O (A) v Min for Justice and Others (No.2)

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Hogan
Judgment Date17 Jan 2012
Neutral Citation[2012] IEHC 79

[2012] IEHC 79

THE HIGH COURT

[No. 972 J.R./2011]
O (A) v Min for Justice & Ors (No.2)
BETWEEN/
AO
APPLICANT

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL (No.2)
RESPONDENTS

O (A) v MIN FOR JUSTICE & ORS UNREP HOGAN 6.1.2012 2012 IEHC 1

IMMIGRATION ACT 1999 S3(11)

RUIZ ZAMBRANO v OFFICE NATIONAL DE L'EMPLOI 2011 ECR C-34/09 2011 IMMAR 521

RSC O.84 r20(8)

CAMPUS OIL LTD v MIN FOR INDUSTRY & COMMERCE (NO.2) 1983 IR 88

I (P) & ORS v MIN FOR JUSTICE & ORS UNREP HOGAN 11.1.2012 2012 IEHC 7

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 20

DERECI v AUSTRIA 2011 ECR I-000 C-256/11

CONSTITUTION ART 9

EFE v MIN FOR JUSTICE 2011 2 ILRM 411

OBOH v MIN FOR JUSTICE & ORS UNREP HOGAN 2.3.2011 2011 IEHC 102

CONSTITUTION ART 42.1

NOTTINGHAMSHIRE CC v B UNREP SUPREME 15.12.2011 2011 IESC 48

NORTH WESTERN HEALTH BOARD v W (H) 2001 3 IR 622

CHILDREN'S UNIVERSITY HOSPITAL TEMPLE ST v D (C) 2011 2 ILRM 262

THE STATE (NICOLAOU) v AN BORD UCHTALA 1966 IR 567

M (AN INFANT), IN RE 1946 IR 334

G v AN BORD UCHTALA 1980 IR 32

BLASCAOD MOR TEO v CMSR OF PUBLIC WORK (NO.2) 2000 1 IR 6

FAMILY LAW

Reunification

Restraint of deportation - Guardianship of or access to Irish born child - Constitution - Family rights - Fair issue to be tried - Whether absence of full appeal from refusal to challenge to subsidiary protection constituted denial of effective remedy - Whether court should view application from perspective of applicant's child - Whether in interests of child that applicant would enjoy right of access or guardianship - Whether deportation should be restrained pending determination of guardianship and access proceedings by District Court - AO v Minister for Justice [2012] IEHC 1 (Unrep, Hogan J, 6/1/2012), Nottinghamshire County Council v B [2011] IESC 48 (Unrep, SC, 15/12/2011), In re Baby AB; Children's University Hospital, Temple Street v CD [2011] IEHC 1, [2011] 2 ILRM 262, The State (Nicolau) v An Bord Uchtála [1966] IR 567, In re M (an infant) [1946] IR 344, and G v An Bord Uchtála [1980] IR 32 considered - Efe v Minister for Justice [2011] IEHC 214, [2011] 2 IR 798 and Oboh v Minister for Justice [2011] IEHC 102 (Unrep, Hogan J, 2/3/2011) followed - Zambrano v Belgium (Case C-34/09) [2011] All ER (EC) 491 and Dereci v. Bundesministerium für Inneres (Case C-256/11) distinguished - Rules of the Superior Courts 1986 (SI 15/1986), O 84, r 20 - Constitution of Ireland 1937, art 41 & 42 - Injunction granted (2011/972JR - Hogan J - 17/1/2012) [2012] IEHC 79

O(A) v Minister for Justice, Equality and Law Reform (No 2)

1

1. This is an application brought by the applicant whereby he seeks to apply afresh for a stay on the implementation of his deportation order pending the determination of his application for leave to apply for judicial review in respect of the validity of that order. In a judgment delivered in these proceedings on 6 thJanuary, 2012, I vacated an earlier interim injunction which had been granted by me on the ground of material non-disclosure by the applicant: see AO v. Minister for Justice and Law Reform, High Court, 6 thJanuary 2012..

2

2. While the earlier judgment contains a fuller account of the background to this application, one may recapitulate by noting that the applicant is a Nigerian national who arrived here on a flight from Bratislava in March, 2009. The applicant was in possession of a Nigerian passport and an Austrian identity card. The passport was in the name of a Mr. X. and it contained a valid Irish entry visa.

3

3. Upon his arrival, the applicant originally presented himself to immigration officials as Mr. X. He later claimed asylum in Ireland under his true name. Subsequent Garda investigations established that Mr. X.'s passport had been stolen from him at a bank in Vienna. The applicant was subsequently charged with the offence of handling stolen property ( i.e., the stolen passport) and he pleaded guilty to this offence before the Cloverhill District Court in May, 2009 whereupon he received a six months sentence.

4

4. The applicant claimed asylum on the ground that he said that he had fled Nigeria as a result of threats from third parties following his engagement to a Muslim woman whilst he was Christian. He contended that his fiancée had been murdered. The asylum process came to an end following the determination of the Refugee Appeal Tribunal on 25 thNovember, 2009, that the applicant's account was not credible.

5

5. On 12 thJanuary, 2010, the Minister informed the applicant of an intention to deport him. The applicant then applied for subsidiary protection, but he was informed on 9th August, 2011, that this application had been rejected. The applicant was also informed that the Minister had made a decision to deport him. At the end of August, 2011 the applicant then made an application under s. 3(11) of the Immigration Act 1999, to revoke the deportation order on the basis that he had two Irish citizen children. Although this application was rejected by letter communicated to the applicant on 14 thSeptember, 2011, it is nevertheless appropriate to describe the circumstances pertaining to the Irish citizen children.

6

6. According to Mr. O.'s own account, the first child, Ms. A, was born in Belfast in August, 2004 and now resides with the applicant's former partner, Ms. B., in Dagenham, London. The applicant avers that Ms. A. has visited him here and, further, that he provides some financial assistance to Ms. B. to assist her with child rearing. It would seem probable, however, that Ms. A. will live permanently in the United Kingdom under the care of Ms. B. The applicant is, however, presently excluded from the United Kingdom following a conviction there for dishonesty. Accordingly, the position of that child can be disregarded so far as this injunction application is concerned.

7

7. At some stage, however, following his application for asylum, Mr. O. became romantically involved with a Ms. Y. She is an Irish national who resided in the border region and in Dublin. Ms. Y. is professionally qualified and she is currently in the process of moving to practice her profession in the United Kingdom. It has also been suggested that Ms. Y. has already moved to the United Kingdom.

8

8. Ms. Y. maintains that she was cruelly deceived by Mr. O. During this period he had somehow managed to lead an affluent lifestyle and she contends that he led her to believe that he was previously a male model who was now working for a UK property firm. At no stage did Mr. O. disclose that he had a criminal record or that he was currently in the asylum process. She found herself unexpectedly pregnant in April, 2010 and the relationship foundered shortly thereafter after she discovered what she claims were compromising messages from another female on his mobile telephone. In fairness to Mr. O., it should be stated that this general account is emphatically denied by him, not least the contention that the pregnancy was unplanned.

9

9. Ms. Y. gave birth to a baby daughter (whom I shall describe as Baby C) towards the end of December 2010, but she says that Mr. O.'s request for access in respect of the child first came some three months later. Mr. O. then issued proceedings under the Guardianship of Infants Act 1964, in late March, 2011. Ms. Y. avers that she believes that this was simply a tactical and opportunistic ploy on his part so that his paternity of the child could be used to his advantage for immigration purposes, prompted by the publicity which surrounded the decision of the Court of Justice of the European Union in Case C-34/08 Ruiz Zambrano [2011] ECR I-0000. This judgment had been delivered on 8 th March, 2011.

10

10. The applicant's application for guardianship in respect of the child currently remain outstanding and is now scheduled to be heard by the District Court on 22 nd February 2012. As things stand, there seems very little prospect that Ms. Y and Mr. O. can be reconciled, not least since Ms. Y. feels betrayed by the fundamental manner in which she says she has been deceived by Mr. O. It could not be suggested that the prospects of Ms. Y. moving to Nigeria are in any way realistic or, indeed, that she would have any inclination whatever to do so. One must accordingly assume, therefore, that if Mr. O. is deported that Baby C will have no contact whatever with her father and may well never meet him, whether during her childhood or otherwise.

11

11. This is accordingly the background to the present application for an interlocutory injunction.

The application for an interlocutory injunction under O. 84, r. 20(8)
12

12. The applicant now seeks an injunction pursuant to the provisions of the new O. 84, r. 20(8) RSC. This provision came into force on 1 stJanuary, 2012, and it is in the following terms:-

"Where leave to apply for judicial review is granted then the Court, should it consider it just and convenient to do so, may, on such terms as it thinks fit- "

(a) grant such interim relief as could be granted in an action begun by plenary summons,

(b) where the relief sought is an order of prohibition or certiorari, make an order staying the proceedings, order or decision to which the application relates until the determination of the application for judicial review or until the Court otherwise orders."

13

13. It is clear from the terms of O. 84, r. 20(8)(a) in particular that the new rules apply standard Campus Oil principles ( Campus Oil Ltd. v. Minister for Industry and Commerce (No. 2) [1983] I.R. 88) to all applications for interlocutory relief in judicial review proceedings, including those cases where certiorari is the primary relief which is being sought in the substantive proceedings: see, e.g., the reasons set out in more detail in my own judgment in PI...

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