U (M A) and Others (A Minor) and Others v Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 13 December 2010
• Neutral Citation: [2010] IEHC 492
• Court: High Court
• Date: 13 December 2010

[2010] IEHC 492

THE HIGH COURT

[No. 881 J.R./2009]

U (MA) & Ors v Min for Justice

JUDICIAL REVIEW

BETWEEN

M. A. U., A. M. U., O. A. U. (A MINOR SUING BY HIS FATHER AND NEXT FRIEND, M. A. U.), E. A. U. (A MINOR SUING BY HIS FATHER AND NEXT FRIEND, M. A. U.), A. O. U. (A MINOR SUING BY HIS FATHER AND NEXT FRIEND, M. A. U.), AND A. A'A. O. U. (A MINOR SUING BY HIS FATHER AND NEXT FRIEND, M. A. U.)

APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM (NO.1)

RESPONDENT

IMMIGRATION ACT 1999 S3(1)

CONSTITUTION ART 41

IMMIGRATION ACT 1999 S3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

IMMIGRATION ACT 1999 S3(11)

MCCARRON v KEARNEY 2011 1 ILRM 237 2010 IESC 28

EEC DIR 2008/115 ART 11(2)

B (J) (A MINOR) & ORS v MIN FOR JUSTICE UNREP COOKE 14.7.2010 2010 IEHC 296

HAUGHEY, IN RE 1971 IR 217

IMMIGRATION LAW

Deportation

Permanent exclusion from State - Judicial review - Statutory interpretation - Whether respondent had discretion to exclude first applicant from State non-permanently - B(J) v Minister for Justice, Equality and Law Reform [2010] IEHC 296 (Unrep, HC, Cooke J, 14/7/2010) considered - Immigration Act 1999 (No 22), s 3 - Leave refused (2009/881JR - Hogan J - 13/12/2010) [2010] IEHC 492

U(MA) v Minister for Justice, Equality and Law Reform (No 1)

Facts The mother in this case has four children, two born in Nigera and two born in Ireland, she arrived in Ireland in 2002. In 2005 she became entitled to the IBC 05 Scheme. In 2007 the father arrived in the State and claimed asylum but was refused. He contended that under the constitution and the family unity he was entitled to stay. He was refused and a deportation order was made. He sought Judicial Review of that.

Held by Hogan J in refusing the application:

The deportation order language is follows faithfully the language of Section 3 (1) of the Act. If therefore s. 3 (1) admits no discretion in the matter then the deportation order is not ulta vires.

While the Minister has a discretion in regard to allowing time before the order takes effective it does not extend to the consequences of a deportation order. JB v Minister for Justice, Equality and Law Reform [2010] IEHC 296 referred to.

Reporter: BD

1 1. This application for leave to apply for judicial review raises an important net question of interpretation in respect of s. 3(1) of the Immigration Act 1999 ("the 1999 Act"). The applicants in the present proceedings comprise a husband and wife and four children. Two of the children are Irish citizens and the other four applicants are Nigerian citizens.

2 2. The mother, AMU, arrived in Ireland in 2002 and applied for asylum. The couple's first two children, OAU and EAU, are both Nigerian citizens and are aged 13 and 12 respectively. They have both lived in Ireland for the last eight years. The couple's third child, AOU, was born in Ireland on 25 ^th July, 2002. He is an Irish citizen and is now aged 8 years. The couple's fourth child is also an Irish citizen and he was born on the 10 ^th October, 2008.

3 3. In 2005, the mother and the Nigerian children obtained the benefit of the what has come to be known as the IBC 05 Scheme. They have thus have permission to remain in Ireland for the immediate future. The two Irish children have, of course - in common with all Irish citizens - the unqualified right to remain and reside in the State.

4 4. In August 2007 the father, MAU, arrived in the State and claimed asylum. That application was refused in January 2008. The father then made an application for subsidiary protection, together with submissions as to why he should not be deported. This application was refused in July 2008. In June 2009 the father made further submissions focussing on the nature of family unity which, they contended, was the essential premise of Article 41 of the Constitution. A deportation order was nonetheless made on 10 ^th July, 2009. That order required the father to leave the State on a date specified in the notice to be served on him under s. 3 of the 1999 Act and "to remain thereafter out of the State." The validity of that order is challenged by all the applicants in the present proceedings.

5 5. As it happens, arguments based on Article 41 or Article 8 ECHR were not pressed at the oral hearing. In effect, the net issue - and, indeed, the only issue - which I am required to consider concerns the proper interpretation of the s. 3(1) of the 1999 Act. This sub-section provides:

"Subject to the provisions of section 5 (prohibition of refoulement) of Refugee Act 1996 and the subsequent provisions of this section, the Minister may by order (in this Act referred to as "a deportation order") require any non- national specified...