U (F) (A Minor) and Others v Min for Justice and Others

JurisdictionIreland
JudgeMR JUSTICE HEDIGAN
Judgment Date11 December 2008
Neutral Citation[2008] IEHC 385
CourtHigh Court
Date11 December 2008

[2008] IEHC 385

THE HIGH COURT

[434 JR/2008]
U (F) (A Minor) & Ors v Min for Justice & Ors

BETWEEN

F. U., C. U. (A MINOR, SUING BY HIS MOTHER AND NEXT FRIEND, F.U.), T. U. (A MINOR, SUING BY HIS MOTHER AND NEXT FRIEND, F.U.), I. U. (A MINOR, SUING BY HIS MOTHER AND NEXT FRIEND, F.U.), AND S. U. (A MINOR, SUING BY HIS MOTHER AND NEXT FRIEND, F.U.).
APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE ATTORNEY GENERAL AND IRELAND
RESPONDENTS

AND

HUMAN RIGHTS COMMISSION
NOTICE PARTY

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

G v DPP & KIRBY 1994 1 IR 374

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006

IMMIGRATION ACT 1999 S3

REFUGEE ACT 1996 S5

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)(a)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8.2

ÜNER v THE NETHERLANDS 2007 45 EHRR 14

DADA v MIN FOR JUSTICE UNREP HIGH O'NEILL 3.5.2006 2006/14/2921

S (BI) & ORS v MIN FOR JUSTICE UNREP HIGH DUNNE 30.11.2007 2007/54/11584

S (V) & ORS v MIN FOR JUSTICE UNREP HIGH EDWARDS 29.7.2008 2008 IEHC 269

BOULTIF v SWITZERLAND 2001 33 EHRR 1179

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8.1

N & ANOR v MIN FOR JUSTICE UNREP HIGH CHARLTON 24.4.2008 2008 IEHC 107

RSC O.84 r21

IMMIGRATION

Deportation

Judicial review - Leave - Subsidiary protection - Mother and children - Right to private life - Threshold for grant of leave - Extension of time - Whether deportation order proportionate to legitimate aims of State - Whether well being of minor applicants taken into account in ordering deportation - Whether decision to deport applicants unreasonable - Whether failure to provide guarantee applicants would not be separated in course of deportation a breach of right to respect for family life - Whether failure to consider minor applicants' cases separately - Whether necessary for analysing officer to expressly state interests of minors being considered - Whether presumption that State would not seek to split up family unit - FRN v Minister for Justice [2008] IEHC 107 (Unrep, Charleton J, 24/4/2008) applied; Dada v Minister for Justice [2006] IEHC 140 (Unrep, O'Neill J, 03/05/2006), S v Minister for Justice [2007] IEHC 398 (Unrep, Dunne J, 30/11/2007), S(V) v Minister for Justice [2008] IEHC 269 (Unrep, Edwards J, 29/7/2008), Boulif v Switzerland (App no 54273/00, ECHR 2001 - IX) considered; Uner v The Netherlands (App No 46410/99, 18/10/2006) distinguished - European Convention on Human Rights Act 2003 (No 20), s 3 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006) - European Convention on Human Rights and Fundamental Freedoms, art 8 - Leave refused (2008/434JR - Hedigan J - 11/12/2008) [2008] IEHC 385

U(F) & Ors v Minister for Justice, Equality and Law Reform and Ors

Facts: The applicants sought leave to judicially review the decision of the Minister to deport them and to refuse to grant them subsidiary protection. The applicants alleged that the decision of the Minister to deport the applicant mother and her children was in breach of Article 8 ECHR and failed to tae into account the interests of the minors by failing to guarantee that the applicant mother and children would not be separated.

Held by Hedigan J. that the Minister did take the best interests of the children into account before making the deportation order. Although there may have been a genuine and subjective basis to the fear, it was not well-founded and based upon speculation. While deportation orders had been made as to each of the applicants, it was appropriate to proceed on the assumption that the State would not seek to split up the family union. The applicants had not established substantial grounds and leave would be refused.

Reporter: E.F.

1

MR JUSTICE HEDIGAN, delivered on the 11th day of December, 2008.

2

1. The applicants are seeking leave to apply for judicial review of two decisions of the Minister for Justice, Equality and Law Reform ("the Minister"):

3

(i) The decision to make deportation orders in respect of them, and

4

(ii) The decision not to grant subsidiary protection to them.

5

2. They are also seeking interlocutory relief restraining their deportation pending the determination of the within proceedings.

6

3. The Minister's decision to make deportation orders is one to which section 5 of the Illegal Immigrants (Trafficking) Act 2000 applies. In order to obtain leave, therefore, the applicants must show substantial grounds for the contention that the said decision should be quashed. The somewhat lower threshold set out in G v DPP [1994] 1 IR 374 applies, however, to the subsidiary protection decision.

Background
7

4. Each of the applicants is a national of Nigeria. The first named applicant is the mother of the second, third, fourth and fifth named applicants, who are minors aged between four and nine years of age. The family arrived in the State on 6 th July, 2005. The following day, the first named applicant applied for asylum, and gave consent for the minor applicants to be included under her application. The application was given priority and the Office of the Refugee Applications Commissioner (ORAC) made a negative recommendation later that month; that decision was upheld by the Refugee Appeals Tribunal (RAT) in October, 2005. In November, 2005, the Minister informed the applicants that he was proposing to make deportation orders in respect of them and invited them to make representations seeking leave to temporarily remain in the State. In December, 2005, they issued judicial review proceedings challenging the RAT decision; leave was refused by Hanna J. in March, 2007.

8

5. By letters dated 28 th June, 2007, 19 th July, 2007 and 27 th November, 2007, representations seeking leave to remain were made on behalf of the applicants. The Minister was informed inter alia that the two of the minor applicants were in school and the other two were in pre-school, that the applicants would be forced to live in poverty if they were returned to Nigeria, and that there would be very few prospects of obtaining employment.

9

6. In July, 2007, the Minister acknowledged receipt of the first of the above letters and informed the applicants of their entitlement to apply for subsidiary protection under the European Communities (Eligibility for Protection) Regulations2006 ( S.I. 518 of 2006). A short period of delay ensued and an application for subsidiary protection was eventually made on 11 th September, 2007; the minor applicants were included as dependents therein. The applicants were informed by letter dated 23 th October, 2007 that their application had been rejected.

10

7. In January, 2008, the applicants' file came to be considered pursuant to section 3 of the Immigration Act 1999 and section 5 of the Refugee Act 1996. The applicants have not pursued any complaints in respect of the section 3 or section 5 analysis; instead, they have focused on the analysis of their rights under Article 8 of the European Convention on Human Rights. The analysing officer accepted that the deportation would engage the Article 8 rights of the first named applicant and her children. She found, however, that although the deportation may constitute an interference with their right to respect for private life, it would be proportionate to the legitimate aim of the State to maintain control of its borders and therefore necessary in a democratic society. As to the family life aspect of Article 8, she noted that the first named applicant does not know her husband's whereabouts and has no other family ties in the State, and she found that the proposed deportation would not interfere with her right to respect for her family life. The Minister made deportation orders in respect of the applicants on 26 th February, 2008; those orders were notified to them by...

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