Ugbelase v Min for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 17 December 2009
• Neutral Citation: [2009] IEHC 598
• Court: High Court
• Docket Number: [2009 No. 201 J.R.]
• Date: 17 December 2009

Ugbelase v Min for Justice

MR JUSTICE COOKE

APPROVED TEXT

JUDICIAL REVIEW

BETWEEN/

HENRY UGBELASE, SARAH WALSH UGBELASE AND BABY UGBELASE (AN INFANT SUING BY HIS MOTHER AND NEXT FRIEND SARAH WALSH UGBELASE)

APPLICANTS

AND

MINISTER FOR JUSTICE, EQUALITY & LAW REFORM

RESPONDENT

[2009] IEHC 598

[No. 201 J.R./2009]

THE HIGH COURT

CONSTITUTIONAL LAW

Personal rights

Unborn - Nature of such rights - Deportation order - Revocation - Birth of child imminent - Whether deportation of parent infringing right of unborn - Whether application for revocation of deportation order imposes obligations to consider constitutional rights of unborn infant of proposed deportee - Whether distinction between protection afforded to personal rights of unborn child and child when born - G v An Bord Uchtála [1980] IR 32, McGee v Attorney General [1974] IR 284, Finn v Attorney General [1983] IR 541 considered; Fajujonu v Minister for Justice [1990] 2 IR 151, AO & DL v Minister for Justice [2003] 1 IR 1 and OE v Minister for Justice [2008] 3 I.R. 760 distinguished; Oguekwe v Minister for Justice [2008] 3 IR 795 applied; Monk v Warbey [1935] 1 KB 75, Close v Steel Company of Wales Ltd [1962] AC 367 and Burton v Islington Health Authority [1993] QB 204 considered - Refugee Act 1996 (No 17), ss 5 and 13 - Immigration Act 1999 (No 22), s 3(11) - European Convention on Human Rights and Fundamental Freedoms, article 8 -Constitution of Ireland 1937, Articles 40, 41 and 42 - Constitution of Ireland 1937, Article 40.3 - Relief refused (2009/201JR - Cooke J - 17/12/2009) [2009] IEHC 598

U(H) v Minister for Justice

IMMIGRATION LAW

Deportation order

Revocation - Birth of child imminent - Right of unborn child - Whether deportation of parent infringing right of unborn - Whether application for revocation of deportation order imposes obligations to consider constitutional rights of unborn infant of proposed deportee - Whether distinction between protection afforded to personal rights of unborn child and child when born - G v An Bord Uchtála [1980] IR 32, McGee v Attorney General [1974] IR 284, Finn v Attorney General [1983] IR 541 considered; Fajujonu v Minister for Justice [1990] 2 IR 151, AO & DL v Minister for Justice [2003] 1 IR 1 and OE v Minister for Justice [2008] 3 I.R. 760 distinguished; Oguekwe v Minister for Justice [2008] 3 IR 795 applied; Monk v Warbey [1935] 1 KB 75, Close v Steel Company of Wales Ltd [1962] AC 367 and Burton v Islington Health Authority [1993] QB 204 considered - Refugee Act 1996 (No 17), ss 5 and 13 - Immigration Act 1999 (No 22), s 3(11) - European Convention on Human Rights and Fundamental Freedoms, article 8 -Constitution of Ireland 1937, Articles 40, 41 and 42 - Constitution of Ireland 1937, Article 40.3 - Relief refused (2009/201JR - Cooke J - 17/12/2009) [2009] IEHC 598

U(H) v Minister for Justice

Facts The first-named applicant was the subject of a deportation order and had instituted judicial review proceedings seeking to challenge same. The second-named applicant was an Irish citizen and was married to the first-named applicant and was expecting their child at the time court proceedings were initiated. The applicants claimed that in considering such an application to revoke a deportation order, the Minister was obliged by law to give specific consideration to the effect that the deportation of a non-national father would have upon the personal constitutional rights of his (then) unborn Irish citizen child and that the rights to be thus considered were the same as those which would fall to be taken into account if the application to revoke the deportation order under s. 3(11) of the Immigration Act, 1999 Act were made after the birth of that child. It was contended that the deportation of the father of an unborn child would be a violation of the constitutional safeguards afforded to the unborn.

Held by Mr. Justice Cooke in refusing the relief sought. A minor child who was an Irish citizen had an entitlement to certain personal rights under the Constitution. Respect for private life and family life under Article 8 of the ECHR did not, as such, preclude the exercise by the State of its sovereign right to control the entry and presence in the State of foreign nationals including, in necessary cases, the expulsion from the State of a non-national parent of such a child. The State was not bound by a choice of residence made by a couple for themselves and for their family. In the case of the unborn child, the right to life of the unborn child could not prevail over the right of the pregnant mother, whether an Irish citizen or not, to leave the State, to give birth elsewhere and then to reside outside the State. The deportation of a non-national parent could not be said to interfere with the constitutional rights in question.

Reporter: R.F.

IMMIGRATION ACT 1999 S3(11)

IMMIGRATION ACT 1999 S3(1)

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S5

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8.1

IMMIGRATION ACT 1999 S3

CONSTITUTION ART 41

E (O) & E (AH) v MIN FOR JUSTICE 2008 3 IR 760 2008/22/4761 2008 IEHC 68

CONSTITUTION ART 40.3.3

OSHEKU v IRELAND & ORS 1986 IR 7331987 ILRM 330 1986/7/1474

FAJUJONU v MIN FOR JUSTICE & ORS 1990 2 IR 151

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

OGUEKWE v MIN FOR JUSTICE 2008 3 IR 7952008 2 ILRM 481 2008/51/10890 2008 IESC 25

DIMBO v MIN FOR JUSTICE UNREP SUPREME 1.5.2008 2008/12/2530 2008 IESC 26

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

CONSTITUTION ART 40.3

CONSTITUTION ART 40.3.1

CONSTITUTION ART 40.3.2

G v BORD UCHTALA & ORS 1980 IR 321979 113 ILTR 25

BURTON v ISLINGTON HEALTH AUTHORITY 1993 QB 2041992 3 WLR 637 1992 3 AER 833 1992 2 FLR 184 1992 2 FCR 845

MONK v WARBEY & ORS 1935 1 KB 75

CLOSE v STEEL CO OF WALES LTD 1962 AC 3671961 3 WLR 319 1961 2 AER 953

MCGEE v AG & REVENUE CMRS 1974 IR 284

CRIMINAL LAW AMDT ACT 1935 S17

FINN v AG & ORS 1983 IR 154

CONSTITUTION ART 34.3

CONSTITUTION ART 46.1

HOGAN & WHYTE JM KELLY: THE IRISH CONSTITUTION 4ED 2003

CONSTITUTION ART 40.1

CONSTITUTION ART 40.4

RYAN v AG 1965 IR 294

1 JUDGMENT of Mr. Justice Cooke delivered on the 17th day of December, 2009.

2 1. By order of this Court made by consent on 28 ^th May, 2009, the applicants were granted leave to bring the present application for, inter alia, an order of certiorari to quash a decision made by the respondent Minister on 6 ^th February, 2009 (the "Contested Decision") by which he refused their request to revoke pursuant to s. 3 (11) of the Immigration Act 1999 an order which he had made on 4 ^th December, 2008 under s. 3 (1) of that Act for the deportation of the first named applicant.

3 2. The first named applicant arrived in the State from Nigeria on 17 ^th June, 2008 and asked for asylum. In a section 13 report of 17 ^th June, 2008, the Refugee Applications Commissioner recommended that the declaration of refugee status be refused. This report and recommendation was appealed to the Refugee Appeals Tribunal but the appeal was unsuccessful. A decision of 15 ^th September, 2008 reaffirmed the section 13 report and negative recommendation.

4 3. The second named applicant is an Irish citizen who says she met the first named applicant and fell in love with him in the Summer of 2008. They married in Cork on 15 ^th October, 2008.

5 4. By letter of 24 ^th October, 2008, the respondent notified the first named applicant of his intention to make a deportation order in respect of him and invited him to make representations as to why he ought not to be deported. These representations which were sent to the Minister by letter of 4 ^th December, 2008, mentioned the fact that the first and second named applicants had married on 15 ^th October, 2008. No mention was made, however, of the fact that the second named applicant was then expecting the first named applicant's child although it is admitted that this was known to them at the time. The letter of 4 ^th December said:

"Our clients married one another on 15 ^th October, 2008 at a civil ceremony in Cork. The couple reside together at 8, St. Patrick's Arch, Gerald Griffin Street, Blackpool, Cork... Ms. Walsh is anxious that her husband be granted residency in the State and should you require any further information please do not hesitate to contact this office."

6 5. By letter of 8 ^th January, 2009, the Minister replied to the request stating that a deportation order had been made on 4 ^th December, 2008 and notified the first named applicant on 13 ^th December, 2008. The letter stated that the request for residence could only be considered in the context of an application under s. 3 (11) of the 1999 Act for revocation of that deportation order.

7 6. By letter of 15 ^th January, 2009, Messrs. Stanley & Co., solicitors on behalf of the first named applicant made an application for revocation of the deportation order, lodging supporting representations which referred for the first time to the fact that Ms. Walsh was pregnant. The letter said:-

"Mr. Ugbelase is now married to an Irish citizen, Ms. Sarah Joan Walsh, and is currently residing at 8, Patrick's Arch, Gerald Griffin Street.... The couple are looking towards [ sic] to the birth of their first child and we submit that the family unit should not be interfered with and such interference would be disproportionate given the circumstances that exist."

8 7. A total of eight submissions were set out in that letter on behalf of the first named applicant. Apart from the sentence quoted above which appears under the heading "Submission 2" none of the submissions related to the position of Ms. Walsh or that of the unborn child. The remaining submissions were specific to the position of the...