U. (F) & U (C) & Others v Minister for Justice, Equality & Law Reform & Others

JurisdictionIreland
Judgment Date11 December 2008
Date11 December 2008
Docket Number2008 434 JR
CourtHigh Court
Neutral Citation Number:

[2008] IEHC 385

THE HIGH COURT

2008 434 JR

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,UING 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
Abstract:

Judicial review - Leave - Deportation - Subsidiary protection - Nigeria - Uner v. Netherlands - Illegal Immigrants Trafficking Act 2000 - Article 8 ECHR

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

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

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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”):

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

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

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

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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.

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Background

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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 6th 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

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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.

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5. By letters dated 28th June, 2007, 19th July, 2007 and 27th 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.

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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) Regulations 2006 ( S.I. 518 of 2006). A short period of delay ensued and an application for subsidiary protection was eventually made on 11th September, 2007; the minor applicants were included as dependents therein. The applicants were informed by letter dated 23th October, 2007 that their application had been rejected.

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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 26th February, 2008; those orders were notified to them by letter dated 11th March, 2008.

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Extension of Time

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8. The within proceedings were not issued until 17th April, 2008 and so, the applicants were outside of the 14 days allowed under 5(2)(a) of the Illegal Immigrants (Trafficking) Act 2000 for the bringing of an application for leave in respect of the making of

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the deportation orders. Nevertheless, I am satisfied that there is good and sufficient reason to extend time, and I propose to do so.

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THE APPLICANTS’ SUBMISSIONS

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9. The applicants’ primary complaint with respect to the making of the deportation orders is that the Minister acted in breach of his obligations under section 3(1) of the European Convention on Human Rights Act 2003 by failing to take account of the best interests and well being of the minor applicants when assessing the proportionality of their deportation under Article 8(2) of the European Convention on Human Rights, in circumstances where the social and economic difficulties that would be faced by them if returned to Nigeria were properly before the Minister. Reliance is placed in this regard on the decision of the European Court of Human Rights in Üner v The Netherlands (App No. 46410/99, judgment of 18th October, 2006). The applicants contend that the Strasbourg Court therein established guiding principles as to how the proportionality of an interference with Article 8 rights is to be assessed, and it is submitted that the Minister’s failure to abide by those guiding principles renders the decision to make deportation orders irrational.

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10. The applicants also complain that by...

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