O (A) v Minister for Justice and Law Reform & Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 06 January 2012
• Neutral Citation: [2012] IEHC 1
• Court: High Court
• Date: 06 January 2012

[2012] IEHC 1

THE HIGH COURT

[No. 972 J.R./2011]

O (A) v Min for Justice & Ors

BETWEEN/

A.O.

APPLICANT

AND

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

RESPONDENTS

IMMIGRATION ACT 1999 S3(11)

ZAMBRANO v OFFICE NATIONAL DE L'EMPLOI (ONEM) 2011 AER (EC) 491 2011 2 CMLR 46 2011 2 FCR 491

RSC O.52 r3

VOLUNTARY PURCHASING GROUPS INC v INSURCO INTERNATIONAL LTD & AGRICHEM LTD 1995 2 ILRM 145 1995/5/1695

ADAMS v DPP & ORS 2001 2 ILRM 401

ADAM & ORS v MIN FOR JUSTICE & ORS 2001 3 IR 53 2001 2 ILRM 452 2001/1/7

FITZPATRICK & RYAN v K (F) & AG 2009 2 IR 7 2008/24/5254 2008 IEHC 104

K (D) v JUDGE CROWLEY & ORS 2002 2 IR 744 2001/15/4309

CUSTOM HOUSE CAPITAL LTD, IN RE UNREP HOGAN 18.7.2011 2011 IEHC 298

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(1)

FOREIGN TRIBUNALS EVIDENCE ACT 1856 S1

RSC O.39 r33

RSC O.39 r34

BAMBRICK v COBLEY 2006 1 ILRM 81 2005/3/573 2005 IEHC 43

CONSTITUTION ART 34.1

CONSTITUTION ART 40.3.1

LLOYDS BOWMAKER LTD v BRITANNIA ARROW HOLDINGS PLC 1988 1 WLR 1337 1988 3 AER 178

INJUNCTIONS

Interim injunctions

Set aside - Discharge -Ex parte grant of injunction - Duty to disclose - Uberrima fides - Non disclosure - Jurisdiction - Whether jurisdiction under rules of court to set aside interim order - Whether inherent jurisdiction to set aside interim order - Test to be applied - Materiality of facts - Culpability for failure to disclose - Duty of legal advisors - Whether material that applicant failed to disclose refusal of court to grant previous identical application- Whether material that applicant failed to disclose directions given by court that subsequent applications be made on notice to respondent and with full disclosure - Discretion of court - Whether non disclosure went to heart of ex parte order - Whether jurisdiction to set aside intended to be punitive - Whether jurisdiction to set aside intended to be exercised in formalistic or mechanical fashion - Whether jurisdiction to set aside restitutionary in nature - Whether court should seek to restore the status quo ante - Voluntary Purchasing Groups Inc v Insurco International Ltd [1995] 2 ILRM 145, Adams v Director of Public Prosecutions [2001] 2 ILRM 401 and Fitzpatrick v FK [2008] IEHC 104, [2009] 2 IR 7 and Bambrick v Cobley [2005] IEHC 43 (Unrep, Clarke J, 25/2/2005) approved - Rules of the Superior Courts 1986 (SI 15/1986), O 52, r 3 - Interim injunction set aside (2011/972JR - Hogan J - 6/1/2012) [2012] IEHC 1

O(A) v Minister for Justice

Facts: An interim injunction had been granted by the High Court restraining the deportation of the applicant, a Nigerian national on the basis of the decision of the Court of Justice in Case C-34/08 Ruiz Zambrano [2011] ECR I-000. Neither the fact of a similar application nor its result was disclosed to a different High Court. There was no intention to mislead the Court. The respondents sought to have the interim injunction discharged on the basis that the applicant had failed to make disclosure of a highly material fact.

Held by Hogan J. that the Court would set aside the interim relief granted by reason of the material non-disclosure with regard to the order made. The objective materiality of the facts could not be overlooked.

Reporter: E.F.

1 1. On 13 ^th October, 2011, I granted an interim injunction restraining the deportation of the applicant, a Nigerian national, until 2pm the following day. While that interim injunction was granted on an ex parte basis, the order has been continued from time to time by consent.

2 2. On 14 ^th December. 2011, the respondents issued a motion whereby they sought to have the interim injunction discharged on the ground that the applicant had failed to make disclosure of a highly material fact. namely, that the applicant had previously made an unsuccessful application for an injunction in September, 2011 on the same or similar grounds before my colleague, Mr. Justice Herbert.

3 3. The applicant is a Nigerian national who, by his own account, has a chequered immigration history, having been excluded from the United Kingdom following his conviction for possession of a stolen passport. He arrived here by air from Bratislava in March 2009 and he 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.

4 4. On 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.

5 5. As just noted, the applicant had claimed asylum in the State following his arrival from Slovakia. The basis of the claim was 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 ^th November, 2009, that the applicant's account was not credible.

6 6. On 12 ^th January, 2010, the Minister informed the applicant of an intention to deport him. The applicant then applied for subsidiary protection, but he was informed on 9 ^th August, 2011, that this application had been rejected. The applicant was also informed that the Minister had made a decision to deport him.

7 7. 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. While this application was rejected by letter communicated to the applicant on 14 ^th September, 2011, it nevertheless is appropriate to describe the circumstances pertaining to the Irish citizen children.

8 8. 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.

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

10 10. She maintains that she was cruelly deceived by Mr. O. During this period he had 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.

11 11. Ms. Y. gave birth to a baby daughter in late 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 1-0000. This judgment had been delivered on 8 ^th March, 2011.

12 12. While the full parameters of that decision and its implications for immigration law generally are matters for further argument, the general effect of that decision was that the parent of a child holding EU citizenship could not be deported from the Member State in question where this would mean that the child would also have to leave the Union territory. In the words of the Court of Justice:-

2 "42. In those circumstances, Article 20 TFEU precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union...

43 A refusal to grant a right of residence to a third country national with dependent minor children in the Member State where those children are nationals and reside, and also a refusal to grant such a person a work permit, has such an effect.

44 It must be assumed that such a refusal would lead to a situation where those children, citizens of the Union, would have to leave the territory of the Union in order to accompany their parents. Similarly, if a work permit were not granted to such a person, he would risk not having sufficient resources to provide for himself and his family, which would also result in the children, citizens of the Union, having to leave the territory of the Union. In those circumstances, those citizens of the Union would, as a result, be unable to exercise the substance of the rights conferred on them by virtue of their status as citizens of the Union."

13 13. As to whether the applicant could...