T.A. (Nigeria) v The Minister for Justice and Equality

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Richard Humphreys
Judgment Date16 Jan 2018
Neutral Citation[2018] IEHC 98
Docket Number[2017 No. 660 J.R.]

[2018] IEHC 98

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2017 No. 660 J.R.]

BETWEEN
T.A. (NIGERIA)

AND

L.A.P. (AN INFANT SUING BY HER FATHER AND NEXT FRIEND T.A.)
APPLICANTS
AND
THE MINISTER FOR JUSTICE AND EQUALITY
RESPONDENT

Asylum, Immigration & Nationality – Deportation order – S. 3 of the Immigration Act 1999 – S. 5(2) of the Immigration Act 2004 – Judicial review – Injunction

Facts: The first applicant filed a judicial review application in relation to the deportation order made by the respondent. The first applicant contended that there was breach of principle of audi alteram partem. The first applicant argued that there was a failure to identify and evaluate the constitutional rights of the first applicant. The first applicant claimed that his deportation was disproportionate and against the best interests of his child. The respondent contended that the first applicant had multiple opportunities to make submission, which he did not avail. The respondent also contended that the interests of the child had been analysed on the basis of minimal information provided in submission, which pointed out that the first applicant had played no role in the care of the child.

Mr. Justice Richard Humphreys dismissed the proceedings. The Court also discharged the injunction for restraining the deportation of the first applicant. The Court noted that the respondent weighed the family rights of the first applicant with that of public interest and that the respondent was justified in making a deportation order against the first applicant keeping in lieu the nature and gravity of the offence committed by him.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 16th day of January, 2018
1

On the 24th February, 2010, the first named applicant, who was a 34 year old taxi driver, picked up a nineteen year old student in the early hours of the morning in his taxi. She was alone in the taxi when he sexually assaulted her at traffic lights. He then drove past her house, pulled in and sexually assaulted her a second time in the front seat before she managed to escape and run to her accommodation (see Court Report, Connacht Tribune, 25th May, 2011). He was tried for and convicted of sexual assault by a jury in March, 2011.

2

On the 25th May, 2011 at the sentencing hearing, the probation report stated that ' he remains unrepentant and blames the victim for the fact he is now in custody'. The injured party stated ' he took my freedom away from me, the child within'. In sentencing the first named applicant to four years imprisonment, Groarke J. said that 'while this was not the worst case of sexual assault to come before the court, it was a serious offence in that [Mr. A.] had abused his position of trust as a taxi driver to commit the offence. He used his occupation in order to feed his appetite for violence and degrading acts on young females. He used it to prey on his victims. He was made welcome in this country for eight years and he repays that welcome by committing this crime''. Groarke J. noted from the probation report that the first named applicant ' felt no remorse for his victim and had no insight into the harm his actions has caused. "He blames the victim and it's all about himself"' (see Irish Times, Court Report, 26th May, 2011). He placed the first named applicant on the sex offenders register for life and recommended that he be deported immediately on his release. Coming up to seven years on from that recommendation, the first named applicant is at large in the State. The question perhaps arises as to whether there is something wrong with a legal system that so far seems unable to put that recommendation in place.

Facts
3

The first named applicant is a Nigerian national who arrived in the State on 23rd September, 2000. On 26th October, 2000, he applied for a declaration of refugee status. That was refused by the Refugee Applications Commissioner on 20th November, 2001, on the grounds of his lack of credibility and contradictions in the accounts provided. He had the opportunity to appeal that decision but did not do so.

4

On 21st September, 2001, he married a Danish national and was given permission to reside in the State on that basis. On the 30th May, 2003, the Minister formally notified the first named applicant of the refusal of the declaration of refugee status. When subsequently making a decision withdrawing the applicant's permission to be in the State, the Minister made the finding that in February, 2004, the applicant's wife returned to Denmark. Neither the withdrawal decision nor that finding of fact have been challenged.

5

On the 30th April, 2004, Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States was published and required to be transposed by 30th April, 2006 (see art. 40.1, fn. 17).

6

On 3rd March, 2007, the applicant's wife died in Denmark. The first named applicant subsequently sent an undated letter to the Minister informing the Minister of the death of his wife. The applicant says this was sent in October, 2008. The respondent says March, 2009, but either way it was a long time after the event. In that letter, the first named applicant said ' we got married on 21st September, 2001 and live (sic) in Ireland since then. Now I wish to apply for a permanent residence card.' That letter was of course a fraud on the immigration system, given the fact that the first named applicant's wife had not been living in Ireland at all times since 2001, having returned to Denmark in February, 2004.

7

On 28th August, 2009, the Minister gave a permission to the first named applicant. As noted above, on 24th February, 2010, the applicant committed an offence of sexual assault. On 15th March, 2010, the applicant's public service vehicle licence as a taxi driver was revoked. On 2nd March, 2011, the applicant was convicted of the offence of sexual assault and, as noted above, was sentenced in May, 2011.

8

An appeal to the Court of Criminal Appeal was brought in relation to the conviction [2011 No. 129 CCA]. A motion seeking to add additional grounds to the appeal, which appear to relate to a (clearly procedurally misconceived) challenge to the constitutionality of the Juries Act 1976, was refused on 9th March, 2015, and the appeal was withdrawn on that date. Shortly prior to that date, the applicant had lodged written submissions signed by Ronan Lavery Q.C. and Conan Fegan B.L., so he appears to have been legally represented at the point in time at which the appeal was withdrawn. It is not immediately possible to reconcile this with para. 5 of his affidavit, to the effect that the appeal fell into abeyance because he was not able to afford lawyers.

9

On 5th August, 2011, the Minister issued a letter advising the first named applicant of the intention to revoke the applicant's permission. On 6th October, 2011, submissions were made by the applicant's then solicitors, James Watters & Co., which referred to a son born with a British national. The applicant was not cited as the father on the birth certificate, although his surname was used. No meaningful evidence was submitted of a relationship with the child and no reference was made to this child in the subsequent s. 3 submissions in relation to the proposed deportation order.

10

On 7th January, 2014, the Minister wrote to the first named applicant proposing to revoke the permission to remain in the State. On 14th January, 2014, he replied to that letter stating that his application for permanent residence was not fraudulent or misleading. That in itself was also a further falsehood in that it is clear that he had made a previous false statement.

11

He was released from custody on 28th February, 2014. On 31st March, 2014, submissions were made in relation to the permission issue by his solicitors. His permission to be in the State was revoked on 25th June, 2014, and he has been illegally present in the State ever since then. A review of that decision was sought on 9th July, 2014, was duly carried out, and the original decision was affirmed.

12

On 15th January, 2015, the second named applicant was born in the State to the first named applicant and a Polish national. The second named applicant is an Irish citizen and her birth certificate shows separate addresses of each of the parents.

13

On 18th March, 2015, the first named applicant applied for permission to be in the State on the basis of his parentage of the second named applicant and pursuant to case C-34/09 Ruiz Zambrano. That application was refused on 13th September, 2016.

14

In the meantime, on 1st September, 2016, the Minister made a proposal to deport the first named applicant. Submissions were made under s. 3 of the Immigration Act 1999 on 28th September, 2016. In due course, a deportation order was made on 30th June, 2017, and notified to the first named applicant by letter dated 13th July, 2017.

15

On 8th August, 2017, the present proceedings were issued. A statement of opposition was filed dated 8th December, 2017, para. 2 of which pleads that ' the proceedings should be dismissed on the grounds of criminal and wrongful conduct and lack of candour on the part of the first named applicant during his time in the State.'

16

I have heard very helpful submissions from Mr. Ian Whelan B.L. (with Mr. Conor Power S.C.) for the applicants, and from Mr. Anthony Moore B.L. for the respondents, and while I am very grateful to both counsel I must particularly commend Mr. Whelan, who in this particular case had to live through the adage of Megarry J. (as he then was) that ' argued law is tough law': Cordell v. Second Clanfield Properties Ltd. [1969] 2 Ch. 9, at 16.

Failure to particularise the relationship with the child
17

A notable fact in this case is the...

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