U (H), U (SW) U (d) (an infant suing by his father and next friend U(H)) v Minister for Justice, Equality & Law Reform

• Jurisdiction: Ireland
• Judge: MS JUSTICE M. CLARK
• Judgment Date: 29 September 2010
• Neutral Citation: [2010] IEHC 371
• Court: High Court
• Date: 29 September 2010

[2010] IEHC 371

THE HIGH COURT

[No. 201 J.R./2009]

U (H) & Ors v Min for Justice

JUDICIAL REVIEW

BETWEEN

H. U., S. W. U. AND D. U. (AN INFANT, SUING BY HIS FATHER AND NEXT FRIEND H. U.)

APPLICANTS

AND

THE MINISTER FOR JUSTICE AND LAW REFORM

RESPONDENT

REFUGEE ACT 1996 S13

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

REFUGEE ACT 1996 S5

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

CONSTITUTION ART 41

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8(2)

CRIMINAL JUSTICE (UNITED NATIONS CONVENTION AGAINST TORTURE) ACT 2000 S4

MEADOWS v MIN FOR JUSTICE & ORS UNREP SUPREME 21.1.2010 2010 IESC 3

OGUEKWE v MIN FOR JUSTICE 2008 3 IR 795 2008 2 ILRM 481 2008/51/10890 2008 IESC 25

BERREHAB v NETHERLANDS 1989 11 EHRR 322

POKU v UNITED KINGDOM 1996 22 EHRR CD94

ADBULAZIZ & ORS v UNITED KINGDOM 1985 7 EHRR 471

OMOREGIE & ORS v NORWAY 2009 IMM AR 170

R (RAZGAR) v SECRETARY OF STATE FOR THE HOME DEPT (NO 2) 2004 2 AC 368 2004 3 WLR 58 2004 3 AER 821

HUANG v SECRETARY OF STATE FOR THE HOME DEPT 2007 2 AC 167 2007 2 WLR 581 2007 4 AER 15

ALLI (A MINOR) v MIN FOR JUSTICE UNREP CLARK 2.12.2009 2009/3/608 2009 IEHC 595

ASIBOR (A MINOR) v MIN FOR JUSTICE UNREP CLARK 2.12.2009 2009/4/774 2009 IEHC 594

B (A) (JAMAICA) v SECRETARY OF STATE FOR THE HOME DEPT 2008 1 WLR 1893 2008 HRLR 17

R (MAHMOOD) v SECRETARY OF STATE FOR THE HOME DEPT 2001 1 WLR 840 2001 1 FLR 756 2001 2 FCR 63 2001 HRLR 143

CHIKWAMBA v SECRETARY OF STATE FOR THE HOME DEPT 2008 1 WLR 1420 2009 1 AER 363

O'KEEFFE v BORD PLEANALA 1993 1 IR 39 1992 ILRM 237

DA SILVA & HOOGKAMER v NETHERLANDS 2006 1 FCR 229 2007 44 EHRR 34

BOULTIF v SWITZERLAND 2001 2 FLR 1228 2001 33 EHRR 50

MAWAKA v NETHERLANDS UNREP ECHR 1.6.2010 (APPLICATION NO 29031/04)

SHUM v IRELAND & AG 1986 ILRM 593 1986/4/1484

OSHEKU v IRELAND & ORS 1987 ILRM 330 1986/7/1474

O (A) & ORS v MIN FOR JUSTICE 2003 1 IR 1 2003/31/7267

P (F) & ORS v MIN FOR JUSTICE 2002 1 IR 164 2002 1 ILRM 38 2001/20/5496

REFUGEE ACT 1996 S17

Abstract:

Immigration - Asylum - Judicial review - Immigration control - Deportation- Revocation - Second application - Proportionality - Fair procedures - Constitutional rights - Human rights - Whether refusal of revocation of deportation order valid

Facts: The applicants were a husband, wife and an infant child. The husband, HU, was a national of Nigeria and a failed asylum seeker. They sought to challenge the validity of the refusal of the respondent to revoke a deportation order. This was the second application to revoke the deportation order. The applicants contended that the respondent had failed to consider the rupture of the family and proportionality, had failed to consider the constitutional rights of the wife and had failed to respect fair procedures in assessing immigration control. It was argued that as the Minister acquiesced in the making of the first revocation application, it was unfair for him to then refuse to revoke the second revocation application based on the procedural requirement of immigration control. The applicants argued that because the Minister acquiesced in the first revocation application in 2009, it was irrational for him to identify the necessity to operate an immigration system as a "pressing social need" requiring the deportation of HU.

Held by Clark J. that the Court was satisfied that the Minister's assessment of proportionality under Article 8 ECHR was both rational and comprehensive, that he took into account all relevant matters and properly excluded irrelevant considerations. The Court was satisfied that the applicants had not established that the Minister had insufficient regard to the wife's constitutional rights when deciding not to revoke the deportation made against her husband. The Minister quite correctly focussed on the family rights of the applicants instead of on the wife's personal rights, in the light of the deficit of information before him. The Minister had not erred in assessing the question of immigration control. When the Minister had received the revocation application, he gave every fact due consideration. The Court was satisfied that the applicants had not established that the refusal of the Minister to remove the deportation order made against the husband should be quashed and the application was thus refused.

Reporter: E.F.

1 1. The applicants are a husband and wife and their infant son. The husband HU is a national of Nigeria and a failed asylum seeker while the wife SWU and son DU are Irish citizens. They challenge the validity of the refusal by the Minister for Justice and Law Reform ("the Minister") to revoke a deportation order made in December 2008 against HU, the husband. This was the second application to revoke the deportation order and these are the second set of proceedings challenging a refusal to revoke. By order of Cooke J. dated the 15 ^th February 2010 the applicants were granted leave to challenge the second refusal to revoke decision of January 2010.

2 2. In March 2010 this Court grant an interlocutory injunction restraining the deportation of HU pending the determination of these proceedings. The substantive hearing took place on the 6 ^th and 7 ^th May 2010. Ms Sunniva McDonagh, S.C. with Ms Patricia Brazil, B.L. appeared for the applicants and Ms Sinéad McGrath, B.L. for the respondent.

Background

3 3. The first applicant HU claims to have arrived in Ireland in mid June 2008 and he claims to have applied immediately for asylum. His history as presented to the asylum authorities was that he was born in 1987 and was a Catholic. He was raised by his father in a named village in Delta State. He claimed little formal education but trained as an electrical mechanic for five years before coming to Ireland. He claimed to fear persecution at the hands of his step-brother who was a member of a militant group (the name of which HU did not know) and who made a living by kidnapping people and holding them for ransom in violent circumstances. HU reported these activities to the police and when his step-brother was arrested, other gang members pursued him, shot at him and killed his father in reprisal. He spent three months in hiding with an aunt in the capital city of Delta State and two further months in Lagos before coming to Ireland. He was aided by a pastor who made all the travel arrangements with a white man who accompanied him and held all of his documents when passing through immigration.

4 4. Upon arrival in Ireland HU moved in with his uncle who is lawfully resident with his Irish wife in Cork. That uncle completed his asylum questionnaire on his behalf. On the 7 ^th July 2008 HU attended for interview with the Commissioner where he described himself as single and made no mention any relationship with any woman or of his intention to marry. By letter dated the 14 ^th July 2008 the Commissioner notified him that he was making a negative recommendation in his case. The appended s. 13 report outlined various inconsistencies in HU's account and also found that he did not fear persecution for a Convention reason.

5 5. The applicant says in his affidavit that sometime in July 2008 he met the second applicant SW who subsequently became his wife. Little information is provided about SW apart from the fact that she is an Irish citizen and a friend of his uncle's wife in Cork. According to HU's affidavit they fell in love and prior to the 15 ^th July 2008 - that is, within one month of his arrival in Ireland and a week after his interview with the Commissioner and around the same time that HU was notified of the Commissioner's negative recommendation and s. 13 report - they notified the Registrar that they intended to marry. HU appealed the Commissioner's negative recommendation to the Refugee Appeals Tribunal and his appeal hearing took place on the 10 ^th September 2008. No mention was made at the appeal hearing of his notified intention to marry. By letter dated the 25 ^th September 2008, HU was notified that the Tribunal had affirmed the Commissioner's negative recommendation. Notwithstanding the notification that his permission to remain was now fragile, HU married SW on the 15 ^th October 2008. SW is described on their marriage certificate as a domestic worker born in 1988.

6 6. On the 24 ^th October 2008 and one month after the notification that the appeal had failed, the Minister informed HU that he had decided not to grant him refugee status and proposed to deport him. As is usual when sending such a letter, the Minister invited HU to make representations within 15 working days of the date of the letter setting out the reasons as to why he should be permitted to remain in Ireland. No such representations were made by or on behalf of HU and the Minister proceeded to examine his file on the basis of know facts. A deportation order was made against him on the 4 ^th December 2008 and was notified to HU on the 23 ^rd December 2008.

7 7. Meanwhile by letter dated the 4 ^th December 2008, the applicants' solicitors informed the Minister of the fact of HU's marriage to SW on the 15 ^th October 2009 and stated that the couple was cohabiting at a stated address in Cork. The Solicitors sought residency rights for HU on the basis of his marriage to an Irish citizen. They furnished a copy of the passports of the husband and wife, a utility bill in the name of the wife and the couple's marriage certificate to establish the marriage and cohabitation. The Minister was informed that "Ms W. is anxious that her husband be granted residency in the State". The Minister replied by informing the applicants that as a deportation order had already been made, such representations could only be considered in the context of a revocation application.

Revocation Application 2009

8 8. On the 15 ^th...