High Court of Ireland Decisions

You are here: BAILII >> Databases >> High Court of Ireland Decisions >> A. (V.) v. Minister for Justice, Equality and Law Reform [2002] IEHC 133 (18 July 2002)
URL: http://www.bailii.org/ie/cases/IEHC/2002/133.html
Cite as: [2002] IEHC 133

[New search] [Printable RTF version] [Help]

THE HIGH COURT

(JUDICIAL REVIEW)

Record No. 883JR/2001

Between/

MR. V. A.

Applicant

-and-

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

Respondent

JUDGMENT OF MR. JUSTICE T.C. SMYTH DELIVERED ON THE 18th DAY OF JULY 2002

The Applicant is a Nigerian national who, having sought asylum on arrival in the State on 3rd/4^th November 1999, availed of all "the elaborate procedures" under the asylum process. His application was deemed to be manifestly unfounded under Section 12 (a), (b) and (c) of the Refugee Act 1996, as amended (hereinafter referred to as 'the Act of 1996'). His date of birth is 14th February 1978, and he has fluency of language in Yoruba and English and I am satisfied that the evidence establishes that he did not need a translator or interpreter in dealing with any part of the asylum or immigration system.

Having failed in his application at first instance before the Refugee Applications Commissioner and on appeal before the Refugee Appeals Authority, the Applicant was informed by letter dated 16th November 2000 of the Minister's decision to uphold the original decision and refusal to grant a declaration of refugee status. Accordingly, as from that time forward the Applicant, like others likewise circumstanced, in the words of the judgment of the Supreme Court delivered by Hardiman J, in PB&L -v-The Minister for Justice, Equality and Law Reform [2002] 1 ILRM 16 at page 42:-

"... lacked any entitlement to remain in the country save that deriving from the procedures they were operating; ie, a right to await a decision on a request not to be deported. Both the fact that they had been refused refugee status, and the nature of the decision awaited, as appears from the Act, emphasises that this was in the nature of an ad misericordiam application. The matters requiring to be considered here the personal circumstances of the Applicant, described under seven sub-headings; his representations (which in practice related to the same matters) and 'humanitarian considerations'. The impersonal matters requiring to be considered were described as 'the common good and considerations of national security and public policy'. They did not include in any way an obligation to re-visit the original decision."

The Applicant's then solicitor, in November/December of the year 2000, wrote a detailed letter dated 18^th December 2000 to the Respondent by way of representations under Section 3(6) of the Immigration Act 1999 (hereinafter referred to as 'the Act of 1999'), which I consider could be fairly said concerned itself primarily with the issue of prohibition of refoulement. Most importantly, this letter makes no mention whatsoever of the following:-

(i) that the Applicant married an Irish citizen on or about 4th December 2000 — the original marriage certificate was not produced in these proceedings although a copy of it would appear to have been made available to the Respondent (Immigration and Citizenship Division relating to an application for residency status) in mid/late June 2001, and a copy was certainly exhibited in the habeas corpus proceedings in December 2001. This is an important matter because the Applicant avers in paragraph (6) of the affidavit grounding the application for judicial review:-

"I say and believe that on the 4th day of December 2000 I married an Irish citizen, Deborah O'Toole, at the Office of the Registrar of Civil Marriage, Dublin. I say and believe that I requested my then legal representatives, Farrell solicitors, to inform the Respondent of this fact, but that I am unaware as to whether they did so."

(ii) That three letters from Nigerian sources of apparent repute (two dated 23rd November 2000 and one dated 20th November 2000) were not at any time {more particularly in November/December 2000) made available to the Respondent.

These letters are exhibited in the Applicant's grounding affidavit, but there is no sign of their being within the knowledge of the Respondent as appears from their absence from the voluminous correspondence and documentation exhibited by the Respondent in these proceedings. It may or may not have been the case that they were collected by the Applicant when he was in Nigeria in or about the month of December 2000. I make no decision or determination on that issue.

Mr. McMorrow conceded they were not available to the Respondent until 31st December 2001.

When the Applicant sought asylum on 4th November 1999, he was given a number of documents of which he acknowledged receipt, including (i) change of address forms, and (ii) Information Leaflet and Procedures for Processing Asylum Claims. The guidance information for Applicants for refugee status (exhibited in the Applicant's own affidavit) makes it quite clear that:-

"... it is important that you make known to the Department of Justice, Equality and Law Reform your address and any change of address. You must not leave the State while your application is under consideration. You are not entitled to enter employment."

It is clear from the exhibited documentation that the Applicant was issued with a Nigerian passport on 14th December 2000, which bears an official stamp of the airport in Nigeria dated 15th or 25th (it is not possible to be sure from the exhibited document) December 2000, "Seen on Departure". I am satisfied that the copy of the passport was not available to the Respondent until a later date, and, as a matter of probability, was only made available to the Respondent in connection with the application for residency status in or about June 2001.

The documentary evidence establishes to my satisfaction that the servants or agents of the Respondent, for whose actions he is responsible, gave detailed consideration to the representations made on the Applicant's behalf and an amount of country of origin information in connection with the Section 3(6) application — no less than five persons, over a period from 24th July 2001 to 28^th August 2001, considered the matter and as a result of such regard and consideration the Respondent Minister signed a Deportation Order. The Order and a letter of notice of the making thereof, dated 21^st September 2001, from the Repatriation Unit Immigration Unit of the Respondent's Department, was sent to the Applicant, to his notified address at 36 Maxwell Street, Dublin 8, but was returned by the postal authorities who were unable to effect delivery — the return made was "not collected for". A copy of the letter was also sent to Farrell solicitors who, so far as the Respondent was aware at the time, were the Applicant's solicitors. The matter of the Deportation Order, its service and the failure of the Applicant to comply therewith ultimately led to his arrest, detention and release, which were the subject of the habeas corpus proceedings earlier referred to.

In mid to late June 2001, a letter (dated 12th June 2001) was received by the Immigration and Citizenship Division of the Respondent's Department from the Immigration and Citizenship Consultancy Agency (hereinafter referred to as 'ICCA') of Ashdale House, 46 Adelaide Road, Dublin, making an application for residency status in the State of the Applicant because of Irish spouse. Here, for the first time — wholly separate and distinct from the asylum status application which had been determined by the Minister on 16th November 2000 — is the first intimation of the marriage which was never submitted as part of the application under Section 3(6) of the Act of 1999. The application for permission to remain in the State on the basis of his marriage on an Irish national is quite a clear and distinct application for leave to remain in the State on humanitarian grounds under Section 3(6) of the Act of 1999.

The Immigration and Citizenship Division of the Respondent's Department, in the person of a Mr. John Weadick, wrote to the Applicant c/o the ICCA on 6^th September 2001, seeking certain documents in order to further the process of the application for residency status. As no reply was received for months, Mr. Weadick (as is clear from a manuscript note on the letter of 12th June 2001) phoned ICCA, it would appear on or about 24th April 2002 and obtained an address for the Applicant at 11 Riverwood Drive, Castleknock — to which address the Respondent wrote on 25th April 2002, renewing the request he had made on the previous 6th September 2001. It would appear that at the same time the Applicant's present solicitor was also written to seeking the same information, the letter concludes:-

"Clearly, the residency application cannot proceed without such information. Failure to provide this may be taken into account when the judicial review proceedings are next before the court."

Again, there was no response to these letters of 25th April 2002, and again the Respondent wrote to both the Applicant and his solicitor on 9th May 2002, which concluded:-

"You are required to submit these documents within ten days. A decision will be issued to you in respect of your application within ten workings of receipt of the above documents."

The letter sent to the Applicant was returned by the postal authorities on 13th May 2002, it was marked "gone away", and once again the Respondent wrote to the Applicant's solicitors seeking the "up-to-date accommodation details — rent/book, joint tenancy agreement and utility bills, or letter from Social Welfare/Health Board stating that your client and his spouse are residing at the above address together". The address to which reference is made is 11 Riverwood Drive, Castleknoclc, Dublin 15 — the address given by the ICCA in or about late April 2002.

Eventually, by a letter dated 21st May 2002, the Applicant's solicitors furnished a number of documents, upon some of which I wish to remark (in the light of other evidence that emerged on the hearing of the application):-

(i) A letter (by way of reminder notice) from the Electricity Supply Board dated 7th June 2001 indicated that there was an amount outstanding of £242, which had been the subject of an earlier reminder and that "your supply is now due for disconnection without further notice".

An ESB bill dated 14th November 2001, for the billing period 19th September 2001 to 13^th November 2001 (which in May 2002 could hardly be described as up-to-date) indicated that a sum of £243 (308.55 euro) was overdue, and that sum included £132 arrears from an earlier bill of 20th September 2001.

With these documents is one dated 1st May 2002, it is written without address or telephone number and is in the form of a reference and reads thus:-

"Dear Sir/Ma,

To Whom It May Concern/

This is to confirm that from 5th February 2001 to 5th December 2001, I, Monsuvy A. Adenusi, A.K.A. Stanley Rutenberg, and V. and Deborah A. were living at 45 Old Distillery Apt together. If for any further information do not hesitate to contact me. Thanks. Monsuvey"

It is a matter for the Respondent ultimately as to what they are to make of this document in the light of the use of a false name or alias, some form of what appears as communal living and in respect of at least a part of the period of time the ICCA gave the address of the Applicant in Castleknock.

(i) A notification of refusal of Supplementary Welfare Allowance dated 1st March 2001 is addressed to the Applicant, I believe (although his surname is spelt A-K-O-N-I), and Deborah O'Toole. At 45 Old Distillery, Beresford St., D.8, which states as follows:-

"Rent Allowance — your rent of £700 is very expensive. You would have to pay too much yourself, which would mean you would not have sufficient income to meet basic weekly expenditure. You are also over accommodated in a two-bedroom apartment."

This document is signed by a Community Welfare Officer and is a response to the Applicant and Deborah O'Toole for assistance under the Supplementary Welfare Allowance Scheme. A further document dated 30th April 2002, from the Community Welfare Officer of the Northern Area Health Board, indicates that for the period 5/3/01 to 3/11/01 the Welfare Service paid a rent supplement of 129.01 euro per week for the Applicant and Deborah O'Toole for premises 45 Old Distillery, Beresford Street, D.7.

(ii) The Nigerian passport, stamped as I have already referred to, indicates that there was at least a period of absence from the jurisdiction after his marriage to Ms. O'Toole. Ms. O'Toole was at the date of her marriage over 31 years of age and is described as a student in the marriage certificate. The Applicant's occupation in the marriage certificate is stated to be "graphic designer".

(iii) An incomplete telephone account in respect of unnamed premises for unnamed persons, dated 24th November 2001, shows a sum due to Eircom of £3,319.72: clearly further investigations — which are no concern of the court — require to be taken by the Respondent in this regard.

(iv) The rent book refers to the commencement of the tenancy as 24/5/2002 and that there is due a deposit of 680 euro and rent in advance of 680 euro in respect of 'monthly tenancy for a fixed term of a year' and that payment is to be made in cash. The address of the premises is given as 3A Parnell Street, Dublin 1.

The evidence established that there was a want of accuracy in the address given. The address, when the Garda witness went to 3A Parnell Place as a result of matters put to him in cross-examination, showed that the premises had no number, it was described thus:-

"There is a laneway that is a cul-de-sac that leads off Parnell Street, it is actually Parnell Place, that is the nameplate that is on the wall, but midway down that laneway there is a premises. There are two doors on the premises, it is a grey brick building, one door has number No. 3, the other does not have any number on it. The door that did not have any number on it was open at the time, inside the door there were paint buckets, a two-bar electric fire. On the ground just inside the door, as if it had been posted through the letterbox or passed in through the letterbox, was a general election leaflet. There was also iodine tablets that were circulated to the population, and that was also on the ground inside the door there."

The Garda went on to say that the lady who was present in court, whom he believed was the friend or partner of the Applicant, arrived at the scene when the Garda was there and she had a key to this door and she locked the door. The Garda asked if he could see inside the premises and she said she would have to check with her friend beforehand. At that stage the Garda left. From his observations of the premises, he had noticed there were a number of building blocks, like small building bricks, on the ground outside of what he could see was the premises marked number 3, it looked to be vacant and it could appear that the premises were being renovated. The Garda enquired of the lady who was living in it and she said that her friend, the person in this case, ie, the Applicant, has just taken up possession of the premises.

Mr. Goldberg, for the Applicant, identified the issues upon which he stated judgment was required in this case as:-

1. What effect does the marriage have on these proceedings?

2. Is the Minister entitled to deport a person who has married an Irish citizen?

In seeking to answer the first of these questions, he cited in support the case of Diatta -v- Land Berlin [1985] ECJ (case 67/83) Common Market Law Reports 27/5/1986, Vol. 2, p. 9. While I found the case and its exposition interesting, I have not found it of assistance in this particular case. Diatta's case is concerned with Articles 10 and 11 of Regulation 1612/68 and the right of a migrant worker and of his or her family. In the instant case, the Applicant came to Ireland and claimed to be a refugee, not a migrant worker — and all parties to these proceedings acted on the claimed basis. The Irish citizen is a student and not, on the evidence, a worker. Diatta was a worker (a Senegalese national) who married a French national, who for several years had lived and worked in Germany and held a residence permit issued to nationals of Member States of the EEC (as then known). The case was principally concerned with the freedom of movement of workers within the community (the issue of residence of married persons was also involved). The judgment of the court was that the member of a migrant worker's family, as defined in Article 10, are not necessarily required to live permanently with him to qualify for a right of residence under the provision. Article 11 of the same regulation does not establish a right of residence independent of that provided for in Article 10.

Next, counsel for the Applicant sought to urge upon the court the applicability of Council Directive of 28th June 1990, on the right of residence (90/364/EEC) (O.J. No. L180, 17.7.90, at p.26), which was concerned that the national provisions on the right of nationals of the Member States to reside in a Member State other than their own must be harmonised to ensure freedom of movement. (The Directive was implemented in the State by SI No. 109S/1993) Regretfully again, this was a matter of interest but not of assistance. One of the recitals to the Directive reads:-

"Whereas beneficiaries of the right of residence must not become an unreasonable burden on the public finances of the host member States."

The Applicant sought to ground his case on Article 1, which states:-

"1. Member States shall grant the right of residence to nationals of Member States who do not enjoy this right under provisions of Community law and to members of their families as defined in paragraph 2, provided that they themselves and the members of their families are covered by sickness insurance in respect of all risks in the host Member State and have sufficient resources to avoid becoming a burden on the social assistance system of the host Member State during their period of residence."

Even if the Directive was applicable, and I accept Ms. Farrell's submission that it is not, I am satisfied and find as a fact and as a matter of law on the evidence that neither the Applicant nor his wife "have sufficient resources to avoid becoming a burden on the social assistance system" of this State and any other host Member State.

The Applicants' submission, in essence, was "that European law provides where an alien marries a national of a Member State they are entitled to take up residence and to work within the territory of the spouse or the spouse's home nation or even if they move to another nation within the territory of that country".

The second issue identified by Mr. Goldberg he answered himself by citing Kelly on the Constitution (3rd Edition) p.66/7, which on a consideration of the decision of Gannon J in Osheku -v- Ireland [1986] IR 733; [1987] ILRM 330, and the decision of Costello J (as he then was) in Pole Sun Shun -v- Ireland [1986] ILRM 593, concluded:-

"In both cases the respective judges rejected the argument that a male alien who was otherwise liable to deportation could acquire an immunity from such deportation if he married an Irish citizen. Costello J expressed the view that the Minister's power to order deportation in such circumstances was a permissible restriction on the rights of the family."

The editors of the 3rd Edition of Kelly have correctly summarised the clear determinations of the judges. I add nothing thereto. The Applicants contended that there was a failure to consider the representations made under Section 3(6) of the Act of 1999, and that on the authority of Flood -v- an Garda Siochana Complaints Board [1999] 4 IR 561 there was a defect or deficiency in the actions of the Respondent in this case. The passage in that case that was relied on by the Applicants was as follows:-

"That the Respondent, in forming an opinion as to whether an investigation should proceed to a further stage, was exercising a statutory power. The statutory powers were not unfettered and must be exercised in accordance with fair procedures. The opinion must have been reached bona fide and been factually sustainable and not been unreasonable."

On a consideration of the exhibited documents in Exhibit CO6 and CO8, in particular, I am satisfied in fact and in law to reject the submission, which is clearly at variance from the facts. Furthermore, I think it appropriate to refer to the most recent Supreme Court decision touching upon judicial review in this particular context, in the case of Baby O -v- The Minister for Justice, Equality and Law Reform (unreported Supreme Court 6th June 2002), wherein Keane CJ stated as follows:-

"Unless it can be shown that there was some breach of fair procedures in the manner in which the interview was conducted and the assessment arrived at by the officer concerned or that in accordance with the well established principles laid down in The State (Keegan) -v- The Stardust Victims Compensation Tribunal Ll^ObJ IR 642, and O'Keefe -v- An Bord Pleanala [1993] 1 IR 39, there was no evidence on which he could reasonably have arrived at the decision, there would be no ground for an order of certiorari in respect of the decision. In this case, it was entirely a matter for Mr. Leahy to assess the weight that should be given to the various matters to which I have referred and it could not be said that there were no grounds on which he could not have reasonably arrived at the decision that her application for refugee status was manifestly unfounded. The same considerations are applicable to the further assessment of her case by Mr. Andrew Hughes and the recommendation of the Appeals Authority."

I am satisfied that there was no want of bona fides or lack of fair procedures in the enquiries made by the Respondent of the Applicant.

The next basis of challenge to the Respondent's determination was that the interview was conducted like a quiz. In this regard, specific queries were referred to, as was paragraph 205 of the UNHCR handbook. This is not a sustainable ground of challenge in my judgment — the Applicant signed for his satisfaction of the interview, received a copy of the notes and did not add or subtract therefrom as he as aware he was entitled to do.

Ms. Farrell, for the Respondent, submitted as follows:-

As at the date of his marriage, the Applicant was a person whose refugee status had been determined and having failed to secure a declaration that he was a refugee, had no entitlement to remain in the State (per PB&L -v- The Minister for Justice, Equality and Law Reform [2002] 1 ILRM 16.

2. The court should apply and adopt the decision of the Court of Appeal in England and Wales in R (Mahmood) -v- The Secretary of State for the Home Department [2001] UK HRR, 307 at 329, which is to the following effect (per Phillips M.R):-

"From these decisions (consideration of a number of cases before the European Court of Human Rights), I have drawn the following conclusions as to the approach of the Commission and the European Court of Human Rights to the potential conflict between the respect for family life and the enforcement of immigration controls:-

1) A State has a right under international law to control the entry of non-nationals into its territory, subject always to its Treaty obligations.

2) Article 8 does not impose on a State a 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 family members of the family are lawfully resident will not necessarily infringe Article 8, provided 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 to 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 the 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 on 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 interests of controlling immigration will depend on:-

i) the facts of the particular case; and

ii) the circumstances prevailing in the State whose action is impugned."

While no evidence has been tendered by the Applicant as to the knowledge of his partner as to his refugee status as at the date of marriage, he, himself, could and should have been aware of same, and if he as not it was of his own fault, not being at an address at which he could receive information. I do not believe this occurred because there is no indication at that time that documentation was not being received by him, in which case the Applicant and his wife must be taken to accept the consequences that flow therefrom, as indicated in the judgment in Mahmood.

The Respondents also relied on the decision in Poku -v- United Kingdom 22 EHRR CD, which is to the following effect:-

"The Commission notes that the State's obligation to admit to its territory aliens who are relatives of persons resident there will vary according to the circumstances of the case. The court has held that Article 8 does not impose a general obligation on States to respect the choice of residence of a married couple or to accept the non-national spouse for settlement in that country (Abdulaziz Cabales and Blkndali judgment [1985] 7 EHRR 471, para.68). The Commission considers that this applies to the situations where members of a family other than spouses are non-nationals. Where removal or exclusion of a family member from a contracting State is incompatible with the requirements of Article 8 will depend on a number of factors; the extent to which family life is effectively ruptured, whether there are insurmountable obstacles in the way of family living in the country of origin of one or more of them, whether there are factors of immigration control (eg, history of breaches of immigration law), or considerations of public order."

While it is not the case that the Applicant is seeking naturalisation or citizenship, it is clear from the Acts of 1956, 1986 and 2001 that to claim citizenship through marriage an applicant must satisfy a cohabitation and residence requirement. The Respondent contended that if such an intrinsic element of marriage contended for by the Applicant as stated to be sundered by deportation, this must be proven to exist and the real evidence does not support the Applicant's claim, even as the case was at hearing.

The constitutional rights of the wife contended for by the Applicant are not asserted in these proceedings by the wife (who is not a party and who has sworn no affidavit — and even if she were and did), the decision of Pok Sun Shun (earlier referred to) is applicable. Furthermore, the unreported decision in Meta & Anor -v- The Minister for Justice, Equality and Law Reform (8th March 2002) supports the Respondent's case.

That even the most up-to-the-minute evidence does not carry conviction that would substantiate the Applicant and his wife are living together in the State for the purpose of the residency application which has not yet been determined.

It is conceded that the Irish citizen has constitutional rights, but these are not absolute. The Applicant's case based on a reliance of the constitutional provisions related to marriage has been clearly determined by the Supreme Court in PBSL -V- The Minister for Justice, Equality and Law Reform & Anor [2002] 1 ILRM 16 at p 42, thus:

"The State's obligation to protect with special care the institution of marriage and protect it against attack cannot, in my view, be invoked to limit the Minister's discretion in relation to an individual Applicant whose application for asylum has been refused." (Per Hardiman J. delivering the judgment of the Supreme Court)

I am satisfied and find as a matter of fact and of law that the Applicant is not entitled to the relief claimed. Any representations that the Applicant may wish to place before the Minister on the residency application could and should have been made before these proceedings issued and the Minister will be entitled to take such, if he received them, into consideration as to whether he wishes to avail of his discretion under the provisions of Section 3(11) of the Act of 1999.