Judgment Title: E.A & Anor -v- Minister for Justice & Anor
Neutral Citation: 2012 IEHC 371
High Court Record Number: 2012 478 JR
Date of Delivery: 07/09/2012
Court: High Court
Composition of Court:
Judgment by: Hogan J.
Status of Judgment: Approved
NEUTRAL CITATION NUMBER 2012 [IEHC] 371
THE HIGH COURT
[2012 No. 478 J.R.]
E.A. AND P.A. (AN INFANT SUING BY HIS FATHER AND NEXT FRIEND E.A.)
MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL
JUDGMENT of Mr. Justice Hogan delivered the 7th day of September 2012
1. This application for an interlocutory injunction presents again in acute form the difficult dilemma which has confronted both officialdom and the courts on numerous occasions in the last decade or so, namely, how should the constitutional rights of a young child to the care and company of his parents be weighed against the interests of the State in effective immigration control and the general integrity of the asylum system?
2. The first named applicant, E.A, (“Mr. A.”). is the father of the second named applicant P.A. (“P”). Mr. A. entered the State on the 7th June, 2005 and applied for asylum on the following day. He was later to marry a fellow Nigerian national, Ms.E.O. (“Ms. O.”) in the State on the 19th December, 2006. Ms. O. was previously given a declaration of refugee status on the 4th April, 2005 and is a qualified nurse. Mr. A. and Ms. O. are the parents of P., who was born in the State on the 5th October, 2007 and who is an Irish citizen.
3. In his asylum application Mr. A. had claimed to be a Sudanese national and he further claimed his father was dead, but that his mother and siblings were resident in the Sudan. He had contended that he had fled from the Janjaweed militia who had attacked his village on several occasions and as a result of which his father had died. The asylum claim failed before the Refugee Applications Commissioner and on appeal before the Refugee Appeals Tribunal. In the course of the appeal the Tribunal member had expressed serious reservations about the credibility of the claim with regard to Sudanese nationality and found that it was unlikely that the first named applicant was Sudanese.
4. It is hardly a surprise that against that background the Minster refused to grant Mr. A. a declaration of refugee status, but the applicant then applied for subsidiary protection and for application for leave to remain pursuant to the Immigration Act 1999. It then emerged in correspondence emanating from the applicant’s solicitor in September 2009, that Mr. A. was in fact born in Nigeria and is entitled to Nigerian citizenship. While Mr. A. had claimed that his father was a Sudanese national and that he feared that his father was dead, the declaration supplied by Mr. A’s father to the Minister not merely shows that these fears were not well founded, but that Mr. A.’s father is in fact also a Nigerian national. On that basis, therefore, that application for subsidiary protection was rejected in December 2009. Mr. A. was actually deported from the State on the 28th April, 2010. It now seems that he re-entered on the 5th December, 2010, and claims that he returned via the United Kingdom using a British passport arranged with the help of a friend.
5. The parents have been separated since September 2008 and a formal decree of judicial separation was granted by the Circuit Court in November 2011. P lives with his mother in Dublin and Mr. A resides in Galway. At the same time, Mr. A. claims that he has a close bond with his son and they meet at least once week. Indeed, the presence of his son in Ireland is the reason why Mr. A. states that he took the wholly unlawful step of returning to Ireland in open defiance of the deportation order which excluded him from this State. At the same time, it would not appear that Mr. A, is in a position lawfully to support his son financially. Nor can there by any realistic suggestion that P will leave either Ireland or, for that matter, the territory of the European Union, were his father to be deported afresh. After all, Ms. O has refugee status and P. is himself an Irish citizen.
6. A further consideration is that Mr. A. has engaged in a manifest deception of the Minister and his officials. Although the couple separated in September 2008, the Minister was not informed of his fact. On the contrary, Mr. A. frequently represented to the Minister that they were living together as a family unit. Thus, for example, on 20th April 2009 the applicant’s solicitors wrote to the Minister informing him that the “couple and their son live together as a family unit.” It is not disputed but that Mr. A. engaged in such egregious deception because he thought that he would have a better chance of securing a more favourable decision from the Minister.
7. There is no question at all but that if one looked at this matter from the perspective of Mr. A.. his outrageous conduct would have plainly disentitled him to any prospect of relief. There is no doubt whatever but that the State’s interest in deterring such unlawful behaviour is very high. Here again, however, the court must, unfortunately, shut its eyes to his illegal and deceitful conduct in the higher interests of protecting the welfare and interests of the child: see, e.g., my own judgments in Oboh v. Minister for Justice, Equality and Law Reform  IEHC 102 and AO v. Minister for Justice and Equality (No.2)  IEHC 79. While the preservation of the integrity of the asylum system and, indeed, the integrity of the judicial process are of vital importance, in matters of this kind the court must, where possible, give primacy to the constitutional right of the child to the care and company of his parents in the manner envisaged by Article 42.1 of the Constitution. But before considering this issue, it is necessary first to consider the arguments advanced based on the decision of the Court of Justice in Case C-34/00 Ruiz-Zambrano  E.C.R. I-000.
The arguments based on Ruiz-Zambrano
8. In Ruiz-Zambrano the applicants were a Columbian couple residing in Belgium, the second and third of whose children were Belgian. Their asylum application in Belgium had been unsuccessful, although the Belgian authorities could not return them to Colombia by reason of the risks to their safety presented by the on-going civil conflict in that country. Although the father of the children had previously been working and had paid social security contributions in Belgium, he was refused unemployment benefit by reason of his illegal status. Critical to the issues in the case was that the second and third children had Belgian citizenship and, accordingly, were European citizens for the purposes of Article 20 TFEU. The applicants argued that if the father could not obtain the benefit of social security contributions, the children would be obliged to leave Belgium and, indeed, the territory of the Union itself, thus setting at naught one of the essential elements of European citizenship, namely, the right to live in the territory of the Union.
9. Following a reference from the Belgian courts, the Court of Justice held as follows:-
42. In those circumstances, Article 20 TFEU precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union....
43. A refusal to grant a right of residence to a third country national with dependent minor children in the Member State where those children are nationals and reside, and also a refusal to grant such a person a work permit, has such an effect.
44. It must be assumed that such a refusal would lead to a situation where those children, citizens of the Union, would have to leave the territory of the Union in order to accompany their parents. Similarly, if a work permit were not granted to such a person, he would risk not having sufficient resources to provide for himself and his family, which would also result in the children, citizens of the Union, having to leave the territory of the Union. In those circumstances, those citizens of the Union would, as a result, be unable to exercise the substance of the rights conferred on them by virtue of their status as citizens of the Union.
45. Accordingly, the answer to the questions referred is that Article 20 TFEU is to be interpreted as meaning that it precludes a Member State from refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen.”
12. In these circumstances, just as was the case on the facts of AO (No.2), the applicant cannot lay claim to any Zambrano rights. Counsel for the applicant, Mr. O’Shea, argued forcefully that my interpretation of Zambrano as set out in AO (No.2) was incorrect and should not be followed. While aspects of Zambrano may well be clarified by the Court of Justice in the coming years, the key aspect of the decision is perfectly plain, namely, that the non-national parent (or parents) of a EU national dependent child cannot be deported if the practical effect of that decision would be likely to result in that child having to leave the territory of the Union. In effect, the Court held that a Member State cannot indirectly bring about a situation where an EU citizen is effectively deprived of the substance of one of the key incidents of that right of citizenship, namely, the right to reside in and be brought up on the territory of the Union.
13. This analysis was general confirmed by the subsequent decision of the Court of Justice in the course of its judgment in Case C-256/11, Dereci  E.C.R. I-000. Here the issues which had been referred by the Austrian courts arose from decisions of the Austrian authorities to refuse residence permits to third country nationals who had married Austrian citizens. In some of the cases, the couples had children who were Austrian nationals. On the general Zambrano issue the Court of Justice stated:-
The constitutional rights of the child
15. The question of the constitutional right of the child to the care and company of its parents have already been well ventilated by me in my judgments in AO (No.2) and AO (No. 3). More importantly, the Supreme Court has frequently confirmed that this is a core constitutional value which is inherent in the entire structure of Article 41 and Article 42: see, e.g., Re JH (an infant)  I.R. 375, 394-395, per Finlay C.J. As I pointed out in AO (No.2):
‘...the Articles [41 and 42] at least in general terms, state propositions that are by no means eccentric, uniquely Irish or necessarily outdated: there is a working assumption that a family with married parents is believed to have been shown by experience to be a desirable location for the upbringing of children; that as such the family created by marriage is an essential unit in society; that accordingly, marriage and family based upon it is to be supported by the State. Consequently the State's position is one which does not seek to pre-empt the family, but rather seeks to supplement its position so that the State will only interfere when a family is not functioning and providing the benefits to its members (and thus the benefits to society) which the Constitution contemplates. In that case, the State may be entitled to intervene in discharge of its own duty under the Constitution and to protect the rights of the individuals involved.’
I would merely add that the active involvement of both parents in child-rearing is also inherently desirable from the child's perspective, even if the parents are not married, assuming always that this is feasible and practicable.”
17. In these circumstances, I am therefore coerced to the conclusion that there abundant grounds for suggesting that the substance of P.’s constitutional right to the care and company of his father would be denied were his father to be deported. This would ordinarily be sufficient in itself to justify the grant of an interlocutory injunction restraining the deportation of Mr. A., his disreputable and egregious conduct notwithstanding. It is obvious that damages are not an adequate remedy and the balance of convenience suggests that the child’s right to the care and company must be accorded due weight and protection. But before reaching this conclusion, it is necessary to examine the submissions of counsel with regard to the weight of precedent on this issue.
Stare decisis and the rights of the family in deportation cases
18. Counsel for the Minister, Mr. Conlan Smyth, argued that my own decisions in AO (No.2) and AO (No.3) were wrongly decided, contending specifically that I failed in my own judgment to address the implications of the decision of Clark J. in Alli v. Minister for Justice, Equality and Law Reform  IEHC 595,  4 IR 45. For his part, Mr. O’Shea responds by saying that Clark J. herself did not apply the reasoning in Alli in her most recent judgment on this topic, S. v. Minister for Justice, Equality and Law Reform  IEHC 417. This has brought into sharp focus the question of the consistency of the relevant decisions of this Court on this general topic.
19. In my own case, while I previously deferred to the reasoning in Alli (and other similar decisions) in my own judgment I. v. Minister for Justice, Equality and Law Reform  IEHC 66, it might be also said that my own subsequent judgments in XA. v. Minister for Justice  IEHC 397 and AO (No.2) and AO (No.3) cannot be readily aligned with the decision in Alli. Given these cross-currents of judicial opinion, it seems desirable to consider the matter afresh from first principles.
20. The starting point is, perhaps, the decision of Clarke J. in Kadri v. Governor of Cloverhill Prison  IESC 27 where he stated with reference to the precedential status of earlier High Court decisions that a “court should not lightly depart from a previous decision of the same court unless there are strong reasons, in accordance with that jurisprudence, for so doing.” Clarke J. thus expressly confirmed a long line of well known authorities, ranging from Irish Trust Bank Ltd. v. Central Bank of Ireland [1976-1977] I.L.R.M. 50 to Re Worldport Ltd.  IEHC 189.
21. Turning to the substantive issue, it is clear that the constitutional rights of the family are not absolute, for all the reasons set out by the Supreme Court in AO and DL v. Minister for Justice  1 I.R. 1. Yet it is also clear that the result in that case turned on the fact that the parents in that case had indicated that they would take the young dependent children with them in the event that the parents were deported or, at least, that the Minister had assumed that they would do so: see, e.g., the comments of Keane C.J. ( 1 I.R. 1, 13) and those of Murray J. ( 1 I.R. 1, 65).
22. It is true that aspects of the reasoning and conclusion in AO and DL may well have to be reconsidered in the light of the reasoning of the Court of Justice in Ruiz-Zambrano insofar as any of future case of this kind comes within the scope of EU law. Yet it seems equally plain that AO and DL does not directly concern a case of the present kind where, of necessity, the effect of the deportation of his father to Nigeria would be to deprive an Irish citizen child of the opportunity of any real personal contact with his father, not least in circumstances where his mother has been given refugee status in this State, so that it would be unrealistic to expect her to travel to Nigeria.
23. It is true that Alli suggests – or, at least, might be thought to suggest – the contrary. After all, the citizen children in that case - two twin girls - were just over five years of age, more or less the same age as P in the present case. The parents were Nigerian nationals. Ms. Alli had been given permission to stay in the State under the IBC 05 Scheme and she stated that she was not prepared to return to Nigeria with her children, even if her husband – who had arrived illegally in the State after IBC05 permission to reside had been give to the wife - were to be deported.
24. In a comprehensive judgment, Clark J. considered that the issue was essentially determined by AO and DL ( 4 IR 45,73):
29. But over and above those considerations, the subsequent case-law has inched away from the position set out in Alli. This is, I think, evident from Clark J.’s own judgment in S. In that case the applicants were also Nigerian who had married in the State in early 2003. The wife had received status by virtue of the fact that she had given birth to a Irish citizen child. The husband (who had entered the State illegally and had unsuccessfully applied for asylum) was suddenly deported a few weeks after the marriage, even though the wife was pregnant again.
30. In 2009 the couple applied to have the deportation revoked. By this stage the wife was rearing two young sons on her own, but she (and they) had visited her husband on a number of occasions in Nigeria. The Minister had refused to revoke the deportation order, citing factors such as the adaptability of the children, the fact that they were entitled to Nigerian citizenship and the integrity of the asylum system.
31. Clark J. quashed the Minister’s decision saying:
34. So far as the children are concerned, both in S. and in this case, however, the effect of the deportation order was (or would be) more or less the same, namely, that they would be effectively deprived of their constitutional right to the care and company of their father. This would be especially true in the present case, as the reality is, as we have already noted, P. is unlikely to see his father again were he to be deported to Nigeria.
35. Similar views were expressed by me in both XA and in the decisions in AO. In XA I found that the probable effect of the deportation of the father to Nigeria was that the Irish citizen mother would be left to rear their Irish citizen child alone. Given, moreover, that she was unemployed and dependent on social security, the prospect that she could even visit Nigeria was in the circumstances an unreal one:
39. Given these cross-currents of judicial opinion, it seems to me that the applicant can readily meet the Campus Oil standards of arguability. While readily acknowledging the desirability of maintaining judicial consistency, on further reflection I have come to the conclusion that the issue is so fundamental that faced with a choice between decisions such as Alli and U. on the one hand and S, XA and the AO decisions on the other, I would respectfully opt for the latter decisions, at least in those cases where the effect of the deportation order would be to split up the family and to deprive the children of the essence of their constitutional rights to the care and company of their parents by condemning them to a childhood without one of their parents. Moreover, it must be recalled that while Article 8 ECHR simply guarantees the right “to respect” for family life, some weight must be given to the even more emphatic description of family rights contained in Article 41 – “inalienable and imprescriptible” – even if those rights are not, of course, to be regarded as absolute. It is for these particular reasons that I consider that in the light of the comments of Clarke J. in Kadri I would feel justified in taking this step.
40. In summary, therefore, I would conclude as follows:
i. The applicant has manipulated the asylum system and has engaged in egregiously wrongful conduct. He has no personal merits which would entitle him to administrative or judicial protection.
ii. The applicant is not entitled to rely on the decision of the Court of Justice in Zambrano. Given that the mother has refugee status in this State, she cannot realistically be expected to return to or even visit Nigeria and there is almost no prospect that the effect of the deportation order would be to result in the child leaving Ireland or the territory of the Union.
iii. The court must, however, approach this application not from the perspective of the father, but rather from that of the child. It must accordingly seek to ensure, where possible, that the substance of the constitutional right of the child as guaranteed by Article 42.1 to the care and company of his parents is protected.
iv. In the present case, were Mr. A. to be deported, the likelihood is that the child would have no further personal contact with him during his minority, thus depriving the child of the essence of that constitutional right.
v. It is reason that I consider that Mr. A. has satisfied the Campus Oil criteria and I will therefore grant an interlocutory injunction restraining his deportation. I will discuss with counsel the form of that order and will give further directions for the early hearing of this application.