Judgment Title: S. & Ors -v- MJELR
Composition of Court:
Judgment by: Clark J.
Status of Judgment: Approved
Neutral Citation Number:  IEHC 417
THE HIGH COURT
2009 334 JR
B. S., O. S. AND
T. S. (A MINOR, SUING BY HIS MOTHER AND NEXT FRIEND O S)
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
Decision of Ms. Justice M. H. Clark delivered the 13th day of October 2011
1. The first two applicants are a married couple and the third applicant is their Irish citizen son. This is their application to quash by order of certiorari the decision of the Minister for Justice, Equality and Law Reform (the Minister) of the 12th March, 2010 refusing to revoke the deportation order of the 4th December, 2002 which was carried into effect on the 13th February, 2003.
2. Leave to seek judicial review was granted on an ex parte basis the 30th March 2010. The grounds on which such leave was granted were essentially that the legal and/or constitutional rights of the applicants and/or their family rights under the European Convention on Human Rights have been infringed. The actual grounds appear at the end of this judgment.
3. The substantive hearing took place on the 1st and 2nd July, 2010 and was adjourned to and finally heard on the 13th and 14th July 2011. Ms Sunniva McDonagh, S.C. with Mr Colm O’Dwyer, B.L. appeared for the applicants and Ms Sara Moorhead, S.C. and Ms. Siobhan Stack B.L. appeared for the respondent.
5. Mr. S’s asylum history is less than satisfactory. After his arrival he went “under the radar”; he did not respond to any correspondence and did not attend his interviews before the ORAC nor did he in any way seek to advance his asylum claim. Inevitably, that claim was deemed withdrawn and the Minister declared his application refused. Mr. S contacted the Refugee Legal Services in July 2002 to seek advice on the renewal of his residence permit and was then informed that the Minister had already determined to refuse his application for refugee status and that he intended making a deportation order. The RLS therefore applied on his behalf on the 13th August, 2002 for leave to remain in Ireland on humanitarian grounds. However, they had little information on which to make such representations and were forced to rely on the thin biographical details provided in Mr. S’s original claim. If Mr. S had formed a relationship with the second applicant by then, he certainly made no mention of any such relationship to the RLS.
6. Not surprisingly, the leave to remain application was refused and on the 4th December, 2002 the Minister made a deportation order against him. The above recited facts were then complicated by the fact that the two applicants called into the RLS offices after the submissions had been forwarded to the Minister, when they enquired whether the fact that they were in a relationship would make any difference to Mr. S’s application for leave to remain. Clearly, the fact of a mere relationship would carry little weight for leave to remain and it is therefore understandable that no further submissions were made to the Minister on his behalf. The applicants again attended the RLS offices after they were made aware that the Minister had made an order to deport Mr. S and this time informed the RLS that they intended to marry in January 2003 and that the second applicant was pregnant. This information was not relayed to the Minister and no application to revoke was made.
7. On the 8th January, 2003 Mr S and the second applicant were married and on 13th February, 2003 Mr S was arrested without warning and deported the following day. On the 16th July, 2003 Mrs S gave birth to their Irish citizen son, the third named applicant T. Mr S is named as his father on the child’s birth certificate.
8. As the deportation order was never challenged, the applicants do not make the case that the Minister was at fault in determining to deport the first applicant on the information available to him. When they eventually sought revocation they relied mainly on the assertion that their legal representatives were aware in or around the notification of the deportation order that they intended to marry and that the second applicant who was lawfully in the state as the mother of a citizen child was pregnant.
9. Their assertions are somewhat consistent with a copy of the RLS file which was exhibited to this court. However, the file also reveals that an appointment was made for Mr. S to attend at the office on the 23rd December 2002 well after the deportation order was notified to him and after he made known his intention to marry. Mr S failed to attend then, or on any other date. Marriage and birth certificates exhibited confirm that the applicants were married on the 8th January, 2003 and their son T was born here on the 16th July, 2003.
10. No further steps were taken and the matter lay until some time in 2005 when Mrs. S travelled to Nigeria in search of her husband. She located him in a condition of homelessness and abject poverty. Having reconnected with him, she settled him into rented accommodation and has since then been sending regular sums for his support. She has visited him every year since, apart from 2007. On three occasions their son T travelled with her while her older son M travelled twice. In 2008, her husband sought a D visa from the Irish Embassy in Abuja to join his wife in Ireland. His application failed as his records showed that he had been deported from Ireland in 2003 and was required thereafter to remain outside the state. Another Nigerian living in Ireland then directed Mrs. S to her present solicitor Ms. Elizabeth Mitrow who advised on the need for revocation on the deportation order pursuant to s. 3(11) of the Immigration Act 1999.
The Revocation Application
The Refusal to Revoke
13. The analysis of the application indicates that the submissions did not find favour because:
(b) such interference would be in accordance with law, to pursue a pressing need and a legitimate aim and to be necessary in a democratic society,
(c) affirmation of the deportation order would be proportionate to that legitimate aim as T was entitled to Nigerian citizenship and was of an adaptable age and could return with his family to enjoy family life where his father lived and where his mother had spent most of her life.
(d) M the older child was also stated to be entitled to Nigerian citizenship.
(e) A comparison was drawn with the facts of Uner v. The Netherlands  ECHR 46419/99 18 October 2006 where the children involved were young and had lived for a relatively short time with their father and where the ECHR found that if the applicant’s partner were to stay in the Netherlands with the children, the disruption to their family life would not be of the same impact as if he had been living with them for a much longer time.
(f) This family had spent a very limited time together
(g) At the date of their marriage, the parties knew of the deportation order and of Mr. S’s precarious immigration status and on the basis of well established UK case law
(h) the disruption to their family life would not be of the same impact as if Mr. S had been living with them for a much longer time if the deportation order was affirmed.
(i) there was no less restrictive process available which would achieve the legitimate aim of the State to maintain control of its own border and operate a regulation system for the control, processing and monitoring of non-nationals in Ireland. This was identified as a substantial reason requiring the affirmation of the deportation order made against Mr S.
14. Ms. Sunniva McDonagh, S.C. for the applicants argues the Minister did not appreciate the nature of their application and applied himself to the wrong question. In support of this premise, they take objection to a series of statements and comments found in the narrative of the analysis which they say is indicative of a failure on the part of the Minister’s agents to appreciate the true nature of the application. That application was to revoke the long executed deportation order so that the husband would be permitted to return and join his settled family here. They argue that the Minister’s reasoning for his decision was appropriate to the deportation of a person actually in the State and not to the application before him. They objected to reliance by the Minister’s agents on the ECtHR decision of Ajayi v. U.K.  ECHR 27633/95 22 June 1999:
17. Ms. McDonagh’s second argument which really is a development of the first, is that the Minister did not truly consider the individual facts contained in the submission nor did he actually address his mind to the issue that the deportation order ought to be revoked in order that Mr. S could join his wife and two citizen children who were long-term resident in the State. Following on from that, it is submitted that the Minister failed to consider at all the right of the citizen children to the care and company of their father. His reason for rejecting those rights was to state that they the citizen children were of an adaptable age and were entitled to Nigerian citizenship.
18. Finally it was argued that the decision to uphold the deportation was disproportionate in that the permanent exclusion of Mr. S from Ireland in effect meant that this family could never enjoy family life in Ireland. The children would, although citizens and settled migrants be obliged to leave a country where they had put down deep roots to face an uncertain future in Nigeria if they wished to enjoy family life. The Minister had simply failed to consider whether it would be reasonable to expect this family to move to Nigeria in circumstances where the wife has a steady job which provides a good standard of living for her children who are at school here and have never lived outside of Ireland.
Preliminary steps taken
The Respondent’s arguments
The effect of the Zambrano decision
22. Following the Zambrano decision which declared that the children in question enjoyed those rights, the Respondent made a public statement to the effect that he would review the cases of the fathers of citizen children who were outside the IBC05 scheme and who were awaiting decisions on the challenges to the validity of deportation orders. That statement which was published on the Minister’s site on the internet reads as follows;
One possible approach in these matters is to wait for pending cases to be determined by the Irish Courts and for the Courts to interpret and apply the Court of Justice ruling. That is an entirely justifiable approach from a legal standpoint. However in this case the Government has agreed that there needs to be a more proactive approach and that it should make a clear statement of its intention to take early action in these cases, insofar as it is unnecessary to await rulings of the Courts. We should not tie up the courts unnecessarily or ask eligible families to wait longer than necessary.
Accordingly I have asked my officials to carry out an urgent examination of all cases before the courts (approximately 120 at present) involving Irish citizen children to which the Zambrano judgment may be relevant. The Government has agreed with my proposal that early decisions in appropriate cases to which the Zambrano judgement applies be made without waiting for further rulings of the Courts. I have also asked my officials to examine the cases in the Department in which the possibility of deportation is being considered in order to ascertain the number of cases in which there is an Irish citizen child and to which the Zambrano judgment is relevant. In addition, consideration will be given to those cases of Irish Citizen children who have left the state whose parents were refused permission to remain.
This initiative is being taken in the best interests of the welfare of eligible minor Irish citizen children and to ensure that the taxpayer is not exposed to any unnecessary additional legal costs.
24. Both parties then made further submissions on the effect of the Zambrano decision on this case, and in particular addressed the issue of whether the fact that Mr. S was outside the state and was being supported by the wife could make the children his “dependants” within the meaning of that decision. The court was made aware of the current cases of Dereci and others pending before the Court of Justice (CJEU) where clarification of the extent of EU citizen rights was sought in the light of the recent Shirley McCarthy decision which it was argued creates some confusion as to the extent of the Zambrano ruling. The applicants argue that the ruling applies to the parents of every EU citizen child with non-national parents while the respondents argue that all EU rulings rely on their own facts and are not of general application. They submit that the agreed facts in this case simply do not come within the decision and the ruling therefore has no relevance or application to this case. Although all parties await further clarification on the full extent of the Zambrano decision from the CJEU, it is fair to say that at the re-convened hearing the applicants appeared to place a heavier reliance on their original arguments on the family’s constitutional and Article 8 rights than on the Zambrano ruling. In particular, the applicants rely on their constitutionally protected Article 41 family rights based on marriage.
The Court’s Assessment
26. The decisions of the Supreme Court to date have been that the clear right of a citizen child to reside and be educated in the state of his birth does not necessarily extend to his non – national parents. As constitutional rights are not absolute, they may sometimes have to concede to other conflicting guaranteed rights. In every case where such a conflict occurs, there must be a balancing of those rights with the right of the state to control its borders and operate a fair immigration policy which accords with the common good. As stated by Denham J. in Oguekwe
[. ]The ECtHR jurisprudence shows that it would normally be considered unreasonable for a family to go to great lengths to be able to continue family life together. Determining which side of the coin applies necessitates an examination of the facts of the particular family and a realistic and reasonable assessment of why they cannot live together in their country of origin. This can only be done on a case by case basis.”
29. Returning to this application, the family in question did not seek to justify the applicant B S’s weak asylum history nor did it maximise the time the family had been together but rather it sought to bring – for the first time – to the Minister’s attention to the fact that B S had in early 2003 married a lawful resident who had been here since 1999, that he was the father of a citizen child who has lived here since he was born in July 2003 and he was step-father to another Irish citizen who was almost 10.
30. The Minister was thus presented with a very different set of facts from those previously before him when he decided to deport a young man who had demonstrated a wholly casual approach to his claim for asylum. At the very least, the new information revealed that young man was more than six years older, he had a wife and citizen son and step-son living and being educated in Ireland and most important; his wife was economically independent, she was no longer receiving social welfare supports and had applied for naturalisation. His family in Ireland were clearly settled here. In the Court’s view this new information had to be viewed in the context that in 2003, nurturing parents of citizen children were generally permitted to remain in this state with their children. If the fact of the marriage and the expected birth of a citizen child had been notified to the Minister, the likelihood is that the father/husband would have been granted leave to remain and would not have been deported.
32. Regrettably, the Minister’s analysis gives every appearance of affording no more than a recital of the facts outlined in the submission with no indication that the major changes in previously available information was understood. The format of the consideration of the application gives little assurance of any appreciation that this was not a challenge to his deportation or that B S was not seeking to remain on humanitarian grounds but rather, that he wished the Minister to lift the life long exclusion from Ireland which followed the deportation order. The existence of his constitutionally protected family in Ireland was not recognised as a fundamental change of circumstances since he was deported in early 2003. Considering the completely fresh set of facts presented with the entirely newly identified constitutional rights, it is almost inconceivable that the Minister is standing over the near mechanical recital those submissions received. Those identified constitutional rights deserved a more significant recognition in the purported balancing exercise which followed. It cannot be a sufficient examination of a child’s constitutional rights to say that they are not absolute and that each child is entitled to Nigerian citizenship and that the child T was of an adaptable age when those children at nine and six were Irish citizens living in Ireland since their birth with their mother who had been here for ten years.
33. The Court is driven to the conclusion that the identification of the constitutional rights involved and the significantly changed circumstances was not followed by a true examination of those circumstances nor did that examination accord with the requirements restated by Denham J. (as she then was,) in Oguekwe where she outlined the obligation to “ weigh the factors and principles in a fair and just manner to achieve a reasonable and proportionate decision.” A fair and just consideration would have included an assessment of the length of time the family had spent in the state and whether the children were at school here. While those facts are not determinative of rights of non-national parents, they are facts to be considered when balancing the constitutional rights of a citizen child with those of the state in order to ensure harmonious interpretation of such rights and to arrive at a proportionate decision. In the language of the Strasbourg Court, a fair balance has to be struck between the competing interests of the individual and of the community as a whole.
34. The surrounding facts to be considered were that the wife is the mother of two citizen children who have lived here all their lives apart from short vacations in Nigeria. The wife has lived here since 1999 and is the breadwinner in permanent full time employment. This family was formed when the parents married in 2003 and while they have spent almost no time together as a married couple in Ireland due to the husband’s deportation, the wife has visited her husband every year apart from 2007. She is a settled migrant here demonstrated by her application for naturalisation. Her children aged then nine and six are both at primary school here. They only know the Irish system of education.
35. It is of note that the husband did not make a precipitous application for a visa to join his family immediately after his deportation but rather waited seven years before doing so. It cannot be fanciful to suppose that the husband waited until his wife was in a position to fully support him here before he applied to join her nor should the fact that she gave herself and her family five different opportunities to weigh up the advantages or otherwise to her family in returning to Nigeria to enjoy family life against continuing their life in Ireland be ignored. By reason of her frequent trips to Nigeria she, more than most applicants, was able to make a reasoned and informed choice regarding where her citizen children’s best interests would be served in their rearing and education. She is not merely a person making a choice of where she would like to live but rather a mother of citizen children who have lived here for an extended period.
36. The father in this case was seeking to join his family legally. The possibility that the Minister would consider revoking the deportation order so that a limited visa could be granted was simply not examined and the effect of the permanent exclusion of this father from visiting his family was not even mentioned. The finding that “there was no less restrictive process available which would achieve the legitimate aim of the State to maintain control of its own border and operate a regulation system for the control, processing and monitoring of non-nationals in Ireland” was not in fact an accurate statement. In this case, there was a less restrictive process available as Mr. S could have been given leave to re-enter for a limited period with conditions attached which could have been subject to renewal, provided he did not become a charge on the state and was of good behaviour.
37. The life long effect of a deportation order became obliquely relevant in the Supreme Court decision of Cirpaci v. Minister for Justice  2 ILRM 547 where the refusal to revoke the deportation order of the recently married husband of an Irish citizen was considered. Fennelly J. who delivered the judgment of the Supreme Court had regard for the Minister’s undoubted wide discretion to revoke any deportation order. He considered that when the constitutional rights of a family and of children are identified, the Minister is obliged to conduct a careful consideration of those facts but that ultimately, it was for the Minister to decide how the balance should be struck between the competing considerations. In doing so, he was bound to respect the principle of proportionality. The Supreme Court observed that when the Minister refused Mr. Cirpaci’s application for revocation, he did not shut the door on the Appellants. On the facts of that case, the Minister remained ready to consider such further evidence as might be submitted to him on the issue of an appreciable period of cohabitation. That recognition by Fennelly J. that the door was not closed was one of the determinants in the Supreme Court’s finding that the Minister’s refusal to revoke was proportionate and reasonable. No such life line was afforded to these applicants who had a citizen child and whose marriage has endured six years with cohabitation occurring during five holidays.
38. The effect of the decision not to revoke the deportation order means that if the family are to live together in a unit, they must abandon their right to live here and uproot and go to Nigeria. In Nigeria they will return to a father who will be unable to depend on his wife’s earnings in Ireland and the children will leave their education and their financial security behind them. The alternative is never to have the husband living with them apart from holidays in Nigeria. This cannot be a proportionate decision when measured against the conflicting right of the State to operate a fair immigration system. The balance in this case must fall in favour of the family’s strong constitutional rights to live in the country of their citizenship. Their position as settled migrants represents the other side of the coin in the insurmountable obstacles test under Article 8 of the ECHR where it would be unreasonable and therefore disproportionate to expect this family to either live forever without the husband and father or to leave Ireland and return to Nigeria.
39. While justifiable criticism can properly be laid at the door of the first and second applicants for their delay in seeking the revocation of the deportation order and for their own failure to disclose their relationship and marriage plans to the RLS at the appropriate time, the Court finds that the original arguments made by the applicants are valid. The main ground for setting aside and quashing the Respondent’s decision is that he quite simply misunderstood or mischaracterised the nature of the application. The Court is persuaded that the Respondent did not actually appreciate that this was an application to revoke the deportation order in order that the life time ban from entering the state might be lifted thus permitting the husband to apply for a visa to join his long time legally resident family here.
40. The decision of the Minister refusing to revoke the deportation order against B S will therefore be quashed by an order of certiorari.