A.Z. v Minister for Justice & Equality

• Jurisdiction: Ireland
• Judge: Ms. Justice Siobhán Phelan
• Judgment Date: 27 July 2022
• Neutral Citation: [2022] IEHC 511
• Court: High Court
• Docket Number: [Record No: 2021/740 JR]

In the Matter of Section 5 of the Illegal Immigrants (Trafficking) Act, 2000 (As Amended)

Between:

A.Z.,

and

M.Z.,

and

C.Z. (A Minor Suing by His Mother and Next Friend M.Z.)

Applicants

and

The Minister for Justice and Equality

Respondent

[2022] IEHC 511

[Record No: 2021/740 JR]

THE HIGH COURT

JUDICIAL REVIEW

JUDGMENT of Ms. Justice Siobhán Phelan delivered on the 27 ^th day of July, 2022

INTRODUCTION

1 . In these proceedings, the Applicants seek to challenge the Respondent's decision of the 28 ^th of June, 2021, notified to the First Named Applicant under cover of letter dated the 13 ^th of July, 2021, which refused to revoke the deportation order made in respect of him on the 26 ^th of June, 2019 (hereinafter “the 2019 deportation order”) under s. 3 of the Immigration Act 1999, as amended (“the 1999 Act”). Central to the determination of these proceedings is whether there has been a proper consideration of the rights of an Irish citizen child with special needs in making a deportation order in respect of his non-national father.

BACKGROUND

2 . The First Named Applicant has a chequered immigration history in the State. He is an Albanian national who entered the State unlawfully, allegedly in March, 1995, and lived under an alias for many years. During that time, he worked in the State without a work permit as a construction worker. It is stated that he formed a relationship with the Second Named Applicant, an Irish citizen, in or about 2005. In 2006, their first son was stillborn. The Third Named Applicant was born in September, 2007.

3 . The Third Named Applicant is an Irish Citizen and attends school in the State. Due to a diagnosis of autism and significant hearing loss, he has additional needs and benefits from access to a range of services within the State. He is reported to be progressing well in school where he receives supports.

4 . The First Named Applicant is the primary carer for the Third Named Applicant who is now 14 years of age. The Second Named Applicant is married to the First Named Applicant and is the mother of the Third Named Applicant. She is an Irish citizen and is a health care professional. She is the sole bread-winner for the family and works long hours.

5 . The Applicants form a family unit. They have lived together continuously since before the birth of the Third Named Applicant with the exception of a three-year period when the First Named Applicant was serving a term of imprisonment.

6 . On the 7 ^th of August, 2012, the First Named Applicant was involved in an altercation with a colleague in his workplace where he discharged six bullets from an illegally held firearm striking his colleague. He was subsequently charged with several criminal offences, namely assault contrary to s. 2 of the Criminal Justice (Non-Fatal Offences Against the Person) Act, 1997 (as amended), unlawful possession of a firearm, and possession of a firearm with intent to endanger life or cause serious injury to property.

7 . The First and Second Named Applicants married on the 27 ^th of August, 2012, within weeks of the shooting incident. At that stage the Third Named Applicant was almost five years of age.

8 . On the 11 ^th of September, 2013, while the above charges were pending against the First Named Applicant, his then solicitors submitted an application on behalf of the First Named Applicant for a permission to remain in the State on the basis of his parentage of the Third Named Applicant (the “ Zambrano application”).

9 . As part of the application, on the 6 ^th of January, 2014, the First Named Applicant's solicitor submitted further documentation including a Criminal Record Declaration Form. The First Named Applicant signed this Declaration Form on the 12 ^th of November, 2013. He declared that he had never been convicted of any offence in the State. This was untrue as he had a previous conviction dating back to the 3 ^rd of November, 2003 when he was fined €200 for intoxication in a public place, contrary to s. 4 of the Criminal Justice (Public Order) Act, 1994 (as amended). The charge of threatening, abusive or insulting behaviour in a public place contrary to s. 6 of the same Act was taken into consideration. In response to the question of whether there were any charges pending against him in the State or abroad, the box was ticked for yes, but no details were given as to the nature of any charges despite this being a question on the form.

10 . On the 3 ^rd of March 2014, the First Named Applicant was granted a Stamp 4 permission for three years as the parent of an Irish citizen child (the ‘ Zambrano’ permission). This was granted on certain conditions, including that the First Named Applicant would obey the laws of the State and would not engage in criminal activity. At the time that the application was approved, it is the Respondent's case (as indeed apparent from the record of the examination of the file under s. 4 of the Immigration Act, 2004 dating to March, 2003) that the Respondent was not aware of the 2003 public order conviction and the serious charges that were pending against him, albeit the First Named Applicant had disclosed that charges were pending without providing details. It appears from the records exhibited that no further enquiry was made by the Respondent notwithstanding the disclosure of pending charges.

11 . The First Named Applicant pleaded not guilty to the charges referred to above and following conviction in the Dublin Circuit Criminal Court on the 15 ^th of July, 2014, he was sentenced to five years (with one year suspended) for the unlawful possession of a firearm, and seven years (with three years suspended for four years) for possession of a firearm with intent to endanger life or cause serious damage to property. The presiding judge in the Circuit Criminal Court is reported in the media to have described the First Named Applicant as having “a very short fuse.” While he was given three concurrent sentences which totalled seven years with the three last years suspended for a period of four years, the First Named Applicant qualified for the remission of his sentence and was released on the 13 ^th of July, 2017. Whilst in prison, the First Named Applicant had a weekly visit from the Second and Third Named Applicants and daily telephone contact.

12 . The Applicant did not renew his permission to be in the State whilst in custody and a deportation order issued for him in October, 2017. On the 19 ^th of April, 2017, a proposal to deport pursuant to s. 3 of the 1999 Act was sent to the First Named Applicant while he was still in custody.

13 . On the 12 ^th of May, 2017, his then solicitors submitted representations and supporting documentation on behalf of the First Named Applicant. In the detailed submissions advanced, reliance was placed, inter alia, on family rights protected under Article 41 of the Constitution and the decision of the High Court in Gorry v. Minister for Justice [2014] IEHC 29 as well as the rights of the family under EU law (with particular reliance on R v. Bouchereau [1978] 66 Cr App R 2020) and the nature of the threat to public policy or public security required to justify interference with EU rights, Article 8 of the European Convention on Human Rights (hereinafter “ECHR”) which it was contended was not present in this case.

14 . It is noteworthy that the submissions also focussed on the requirement to treat the child's best interests as paramount in conducting a proportionality test. It was submitted in reliance on international case-law, specifically ZH (Tanzania)(FC) v. Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166 and Wan v. Minister for Immigration and Cultural Affairs [2001] FCA 568 (para. 32), that the decision maker was required to identify what the best interests of the child required and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the child understood as a primary consideration. Strangely, the Third Named Applicant's special needs did not feature in the submissions made and no reference was made to a diagnosis of autism or other needs.

15 . A decision to make a deportation order was made in relation to the First Named Applicant on the 27 ^th of October, 2017 (hereinafter “the 2017 deportation order”). The Examination of File which accompanied the 2017 deportation order reflects a consideration of the family and private life rights of the Applicants with reference to Articles 40, 41 and 42 of the Constitution, Articles 7 and 24(2) of the Charter of Fundamental Rights of the European Union [hereinafter “Charter”] and Article 8 of the Convention [hereinafter “the ECHR”]. It is acknowledged in the Examination of File that there was an obligation to take into consideration the child's best interests recognised by Article 24(2) of the Charter (p. 5 of the Examination of File), but it is not identified in terms that Article 24(2) identifies the child's best interests as “ a primary consideration”. No reference was made to Article 42A of the Constitution but the Examination of File document states:

“consideration is given, in the best interest of the child, to all the specific circumstances arising”.

16 . No actual finding as to what the child's best interests were was made but it may be implicit from the statement “ while it is recognised that any further absence of Mr. Z from his son's life will inevitably lead to upheaval for the child, this is a factor which must be considered in the wider context of the threat Mr. Z may pose to society and the consequential right of the State to prevent disorder or crime” that it was understood that the child's best interests were served by the father remaining in the State. It was expressly noted that “ no further information is provided in respect of the child's education …it...