Judgment Title: I. -v- MJELR
Composition of Court:
Judgment by: Hogan J.
Status of Judgment: Approved
Neutral Citation Number:  IEHC 66
THE HIGH COURT
2010 548 JR
MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
JUDGMENT of Mr. Justice Hogan delivered on 22nd February, 2011
1. This application for leave to apply for judicial review raises once again issues which have troubled the courts for the best part of a decade. The applicant is a Nigerian citizen who arrived here in December, 2008. He is the father of three children, the last of whom is an Irish citizen by virtue of being born here in August, 2004. His wife has permission to remain in the State by virtue of what has come to be known as the Irish Born Child Scheme 05. Ms. I. is presently expecting a child next month which child, if born, will also be an Irish citizen.
2. Mr. I applied for asylum upon his arrival, but this was refused by the Office of Refugee Applications Commissioner in December, 2008. This decision was affirmed by the Refugee Appeals Tribunal in February, 2009. An application for subsidiary protection was refused by the Minister in March, 2010. The Minister subsequently made a deportation order on 1st April, 2010. It is the validity of this order which is under challenge in these proceedings and I am now called upon to consider whether the applicants have established substantial grounds within the meaning of s. 5(2) of the Illegal Immigrants (Trafficking) Act 2000 (“the 2000 Act”) such as would justify the grant of leave to apply for judicial review.
3. Mr. I had previously applied in November, 2006 to our Embassy in Abuja for a visa to travel here to join his wife. This application was refused having regard to the existing policy of not granting a visa to an applicant whose spouse was resident here under the IBC 05 Scheme.
4. Since his arrival in the State, Mr. I appears to have been a dutiful father who has looked after the educational and other needs of his children in an impressive fashion. There are various testimonials from teachers and others to the effect that Mr. I. regularly brings the children to school and assists them with homework. Ms. I. has worked in a variety of capacities during this period - ranging from care worker to a retail assistant - and there is little doubt but that Mr. I.’s presence in the home has facilitated her doing this.
5. There is also little doubt but that Mr. I has abused the asylum system. At his interview with the Office of Refugee Applications Commissioner in December, 2008 he candidly agreed that the only reason he came to Ireland was to be with his wife and children. He added that his wife had been threatening to divorce him and “his children have been asking where I am”.
6. All of this points to the fact that Mr. I came to Ireland to pursue a better life than would have been available to him and his family had they remained in Nigeria. For all our present difficulties, the standard of living in Ireland is incomparably higher than that prevailing in Nigeria. Given that S. is an Irish citizen and given further that Ms. I and the other two children were the right to remain here by virtue of the IBC Scheme, it is unsurprising that Ms. I would elect to remain in the State or that both Mr. and Ms. I considered that it was in the best interests of all the children that they would be reared in Ireland, rather than Nigeria. Few would disagree with that assertion. Mr. I further states that Ms. I has a “fear that our daughters will be subjected to female genital mutilation” against their wishes if she returns to Nigeria with them. It is equally understandable that Mr. I. would have sought to come to Ireland to join his family and that his family wanted him in turn to join them in the country in which they had settled.
7. Mr. I. was not, however, entitled to circumvent our asylum and immigration laws for this purpose. As I ventured to suggest in my own judgment in Robertson v. Governor of the Dochas Centre  IEHC 24, the principle that legislation should not be interpreted in a fashion as would allow a person to profit from their own wrong is one of general application. If one looked at this issue simply from the standpoint of Mr. I. and from that standpoint alone, then it is plain that any challenge to the validity of the deportation order would have to fail in limine in view of his calculated abuse of the asylum system.
8. If only life were that simple. Irrespective of the fact that Mr. I. did abuse the asylum system, the other relevant consideration here is that the I. family have being living here for well nigh seven years. S. will be seven in August, 2004 and she has lived here all her life. As S. is an Irish citizen she has the right to live here and to grow up as a fully fledged member of the Irish nation. She is, moreover, oblivious to the conduct of her father and, in principle, at any rate, the law should, if possible, seek to shield her from the consequences of her father’s manipulation of the immigration system.
9. A further consideration is that it is perfectly obvious from the language of Article 41 and Article 42 of the Constitution that S. has the right to the care and company of her parents, a point which, in any event, is attested by four powerful Supreme Court decisions, G. v. An Bord Uchtála  I.R. 32, Re JH  I.R. 375, N. v. Health Service Executive  IESC 60,  4 IR 470 and Oguekwe v. Minister for Justice, Equality and Law Reform  IESC 25,  3 IR 795.
10. Of course, it is plain from a series of cases such as Osheku v. Ireland  I.R. 733, AO and DL v. Minister for Justice  IESC 3,  1 I.R. 1 and Alli v. Minister for Justice, Equality and Law Reform  IEHC 595 that these rights are not absolute and must yield in appropriate cases to the State’s legitimate interest in controlling its own borders and ensuring the integrity of the asylum system. That system would, of course, be undermined if Mr. I. could profit from his own wrong and effectively circumvent immigration control by acting in the manner which he has.
11. These were all factors which the Minister set out in some detail in the examination of file for the purposes of s. 3 of the Immigration Act 1999 (“the 1999 Act”). The Minister concluded:
All factors relating to the position and rights of S. I. who is an Irish citizen child have been considered above and these have been considered against the rights of the State. In weighing these rights, it is submitted that if the Minister makes a deportation order in respect of K.I., there is no less restrictive process available which would achieve the legitimate aim of the State to maintain control of its own borders and operate a regulated system for control, processing and monitoring of non-national persons in the State. This therefore exists as a substantial reason associated with the common good which requires the deportation of KI.”
13. The practical effect of this is likely to be that S. will have little or no direct contact with her father. It seems unlikely that Mr. I. will get the necessary visa to travel to other European countries. It is true that the family could possibly meet in Nigeria, but such trips would surely place a huge financial burden on the family, given that Ms. I.’s income is unlikely ever to exceed the average industrial wage.
14. It is likewise hard to see how a marriage could survive a prolonged absence in these circumstances. In this regard it may be noted that in his s. 11 interview Mr. I. stated (Q. 44) that his wife was threatening divorce if he did not come to Ireland and he repeated this assertion in his affidavit. It must also be borne in mind that the deportation is in principle permanent in its effects, subject only to the power of the Minister to revoke the deportation order pursuant to s. 3(11) of the Immigration Act 1999: see, e.g., my own judgment in MAU v. Minister for Justice, Equality and Law Reform (No.1) (Unreported, High Court, 13th December, 2010).
15. It will thus be seen that the Minister is confronted with a difficult and unpalatable choice between making a deportation order which effectively sunders the family ties with S.’s father on the one hand, while on the other permitting the father to stay amounts to rewarding those who choose to circumvent the immigration controls by making abusive asylum applications.
The Supreme Court’s Decision in AO and DL
- the need to uphold the integrity of the Dublin Convention system;
- the need to uphold the integrity of the asylum system.
22. In some respects, Oguekwe may also be regarded as something of a development of the law since AO and DL. Here Denham J. stressed that the Minister must specifically “consider the facts relevant” to the constitutional rights of the citizen child. The decision to deport a parent must identify a “substantial reason” requiring the deportation of a foreign national parent of an Irish born child. She further stressed that the Minister is required to make “a reasonable and proportionate decision”.
23. In Oguekwe the Minister’s decision was quashed, precisely because the decision did not identify any substantial ground to justify the deportation. Denham J. also observed ( 3 IR 795 at 817-818):
The extent of the consideration will depend on the facts of the case, including the age of the child, the length of time he or she has been in the State, and the part, if any, he or she has taken in the community. Thus, his or her education, and development within the State, within the context of his or her family circumstances, may be relevant. If the child has been in the State for many years, and in the school system for several years, and taken part in the community, then these and related facts may be very pertinent. However, if the child is an infant then such considerations will not arise.
However, I respectfully disagree with the learned High Court judge, and I believe the High Court erred, in holding that the Minister was required to inquire into and take into account the educational facilities and other conditions available to the Irish born child of a proposed deportee in the country of return, in the event that the child accompany the deportee. I am satisfied that while the Minister should consider in a general fashion the situation in the country where the child's parent may be deported, it is not necessary to do a specific analysis of the educational and development opportunities that would be available to the child in the country of return. The Minister is not required to inquire in detail into the educational facilities of the country of the deportee. This general approach does not exclude a more detailed analysis in an exceptional case. The decision of the Minister is required to be proportionate and reasonable on the application as a whole, and not on the specific factor of comparative educational systems.”
25. A further consideration is that if the deportation order takes effect, then in practice S. will be permanently deprived of meaningful contact with her father for the rest of her childhood, unless the Minister were to revoke that order under s. 3(11) of the 1999 Act or the family’s financial position were dramatically to improve such as would allow them to travel to Nigeria. What, then, would be left of her constitutional right to the care and company of her father? Such constitutional rights must, of course, where possible be construed in a way “as to give them life and reality”: see Buckley v. Attorney General  IR 67 at 81, per O’Byrne J.
26. If the matter were res integra, then I should have thought that in these circumstances the applicants would have demonstrated the existence of substantial grounds justifying the grant of leave on the basis that the Supreme Court did not quite have a case of this kind in mind when deciding AO and DL. Judged by that standard, one might also contend that different considerations should possibly apply where - as here - the citizen child will inevitably be separated from one parent on whom she is dependent during her minority by reason of the operation of the deportation order in circumstances where the other parent has a permission to remain in the State.
27. However, the matter is not res integra, as there are numerous judgments of this Court dealing with cases which present broadly similar facts to the present one and which point firmly in the opposite direction.
The Previous Jurisprudence of this Court
29. In a comprehensive judgment, Clark J. considered that the issue was essentially determined by AO and DL:
33. Cooke J. nonetheless upheld the validity of the deportation orders:
In this case those factors have been addressed in the analysis made by the Minister when formulating the conclusion reached in favour of making a deportation order. In the court’s judgment the reasons outlined are reasons of substance and, as such, cannot be interfered with as being unlawful or invalid.”
36. For my part, I consider that the present case is indistinguishable in principle from cases such as Alli and Ofobuike. While it is true that the decisions of one High Court judge cannot strictly bind another, the established practice of this Court is that, generally speaking, previous decisions should be followed: see, e.g., the comments of Parke J. in Irish Trust Bank Ltd. v. Central Bank of Ireland  I.L.R.M. 50 at 53 and those of Clarke J. in Re Worldport Ltd.  IEHC 189 and PH v. Ireland  IEHC 40,  2 IR 540. As Clarke J. put it in Re Worldport Ltd.:
39. Given that I consider myself bound by these authorities, I am therefore constrained to hold that the applicants have not established substantial grounds within the meaning of s. 5(2) of the 2000 Act which would warrant the grant of leave to apply for judicial review.