Neutral Citation:  IEHC 139
THE HIGH COURT
[2011 No. 975 J.R.]
C.O.O (NIGERIA) AND G.F.O (A MINOR SUING BY HER MOTHER AND NEXT FRIEND C.O.O) M.A.F.O (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND C.O.O) M.F.O (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND C.O.O)
THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL
JUDGMENT of Mr. Justice Robert Eagar delivered on the 4th day of March 2015
1. This is an application for an order of certiorari by way of judicial review quashing the deportation orders directed to the Applicants dated the 5th August 2011 and further a declaration that the deportation of the Applicants violates the provisions of Article 8 of the European Convention on Human Rights and Fundamental Freedoms of 1950.
2. The grounds upon which the reliefs were sought are summarised in the claim that the first named Respondent failed and omitted to make the best interests of the infant Applicants a primary consideration in the first named Respondent’s decision whether to make deportation orders in respect of them and the failure of the first named Respondent to consider the Applicants’ constitutional rights.
3. The history of this matter is contained in the affidavit of C.O.O, the mother, who is the first Applicant and the mother of the other three infant Applicants. She is a Nigerian national and she was born in Nigeria on the 19th August 1967. She came to Ireland in December 2006 from Nigeria to seek asylum. She is married but has had no contact from her husband and the father of the three minor Applicants since she left Nigeria and in her affidavit she states she believes the relationship to be over. The first named Applicant had a son in the State on the 16th February 2007 by virtue of the Irish Nationality and Citizenship Act 2004 the child is not an Irish citizen.
4. The second named Applicant was born in Nigeria on the 12th May 2002 and arrived in the State on the 3rd September 2008 as an unaccompanied minor. The third named Applicant was born in Nigeria on the 4th November 2004. He arrived with the second named Applicant on the 3rd September 2008 as an unaccompanied minor. As said below the fourth named Applicant is the son of the first named Applicant having been born in Ireland on the 16th February 2007.
5. Applications were made by each of the Applicants for refugee status including an appeal to the Refugee Appeals Tribunal.
6. Subsequent to this the four Applicants applied to the first named Respondent for subsidiary protection but this was also unsuccessful and deportation orders were made on the 5th August 2011. It is this decision that is challenged by the Applicants.
7. Counsel on behalf of the Applicants indicated that the examination of the files undertaken pursuant to the provisions of s.3 (6) of the Immigration Act 1999 (as amended) did not refer to “the best interests of the child”. In particular he complains that in the case of the child born in Ireland, the fourth named Applicant, there is no examination of his interests undertaken at all, his case being subsumed completely into his mother’s claim. In the case of the second and third named Applicants there is nothing beyond a recording of age and class in school. He referred to the case of Dos Santos v. The Minister for Justice & Ors  IEHC 559, a judgment of McDermott J. He also contended that there was no application of whether the proposed deportations would offend the provisions of the Constitution of Ireland and in particular Article 40.3, Article 41 and Article 42. He also contended that the Supreme Court decision in Oguekwe v. The Minister for Justice Equality and Law Reform  IEHC 25 required the first named Respondent to consider the Applicants’ rights under the European Convention on Human Rights and Fundamental Freedoms of 1950. He submitted that the first named Respondent accepted that the deportations are an interference with family life and proceeds to conclude that there is no grave interference.
8. He also referred to the provisions of the Thirty-First Amendment of the Constitution. This provides for an Article expressly related to children’s rights. The Thirty-First Amendment is currently the subject of a legal challenge. The Jordan Case has been heard by the Supreme Court and judgment has been reserved by that court.
9. Counsel on behalf of the Respondent argued that the quality of life that the Applicants will experience in Ireland may be higher than that which they expect to enjoy in Nigeria. He submitted that the first named Respondent considered the welfare of the minor Applicants and concluded that it was best served by them remaining with the first named Applicant and he referred in particular to Dos Santos, a decision of McDermott J. on the 19th November 2014. He also referred to the decision of Dada v. The Minister for Justice Equality and Law Reform  IEHC 140 a, decision of O’Neill J. He also referred to the decision of Adeniron v. The Minister for Justice Equality and Law Reform  IEHC 92, where Clark J. held that the deportation of a Nigerian mother and children all of whom were failed asylum seekers did not involve any interference with family rights under Article 8 of the Convention. He also referred to R. (Mahmood) v. The Home Secretary 1WLR 840 where the House of Lords laid down the English and Welsh position under the European Convention on Human Rights in relation to asylum seekers. He also referred to the judgment of MacEochaidh J. in the application for leave to seek judicial review in the case of Dos Santos & Ors v. The Minister for Justice Equality and Law Reform & Ors which was delivered by him on the 30th May 2013.
Examination of file by the first named Respondent
11. Section 3(6) states as follows:-
(a) the Age of the person; (this Court’s emphasis)
(b) the Duration of residence in the State of the person; (this Court’s emphasis)
(c) the family and domestic circumstances of the person;
(d) the nature of the person's connection with the State, if any; (this Court’s emphasis)
(e) the employment (including self-employment) record of the person;
(f) the employment (including self-employment) prospects of the person;
(g) the character and conduct of the person both within and (where relevant and ascertainable) outside the State (including any criminal convictions); (this Court’s emphasis)
(h) humanitarian considerations;
(i) any representations duly made by or on behalf of the person;
(j) the common good; and
(k) considerations of national security and public policy, so far as they appear or are known to the Minister.”
The examination of the file in relation to C.O.O. included an examination in relation to M.F.O. the fourth named Applicant. That decision marked the ages of the two Applicants at the time of writing the submission.
b) Duration of residence in the State of the Person
c) The family and domestic circumstances of the person
d) Nature of persons connected with the State
e) Employment (including self employment) record of the person
It is useful to know that the first named Applicant had participated in a FETAC accredited child development and play course organised by a community development project in Athlone. She had also undertaken voluntary work in a church in which she is an active member. She had also done some voluntary work at a local primary school for a number of months providing breakfast for children in a breakfast club. She had also attended courses in sewing, crafts, cookery, home management and first aid. She has also been a volunteer with the local Tidy Towns giving two to three hours per week and the second named and third named Applicants attended a local school.
f) The Employment prospects(including self employment) of the person
g) The character and conduct of the person both within and (where relevant and ascertainable) outside the State (including any criminal convictions)
h) Humanitarian considerations
i) Representations made on behalf of the Applicants
It was also submitted that the first named Applicant would not have much money if she returned as she cannot locate her husband and fears he may be dead. The Country of Origin Information had also been included. I note that the sworn evidence of the first named applicant where she states at para. 6:-
“I say that I have no home and no means of livelihood or support in Nigeria although a single mother with responsibility for three young children I and they would receive no social support of any form and that they would be extremely vulnerable to serious harm”.
She also says that she has no means of feeding or caring for her children there. She would fear greatly for her children’s survival. She also continues to be in fear of those persons who threatened her life. She further states at para. 7:-
“I say that I am advised that the first named Respondent states that the fourth named Applicant is a Nigerian national. I say although he does have a right to acquire Nigerian citizenship that this has not occurred. I say I do not wish him to acquire Nigerian nationality. I do not believe that he can have a healthy and normal childhood, or that he could develop, in that country. I say that my wish and my hope is that he and his brother and sister may grow up in Ireland where they are happy and feel at home and most importantly are healthy, safe and secure.”
j) The common good
The executive officer indicates that it was in the interests of the common good to uphold the integrity of the asylum and immigration procedures of the State.
k) Consideration of national security and public policy
15. She considered political violence and quotes an Action Aid Report of the 31st May 2010:-
17. With regard to women, the Freedom House Report is cited by the executive officer - Freedom in the World 2009 Nigeria, covering events in 2008 and released on the 16th November 2009. This report observed:-
19. In relation to social and economic rights an executive officer quoted the US State Department Country Report on Human Rights Practices (2009 Nigeria) released on the 11th March 2010 which stated that: -
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 is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing 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) On an application for judicial review of the Secretary of State's decision to certify, the reviewing court would exercise a supervisory jurisdiction adopting such careful scrutiny as was required when an irrevocable step, potentially in breach of fundamental human rights was an issue, that in considering whether a challenge to the Secretary of State’s removal decision would necessarily clearly fail the reviewing court will consider how, if there were an appeal, it would fair before an adjudicator. It would ask and determine the same questions namely whether removal would interfere with the Applicant’s right under Article 8 (1) to a sufficiently serious extent as to potentially engage that Article. That is so whether striking a fair balance between his rights and the wider interests of the community such interference was justified under Article 8(2).
2) If so, will such interference have consequences of gravity as potentially to engage the operation of Article 8?
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 wellbeing of the country, for the prevention of disorder and crime, for the protection of health or morals or for the protection of rights and freedoms of others?
5) If so, is such interference proportionate to the legitimate public aim sought to be achieved?
26. The role of this court as outlined by Razgar is to exercise a supervisory jurisdiction, adopting such careful scrutiny as was required where an irrevocable step, potentially in breach of fundamental human rights, was an issue.
27. McDermott J. delivered a judgment on the 19th day of November 2014 in the case of Dos Santos & Ors v. The Minister for Justice Equality & Ors  IEHC 559. The Applicants were Brazilian nationals some of whom had been in the State from 2002. They had not applied for any form of protection from the State but just lived in Ireland until their status was questioned by the Garda National Immigration Bureau. In dealing with Article 41 and the welfare of the children and parental responsibility McDermott J. indicated that:-
30. McDermott J. decided:-
32. I now propose to look at the consideration given by the first named Respondent to the three children. In the case of the youngest child and fourth named Applicant M.F.O. the determination in relation to his case was included in the examination of the file of the first named Applicant, his mother.
33. The fourth named Applicant was born in Ireland but is not a citizen of the State. At the time of the decision he was 3 years and 7 months old and is now 7 years of age. Section 3(6) of the Immigration Act 1999 as amended by the Illegal Immigrations (Trafficking) Act 2000 is quite clear in its terms where the first named Respondent “in determining whether to make a deportation order in relation to a person, the Minister shall have regard to etc”. It is in my view not sufficient for the first named Respondent to make a determination to consider the situation of a child born in Ireland (although not an Irish citizen) in conjunction with that of his mother, in this case the first named Applicant. In this regard I believe that the first named Respondent has failed to adequately examine the position of the fourth named Applicant and in those circumstances I will grant an order of certiorari quashing the purported deportation order relating to the fourth named Applicant.
34. In relation to the second and third named Applicants the executive officer on behalf of the first named Respondent considered the position of G.F.O, the second named Applicant and M.A.F.O, the third named Applicant using the headings provided by s. 3 (6) of the Immigration Act (as amended). At the time of the examination the second named Respondent was 8 years and 3 months old and it is noted that the executive officer identified the nature of the person’s connection with the State as lying in her application for asylum in the State. The reality was that in fact she was in school in the State. This appears not to have been included in the connections to the State.
35. The executive officer reviewed the position of children and dealing with health, healthcare and general living conditions in Nigeria and I am not satisfied that the first named Respondent has failed in an adequate assessment of the second named Applicant. The same applies in respect of the third named Respondent. However this court is of the view that should the Thirty-First Amendment of the Constitution become law the obligations on the first named Respondent with regard to the second and third named Applicants would change remarkably. The first named Respondent will have to give far greater consideration to the welfare of an Applicant child than the balancing test which is approved by the rules in Razgar. As the Thirty-First Amendment of the Constitution can have no relevance at this stage I am bound to find and I must refuse the application for certiorari of the deportations of the first named, second named and third named Applicants.
36. In those circumstances I am quashing the decision of the first named Respondent in respect of the fourth named Applicant but refuse the application for certiorari in the case of the first, second and third named Respondents.
37. However this court is of the view that had the Thirty-First Amendment to the Constitution become law the obligations on the first named Respondent with regard to the second and third named Respondents would have to be taken into account and it is clear that the first named Respondent will have to give far greater consideration to the welfare of Applicant’s children than the balance in which is approved by the rules in Razgar.
38. As Article 42A.4.1 of the Constitution can have no relevance at this stage to these proceedings. I am bound to find that I must refuse the application for certiorari of the deportation orders of the Applicants.