S.O.(Nigeria) v The Minister for Justice and Equality

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Richard Humphreys
Judgment Date23 July 2019
Neutral Citation[2019] IEHC 573
Date23 July 2019
Docket Number[2019 No. 61 J.R.]

[2019] IEHC 573

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2019 No. 61 J.R.]

BETWEEN
S.O. (NIGERIA)
APPLICANT
AND
THE MINISTER FOR JUSTICE AND EQUALITY
RESPONDENT

Judicial review – Permission to remain – Right to respect for private life – Applicant seeking judicial review – Whether the respondent erred in law in finding that any decision to refuse the applicant permission to remain does not constitute a breach of the right to respect for private life under Article 8(1) of the ECHR

Facts: The applicant, a Nigerian national, came to Ireland unlawfully in September, 2011. He was present without permission in the State until he applied for asylum on 24th June, 2014. That was refused by the Refugee Applications Commissioner on 3rd March, 2015. He was then deemed to have made an application for protection on 31st December, 2016 on the commencement of the International Protection Act 2015, and on 18th August, 2017 the International Protection Office (IPO) rejected his claim for subsidiary protection. On the same date the IPO refused permission to remain under s. 49(3) of the 2015 Act, together with a detailed consideration of the terms of s. 50 of the Act. On 8th September, 2017 the applicant appealed to the International Protection Appeals Tribunal, which rejected the appeal on 13th July, 2018. The applicant then sought a review of the permission to remain refusal under s. 49(9) of the Act but the review decision upheld the original refusal on 28th September, 2018. The applicant appeared to have been notified of this on or around 28th December, 2018, although an alternative date of 3rd January, 2019 was given for the notification to his solicitors. Proceedings were filed on 29th January, 2019. The relief sought in the proceedings was an order of certiorari against the review decision under s. 49(7) and (9). Leave was granted on 11th February, 2019 and a statement of opposition was filed on 27th May, 2019. On 29th May, 2019, the applicant submitted further material arguing that refoulement for the purposes of s. 50 of the Act would arise. Ground E-1(ii) alleged errors in relation to s. 49(3) and arts. 3 and 8 of the ECHR. Ground E-1(v) alleged that the respondent, the Minister for Justice and Equality, erred in law in finding that any decision to refuse the applicant permission to remain does not constitute a breach of the right to respect for private life under Article 8(1) of the ECHR. Ground 2 alleged that the Minister erred in law and/or fettered his discretion and/or engaged in unfairness in the consideration of the prohibition of refoulement and the manner in which the review was conducted under s. 50 of the Act.

Held by the High Court (Humphreys J) that consideration of art. 3 of the ECHR was a process in favour of the applicant, not against him. Humphreys J held that the s. 49(3) matters were considered and are expressly referred to at section 3 of the decision and the fact that s. 49 was considered is also stated at section 5 of the decision. Humphreys J held that the Minister’s view that the applicant’s medical condition did not engage art. 8 was within the range of decisions lawfully open to him. Humphreys J held that ground E-1(v) did not allege any particular error of law. Humphreys J held that while in principle an applicant can challenge a s. 50 reasoning as part of a leave to remain decision, even in the absence of a deportation order, this applicant could not make this point because he did not make any submissions regarding refoulement.

Humphreys J held that the application would be dismissed.

Application dismissed.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 23rd day of July, 2019
1

The applicant is a Nigerian national who developed glaucoma in or around 2008. He appears to have left his home country with a view to coming to the State for the purposes of availing of superior medical treatment. He arrived in the U.K. on a visa in June, 2011, having given a date of birth in 1972. He then came to Ireland unlawfully in September, 2011, giving a date of birth in 1975. He also claims subsequently to have had a complete memory loss which prevented him from providing details in support of his claim.

2

He was present without permission in the State until he applied for asylum on 24th June, 2014. That was refused by the Refugee Applications Commissioner on 3rd March, 2015. He was then deemed to have made an application for protection on 31st December, 2016 on the commencement of the International Protection Act 2015, and on 18th August, 2017 the International Protection Office rejected his claim for subsidiary protection. On the same date the IPO refused permission to remain under s. 49(3) of the 2015 Act, together with a detailed consideration of the terms of s. 50 of the Act.

3

On 8th September, 2017 the applicant appealed to the International Protection Appeals Tribunal, which rejected the appeal on 13th July, 2018. The applicant then sought a review of the permission to remain refusal under s. 49(9) of the 2015 Act but the review decision upheld the original refusal on 28th September, 2018.

4

The applicant appears to have been notified of this on or around 28th December, 2018, although an alternative date of 3rd January, 2019 is given for the notification to his solicitors.

Procedural history
5

The proceedings were filed on 29th January, 2019, although the statement of grounds is undated. Depending on when precisely the decision was notified, the proceedings could be slightly out of time, but no particular objection has been pressed on behalf of the respondent. The relief sought in the proceedings is firstly, an order of certiorari against the review decision under s. 49(7) and (9) and secondly, an order of certiorari against ‘ the deportation order …when issued’. In fact, a deportation order has not issued so that relief does not arise at this point.

6

Leave was granted on 11th February, 2019 and a statement of opposition was filed on 27th May, 2019. On 29th May, 2019, the applicant submitted further material arguing that refoulement for the purposes of s. 50 of the 2015 Act would arise. The fact that the deportation order has not yet been made raises the question of whether, all other things being equal, the Minister's existing s. 50 reasoning as set out in the review decision could properly be challenged at this...

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3 cases
  • M.H. (Pakistan) v The International Protection Appeals Tribunal
    • Ireland
    • High Court
    • 31 Julio 2020
    ...[2019] IEHC 319, [2019] 5 JIC 1010 (Unreported, High Court, 10th May, 2019), S.O. (Nigeria) v. Minister for Justice and Equality [2019] IEHC 573, [2019] 7 JIC 2313 (Unreported, High Court, 23rd July, 2019) and S.O. (Nigeria) v. Minister for Justice and Equality (No. 2) [2019] IEHC 728, [201......
  • K v Minister for Justice and Equality
    • Ireland
    • Court of Appeal (Ireland)
    • 24 Junio 2022
    ...required by s.49(3).” The Minister also relied upon the dicta of Humphreys J. in SO (Nigeria) v. Minister for Justice and Equality [2019] IEHC 573 where he approved the submissions of the respondent Minister that “ the legal form of this review will not be the same as the original decision,......
  • S.O. (Nigeria) v Minister for Justice and Equality
    • Ireland
    • High Court
    • 21 Octubre 2019
    ...Justice Richard Humphreys delivered on the 21st day of October, 2019 1 In S.O. (Nigeria) v. Minister for Justice and Equality (No. 1) [2019] IEHC 573 (Unreported, High Court, 23rd July, 2019) I dismissed a challenge to a review decision refusing leave to remain under s. 49(7) of the Interna......

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