Smith and Others v Minister for Justice

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Cooke
• Judgment Date: 05 March 2012
• Neutral Citation: [2012] IEHC 113
• Date: 05 March 2012

[2012] IEHC 113

THE HIGH COURT

[No. 12 J.R./2012]

Smith & Ors v Minister For Justice

MR JUSTICE COOKE

APPROVED TEXT

JUDICIAL REVIEW

BETWEEN

CHARLES SMITH AND ALIMAT SMITH (MINORS SUING BY THEIR FATHER AND NEXT FRIEND OMOLOLU SMITH), SIKIRAT SMITH, RUFAI SMITH, AJOKE MORIAMO SMITH AND OMOLULU SMITH

APPLICANTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY, ATTORNEY GENERAL AND IRELAND

RESPONDENTS

IMMIGRATION ACT 1999 S3(11)

ZAMBRANO v OFFICE NATIONAL DE L'EMPLOI (ONEM) 2011 AER (EC) 491 2011 2 CMLR 46 2011 2 FCR 491

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 7

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 21

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 33

DERECI v AUSTRIA 2011 ECR I-000 C-256/11

A (C R) v MIN FOR JUSTICE 2007 3 IR 603

IRFAN v MIN FOR JUSTICE UNREP COOKE 23.11.2010 2010/23/5721 2010 IEHC 422

SANADE & ORS v SECRETARY OF STATE FOR THE HOME DEPARTMENT 2012 UKUT 00048

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

IMMIGRATION LAW

Asylum

Revocation - Second application to revoke refused - Family rights - Whether second application based upon new fact or change in circumstances - Whether analysis of applicants' right to family life carried out - Whether stateable case for grant of leave - Conduct of applicant - Discretion - Zambrano v Office national de l'emploi (Case C-34/09) [2012] QB 265; Sanade v Home Secretary [2012] UKUT 00048 (IAC) considered - Immigration Act (No 22), s 3 - Leave refused (2012/12JR - Cooke J - 5/3/2012) [2012] IEHC 113

Smith v Minister for Justice and Equality

1 1. This is the judgment of the Court upon an application made ex parte on behalf of the applicants for leave to apply for judicial review of a decision made by the first named respondent on the 14 ^th December, 2011, under s. 3(11) of the Immigration Act 1999, refusing an application for revocation of a deportation order made in respect of the sixth named applicant on the 9 ^th March, 2010. The background to the case can be summarized as follows.

2 2. The sixth named applicant ("Mr. Smith") is a Nigerian national. The fifth named applicant is his Nigerian born wife and the remaining applicants are their children. Mr. Smith and his wife arrived in the State in January, 2002 and were unsuccessful in an application for asylum. The first named applicant was born in the State on the 16 ^th January, 2002, and is an Irish citizen. The second, third and fourth named applicants were born respectively on the 22 ^nd June, 2006, 28 ^th March, 1999 and the 8 ^th June, 1993.

3 3. Mr. Smith claims that when he and his wife left Nigeria in 2002, they were unable to bring the third and fourth named applicants with them. He says that in the hope of arranging to have them brought over from Nigeria, he went to the United Kingdom in mid 2002. He was there arrested for carrying illegal drugs and was subsequently charged and sentenced to seven years imprisonment. He served part of the sentence and was deported to Nigeria in July 2005.

4 4. His wife was granted residency in the State in March 2005, under the 1BC 05 scheme. The third named applicant came to the State in March 2005 and was subsequently granted permission to remain.

5 5. In September 2006, Mr. Smith entered the State unlawfully with the fourth named applicant. On the 9 ^th March, 2010, deportation order were made against each of them. Having been served with the deportation order, Mr. Smith fled the State and unlawfully entered the United Kingdom. By letter of the 2 ^nd June, 2011, following, it is said, the delivery of the judgment by the Court of Justice of the European Union in Ruiz Zambrano [2011] EUECJ C-34/09 (08 March 2011), an application was made by solicitors on behalf of Mr. Smith and the fourth named applicant for permission to reside in the State on foot of that judgment, although nothing was said in the letter as to the whereabouts of Mr. Smith or the fact that he had been in the United Kingdom since September 2010.

6 6. By letter dated the 21 ^st October, 2011, the fourth named applicant was informed of the decision of the first named respondent to grant him temporary permission to remain in the State for three years until the 21 ^st October 2014.

7 7. By letter of the same date, Mr. Smith was informed by the first named respondent that the decision (the "first refusal") to make the deportation order in respect of him remained unchanged. He was instructed to present himself at the Garda National Immigration Bureau on the 17 ^th November, 2011, to make arrangements for his removal from the State. The reasons for the refusal to revoke the deportation order were set out in a memorandum entitled "Examination of file under s. 3(11) of the Immigration Act 1999" which was enclosed with the letter.

8 8. In that memorandum, consideration was given to the representation made in the application to the effect that Mr. Smith wished to have his case reconsidered in the light of the Zambrano judgment. The essential ruling in that judgment was quoted and the issue before the decision maker was then identified as "whether a decision to affirm the deportation order in respect of Mr. Smith would force his son to leave the European Union with him and thus depriving him of the genuine enjoyment of the substance of his right as a European Union citizen". (This is a reference to the first named applicant, the member of the family who is an Irish citizen and therefore a citizen of the European Union).

9 9. The memorandum sets out the circumstances of the family in the State and the history of Mr. Smith's movements since 2002. The conclusion is then given:-

"Based on the information on file, it is submitted that should the deportation order made in respect of Mr. Smith be affirmed, the most likely outcome is that Ms. Ajoke Smith will remain in the State with her Irish citizen son, thus ensuring that Master Charles Smith will continue to enjoy the substance of his rights attaching to the status of a European Union citizen. Mr. Smith has not demonstrated that his son, Charles, is dependent upon him. Therefore it is submitted that the ruling in the Zambrano case does not apply in this instance."

10 10. By letter of the 24 ^th November, 2011, solicitors on behalf of Mr. Smith made a new application for revocation of the deportation order under s. 3(11) of the Act of 1999. This application made the following admission:-

"As you will note from your file, by letter dated the 22 ^nd September, 2011, your office inquired as to when Mr. Smith had left the country, when he had returned and what documents he had used to travel. By letter dated the 30 ^th September, 2011, our client replied that he had not left the country. Mr. Smith has recently instructed that he was not truthful with the Minister regarding this matter and confirms that he left Ireland for the UK in or around September 2010, and returned in June 2011." (The question as to the documents used was not answered.)

11 11. The remainder of the letter, apart from containing an apology for the previous deception, bases the application upon the fact that the fourth named applicant had now been granted temporary permission to remain in the State and otherwise seeks to assert that the Minister had erred in law in the preceding refusal decision in holding that the first named applicant was not dependent upon Mr. Smith and that for that reason the Zambrano judgment did not apply. It was submitted:-

"Considering the totality of the circumstances of this case, we submit that Charles Smith is clearly a...