Judgment Title: Agbonlahor & Ors -v- Minister for Justice
Composition of Court: Feeney J.
Judgment by: Feeney J.
Status of Judgment: Approved
Neutral Citation Number:  IEHC 166
THE HIGH COURT
[2006 No. 147 JR]BETWEEN
OLIVIA AGBONLAHOR, GREAT AGBONLAHOR (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND OLIVIA AGBONLAHOR) AND MELISSA AGBONLAHOR (A MINOR SUING BY HER MOTHER AND NEXT FRIEND OLIVIA AGBONLAHOR)
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL
RESPONDENTSJUDGMENT of Mr. Justice Feeney delivered on the 18th day of April, 2007.
1.1 The first named Applicant is the mother of the second and third named Applicants who are her two children. They are all Nigerian nationals. The application herein is made on behalf of the first named Applicant Olivia and her twin minor children were born in Italy on the 2nd March, 2001. The first named Applicant and her husband arrived in Italy from Nigeria in 1996. Her husband is a journalist and a writer and the first named Applicant claims that as a result of an expose of a Nigerian “drug baron” living in Italy, written by her husband, that they started to receive threatening phone calls. In January of 2003, the first named Applicant was attacked by Nigerians in Turin, Italy resulting in her right hand being injured with a machete. The first named Applicant claims that she reported the attack to the police but that she was again threatened, during February, 2003, by two Nigerian men and that while attempting to escape from them ran in front of a bus. The first named Applicant determined that the safety of herself and her twins required that they leave Italy. Her husband refused to leave. On the 5th March, 2005, while her husband was on a work assignment the first named Applicant took her two children and left Italy and came to Ireland where she applied for refugee status.
1.2 The basis of the application for asylum related to the alleged threats from the Nigerian ex-patriot community in Italy together with the alleged threat of female genital mutilation to the third named Applicant if the family were to return to Nigeria. The Refugee Applications Commissioner considered the application of the first named Applicant on her own behalf and on behalf of her two minor children and by letter of the 30th September, 2003 the first named Applicant was notified that the Refugee Applications Commissioner had recommended that the three Applicants would not be declared to be refugees. An appeal was pursued before the Refugee Appeals Tribunal and on the 20th April, 2004 the first named Applicant was notified by letter that her appeal from the decision of the Refugee Applications Commissioner had failed and the decision of the Commissioner was affirmed.
1.3 By letter dated the 31st August, 2004, the Applicants were notified that the first named Respondent (“the Minister”) was proposing to make deportation orders in respect of the first named Applicant and her two children. On the 15th September, 2005, the Minister made deportation orders in respect of the three Applicants. Written representations were made on behalf of the Applicants by letter dated the 27th September, 2005. The submissions were made through the Refugee Legal Service to the Minister and were to the effect that the Applicants be permitted to remain in the State on humanitarian grounds. Such representations proved unsuccessful and the first named Applicant was notified that she should present herself to the Garda National Immigration Bureau on the 4th October, 2005, for deportation from the State. The Refugee Legal Service succeeded in obtaining a deferral of the intended deportation on the grounds that the second named Applicant had been given an appointment for an assessment at a Regional Autistic Spectrum Disorder Clinic on the 4th October, 2005. On the 18th October, 2005 the Minister put a stay on the deportation order pending a review of the case. The second named Applicant was assessed by Dr. Gillian Bannon, on the 26th October, 2005. Dr. Bannon is a psychiatrist with the Regional Autistic Spectrum Disorder Service and she diagnosed that the second named Respondent was suffering from Attention Deficit Hyperactivity Disorder (ADHD) in addition to an intellectual disability and Dr. Bannon also considered that the second named Applicant may be presenting with some sensory integration issues. Dr. Bannon concluded that the most significant aspect of the child’s difficulties was his behaviour difficulties. Dr. Bannon made a number of recommendations.
1.4 On the 4th November, 2005, the solicitors who were then acting for the Applicants, Brophys, wrote to the Minister requesting that he exercise his power under s. 3(11) of the Immigration Act, 1999 and amend or revoke the deportation orders. The principal ground relied upon related to the disability and needs of the second named Applicant, Great Agbonlahor. In a letter of the 4th November, 2005 it was contended that the condition ADHD requires intervention without which the person suffering from this disorder will “frequently end up in prison, presenting as a classically antisocial individual with serious personality difficulties”. It was submitted to the Minister that the removal of the Applicants and in particular the second named Applicant would interfere with the right to respect for his private life guaranteed by Article 8 of the European Convention on Human Rights. Further representations were made by letter of the 16th November, 2005 wherein it was indicated that the Applicant’s solicitors had contacted Professor Kanu, lecturer in the Department of Special Education, University of Ibadan, Nigeria and that Professor Kanu had indicated that there was only one private school catering for children with special needs known to her and that that catered for children with Down’s Syndrome. It was further submitted that as a result of Great’s condition that he would be ostracised from society within Nigeria and the same would apply to his mother and sister.
1.5 A memorandum was prepared within the Department in the light of the representations received and on 20th January, 2006, the Minister personally considered the entire documentation, including all the representations made on behalf of the applicants. The Minister concluded that the deportation order would not be revoked. On 31st January, 2006 the applicants were informed of the Minister’s decision. In making the decision, the Minister specifically noted that the second named Applicant was not autistic. It was initially feared that the child was autistic and this had led the Minister to undertake the review. He further noted that the asylum application, which was based on an alleged fear of persecution in Italy where the Applicant’s husband/father continued to live, was without foundation and that it was on that basis that the permission to remain in the State was refused and the decision in relation to the deportation order was confirmed.
1.6 Following the notification of the Minister’s decision High Court proceedings were commenced. Ex-parte relief was granted by the High Court on 7th day of February, 2006 and the application seeking leave came on for hearing thereafter resulting in a judgment of the High Court on 3rd day of March, 2006. Leave was sought on a number of grounds and the court ultimately granted leave on one ground. Herbert J. concluded his judgment of 3rd February, 2006 on p. 34 by stating:
2.1 The Leave granted makes express reference to the provisions of the European Convention on Human Rights Act of 2003. The Convention has not been incorporated into Irish law but s. 3(1) of the European Convention on Human Rights Act, 2003 expressly states that “subject to any statutory provision (other than this Act) or rule of law, every organ of the State shall perform its functions in a manner compatible with the State’s obligations under the Convention provisions.” In carrying out the functions which are the subject of review by this court, the Minister is performing a function as an organ of the State within the terms of s. 3(1) of the Act of 2003 and it therefore follows that if the Minister’s decision not to revoke was incompatible with the State’s obligations under the Convention provisions that such decision would be unlawful pursuant to s. 3 of the 2003 Act.
2.2 The European Convention on Human Rights Act, 2003 identifies the Convention as meaning the Convention for the Protection of Human Rights and Fundamental Freedoms done at Rome on 4th day of November, 1950. The English language text of that Convention was set out in Schedule 1 in the Act of 2003.
2.3 Article 8 of the European Convention on Human Rights states as follows: “Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interest of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
2.4 The amended statement of grounds refers to Article 8(1) generally. However, it is the case that there is no issue relating either to home or correspondence. It is also the case that there is no risk to “family life” as the proposed deportation order relates to all three applicants. The factual position is that the only remaining family member in the family unit of the applicants is their father who is not living in Ireland but in Italy. It follows that the removal of the applicants from Ireland will not impact on family life. In the light of the above it follows that what is in issue in this case is the “private life” of the applicants.
2.5 In the submissions of the Respondents it was stated as follows: “It is therefore not contested that Great’s disorder, and a desirability that he would be treated for it forms an aspect of Great’s “private life” pursuant to Article 8 of the European Convention on Human Rights.” It was however contested on behalf of the Respondents that to remove Great and the other applicants from this jurisdiction in pursuance of lawful immigration control did not constitute a breach of the right of “respect” for the applicants’ private life.
3.1 The European Court of Human Rights has considered the meaning of private life as referred to within in Article 8. Such consideration makes it clear that private life extends beyond the concept of privacy. The court considered that “moral and physical integrity” formed part of private life within the terms of Article 8. In considering this issue the European Court in Raninen v. Finland  26 E.H.R.R. 563 stressed that the right to physical and moral integrity guaranteed by Article 8 comes into play even though it is not so severe as to amount to inhuman treatment under Article 3. That approach was reiterated by the court in Bensaid v. United Kingdom  33 E.H.R.R. 10/205 at p. 219, para. 46
Private life is a broad term not susceptible to exhaustive definition. ...Mental health must also be regarded as a crucial part of private life associated with the aspect of moral integrity. …The preservation of mental stability is in that context an indispensable precondition to effective enjoyment of the right to respect for private life.”
3.2 Article 8 does not protect private or family life as such. In fact it guarantees
a “respect for these rights”. In view of the diversity of circumstances and practices in the contracting States, the notion of “respect” (and its requirements) are not clear-cut; they vary considerably from case to case. (See Abdulaziz and Others v. United Kingdom  7 EHRR 471 at para. 67. The main issue which has concerned the European Court in relation to the concept and scope of “respect” is whether such obligation is purely a negative one or whether it also has a positive component. The court has stressed on many occasions that the object of Article 8 is essentially that of protecting the individual against arbitrary interference by public authorities and that such is a primarily negative undertaking but that nevertheless it has on occasions indicated that there may in addition be positive obligations upon States that are inherent in effective respect for Article 8 rights. There have been occasional challenges to deportations on the ground of interference with Article 8 rights. Those challenges have almost always been based on interference with “family life” rather than “private life”. In the Abdulaziz case the court held that whilst there might be positive obligations to respect the family that “a State had a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention with due regard to the needs and resource of the community and of individuals”. (p.497)
3.3 In considering immigration law under Article 8 the European Court has focused on an analysis of the individual facts in each particular case to ascertain whether the individuals asserting breach of rights are in truth asserting a choice of the State in which they would like to reside, as opposed to an interference by the State with their rights under Article 8. The Court of Appeal in England considered the relationship between Article 8 and Immigration Law in Regina (Mahmood) v. Secretary of State for the Home Department  1 WLR 840 and after considering European jurisprudence Lord Phillips drew the following conclusions (at para. 55, p. 861) in relation to the potential conflict between the respect for family life and the enforcement of immigration controls, namely:
(2) Article 8 does not impose on a state any general obligation to respect the choice of residence of a married couple.
(3) Removal or exclusion of one family member from a State where other members of the family are lawfully resident will not necessarily infringe on Article 8 provided that there are no insurmountable obstacles to the family living together in the country of origin of the family member excluded, even where this involves a degree of hardship for some or all members of the family.
(4) Article 8 is likely to be violated by the expulsion of a member of a family that has been long established in a State if the circumstances are such that it is not reasonable to expect the other members of the family to follow that member expelled.
(5) Knowledge in the part of one spouse at the time of marriage that rights of residence of the other were precarious militates against a finding that an order excluding the latter spouse violates Article 8.
(6) Whether interference with family rights is justified in the interest of controlling immigration will depend on
(i) the facts of the particular case, and
3.5 Both parties in this case have sought to rely on the House of Lords decision
in R (Razgar) v. Home Secretary  2 AC 368. In that case Lord Bingham identified five questions which an adjudicator would be likely to have to address where removal was being resisted in reliance on Article 8. Those questions are set out at p. 389 and are as follows:
(3) If so, is such interference in accordance with the law?
(4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?
(5) If so, is such interference proportionate to the legitimate public end sought to be achieved?”
The approach adopted by Lord Bingham is of assistance to this court in considering the issue herein. It is particularly so in circumstances where the sole issue in the case is whether the removal of the Applicants from the State would constitute a breach of their rights or any of their rights under Article 8 of the European Convention on Human Rights. There is no dispute but that the concept of private life embraces an individuals mental condition and stability and on the facts in this case the proposed removal of the second named Applicant has the clear potential to be an interference with that Applicant’s private life. As is apparent from the approach identified by Lord Bingham once the first question posed by him is answered yes then one must address the second question. That question is whether the interference with the second named Applicant’s right would have consequences of such gravity as to potentially engage the operation of Article 8. Lord Bingham stated (at p. 389), as follows,
3.6 The Respondents in this case contend that the onus is on the Applicants to show that the removal of any of them from the State will have consequences of such gravity so as to engage the operation of the Convention and that on the evidence the alleged consequences would not meet the required level of gravity. The Respondents relied on the House of Lords decision in N. v. Home Secretary (2005) 2 AC 296. That case dealt with Article 3 of the Convention but the Respondents in this case urged that the approach therein outlined was applicable to an Article 8 claim and in particular argued as Article 3 prevents inhuman and degrading treatment that it was apparent that Article 3 called for a higher level of severity or gravity than that arsing in relation to an allegation of a threat to Article 8 rights.
The facts of the N case were that the N. was a Ugandan citizen and asylum seeker who was seriously ill and had been diagnosed as HIV positive. N. was in receipt of treatment from the National Health Service during the period that her asylum claim was being processed. The immigration adjudicator dismissed N.’s asylum appeal but held that the UK would be in breach of its obligations under Article 3 of the Convention if it returned N. to Uganda since the treatment that she needed would not be available to her in that country and that she would die within a matter of months. The Immigration Appeal Tribunal allowed the Home Secretary’s appeal against that decision and that decision was appealed to the Court of Appeal which dismissed N.’s appeal resulting in a further appeal to the House of Lords. The House of Lords concluded that it was bound by the principles to be derived from the jurisprudence of the European Court of Human Rights in Strasbourg to the effect that Article 3 of the Convention did not impose an obligation on a contracting state to provide aliens indefinitely with medical treatment which was unavailable in their home countries, even if the absence of such treatment would significantly shorten their lives and that Article 3 could be extended to apply only in exceptional circumstances where the present state of health of the person who was subject to expulsion was such that, on compelling humanitarian grounds he ought not to be expelled unless it could be shown that the medical and social facilities that he would need to prevent acute suffering while he was dying were available to him in the receiving state. Lord Nicholls stated (at p. 304)
3.9 In the N. v. Home Secretary case the House of Lords determined that the deportation of N. from the United Kingdom which would result in a withdrawal of treatment which would shorten N.’s life expectancy did not make her expulsion amount to inhuman treatment purposes of Article 3. This court is satisfied that that case and decision provides guidance to the correct approach to be taken by this court in relation to Article 8 rights. The approach and analysis adopted by the House of Lords in the N. case, albeit in relation to Article 3 rights, represents in this court’s view a correct and proper approach to the Article 8 rights sought to be protected in this case.
3.10 The House of Lords in the N. case had to reconcile the decision in that case with the decision in D. v. The United Kingdom 24 EHRR 423. The House of Lords approved the dicta of the Court of Appeal which had decided that the D. case was an extension of an extension. The D. case was an illustration of the fact that the generally negative obligation of the State to refrain from actually subjecting an individual to inhuman and degrading treatment could be extended in certain asylum or extradition cases to cover a situation where removal would place the person being removed at risk of being subjected to inhuman or degrading treatment as a result of intentionally inflicted acts of public authorities in the receiving country or of acts of non State bodies of that country where the authorities in that country were unable to afford the appropriate protection. This court is satisfied that the House of Lords in the N. case correctly concluded, that notwithstanding the precedent in the D. case that it was a general principle of the Strasbourg jurisprudence that as Lord Hope stated (at p. 309):
3.11 This court is satisfied that on the facts of this case and following the approach identified by the House of Lords in the N. case that the Applicant herein has not established exceptional circumstances. This is all the more so, because what is at issue herein is not a lack of treatment which will result in the likely death of the Applicant, but rather the absence in the receiving State of educational and medical facilities to ensure the full development of the Applicant.
3.12 It is appropriate to recognise that the above statement of the law represents an austere one. However in dealing with this matter in the N. case, Lord Hope stated (at p. 305):
This court in addressing the second of the five questions identified by Lord Bingham in R (Razgar) v. The Home Secretary, is satisfied that this is not a case where the proposed removal would be an interference having consequences of such gravity as to potentially engage the operation of Article 8.
3.13 In the N case Lord Hope having reviewed the authorities identified two basic principles to which the Strasbourg Court had adhered. He stated (at p. 315):
3.14 On the basis of the above authorities this Court is satisfied that a correct interpretation of the Strasbourg authorities imposes an obligation on States not to interfere with the private life of individuals by their own actions. The authorities identify that there is an extension of that principle in relation to extradition type cases but that that extension is extremely limited and exceptional and only arises where there is a genuine and true risk that the authorities in the receiving State would commit acts upon an individual which would breach that person’s rights under the Convention in the event that he is removed to that country.
3.15 It is also of significance that in considering the issue of family life that it is appropriate to have regard to the lawfulness and length of stay as being significant factors in seeking to identify the exceptional cases where a State might be prevented from exercising the State’s unquestioned entitlement to impose immigration control. The decision of the Minister was made on the basis of the information available to him and no regard can be had to information arising thereafter. One of the factors which was apparent at the time of the Minister’s consideration was the fact that the husband and father of the applicants continued to reside lawfully in Italy. The state of the evidence before this Court was that the first named applicant could not seek family reunification in Italy other than from an Italian embassy or consulate in a country of regular residence. It would therefore appear that, if the applicant was to seek family reunification in Italy, she would have to do it from a place of permanent residence in Nigeria and that such an application would then be entertained. There is no evidence as to the likelihood of such an application succeeding. It is also the case that the applicants failed in their application for asylum which was at least in part based upon a fear of persecution in Italy and that notwithstanding the fear claimed by the first named applicant that the first named applicant’s husband continues to reside in that jurisdiction.
3.16 On the basis of the facts established herein the consequences arising from the applicants’ removal from the State will at most be an indirect consequence of that removal and where such removal is in pursuance of the lawful immigration policy there cannot be said to be a lack of respect by the State authorities. The facts demonstrate that the alleged risk or danger to the applicants, and in particular the second named applicant, are not as a result of State action nor is this a case in which such alleged risks arise out of the actions of the public authorities in a receiving State. On the basis of the foregoing this Court is satisfied that none of the applicants has established a breach of Article 8.
4.1 For the sake of completion it is appropriate to identify that if this Court had answered the second of Lord Bingham’s five questions in the affirmative and had ultimately to address the fifth question to the effect “is such interference proportionate to the legitimate public end sought to be achieved” that this Court would have determined that having considered the severity and consequences of the interference that having due regard to the fact that the decision taken was taken pursuant to the lawful operation of immigration control, that such decision as made in this case was proportionate. This Court is of the view that the appropriate basis for considering this matter is set out by Lord Bingham in Razgar where he states:
4.2 This Court was referred to a number of authorities in support of the applicants’ claim and in particular to a translation of a 1998 decision in the Hertogenbosch Court in Holland. An analysis of that decision demonstrates that there is no detailed analysis or rationale for the decision unlike the decision of the House of Lords in the N case which is a true source for guidance and assistance. It is recognised that the N case was dealing with obligations under Article 3 and that the case herein relates to Article 8. However, as hereinbefore pointed out, this Court is satisfied that the principles and approach identified by the House of Lords in the N case in relation to Article 3 are equally applicable to Article 8. Given both the wording and content of Article 3 it is difficult to envisage that the threshold in relation to Article 3 could in any way be lower than the threshold applying to Article 8.
4.3 In the light of the above this Court determines that none of the applicants are entitled to an order of certiorari. This Court is satisfied that on the evidence before the Minister on 20th January, 2006 that his decision not to revoke the deportation orders made by him on 15th September, 2005 in respect of the applicants was not a violation of their rights under Article 8.