A.O v Minister for Justice, Equality and Law Reform, Ireland and Attorney General (No. 3)

• Jurisdiction: Ireland
• Judgment Date: 03 April 2012
• Neutral Citation: [2012] IEHC 104
• Date: 03 April 2012
• Docket Number: [2011 No. 972 JR]
• Court: High Court

BETWEEN

AO

APPLICANT

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL (No.3)

RESPONDENTS

[2012] IEHC 104

[2011 No. 972 JR]

THE HIGH COURT

Constitutional law Judicial review – Immigration and asylum law – Refugee – Family law – Deportation – Adequacy of judicial review – Zambrano doctrine – Bona fides of applicant – Whether failure by Minister to adhere to fair procedures – Immigration Act, 1999 – Qualification Directive, Directive 2004/83/EC – Bunreacht na hÉireann, 1931.

Facts The applicant sought leave to bring judicial review proceedings and an interlocutory injunction restraining the respondent Minister from deporting him during the minority of his daughter. The applicant, Nigeria national, had arrived in the State and had been subsequently convicted of being in possession of stolen property. The applicant”s claims for asylum and subsidiary protection had been rejected by the State. The applicant maintained that the Minister had breached the requirements of Article 4(1) of the Qualification Directive, Directive 2004/83/EC in not affording him an opportunity to comment the draft adverse decision. It was also submitted that there was no right of appeal against the refusal of subsidiary protection breached Article 39 of the Procedures Directive. It was also submitted that rights accrued to the applicant as the father of a citizen of the EU as per Article 20 TFEU (as per the Zambrano decision) and also rights accrued under Article 24 of the EU Charter of Fundamental Rights. On behalf of the Minister it was submitted that the applicant should be denied relief on discretionary grounds having regard to his general lack of candour and bona fides.

Held by Hogan J in granting the relief sought: It was clear that Article 39 did not apply to applications for subsidiary protection and even if it did judicial review remained as a perfectly adequate remedy. There was no prospect that the infant in question would be obliged to leave the territory of the Union even if the applicant was deported. The State in using its powers under the Immigration Act, 1999 could not be said to be ‘implementing’ Union legislation and thus protection under Article 24(3)) of the Charter did not arise. However as the court had a duty to vindicate the constitutional rights of the child in question under Article 42.5 of Bunreacht na hÉireann and an interlocutory injunction would issue restraining the applicant”s deportation subject to the condition that the applicant to the Minister to revoke the deportation order pursuant to s. 3(11) of the Act of 1999. Despite the conduct of the applicant the court was not looking at the position of the applicant in isolation but was assessing the issues in this case from the perspective of his daughter.

JUDGMENT of Mr. Justice Hogan delivered on 3rd April, 2012

1 This is now the third judgment which I am required to give in these judicial review proceedings involving the applicant, Mr. O. In the first judgment (AO v. Minister for Justice and Law Reform [2012] IEHC 1) I set aside the original grant of leave to apply for judicial review by reason of material non-disclosure. In the second judgment (AO v. Minister for Justice and Law Reform (No. 2) [2012] IEHC) I grant a limited interlocutory injunction such as would enable the applicant to apply to the District Court for access in respect of his infant daughter. The applicant now seeks to leave to apply for judicial review and, furthermore, seeks an interlocutory injunction restraining the respondent Minister from deporting him during the minority of his daughter.

2 The facts, so far as relevant, must now be briefly re-stated. The applicant is a Nigerian national who arrived in the State on a flight from Bratislava in March 2009. He was found by the immigration authorities at Dublin airport to be in possession of a stolen Nigerian passport and an Austrian identity card. The applicant subsequently pleaded guilty before the Cloverhill District Court to being in possession of stolen property whereupon he received a six month sentence.

3 The applicant had claimed asylum upon his arrival in the State. The claim was rejected by the Refugee Appeal Tribunal on 25th November 2009 on the ground that his account of likely persecution was not credible. A claim for subsidiary protection was also rejected on 9th August 2011 and the applicant was then informed that the Minister had made a decision to deport him (advance warning of this possibility having previously been communicated to him in January 2010).

4 The applicant then sought to have the deportation order revoked pursuant to s.3(11) of the Immigration Act 1999 ("the Act of 1999") on the ground that he had two Irish citizen children. One those children lives with her mother, Ms. B., in the United Kingdom, from which the applicant has been excluded by reason of an earlier conviction for dishonesty. The applicant has limited contact with that child and the position of that child can be disregarded so far as the present application for leave to apply for judicial review and injunction application is concerned.

5 The other child, Baby C., was born in December 2010. She was born to Ms. K., an Irish citizen. Ms. K. is professionally qualified and she spends approximately two weeks each month in the United Kingdom. She formed a romantic relationship with the applicant and she found herself pregnant in April 2010. There is a factual dispute as to whether the pregnancy was (or was not) planned, but it seems that the relationship foundered at this point when Ms. K. found what she claimed were compromising messages from another female on his mobile telephone.

6 While Mr. O. sought guardianship and access to the child in March 2011 , Ms. K. regards these applications as entirely opportunistic and as merely a tactic so that his paternity of the child can be used to his advantage for immigration purposes. She further maintains that the first endeavours by him to seek such access came after the publicity surrounding the decision of the Court of Justice on 8th June 2000 in Case C- 34/08 [2011] E.C.R. 1-000, a point which, if correct, tends to re-inforce her contention that Mr.O.'s endeavours in this regard are purely self-serving and tactical.

7 As things stand, therefore, there seems very little prospect that Ms. K. and Mr. O. can be reconciled, not least given that the distressing circumstances of the break-up of the relationship. Nor is there any prospect that Ms. K. would follow Mr. O. to Nigeria or that she would have any inclination to visit him there. The stark reality, therefore, is that in the event that Mr. O. were deported, Baby C. would have no contact whatever with him and there is every likelihood that she would never again see her father during her childhood.

8 It is against this general background that the applicant advances a variety of different ground s in his application for leave and an injunction. Some of these grounds relate to his own personal circumstances (such as, for example, the challenge to the subsidiary protection decision), while the majority of the arguments are directed at the question of his access to Baby C. We may now consider these arguments in turn. Having evaluated these arguments, I will then exam ine the question of whether it would be appropriate to grant an injunction.

The subsidiary protection argument

9 The applicant maintains that the Minister breached the requirements of Article 4(1 ) of the Qualification Directive, Directive 2004/83/EC in that he contends that the Minister was obliged to submit a draft ad verse decision to him for his comments prior to the final decision being taken. The applicant had contended that he had been engaged to a Muslim woman, but that he had fled Nigeria as a result of threats from third parties who objected to the fact that she was marrying a Christi an and that his fiancée had been murdered in the process. The Minister had rejected the claim on the basis that Nigeria had a functioning police force, but that applicant says that he did endeavour to seek police protection and that it was unavailing.

10 As the parties themselves acknowledge, this issue is likely to be determined by the outcome of the decision of the Court of Justice in Case C-277/11 MM. The oral hearing in that case took place on 28th March 2012 and a judgment is anticipated later this calendar year. In these circumstances, I propose to adjourn this application for leave pending the outcome of that judgment.

Article 39 of the Procedures Directive and judicial review as an adequate remedy

11 The applicant further contends that the fact that there is no right of appeal against the refusal of subsidiary protection amounts to a denial or his right to an effective remedy as guaranteed by Article 39 or the Procedures Directive. While Article 39 applies to applicants for asylum, the clear intent of the Union legislator is that these procedures should also apply to applications for international protection such as subsidiary protection: see Article 3(3). It would appear that Ireland is the only country to maintain a dual system of protection (i.e., so that the applications for asylum and subsidiary protection are examined separately) so that in this particular situation Article 39 does not apply.

12 This issue was comprehensively addressed by Cooke J. in A. v. Minister for Justice and Equality [2011) IEHC 381 where he observed:-

"13. …the Procedures Directive applies only to the procedures employed by the Member States in processing claims for refugee status (asylum claims) except where, as provided for in Article 3(3), a Member State employs a form of unified procedure for the processing of joint applications for both forms of international protection. The scope of the Procedures Directive is defined in Article 3(1): "This Directive shall apply to...