V (I)(A Minor) and Others v Min for Justice & AG

• Jurisdiction: Ireland
• Judge: Mr. Justice McCarthy
• Judgment Date: 05 March 2009
• Neutral Citation: [2009] IEHC 108
• Court: High Court
• Date: 05 March 2009

[2009] IEHC 108

THE HIGH COURT

1014/2008

V (I)(A Minor) & Ors v Min for Justice & AG

JUDICIAL REVIEW

BETWEEN

I.V., C.V., G.V. (A MINOR SUING BY HER FATHER AND NEXT FRIEND C.V.) AND G.V. (A MINOR, SUING BY HER FATHER AND NEXT FRIEND C.V.)

APPLICANTS

AND

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

RESPONDENTS

AND

THE HUMAN RIGHTS COMMISSION

NOTICE PARTY

O'KEEFFE v BORD PLEANALA 1993 1 IR 39 1992 ILRM 237 1990/8/2141

N (BJ) v MIN FOR JUSTICE & ORS UNREP MCCARTHY 18.1.2008 2008 IEHC 8

KAMIL v REFUGEE APPEALS TRIBUNAL & ORS UNREP MCCARTHY 22.8.2008 (EX TEMPORE)

MWIZA v REFUGEE APPEALS TRIBUNAL & ANOR UNREP MCCARTHY 22.10.2008 (EX TEMPORE)

KONGUE v REFUGEE APPEALS TRIBUNAL & ORS UNREP MCCARTHY 29.10.2008 (EX TEMPORE)

BUCUMI v REFUGEE APPEALS TRIBUNAL & ORS UNREP MCCARTHY 29.10.2008 (EX TEMPORE)

R (R) v REFUGEE APPEALS TRIBUNAL & ORS UNREP MCCARTHY 28.11.2008 2008 IEHC 406

KOUAYPE v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (EAMES) UNREP CLARKE 9.11.2005 2005/35/7364 2005 IEHC 380

IMMIGRATION ACT 1999 S3

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

IMMIGRATION ACT 1999 S3(6)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8.2

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8.1

IDIAKHEUA v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP CLARKE 10.5.2005 2005/31/6357 2005 IEHC 150

MOYOSOLA v REFUGEE APPLICATIONS CMSR & ORS UNREP CLARKE 23.6.2005 2005/40/8261 2005 IEHC 218

W (EA) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP HEDIGAN 4.11.2008 2008 IEHC 343

S (O) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP HEDIGAN 4.11.2008 2008 IEHC 342

KIKUMBI v REFUGEE APPLICATIONS CMSR & MIN FOR JUSTICE UNREP HERBERT 7.2.2007 2007 IEHC 11

IMAFU v MIN FOR JUSTICE & ORS UNREP PEART 9.12.2005 2005/31/6380 2005 IEHC 416

T (G) v MIN FOR JUSTICE UNREP PEART 27.7.2007 2007/57/12325 2007 IEHC 287

O v MIN FOR JUSTICE & ORS [BABY O CASE] 2002 2 IR 169 2003 1 ILRM 241 2002/3/501

IMMIGRATION

Deportation

Judicial review - Leave - Erroneous reference to applicants as failed asylum seekers in letter informing them of deportation - "Anxious scrutiny" test - Country of origin information - Locus standi - Whether duty on respondent to engage in more extensive inquiry where deportee not asylum seeker - Whether obligation to give detailed reasons - Whether failure to give due consideration to relevant matters - Whether deportation orders disproportionate to legitimate aim of protecting integrity of immigration system - Whether inadequate consideration by respondent of applicant's family rights - Whether failure to allow applicant opportunity to counteract material in country of origin information - Whether failure to sufficiently consider educational issues pertaining to minor applicants - O'Keeffe v An Bord Pleanála [1993] 2 IR 39, BJN v Minister for Justice [2008] IEHC 8, [2008] 3 IR 305, R v Refugee Appeals Tribunal [2008] IEHC 406 (Unrep, McCarthy J, 28/11/08), Idiakheua v Minister for Justice [2005] IEHC 150 (Unrep, Clarke J, 10/5/2005), Kouaype v Minister for Justice [2005] IEHC 380 (Unrep, Clarke J, 9/11/2005), Moyosola v Refugee Applications Commissioner [2005] IEHC 218 (Unrep, Clarke J, 23/6/2005), W v Refugee Appeals Tribunal [2008] IEHC 343 (Unrep, Hedigan J, 4/11/2008), S v Refugee Appeals Tribunal [2008] IEHC 342 (Unrep, Hedigan J, 4/11/2008), Kikumbi v Refugee Applications Commissioner [2007] IEHC 11 (Unrep, Herbert J, 7/2/2007), Imafu v Minister for Justice [2005] IEHC 416 (Unrep, Peart J, 9/12/2005), T v Minister for Justice [2007] IEHC 287 (Unrep, Peart J, 27/7/2007), Baby O v Minister for Justice [2002] 2 IR 169 and Pok Sun Shum v Ireland [1986] ILRM 593 considered - Immigration Act 1999 (No 22), s 3 - European Convention on Human Rights, art 8 - Leave refused (2008/1014JR - McCarthy J - 5/3/2009) [2009] IEHC 108

V(I) v Minister for Justice, Equality and Law Reform

Facts the applicants applied for leave to seek judicial review of the decisions of the respondent deporting them from the State on the grounds, inter alia, that their applications for humanitarian leave to remain in the State (which was the precursor to the deportation orders) had not been considered fully or properly by the respondent and that their rights to a family life pursuant to Article 8 of the European Convention on Human Rights had been breached. A specific complaint had been made that the respondent had concluded that the applicants would not be exposed to refoulement on the basis of consulting country of origin information which had not been furnished to them.

Held by Mr. Justice McCarthy in refusing to grant leave, 1, that a person with no right to be in the State who had not failed to obtain a declaration of refugee status (because he never claimed it) was not in a superior position when the respondent was considering an application for leave to remain, to a person who had failed in that regard.

2. That even if, as a generality, there was an obligation in accordance with the ordinarily applicable principles of administrative law to afford notice to an applicant of materials such as country of origin information upon which reliance might be placed by the decision maker, that could not extend to consultation of material merely confirming what was obvious anyway - and added little of substance thereto.

3. There was no obligation on the part of the respondent, when considering such applications for leave to remain, to engage with persons and to give detailed reasons to persons who had no right to be in the State.

4. The rights of the applicants pursuant to Article 8 of the European Convention had been addressed by the respondent in terms of the limitations upon those rights elaborated in Article 8(2) and a rational conclusion reached thereon.

Reporter: P.C.

1 1. This is an application for leave to seek judicial review commenced by originating notice of motion of the 1 ^st September, 2008 and grounded upon an affidavit of the first named applicant ("Mrs. V.") of 28 ^th August, 2008. There is a Statement of Grounds of a date which I cannot read but which appears to be 2 ^nd September, 2008. Mrs. V. and her children (the third and fourth named applicants) seek inter alia relief by way of declaration that deportation orders made in respect of them dated 23 ^rd July, 2008 and notified to them not earlier than the 25 ^th August, 2008 are void; in the Statement of Grounds furnished to me relief by way of certiorari in relation to the orders is not sought.

2 2. The facts of the matter are not seriously in dispute. It appears that all four applicants entered the jurisdiction on 6 ^th February, 2003 and were, on landing, granted permission to remain in the State until the 5 ^th March, 2003. It appears that after the applicant's arrival in the jurisdiction, Mrs. V. and her husband (the second named applicant) worked for a firm known as Barty O'Brien Limited, contract cleaners, at Naas General Hospital but, contrary to the first and second named applicants' understanding, no permits were obtained for them permitting them to work in the State from the Minister for Enterprise, Trade and Employment such that all four applicants were unlawfully in the State from 5 ^th March, 2003. In any event, on 30 ^th March, 2006, as deposed to in Mrs. V.'s affidavit, "the applicants herein" were notified by the Minister of his intention to make deportation orders.

3 3. On perusal of the letter it is most comprehensive, plainly directed to the status of Mrs. V. (and her children, at least indirectly) as a person or persons who had been afforded leave to enter and remain in the State until the 5 ^th March, 2003 but who had, in those circumstances, failed to leave the State on or after that date. The letter made explicit reference to the fact that Mrs. V. had "engaged in employment without a current work permit and without the permission of the Minister for Enterprise, Trade and Employment". Accordingly it is manifest from that letter that the Minister contemplated a deportation order or orders without reference to any suggestion that Mrs. V. and her children (the latter, of course via her agency) were failed asylum seekers.

4 4. It is contended on behalf of the first, third and fourth named applicants that the deportation orders are flawed as having been made on the basis that the parties to the present application were failed asylum seekers because of the contents of the Minister's letter under cover of which the relevant deportation orders were served. Obviously in order to decide the basis upon which the decision and subsequent deportation orders was or were made by the Minister, one has regard to all documents, including, of course, the submissions made (with any supporting material) to the Minister, the review of the request for what is commonly known as humanitarian leave to remain, as reduced to writing, (i.e. reports to the Minister) correspondence with the applicant's or any of them and the deportation orders themselves.

5 5. Letters were sent to the Minister in response to that of 30 ^th March, on 20 ^th April, 2006 and the 22 ^nd August, 2007. The first of these, in terms of Mrs. V.'s status, explicitly set out the nature inter alia of her connection with the State. The second letter supplements the first and under cover of each certain documents, mainly what I might term letters of support or references, were furnished to the Minister in support of the application. Thus far confusion there was not. If one looks at the reports of Mr. Foley it is perfectly plain that what was before the Minister was an application for humanitarian leave to remain in circumstances where the applicants at that stage of the proceedings had overstayed their permission and there...