A (X)(an Infant) and Others v Min for Justice and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 25 October 2011
• Neutral Citation: [2011] IEHC 397
• Court: High Court
• Date: 25 October 2011

A (X)(An Infant) & Ors v Min for Justice & Ors

BETWEEN

X A (AN INFANT SUING BY HER MOTHER AND NEXT FRIEND, JPA), JPA AND SOA

APPLICANTS

AND

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

RESPONDENTS

[2011] IEHC 397

[No. 258 J.R./2011]

THE HIGH COURT

IMMIGRATION LAW

Deportation

Unborn child - Rights - Role of rights - Family rights - Approach to be taken by first respondent regarding such rights - Irish citizen wife of applicant pregnant at date of deportation - Refusal by respondent to revoke deportation order - Whether respondent erred in treatment of right of unborn child - Whether family rights fairly weighed by first respondent - T.C. v Minister for Justice [2005] IESC 42, [2005] 4 IR 109; A.O. & D.L. v Minister for Justice [2003] 1 IR 1 and Buckley and Others (Sinn Féin) v Attorney General and Another [1950] IR 67 applied - S v Minister for Justice, Equality and Law Reform, [2010] IEHC 433, (Unrep, Cooke J, 7/12/2010); Ugbelase v Minister for Justice [2009] IEHC 598, [2010] 4 IR 233; U(MA) v Minister for Justice, Equality and Law Reform (No. 1) [2010] IEHC 492, (Unrep, Hogan J, 13/12/2010); S. v Minister for Justice, Equality and Law Reform [2011] IEHC 92, (Unrep, Hogan J, 23/3/2011); Omoregie v Norway, no. 265/07, [2009] Imm AR 170; I(K) v Minister for Justice, Equality and Law Reform [2011] IEHC 66, (Unrep, Hogan J, 22/2/2011) and Irish Trust Bank v Central Bank of Ireland [1976- 77] ILRM 50 approved - U(H) v Minister for Justice, Equality and Law Reform [2010] IEHC 371, (Unrep, Clark J, 29/9/2010) distinguished - Immigration Act 1999 (No 22), s 3 - Constitution of Ireland 1937, art 40.3 - Decision quashed (2011/258JR - Hogan J - 25/10/2011) [2011] IEHC 397

A(X) v Minister for Justice, Equality and Law Reform

Facts: A deportation order had been made in respect of Mr. A. He was married to an Irish citizen who had one child already and then became pregnant by Mr. A. The Court had to consider what was reasonable and proportionate in the circumstances of the deportation and the links of Mr. A. to Ireland, as well as the rights of the unborn child pursuant to Article 40.3.3. and Article 41 of the Constitution. The Minister was not informed of this marriage until some time afterwards and the Minister was informed of the birth of the child after its birth.

Held by Hogan J, in setting aside the deportation order pursuant to s. 3(11) Immigration Act 1999, that the Minister had not fairly weighed the rights of the applicants. The applicants would be forcibly separated otherwise. It was fiction to say that Ms. A had any choice worth speaking of. The Minister's decision had turned on the conclusion that Ms. A. was free to travel, which was not the case as she would need a visa and Nigeria was a relatively dangerous country, considering available country of origin information.

Reporter: E.F.

IMMIGRATION ACT 1999 S3(11)

S (F) & ORS v MIN FOR JUSTICE UNREP COOKE 7.12.2010 2010/46/11468 2010 IEHC 433

CONSTITUTION ART 40.3.3

UGBELASE v MIN FOR JUSTICE 2010 4 IR 233 2009/55/14073 2009 IEHC 598

CONSTITUTION ART 41

C (T) v MIN FOR JUSTICE 2005 4 IR 109 2005 2 ILRM 547 2005/10/2112 2005 IESC 42

U (MA) & ORS v MIN FOR JUSTICE (NO 1) UNREP HOGAN 13.12.2010 2010/50/12672 2010 IEHC 492

S (P) & E (B) v MIN FOR JUSTICE UNREP HOGAN 23.3.2011 2011 IEHC 92

OMOREGIE & ORS v NORWAY 2009 IMM AR 170 2008 ECHR 761

U (H) & ORS v MIN FOR JUSTICE UNREP CLARK 29.9.2010 2010/50/12611 2010 IEHC 371

O (A) & ORS v MIN FOR JUSTICE 2003 1 IR 1 2003/31/7267

IRISH TRUST BANK LTD v CENTRAL BANK OF IRELAND 1976-7 ILRM 50

I (K) v MIN FOR JUSTICE UNREP HOGAN 22.2.2011 2011 IEHC 66

BUCKLEY & ORS (SINN FEIN) v AG & POWER 1950 IR 67

1 1. This is an application brought by the A. family to quash a decision of the Minister for Justice, Equality and Law Reform dated 7 ^th February, 2011, pursuant to s. 3(11) of the Immigration Act 1999 ("the 1999 Act") as refused to revoke a deportation order which had been made in respect of S.A. Mr. A., an architectural student, is a Nigerian citizen who first arrived in Ireland in March, 2009 whereupon he made an application for asylum. This application for asylum was rejected and that decision was upheld by the Refugee Appeals Tribunal. An application for subsidiary protection was also refused. No issue pertaining either to that asylum application or in relation to the subsidiary protection arises in these proceedings. The deportation order was originally made on 5 ^th October, 2010.

2 2. Ms. A is an Irish citizen who has resided for most of her life in the State. She has a daughter, Alicia Rose, who is presently aged about three years, as a result of another relationship. Ms. A. contends that Mr. A. is the only father that Alicia has known. The Minister was made aware that Ms. A. was pregnant and that Mr. A. was the father of that child.

3 3. It appears, however, that Mr. A. failed to report to the Garda National Immigration Bureau and he was arrested on 4 ^th January, 2011. He was subsequently deported on 7 ^th February, 2011.

The supply of information to the Minister

4 4. At the outset, it should be stated that the manner in which relevant information has been supplied to the Minister is wholly unsatisfactory. This is also reflected in the manner in which the information has been put before this Court. The present application consists of a lever arch file of papers running to some 306 pages. Yet even now, key information regarding this application is, frankly, sketchy in places and requires the court to read between the lines in places regarding the background facts in a manner which is unfortunate.

5 5. Some examples will suffice to illustrate these points. First, the Minister was not even informed of the applicant's marriage until sometime afterwards. It appears that he was only informed of the birth of the first applicant by letter dated 3 ^rd October, 2011, almost two months after her birth.

6 6. Second, while much has been made of the fact that Mr. A. acted as a father figure in respect of Alicia, we have not been told of the extent of this involvement. Just as Cooke J. pointed out in Stevens v. Minister for Justice, Equality and LawReform, High Court, 7 ^th December, 2010, we not know, for example, how Mr. A. interacted with Alicia in their respective daily routines and "nothing by way of evidence is given as to the reality of family life in question". Did he, for example, supervise her play or read to her? Did he help with the numerous chores associated with child rearing?

7 7. Third, nothing has been said about Alicia's natural father. We have not been told very much about him, save that it is to be inferred that he plays no role in the child's life and that she is not maintained by him.

8 8. Fourth, we have been told very little about Ms. A's personal and financial circumstances. Thus, there is nothing in the court papers which expressly deals with issues such as her education, qualifications and employment prospects. Nor have we been told what her income is and or how she manages her daily routine in respect of the two children. While certain country of origin information and travel advisories in respect of Nigeria were exhibited - documents which, I concede immediately, were of great assistance to the court - little else has been said about Ms. A's own capacity to travel or to move to Nigeria. Has she lived in an African country before? Has she tried to obtain a visa to visit her husband? Could she afford such a trip?

9 9. These were all matters which ought to have been directly before the Minister and, indeed, the Court. Both the Minister and the Court have, to some extent, been left to infer what the answers to these questions are. It seems fairly clear, however, that the Ms. A has limited financial resources and that she has now been left to manage the two children on her own. This is what I am prepared to infer in the circumstances in view of the importance of the deportation order to the A. family. It is, however, an indulgence which might not necessarily be repeated in a future case. It is vital that the information of the kind I have just described should be supplied in future cases of this kind.

10 10. Against that background, I now propose to examine the substantive issues raised in these proceedings.

The right of the unborn child

11 11. At the time of the decision, Ms. A. was approximately just over two months pregnant and the Minister acknowledged that this unborn child would, when born, be entitled to Irish citizenship in view of the fact that her mother was an Irish citizen. In the words of the examination of file memorandum, the Minister accordingly "recognised" this right to life, but the existence of Ms. A's pregnancy appears to have played little role in the substantive decision itself.

12 12. The applicants maintained that the Minister accordingly erred in law in failing to give appropriate weight to the rights of the unborn child. However, so far as any rights deriving from Article 40.3.3 of the Constitution are concerned, I cannot agree that such rights will generally have any significant role as such in the assessment of the validity of a deportation decision. With the necessary apologies for stating the obvious, Article 40.3.3 is simply concerned with the right to life of the unborn. Save, perhaps, for quite exceptional circumstances of a kind which is presently difficult to envisage, it is difficult to see that a lex specialis such as Article 40.3.3 can have any wider application in the sphere of immigration law.

13 13. This question was comprehensively examined by Cooke J. in Ugbelese v. Minister for Justice, Equality and Law Reform [2009] IEHC 598, [2010] 4 I.R. 233. I completely agree with the analysis contained therein which is, I think,...