Ugbo & Buckley v Minister for Justice, Equality & Law Reform

• Jurisdiction: Ireland
• Judge: MR JUSTICE HANNA,
• Judgment Date: 05 March 2010
• Neutral Citation: [2010] IEHC 80
• Court: High Court
• Date: 05 March 2010

[2010] IEHC 80

THE HIGH COURT

[No. 1174 J.R./2009]

Ugbo & Buckley v Min for Justice & Ors

JUDICIAL REVIEW

BETWEEN

WILLIAMS UGBO AND ANN BUCKLEY

APPLICANTS

AND

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

RESPONDENTS

AND

HUMAN RIGHTS COMMISSION

NOTICE PARTY

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

INTERNATIONAL COVENANT ON CIVIL & POLITICAL RIGHTS ART 12

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

IMMIGRATION ACT 1999 S3

REFUGEE ACT 1996 S5

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8(1)

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

ABDULAZIZ & ORS v UNITED KINGDOM 1985 7 EHRR 471

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

CONSTITUTION ART 41

MURESAN v MIN FOR JUSTICE & ORS 2004 2 ILRM 364 2003/38/9156

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

A (F) & A (B) v REFUGEE APPEALS TRIBUNAL & ORS UNREP PEART 27.7.2007 2007/1/188 2007 IEHC 290

BABY O & O (IA) v MIN FOR JUSTICE & ORS 2002 2 IR 169 2003 1 ILRM 241 2002/3/501

CONSTITUTION ART 41.3.1

FITZPATRICK v MIN FOR JUSTICE UNREP RYAN 26.1.2005 2005/25/5246 2005 IEHC 9

S (BI) & ORS v MIN FOR JUSTICE UNREP DUNNE 30.11.2007 2007/54/11584 2007 IEHC 398

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

O (G) & ORS v MIN FOR JUSTICE UNREP BIRMINGHAM 19.6.2008 2008/47/10172 2008 IEHC 190

C (T) & C (A) v MIN FOR JUSTICE 2005 4 IR 109 2005 2 ILRM 547 2005/10/2112 2005 IESC 42

IMMIGRATION ACT 1999 S3(6)

IMMIGRATION ACT 1999 S3(11)

IMMIGRATION

Deportation

Leave to remain - Family rights - Married to Irish citizen - Constitutional right as married couple - Interference with right to respect for family life - Extension of time for judicial review - Good and sufficient reason - Substantial grounds - Legislative policy- Failure to provide reason for decision - Whether interference was in accordance with law, in pursuit of pressing need and legitimate aim, necessary in democratic society, in pursuit of pressing social need and proportionate to legitimate aim - Whether Minister considered impact of deportation on constitutional rights of applicant - Whether justification to extend time to amend statement of grounds - Whether deportation order would expose deportee to risks - Muresan v Minister for Justice, Equality and Law Reform [2004] 2 ILRM 364 and Baby O v Minister for Justice, Equality and Law Reform [2002] 2 IR 169 followed - Abdulaziz v United Kingdom [1985] 7 EHRR 471; R (Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840; A(F) v Refugee Appeals Tribunal [2007] IEHC 290; Fitzpatrick v Minister for Justice, Equality and Law Reform [2005] IEHC 9; S(BI) v Minister for Justice, Equality and Law Reform [2007] IEHC 398; Pok Sun Shum v Minister for Justice, Equality and Law Reform [1986] ILRM 593; O(G) v Minister for Justice, Equality and Law Reform (Unrep, HC, Birmingham J, 19/6/2008) and C(T) v Minister for Justice, Equality and Law Reform 2005] 4 IR 109 considered - Meadows v Minister for Justice, Equality and Law Reform [2010] IESC 3 distinguished - Illegal Immigrants (Trafficking) Act 2000, s 5 - Immigration Act 1999 (No 22), s 3 - Refugee Act 1996 (No 17), s 5 - Constitution of Ireland 1937, art 41 - European Convention on Human Rights and Fundamental Freedoms, arts 3 and 8 - International Covenant on Civil and Political Rights, art 12 - Leave refused (2009/1174JR - Hanna J - 5/3/2010) 2010 IEHC 80

Ugbo v Minister for Justice, Equality and Law Reform

Facts Article 41.3.1 of the Constitution provides that "The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack. The applicants sought leave to seek an order quashing the deportation order made in respect of the first applicant on the grounds, inter alia, that the respondent had failed to have regard to the rights of the applicants and, in particular, the second applicant under Article 41 of the Constitution; and that he failed to provide any reason or rationale for his conclusion that the provisions of section 5 of the Refugee Act 1996 were complied with. At the hearing of the application, the applicants sought to amend their statement of grounds to include new grounds in relation to section 5 of the Act of 1996, which had not been advanced in the original statement of grounds.

Held by Mr. Justice Hanna in refusing leave to seek judicial review that the applicants had not demonstrated any substantial ground as to why the time for advancing their new grounds should be extended pursuant to section 5 of the Illegal Immigrants (Trafficking) Act 2000. An extension of the 14 day time limit allowed by section 5 of the Act of 2000 was required and the applicants were required to show good and sufficient reason for the extension. The factors relevant to the consideration of an application for an extension of time included the length of the time limit; the length of the delay; the legislative policy evidenced by the statute setting out the time limit, third party rights; the personal circumstances of the applicants; the blameworthiness of the applicants and their lawyers and the prima facie strength of the applicants' case.

That the respondent was under no obligation to expressly refer to Article 41 of the Constitution and his failure to do so did not vitiate the decision that was reached. It was clear from his decision that he had been aware of the family and domestic circumstances of the applicants. Extensive consideration had been given to the couple's right to respect for their family life under Article 8 of the ECHR and it was found that, although the deportation would interfere with their family life, the interference would not breach Article 8. The marriage had been highlighted in such a way as to make it unnecessary for there to be a specific recitation of the fact that the respondent considered the impact of the deportation on the constitutional rights of the second applicant. The respondent was obliged under s. 3(6) of the Immigration Act 1999 to consider the family and domestic circumstances of a proposed deportee and the humanitarian considerations on the file only insofar as they were known to him. He gave the applicants ample opportunity to make representations to him and he considered the representations that they made without exception. He was under no obligation to enter into correspondence with them to ascertain whether or not the second applicant would experience any difficulties in moving to Nigeria with her new husband.

Reporter: P.C.

1 1. The first named applicant is a national of Nigeria. He applied unsuccessfully for asylum in September, 2008 and he had been notified that the Minister for Justice, Equality and Law Reform proposed to deport him when he married the second named applicant, who is a citizen of Ireland, in June, 2009. The applicants seek leave to apply for judicial review of the decision of the Minister, dated the 28 ^th October, 2009, to make a deportation order against the first named applicant. In addition they seek liberty to amend their original statement of grounds dated the 12 ^th November, 2009 so as to include grounds arising from Meadows v. The Minister for Justice, Equality and Law Reform & Others (Unreported, Supreme Court, 21 ^st January, 2010).

Background

2 2. The papers relevant to the asylum application of the first named applicant are not exhibited in the proceedings but it appears that he claimed to have been assaulted in Nigeria in January, 2007 because he reported the vandalism of an oil-pipeline by his work friends to the police. He says he was in intensive care in a coma for eight months and after his release his attackers continued to threaten him and the police asked for money to protect him. He moved to another State where he lived for a few months until one of his attackers spotted him and told the local Muslim people that he was an informant to the police. Those people began to threaten him so he came to Ireland. The Refugee Applications Commissioner made a negative recommendation in his case which was affirmed on appeal. In 2008 the Minister informed him that he had decided not to grant a declaration of refugee status and proposed to deport him.

3 3. On the 30 ^th March, 2009 the applicant applied for subsidiary protection and humanitarian leave to remain in the State. In support of the subsidiary protection application he briefly recounted the facts and circumstances which had grounded his asylum application. In a handwritten form appended to the application which appears to have been completed by the second named applicant on his behalf, it was submitted that he feared torture or inhuman and degrading treatment or punishment in Nigeria. The Minister was requested to consider two medical reports from Nigeria which were in the Minister's possession. ¹

4 4. In support of the parallel application for leave to remain the applicant notified the Minister that he was engaged to be married to the second named applicant who is a citizen of Ireland and an employee of the Revenue Commissioners. It was stated that he is prepared to work in any capacity if permitted and that he is of good conduct. It was submitted that he is keen to foster bonds with Ireland and Irish society and that the grant of leave to remain would not in any way affect the integrity of the asylum

1 ¹ These reports are not exhibited in the proceedings but pp. 11-12 of the examination of file describe them as a letter from Dr. Akinbehin of the Lagos General Hospital dated the 30 ^th August, 2007 and a further letter from Dr. Roberta Pavone dated the 9 ^th October, 2008....