Smith v MJE

 
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[2013] IESC 4

THE SUPREME COURT

Denham C.J.

McKechnie J.

Clarke J.

[Appeal No: 94/2012]
Smith v Min for Justice & Ors
In the Matter of the Refugee Act, 1996 (as amended), In the Matter of the Immigration Act, 1999 (as amended), In the Matter of the Illegal Immigrants (Trafficking) Act, 2000, In the Matter of the European Convention on Human Rights Act, 2003 Section 3(1) and In the Matter of the Charter of Fundamental Rights of the European Union
Between/
Charles Smith and Alimat Smith (Minors Suing By Their Father and Next Friend Omololu Smith), Sikirat Smith, Rufai Smith, Ajoke Moriamo Smith and Omololu Smith
Applicants/Appellants

and

The Minister for Justice and Equality, The Attorney General and Ireland
Respondents

94/2012 - Denham McKechnie Clarke - Supreme - 1/2/2013 - 2013 47 13538 2013 IESC 4

SMITH (MINORS) v MIN FOR JUSTICE & ORS UNREP COOKE 5.3.2012 2012/42/12684 2012 IEHC 113

ALLI (A MINOR) v MIN FOR JUSTICE 2010 4 IR 45

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

IMMIGRATION ACT 1999 S3(11)

EUROPEAN CONVENTION OF HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EUROPEAN CHARTER OF FUNDAMENTAL RIGHTS ART 7

A (CR) v MIN FOR JUSTICE 2007 3 IR 603

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

DERECI & ORS v BUNDESMINISTERIUM FUR INNERES 2012 AER (EC) 373 2012 1 CMLR 45

S (B) & ORS v MIN FOR JUSTICE UNREP CLARK 13.10.2011 2011 IEHC 417

G v DPP 1994 1 IR 374

GORDON v DPP 2002 2 IR 369

OKUNADE v MIN FOR JUSTICE UNREP 2013 1 ILRM 1 2012/37/10891 2012 IESC 49

Asylum and Immigration law - Judicial review - Deportation - Reconsider decision - Misconduct - Discretion - Compelling reasons - Family - Application of Case C-34/09 Zambrano [2011] ECR I-000 - Whether appeal would be dismissed

1

Judgment of Mr. Justice Clarke delivered the 1st February, 2013.

2

Judgment delivered by Clarke J [Nem diss]

1. Introduction
3

2 1.1 The extent to which it is necessary, in immigration law, to look at the rights òf each member of a family from the perspective of the family as a whole (in a way which may give a different perspective to that which would apply in respect of each individual member) is a recurring problem. This case arises, in part, out of the differing status of a number of family members so far as Irish immigration law is concerned. The sixth named applicant/appellant ("Mr. Smith") and his wife, the fifth named applicant/appellant ("Mrs. Smith") are Nigerian nationals, who appear to have arrived in the State in January, 2002. The first to fourth named applicants/appellants are children of Mr. and Mrs. Smith. The respondent ("the Minister") has made a deportation order against Mr. Smith. It is that deportation order (or more accurately the Minister's refusal to revoke it) which each of the applicants/appellants (collectively "the Smiths") seek to challenge. For reasons to which I will shortly turn, each of the Smiths, with the exception of Mr. Smith, is lawfully entitled to remain in the State, although the status of those other members of the family, in Irish law, differs somewhat. In simple terms, the Smiths allege that the deportation of Mr. Smith would amount to a disproportionate interference with their personal and family rights under the Constitution, the European Convention on Human Rights and relevant European Union law.

4

3 1.2 It also needs at this stage to be noted that Mr. Smith was found guilty of serious criminal offences in the United Kingdom for which he received a significant sentence followed by deportation. Mr. Smith has also been guilty of significant breaches of the immigration system.

5

4 1.3 On the 27 th February, 2012, the Smiths sought leave to apply for judicial review to challenge the validity of a refusal by the Minister to revoke the deportation order made against Mr. Smith. The relevant refusal, which was the second such decision, was made on the 14 th December, 2011. The application for leave to seek judicial review was refused for reasons set out in a judgment of Cooke J. on the 5 th March, 2012, [2012] IEHC 113. That application was, of course, made ex parte. Against that refusal the Smiths have appealed to this court. In order to more fully understand the issues relied on by the Smiths, it is necessary to turn first to an outline of the factual history.

2. The Facts
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2 2.1 What immediately follows appears from the affidavit evidence filed on behalf of the Smiths (it being recalled that the Minister was not a party to the application for leave so that the facts should not be necessarily taken as being accepted by the Minister or established.) These facts were specifically set out in the written submissions filed by the Smiths in this Court.

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3 2.2 On the evidence currently available, it appears that:-

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(a) Mr. and Mrs. Smith are Nigerian nationals who arrived in the State in January 2002;

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(b) Their son ("Charles"), the first applicant/appellant, was born in the State on the 16 th January, 2002 and is an Irish national;

10

(c) Mr. Smith left the State in 2002, travelled to the United Kingdom where he was tried and convicted of carrying illegal drugs and sentenced to 7 years imprisonment. He was deported to Nigeria in July 2005 having served part of that sentence;

11

(d) On the 15 th March, 2005, Mrs. Smith was granted permission to reside in the State under the IBC/05 Scheme;

12

(e) On the 22 nd June, 2006, Alimat Smith, the second named applicant/appellant, a Nigerian national and a daughter of Mr. and Mrs. Smith, was born and resides in the State pursuant to the permission granted to Mrs. Smith;

13

(f) On the 27 th July, 2006, Sikirat Smith, the third named applicant/appellant, a Nigerian national, and a daughter of Mr. and Mrs. Smith, was granted permission to reside in the State;

14

(g) In September, 2006, Mr. Smith re-entered the State with his son, the fourth named applicant/appellant ("Rufai Smith"), a Nigerian national;

15

(h) In March 2010, the Minister made Deportation Orders against Mr. Smith and Rufai Smith. No proceedings were instituted seeking to challenge the validity of those Orders. In this regard, on the basis of Irish law as it then stood, it is said that such an application stood little chance of success having regard to cases such as Alli (a minor) v. The Minister for Justice [2010] 4 IR 45 and related cases;

16

(i) In March 2011, the Court of Justice of the European Union ("the ECJ")delivered its Judgment in Case C-34/09 Zambrano [2011] ECR1-0000("Zambrano");

17

(j) Consequent on this judgment the Minister announced that his Department would examine all cases where a link to Zambrano has been identified. The Minister indicated that:

18

· where the Zambrano criteria were met, all other things being equal, permission to remain in the State would be granted;

19

· that Zambrano might be of particular relevance to, inter alia, parents of an Irish born citizen child who had been deported; and

20

· as a matter of policy Zambrano would not be applied to persons who had been convicted of serious and/or persistent criminal offences.

21

(k) On the 2 nd June, 2011, Mr. Smith and Rufai Smith submitted an application pursuant to Section 3(11) of the Immigration Act 1999, as amended ("the 1999 Act") for revocation of the Deportation Orders made against them;

22

a (I) On the 21 st October, 2011, the Minister granted Rufai Smith permission to reside in the State;

23

(m) Also on the 21 st October, 2011, the Minister affirmed the Deportation rder made against Mr. Smith;

24

(n) On the 24 th November, 2011, Mr. Smith made a second application for revocation of the Deportation Order against him;

25

(o) On the 9 th December, 2011, Mr. Smith made further representations in support of that later revocation application;

26

(p) On the 14 th December, 2011, the Minister again affirmed the Deportation Order made against Mr. Smith; (it is in respect of this decision that leave to seek judicial review is sought),

27

(q) Mr. Smith was deported from the State on the 7 th March, 2012.

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4 2.2 Certain other facts appear from the evidence and materials placed before the Court. Mr. Smith has admitted that in July, 2010, he left the family home. Then, in September, 2010, Mr. Smith travelled to London via Belfast. It appears Mr. Smith remained in the United Kingdom until June 2011, at which point he returned to Ireland following contact with the Garda National Immigration Bureau. Initially, in correspondence through his solicitors, Mr. Smith denied leaving the jurisdiction during this period, a misstatement which was later corrected.

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5 .2.3 Against the background of that factual account, it is next necessary to turn to the basis on which the trial judge declined to grant leave, from which the grounds relied on for seeking leave to challenge the refusal to revoke the relevant deportation order will become apparent. I, therefore, turn to the High Court judgment.

3. The High Court Judgment
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2 3.1 The reasoning of the High Court is to found in paras. 14 - 25 of the judgment. Cooke J. commenced by noting what he described as the...

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