportation – Residency – Injunctive relief – Applicant seeking injunctive relief – Whether applicant had shown a likelihood of success in the applications such as to warrant the grant of an injunction
Facts: The applicant applied to the High Court seeking: (i) an injunction restraining the deportation of the applicant from the State until the determination of the applicant’s application for the revocation of the deportation order dated the 10th January, 2020 and pursuant to s. 3(11) of the Immigration Act 1999 as amended; and (ii) an injunction restraining the deportation of the applicant from the State until the determination of the applicant’s application for residency on the basis of his parentage of Irish citizen children. The applicant’s submission in relation to an injunction was to say that there was a fair question to be tried, the balance of convenience favoured the applicant and damages were not an adequate remedy. Reliance was placed on the decision in Okunade v Minister for Justice, Equality and Law Reform [2012] IESC 49. The grounds raised in the amended statement of grounds raised a series of issues. The first point made was “the applicant has not had the opportunity of informing the respondent and substantiating that he is the parent of two Irish citizen children until the determination of the District Court in January 2020”. The next proposition was “the applicant has now made an application for permission to remain in the State on the basis of his parentage of Irish citizen children”. The next point was “the applicant sought the revocation of a deportation order made in respect of him and has since received no acknowledgement or reply to his application”. The next proposition advanced was “due to the urgency of his case and the consequences of the applicant’s deportation on Irish citizen children the applicant is entitled to a decision in early course”. The next claim made was “he should not be deported prior to a decision being made on his revocation application in the circumstances of the case”. The next proposition advanced was that “the respondent has not considered or determined the revocation application and thus refused to accept three ‘Zambrano’ applications on the basis that the applicant has inter alia been unable to secure documents including passports of the children from their mother” (Zambrano v Office national de l’emploi, Case C-34/09 (Court of Justice of the European Union, 8 March, 2011)). The final point made in the grounds was “in the premises the respondent has adopted an overly formal approach to this application and now intends to deport the applicant without consideration of the best interests of the children and/or the rights of the children as EU citizens under Article 20 TFEU and/or their constitutional rights as Irish citizen children”.
Held by Humphreys J that the Okunade principles only apply to interlocutory injunctions, not to an injunction as a final order of the court; to get an injunction as a final order, one has to actually demonstrate an entitlement to such an injunction, as opposed to merely showing that the balance of convenience or justice favours such an order. He held that the first point was manifestly not correct; such information as the applicant had could have been put forward earlier. He held that the next proposition was in itself simply a statement of fact, not a ground for an injunction as such. He held that the next point again was a statement of fact rather than a ground for relief. He held that the next proposition was not a legally sound proposition as an enforceable legal entitlement to a decision could not conceivably arise after such a very short lapse of time. Regarding the next claim, he held that an injunction under that particular heading could only arise if it could be said that the applicant had a likelihood of success in the s. 3(11) application and one could not in fact say that there was such a likelihood of success because the Minister is entitled to require applicants to make any Zambrano applications through the administrative scheme that the Department has established rather than through s. 3(11) on a stand-alone basis. He held that the next proposition, as phrased, was simply a statement of fact rather than a legal ground for relief. Regarding the final point, he held that the applicant had not made a valid application by providing all necessary documentation and even if there had been a valid pending Zambrano application, there was no suggestion that the children, or either of them, would be compelled to leave the territory of the EU.
Humphreys J held that the proceedings would be dismissed.
Proceedings dismissed.
The applicant is named in the proceedings as Mr. S.M.A., and claims to be from Nigeria, although he seems to have a couple of other aliases and at least one other asserted nationality. He produced a Sierra Leonean identity card to the authorities, but falsely denied this in these proceedings on affidavit, forcing the respondent to exhibit that document. Information from a Home Office fingerprint match indicates that the applicant applied in Abuja for a U.K. visa on 12th May, 2008 using a different name, and that that application was refused.
The applicant claims that he arrived in the State in June 2008, but the respondent has put forward evidence that a person who appears to be the applicant, using the name of S.M. with a date of birth in 1991, entered the State on 1st November, 2008 and claimed asylum on 12th December, 2008 posing as Sierra Leonean. The latest affidavit submitted by the applicant, accepts that he made such a fraudulent claim (see para. 22).
The asylum claim was rejected on 26th May, 2009. The applicant appealed to the Refugee Appeals Tribunal, which rejected the appeal on 27th August, 2009. At that point he was represented by Daly Lynch Crowe and Morris Solicitors.
On 19th October, 2019 the applicant instructed new solicitors, Trayers &. Co., who applied on his behalf for leave to remain and subsidiary protection on 23rd November, 2009.
On 15th October, 2015 the Refugee Applications Commissioner wrote to the applicant saying that his fingerprints matched with an application for a visa by a Nigerian national going by the name of Mr. S.A.O. with an alleged date of birth in 1987. The applicant failed to account for this at the time, although he now appears to accept that he did make such a false visa application (see para. 23 of his affidavit).
The applicant failed to attend the subsidiary protection interview, and on 30th March, 2015 the commissioner wrote stating that his application was being refused. That was the end of the applicant's protection history. A letter notifying the applicant of this outcome was returned marked not called for.
On 14th April, 2015 a further leave to remain submission was made by Trayers & Co. On 17th July, 2015 a fresh proposal to deport was issued, seemingly because no particular further action had been taken on foot of the proposal to deport that accompanied the notification of refusal of protection. That proposal was returned to sender. It was however copied at Trayers & Co. who replied on 23rd June, 2015 stating that they had instructions to apply for leave to remain, but no further representations were in fact made.
On 6th July, 2015 the proposal was again reissued and again returned to sender. Trayers & Co. were asked to account for the fingerprint match but do not seem to have been in a position to do so at that point.
On 8th February, 2017 a child appears to have been born to the applicant and a Ms. S.E.P., an Irish woman, who the applicant knows or knew as S.M.B. (even she seems to have aliases). The applicant's counsel says that she gave the applicant the wrong name and the impression I had was that this was to keep him at something of a distance. The birth certificate does not specify a father for this child.
On 2nd March, 2017 Trayers & Co., who had, up to this point, been referring to the applicant as Mr. M., sent further correspondence which for the first time referred to the applicant as Mr. S.A. and gave an updated address. On 27th March, 2017 the Department wrote to the applicant asking him to deal with issues of serious concern. That correspondence was returned as not called for.
On 17th August, 2017 the applicant notified the International Protection Office of a further change of address, to Drumcondra Road Lower (see para. 16 of the affidavit of Alan King and para. 17 of the affidavit of the applicant). On 6th September, 2017 the applicant changed solicitors to Burns Kelly Corrigan. That firm does not appear to have submitted any representations on his behalf. On 7th September, 2017 the applicant was granted joint guardianship of the child.
On 28th May, 2018 a second child named K.Z.K. was born. This child has a different surname because the mother is in another relationship and used a surname similar to the father's surname although strangely not the exact surname. The father is a Mr. Z.K.A. so seemingly there is yet another layer of aliases coming through in the next generation as well. Again, the applicant's case is that the mother used the new boyfriend's surname in order to give the applicant the brush-off. The birth certificate...
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