Wang v Minister for Justice, Equality and Law Reform

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 06 October 2017
• Neutral Citation: [2017] IEHC 652
• Date: 06 October 2017
• Court: High Court
• Docket Number: [2016 No. 490 JR]

[2017] IEHC 652

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2016 No. 490 JR]

BETWEEN

JACKSON YAO WANG (A MINOR SUING THROUGH HIS MOTHER AND NEXT FRIEND MING QIN LING)

AND

OTHERS

APPLICANTS

AND

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

AND

IRELAND

RESPONDENTS

AND

THE IRISH HUMAN RIGHTS AND EQUALITY COMMISSION

NOTICE PARTY

Asylum, Immigration & Nationality – S. 7 of the Criminal Law Act, 1977 – Expiry of permission to remain in State – Constitutional Rights – Public interest v best interests of child

Facts: The third applicant challenged the deportation order made by the first respondent against him. The said applicant contended that the decision of the first respondent was breach of his constitutional rights as he had a family that had been residing in the State and he would be deprived of his family by the execution of the said order. The third applicant cited difficulties of his other family members if moved to the country of origin as they had been brought up and intermingled there.

Mr. Justice Richard Humphreys dismissed the third applicant's application. The Court held that the nature and gravity of the offence with which the third applicant was charged did not require that his constitutional rights be considered. The Court observed that the public interests in the deportation of the applicant outweighed the best interests of the child. The Court opined that there was no evidence that if the family of the third applicant returned to the country of origin, they would be treated differently as Irish citizens of Chinese ethnicity.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 6th day of October, 2017

1 The third named applicant is a Chinese national, the father of the first and second named applicants who are Irish citizens. The mother is also Chinese, and the couple have a third child who is of Chinese nationality. All members of the family have resided here as a unit. Between 2000 and 2005 the father had student permissions. From 2005 to 2013 he had permission to remain in the State under the IBC 2005 (Irish Born Child) Scheme. That permission to remain in the State expired on 11th August, 2013. The father was convicted of a number of offences under s. 7 of the Criminal Law Act, 1977 on the 31st July, 2013, under ss. 15 and 21 of the Misuse of Drugs Act, 1977 on the 30th September, 2013, and of two further counts of attempting to cultivate cannabis plants and criminal damage on the 8th April, 2014. He received terms of imprisonment including terms of eight years, with two years suspended. His wife avers that he could have got a reduced sentence had he agreed to leave the country but he was unwilling to do so. A deportation order was made against him on the 13th June, 2016, which is challenged in these proceedings.

2 I wish to record my thanks to Mr. Colman FitzGerald S.C. (with Mr. Gavin Keogh B.L.) for the applicants and Mr. David Conlan Smyth S.C. (with Ms. Natalie McDonnell B.L.) for the respondents for their helpful submissions. I will deal with the applicant's contentions in turn.

The alleged failure to consider the constitutional rights of the family and its members (in particular the children).

3 In my view this argument is a non-starter. The constitutional rights of the children are expressly considered. The result of the weighing process is a matter for the Minister unless it is clearly unreasonable or unlawful which it is not. It is clear from Fajujonu v. Minister for Justice [1990] 2 I.R. 151, A.O. and D.L. v. Minister for Justice [2003] 1 I.R. 1 and Oguekwe v. Minister for Justice and Equality [2008] IESC 25 that such rights are not absolute. How the decision is worded is not for the applicant to dictate. There is no doctrine that the decision must be phrased in the form of constitutional rights being the starting point.

The alleged failure to consider the best interests of the children.

4 As I pointed out in O.O.A. v. Minister for Justice and Equality [2016] 7 JIC 2924, [2016] IEHC 468 at para. 37 the best interests of the child can be outweighed by other factors. At p. 23 of the analysis the Minister accepts that it is in the best interests of the children to be raised by both parents, so that issue was clearly considered. However, best interests are not determinative nor could they be. Here it is concluded that such interests were outweighed by other factors, and that is a matter for the Minister unless such a determination is clearly unreasonable or unlawful, which it is not. On the contrary, it is clearly reasonable. Serious offending requires serious consequences either to deal with a past offence or to prevent future reoffending or pour encourager les autres and to send out a clear signal. Any one of these rationales could apply to outweigh the factors militating in favour of upholding the best interests of the children.

The alleged failure to uphold the EU law rights of the citizen children.

5 There is no evidence that the citizen children will in fact be compelled to leave the State if the father is deported. In fact the evidence is very much the contrary. Therefore there is no Zambrano issue (see Case C-34/09 Gerardo Ruiz-Zambrano, M.Y. v. Minister for Justice and Equality [2015] IEHC 7 and E.B. (a minor) & Ors v Minister for Justice and Equality (29th January 2016)). Zambrano only applies where a deportation would deprive children of the substance of their EU law rights. For example when both parents are proposed for removal and there is an EU citizen child there could be a Zambrano issue preventing deportation of both parents until the child turns eighteen. On the other hand (assuming that there was an objective reason to legitimately differentiate between the parents – as here) there would not appear to be an obstacle to deporting one of the parents immediately and the other when the child turns eighteen. Mr. Conlan Smyth points out that Advocate General Sharpston in her opinion in Zambrano delivered on the 30th September, 2010, at para. 178 proposed an answer to the questions posed in that case which would have provided greater flexibility, namely to suggest that arts.20 and 21 of the TFEU would not ' preclude a member state from refusing to grant a derived right of residence to an ascendant relative of a citizen of the Union who is a national of the Member State concerned and who has not yet exercised rights of free movement, provided that that decision complies with the principle of proportionality'. However the court went for a somewhat firmer version of the EU law rights involved although that was at some risk of a possible difference in approach between EU law and the ECHR. It may be for future case law to determine how that difference in approach can be reconciled. However where one parent is to be left behind in the EU, Zambrano does not apply for all practical purposes. If from an art.8 point of view there are no insurmountable obstacles to relocation that parent then has a choice as to whether to relocate or not. The exercise of that choice does not breach EU law. It is not a negation or a breach of EU law rights if the reason the children do not or cannot...