O (Y) v Min for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Charleton
• Judgment Date: 11 March 2009
• Neutral Citation: [2009] IEHC 148
• Judgment citation (vLex): [2009] 3 JIC 1101
• Court: High Court
• Date: 11 March 2009

[2009] IEHC 148

THE HIGH COURT

[No. 1236 J.R./2008]

O (Y) v Min for Justice

JUDICIAL REVIEW

IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000, IN THE MATTER OF THE IMMIGRATION ACT 1999, IN THE MATTER OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003

BETWEEN

Y.O.

APPLICANT

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

AND

IRELAND AND ATFORNEY GENERAL

NOTICE PARTIES

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S6

IRISH NATIONALITY & CITIZENSHIP ACT 2004 S3

IRISH NATIONALITY & CITIZENSHIP ACT 2004 S4

IMMIGRATION ACT 1999 S3(6)

REFUGEE ACT 1996 S5

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

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

CONSTITUTION ART 41

OGUEKWE & ORS v MIN FOR JUSTICE UNREP SUPREME 1.5.2008 2008 IESC 25

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

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 185

REFUGEE ACT 1996 S18(1)

REFUGEE ACT 1996 S18(3)(B)

REFUGEE ACT 1996 S18(3)(A)

REFUGEE ACT 1996 S18(4)(A)

REFUGEE ACT 1996 S18(4)(B)

REFUGEE ACT 1996 S18(5)

EEC DIR 2003/86 ART 4(1)

EEC DIR 2003/86 ART 4

EEC DIR 2003/86 ART 4(2)

EEC DIR 2004/38 ART 2(2)

EEC DIR 2004/38 ART 3(2)

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO 2) REGS 2006 SI 656/2006 REG 2(1)

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO 2) REGS 2006 SI 656/2006 REG 4

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO 2) REGS 2006 SI 656/2006 REG 5

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

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

SINGH v ENTRY CLEARANCE OFFICER (NEW DELHI) 2005 2 WLR 325 2005 QB 608

MARCKX v BELGIUM 1979-80 2 EHRR 330

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

IMMIGRATION

Deportation

Judicial review - Leave - Challenge to ministerial decision - Independent adult - Sister of citizens - Claim of persecution - Absence of adverse credibility findings - Complaint that incomplete picture given regarding connection with state - Consideration of family unit - Convention rights - Family life - Whether rights of foreign parent capable of being extended to other family members - Whether right to assert family life entitlements in favour of adult applicant - Family rights under international and European law - Legal norms to recognise family ties giving rise to legal rights - Definition of family members - Qualified nature of right to family life - Precedent - Requirement for consistency of approach - Review of ministerial decision - Whether decision founded on error of fact or unreasonable - Separation of powers - Test of proportionality - Whether substantial grounds for review - Oguekwe v Minister for Justice [2008] IESC 25 (Unrep, SC, 1/5/2008), O(G) v Minister for Justice [2008] IEHC 190, (Unrep, Birmingham J, 19/6/2008), Pawandeep Singh v Entry Clearance Officer [2005] 2 WLR 325, Marckx v Belgium (1980) 2 EHRR 330, S(B I) v Minister for Justice [2007] IEHC 398, (Unrep, Dunne J, 20/11/2007), R(Mahmood) v Home Secretary [2001] 1 WLR 840 and Agbonlahor v Minister for Justice [2007] IEHC 166 (Unrep, Feeney J, 18/4/2007) considered - Refugee Act 1996 (No 9), s 18 - Immigration Act 1999 (No 22), s 5 - European Convention on Human Rights, article 8 - Leave refused (2008/1236JR - Charleton J - 11/3/2009) [2009] IEHC 148

O(Y) v Minister for Justice, Equality and Law Reform

Facts: The applicant, a 22 year old Nigerian woman, who wished to remain in Ireland with her Nigerian mother on whom she was not dependent, sought to challenge the decision of the Minister to deport her. The applicant had two sisters who were Irish citizens. Her mother left the applicant behind in Nigeria and the Minister had deported her father in 2004, who had sought to “evade” the deportation order. The applicant sought permission to remain in Ireland and had sought to claim political asylum in Ireland. Objection was made by the applicant to the description of her father as having evaded the deportation order and the applicant alleged that an incomplete picture had been presented as to her connection to the State. The issue arose as to the appropriate test to be applied.

Held by Charleton J. that the analysis conducted by the respondent Minister was not incorrect. The principles that apply as between an Irish child and a foreign relative who was not a genuine and nurturing mother or father were correctly stated. Leave to commence judicial review proceedings would be refused. She was an independent adult. The applicant never had a genuine right to seek asylum.

Reporter: E.F.

1 1. This case concerns a 22 year old Nigerian woman who wishes to remain in Ireland with her Nigerian mother, on whom she is not dependent, and with her two much younger sisters who are Irish citizens. The respondent Minister has decided to deport her. She seeks leave to commence a judicial review challenge to that decision. Her two Irish sisters were born in October, 2000 and February, 2005. I understand that both became citizens of Ireland by virtue of section 6 of the Irish Nationality and Citizenship Act 1956, as amended by ss. 3 and 4 of the Irish Nationality and Citizenship Act 2004. On this there is no dispute and so I think it is right to simply refer to them as Irish children. Shortly before the birth of her first Irish sister, when she was then fourteen years of age, her mother left the applicant behind in Nigeria and came to Ireland. Her mother has been granted leave to stay in Ireland as a foreign national until the year 2012 to take care of the two Irish children. The Nigerian father of the family was granted temporary leave to remain in the State from October, 2001 on the same basis. This was renewed annually until 2004. As he was then discovered to be no longer living with his children and was, therefore, no longer covered by the terms of the administrative scheme allowing temporary residence to foreign nationals who are the parents of Irish children, the respondent Minister signed a deportation order in respect of him in June, 2004. He has evaded this.

2 2. In April, 2007 the applicant arrived in the State, not having lived with her mother since the year 2000. She then made an application for asylum claiming that she was being persecuted in Nigeria. Since the facts upon which she based her failed application were not the subject of any adverse credibility finding by the Refugee Applications Commissioner or by the Refugee Appeals Tribunal, the relevant statutory bodies, I make no comment on them. Her claim related to a matter that could not, in any event, have been described as state-sponsored persecution. It was a private matter. The statutory bodies decided that there was no evidence of any failure in Nigeria to provide an adequate criminal justice system to which she could have chosen to have resort.

3 3. The applicant is the subject of a deportation order dated the 18 ^th September, 2008. This deportation order was made by the Minister following an analysis, by two officials, and in two separate documents, of the circumstances of the applicant within the State. Section 3(6) of the Immigration Act 1999, as amended, requires that before the Minister decides to deport someone from the State, particular issues should be considered and these include the humanitarian considerations whereby leave to remain in the State may be granted at his discretion. In addition, prior to deporting a person the Minister must consider the prohibition on refoulement and the bar on a return to a place where there is a reasonable possibility of a deportee being tortured; s. 5 of the Refugee Act 1996, as amended and s. 4 of the Criminal Justice (UN Convention Against Torture) Act 2000, as amended. Further, a deportee may also assert that a deportation would breach their rights under the European Convention on Human Rights or the Constitution of Ireland. This last claim is what is at issue here. The relevant statutory procedure was followed in this case. Briefly, on the failure of the applicant's claim for political asylum in the State, the Minister wrote to her seeking reasons as to why she should not be deported. This letter also pointed out that she could leave the State and could thereafter apply for a visa to visit here but that if a deportation order was made, she would not be entitled to re-enter the State while it continued in force. The applicant sought permission to remain in Ireland. She claimed rights pursuant to Article 8 of the European Convention on Human Rights and Article 41 of the Constitution. She argued that a factual matrix of family circumstances sufficient to assert such rights existed between her Nigerian mother, resident in the State, and her two Irish sisters. This was rejected by the Minister.

The Minister's Analysis

4 4. Two separate analyses of the applicant's file, including her representations seeking leave to remain in the State on family and on compassionate grounds, were conducted by officials within the Department of Justice, Equality and Law Reform before the Minister made the deportation order. To my mind, this analysis was conducted fairly and accurately. An objection is taken to the applicant's father being described in that analysis as being, as it is put, "deportation evaded". The claim is that such a statement puts an objective outsider on warning that bias against this applicant might be unconsciously operating. This description to me to be no more than the recitation of a fact. There is nothing to suggest any form of prejudice. Failure to deal with a fact is more often argued as a ground for judicial review in these cases and it is prudent to recite the circumstances of an applicant in broad outline.

5 5. It is also complained that an...