S. (O.O.) v Minister for Justice, Equality & Law Reform
| Jurisdiction | Ireland |
| Judge | Mr. Justice Birmingham |
| Judgment Date | 12 May 2010 |
| Neutral Citation | [2010] IEHC 173 |
| Court | High Court |
| Date | 12 May 2010 |
[2010] IEHC 173
THE HIGH COURT
AND
IMMIGRATION ACT 1999 S3
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8
IMMIGRATION ACT 1999 S3(6)(C)
OLANIRAN v MIN FOR JUSTICE & ORS UNREP CLARK 16.3.2010 2010 IEHC 83
KUGATHAS v SECRETARY OF STATE FOR THE HOME DEPT 2003 INLR 170 2003 EWCA CIV 31
OMOREGIE & ORS v NORWAY 2009 IMM AR 170
O (G) & ORS v MIN FOR JUSTICE UNREP BIRMINGHAM 19.6.2008 2008/47/10172 2008 IEHC 190
SINGH v ENTRY CLEARANCE OFFICER (NEW DELHI) 2005 QB 608 2005 2 WLR 325 2005 1 FLR 308 2004 3 FCR 72
S (BI) & ORS v MIN FOR JUSTICE UNREP DUNNE 30.11.2007 2007/54/11584 2007 IEHC 398
SHUM v IRELAND & AG 1986 ILRM 593 1986/4/1484
FITZPATRICK v MIN FOR JUSTICE UNREP RYAN 26.1.2005 2005 IEHC 9
BOUGHANEMI v FRANCE 1996 22 EHRR 228
OLSSON v SWEDEN 1989 11 EHRR 259
ADVIC v UNITED KINGDOM 1995 20 EHRR CD125
R (MAHMOOD) v SECRETARY OF STATE FOR THE HOME DEPT 2001 1 WLR 840 2001 1 FLR 756 2001 2 FCR 63 2001 HRLR 143
CIRPACI v MIN FOR JUSTICE UNREP SUPREME 20.6.2005 2005 IESC 42
AGBONLAHOR v MIN FOR JUSTICE & ORS 2007 4 IR 309 2007/3/447 2007 IEHC 166
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8.2
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8.1
IMMIGRATION ACT 1999 S3(2)(F)
R (RAZGAR) v SECRETARY OF STATE FOR THE HOME DEPT 2004 2 AC 368 2004 3 WLR 58 2004 3 AER 821
HUANG v SECRETARY OF STATE FOR THE HOME DEPT 2007 2 AC 167 2007 2 WLR 581 2007 4 AER 15
MEADOWS v MIN FOR JUSTICE & ORS UNREP SUPREME 21.1.2010 2010 IESC 3
KOUAYPE v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (EAMES) UNREP CLARKE 9.11.2005 2005/35/7364 2005 IEHC 380
IMMIGRATION
Asylum
Delay - Extension of time - Substantial grounds for leave - Right to respect for private and family life - Claim that respondent did not properly consider applicant's rights under Article 8 of the European Convention of Human Rights - Proportionality of decision by respondent - Lack of information from applicant in original application -Whether substantial grounds for leave - Whether decision of respondent proportional - Whether Article 8 rights considered in decision making -Whether adequate information provided by applicant in original application - Kugathas v Secretary of State for Home Department [2003] EWCA Civ 31, Darren Omorgie v Norway (App No. 265/07) 31/7/2008, O(G) v MJELR [2008] IEHC 190 (Unrep, Birmingham J, 19/6/2008), Singh (Pawendeep) v Entry Clearance Officer New Delhi [2004] EWCA Civ 1075, Cirpaci v MJELR [2005] IESC 42 [2005] 4 IR 109, R(Razgar) v Home Secretary [2004] 1 AC 368, Huang v Home Secretary [2007] 2 AC 167 and R (Mahmood) v Home Secretary [2001] 1 WLR 840 considered - S(BI) v MJELR [2007] IEHC 398 (Unrep, Dunne J, 30/11/2007), Kouaype v MJELR [2005] IEHC 380 (Unrep, Clark J, 9/1/2005) and Agbonlahor v MJELR [2007] IEHC 166 [2007] 4 IR 309 applied - Meadows v MJELR [2010] IESC 3 (Unrep, Supreme Court, 21/1/2010) distinguished - Immigration Act 1999 (No 22) s 3 - Leave refused (2009/882JR - Birmingham J - 12/5/2010) [2010] IEHC 173
S (OO) v Minister for Justice, Equality & Law Reform
Facts the applicant applied for leave to seek judicial review of the decision of the respondent refusing his application for leave to remain in the State and deporting him therefrom on the grounds, inter alia, that the view formed by the respondent that the facts and circumstances of the case had not established family life between the applicant and his purported father who had residence status within the meaning of Article 8 was irrational and erroneous in law.
Held by Mr. Justice Birmingham in refusing to grant leave that there was likely to be a co-relation between the extent of the detailed information furnished to the decision maker and the quality of the decision that emerged, and accordingly, it was incumbent on an applicant seeking leave to remain to submit a detailed and focused application specifically addressed to his own individual circumstances. That obligation was not met by reciting general principles and by submitting lengthy country of origin extracts. No information had been put before the respondent to support the view that the situation between the applicant and his purported father went beyond normal emotional ties and the applicant had not met the onus of establishing that the respondent's decision to deport was disproportionate.
Reporter: P.C.
JUDGMENT of Mr. Justice Birmingham delivered the 12th day of MAY 2010
The applicant is a Nigerian national and a failed asylum seeker. He states that he was born on the 1 st January, 1991, and accordingly is nineteen years old. He claims to have entered the State no later than the 27 th May, 2006, but did not submit an asylum claim until the 20 th December, 2007. The claim for asylum related to the fact that he was alleging that in Nigeria he had to work as a child slave on the farm of a relative or family friend (he has described the farmer at different stages as a relation and as being just a family friend).
The claim for asylum failed at both the Office of the Refugee Applications Commissioner ("ORAC") and Refugee Appeals Tribunal ("RAT"). Subsequently, the applicant submitted a claim for subsidiary protection and for leave to remain in the State pursuant to s. 3 of the Immigration Act, 1999.
The claim for subsidiary protection was refused, as was the application for leave to remain. This latter aspect was the subject of a report dated the 19 th June, 2009, prepared by an executive officer in the repatriation unit which was subsequently endorsed by more senior officials. On the 10 th July, 2009, the Minister signed a deportation order. The applicant now seeks leave to challenge the decision to make the deportation order and to refuse leave to remain. A short extension of time was required if the application was to be permitted. In a situation where it appears that documentation furnished by the Department of Justice, Equality and Law Reform to the applicant and his advisors may have been incomplete, with pages missing, and where the applicant would seem to have formed the intention to challenge the decisions as soon as he became aware of them, I had no doubt that this was an appropriate case to grant an extension of time and I did so. The arguments advanced in support of the challenge relate to the claim that the Minister's decision to proceed to deport was disproportionate and that the decision violated the applicant's rights under Article 8 of the European Convention on Human Rights - the right to respect for private and family life.
The background to this challenge is that the applicant says he lived in Nigeria at two separate locations, Lagos and a rural village, along with his grandmother for approximately seven years in all. During this period it does not seem he was residing with his father. It is also the situation that, on the applicant's account, he has had no contact with his mother since he was a baby. The applicant's father came to Ireland and submitted a claim for asylum in September, 2003 and subsequently the applicant's father and step mother, [the applicant's father entered into a relationship], were granted residency in the State under the Irish Born Child Scheme (IBC/O5) scheme. The couple have had three children who were born in the State, F. who was born on the 4 th August, 2003, E. who was born on the 4 th May, 2005 and M. who was born on the 9 th May, 2007. F. is an Irish citizen but E. and M. are not citizens of Ireland.
Following his arrival in the State, the applicant made contact with his father, and since then, he has resided with him and with his stepmother, half brother and two half sisters. He has attended secondary school and has sat his Junior Certificate examination in 2007 and the Leaving Certificate in 2009.
The issues canvassed so extensively in argument relating to the right to family life, were not, it must be said, addressed in any very developed way in the course of the submissions to the Minister seeking leave to remain.
The question of family circumstances is dealt with at para. 2.9 of the submission made to the Minister and it may usefully be quoted in full.
"2.9 Section 3(6) (c) - Family and Domestic Circumstances: The applicant states that he currently resides with his father O.O.S. (his father has a stamp 4, his step mother (B.B.S.) who also has a stamp 4 and his stepbrothers and sisters F. (5), E. (3), and M. (1) all Irish born children. Furthermore, he has built up an extensive network of friends who act as an informal support network and to deport him back to the chaotic reality of the unstable political situation of Nigeria would be contrary to Ireland's international humanitarian obligation. We contend that our client's family are primarily based in this jurisdiction and that therefore any move to return him to his country of origin would in reality deprive him of his right to a family life as espoused in the jurisprudence of Article 8 of the ECHR now incorporated into Irish domestic law through the 2003 ECHR Act. Also, by virtue of our client's participation in school and football activities in the local community, any effort to remove his from the State would be detrimental to his emotional development at this particular stage in his life".
I should, for completeness, draw attention to two other references to family matters that are contained in the submissions. The first is in the context of the application for subsidiary protection and is in these terms:
"We set out the grounds as to why the applicant has substantial grounds to fear that his life would be in danger if he was returned to Nigeria because of the reality that the...
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