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Cite as: [2003] IEHC 14

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Animashaun v. Minister for Justice, Equality and Law Reform [2003] IEHC 14 (5 June 2003)

THE HIGH COURT

Record Number: 2002 No. 823JR

Between:

Oluwaseyi Animashaun

Applicant

And The Minister for Justice, Equality and Law Reform

Respondent

JUDGMENT of Mr Justice Michael Peart delivered the 5th day of June 2003

The applicant is a Nigerian born national who arrived in the State on 26th September 2000. Upon arrival he claimed asylum on the grounds of persecution for reasons of race. He later completed the usual questionnaire and attended for interview with the Refugee Applications Commissioner. On the 1st November 2001 he was informed that the Commissioner, having examined the case, had concluded that he was not entitled to a declaration as a refugee, and the applicant was told that it was intended to make a recommendation to that effect. The applicant was also informed of his right to appeal that recommendation to the Refugee Appeals Tribunal, and he did so. By letter dated 28th February 2002, the applicant was informed that his appeal was refused. By letter dated 28th March 2002, the applicant was informed that the Minister had refused to grant him a declaration of refugee status, and that his entitlement to remain in the State had expired. He was also informed that the Minister intended to make a deportation order, and of his
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right to make representations setting out any reasons why he ought to be allowed to remain in the State.

On the 16th April 2002, a Mr O. Illori of Equity Office, Immigration Consultants, of Equity Centre, 91, Parnell Street, Dublin 1, wrote to the Minister on behalf of the applicant, for the purpose of putting forward reasons as to why the Minister should allow the applicant to remain in the State pursuant to the provisions of Section 3 of the Immigration Act, 1999. Briefly summarized, those grounds are that the applicant, if returned to Nigeria, would suffer persecution, in breach of his fundamental right to liberty and security; that it would be in breach of Article 3 and Article 33 of the 1951 Geneva Convention; that the applicant has fully integrated into Irish national and cultural life; that he has committed no offences since his arrival here; that Ireland ought to honour its obligation not to return a person to a country where persons in that country do not enjoy their fundamental rights to liberty and security; and as set out in ground 6 of the letter, because:

"there has been a change in the status of our client having been married to an EU national who is also a Community worker. He has since lodged an application for residency as a dependent of an EU national as provided for in the EU Treaty."

That letter appears to have been accompanied by two testimonials, one from "Eugene McGrath" dated 17th April 2002. He says that he has been the landlord of the applicant "for sometime now", and another signed on behalf of the Minister in Charge of Christ International Evangelical Ministry of Christ Apostolic Church, 18 Rutland Place, Dublin 1". Both testimonials are on notepaper which is of the home-made kind, both identical in style, and as far as I am concerned appear to contain signatures in the same hand-writing. I stress that is simply my opinion from an examination of the signatures, but I mention it in view of certain other doubts which I have in relation to the bona fides of the paperwork used to support the application to the Minister and to this Court, and to which I shall return in due course.
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Mr Illori wrote again to the Immigration and Citizenship Division of the Minister's Department on the 29th April 2002, stating that the applicant had married "Beverly Danniel" on the 5th March 2002, and attached a copy of a Marriage Certificate which in fact shows a marriage to "Beverly Darnell" on that date. He went on to apply for residency in the State on behalf of the applicant, based on a marriage to an EU national.
Following these letters the Minister wrote to Equity Consultants on 2nd May 2002, stating that the application for residency would be examined under the provisions of Regulation (EEC) No 1612/68 (hereinafter referred to as "the Regulation") which allows the spouse and descendants who are under the age of 21 or are a dependant of an EU national working in the territory of another member state to install themselves with the EU nationals in that State irrespective of nationality, and requested certain original documentation to be furnished within 15 days so that they could be satisfied that the applicant qualified under the above Regulation. The documents requested were:

1. Accommodation details in the name of the applicant and his wife, namely a Tenancy Agreement/Rent Book;

2. Contract of Employment and current payslips in respect of the EU national;

3. Evidence of nationality and identity in respect of both parties (i.e. passports, or in the case of the EEA National, passport or national identity card);

4. Current financial statement (i.e. Bank Statement);

5. Two passport-size photographs of both parties;

6. Letter from the applicant's community welfare officer, stating whether he or his wife are in receipt of basic supplementary allowance, or rent allowance.

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By the 4th June 2002, no reply had been received by the Minister to this request, and so a reminder letter was written, stating that the requested documentation could be furnished within ten days from 4th June 2002. No documentation was furnished.
By letter dated 23rd May 2002, the Immigration and Citizenship Division of the Minister's office wrote to Equity Consultants requesting the same documentation so that they could examine the applicant's application for residency.
By letter dated 31st July 2002, the Immigration and Citizenship Division of the Minister's office wrote to Equity Consultants informing them that the applicant's application had been refused, and stated that in coming to that decision, it was decided that the applicant had failed to provide the original documentation sought in order to show that the applicant's spouse was in fact an EU national who is residing and working in the State. They were invited to inform the Department if there were any other grounds upon which the application could be considered, within fourteen days from that date.
The applicant was notified by letter dated the 10th September 2002 that the Minister intended to make a Deportation Order and he was invited to make representations as to why he should be allowed to remain in the State.
By letter dated 16th September 2002, Equity Consultants wrote to the Department stating that they were appealing the decision to deport, on three grounds:

1. That the applicant was the spouse of an EU national, and that he had deemed dependent rights flowing from his spouse, who "is currently in search of gainful employment in Ireland".

2. That he has been residing in the State for more than three years and that a legitimate expectation has been created, and that he has integrated into society here and has not been involved in any activities here which have warranted the "attentions of the State".

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3. That the right to unity of the family cannot be maintained if the applicant is deported whilst his spouse remains in the State.

With that letter Equity Consultants enclosed a copy of a letter dated 17th September 2002 which they wrote on the applicant's behalf to the EU Treaty Rights Section of the Minister's office, referring to the earlier application and its refusal on the grounds of failure to furnish documents. In this letter they say that they have already forwarded the original marriage certificate (which does not appear to be the case), and they also enclose the Passport of Beverly Darnell, two passport-sized photographs of the applicant and his wife, and letter from the Community Welfare Officer confirming non-receipt of Social Welfare benefit by the couple. That letter also states that there is no record of employment by the couple in the State. They request that the application be re-opened.
I want to say at this point that the two photographs of the Applicant's spouse which were furnished, do not appear to me to bear any resemblance to the photograph of the her on her passport, the originals of which I had the opportunity to examine when this matter was before me, even allowing for the fact that the photograph in the original passport was taken some five years previously, when Ms. Darnell was 15 years of age. I should also say that she was not in court when the case was heard by me, so I had no opportunity to examine her present appearance with the photograph recently supplied to the Department.
By letter dated 6th November 2002, the department wrote to Equity Consultants again informing them that they had failed to provide the documentation necessary to establish that the applicant was married to an EU national who is residing and working in the State, and stated also that the case was being forwarded to the Repatriation Unit to determine whether or not a deportation order should be made.
The Minister made a Deportation Order in respect of the applicant on the 8th November 2002, and communicated this fact to the applicant by letter dated 11th November 2002, stating the reasons, which it is not necessary for me to set out, save to say that in
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substance the reason was the failure, despite several requests, to supply evidence that the applicant's wife was residing and working in the State.

On the 21st November 2002, a firm of solicitors, Cathal O'Neill & Co., of 10, Church Avenue, Rathmines, Dublin 6 wrote to the Department stating that they were acting for the applicant. They refer to the fact that they have only just received the papers from Equity Consultants and to the fact that it appears from the papers that by letter dated 17th September 2002 sent by Equity Consultants, that the necessary documents, including the payslips for the applicant's spouse, were sent, and stating that they assumed therefore that the letter from the Department dated 6th November 2002 had been sent in error. That letter was not responded to, according to the affidavit of Charles O'Connor filed on behalf of the Respondent, because there was nothing on the Department's file or in the solicitors, indicating that the firm of solicitors were acting for the applicant. That does not appear to be correct in fact, since the letter from those solicitors, says at the outset that they are acting on behalf of the applicant.
On the 9th December 2002, a further letter was received from a different firm of solicitors, namely those now on record for the applicant in these proceedings, Messrs. Ceemex & Co. 37, Lower Gardiner Street, Dublin 1. The court has not seen a copy of that letter, but by letter dated the 11th December 2002, these solicitors wrote to the Chief State Solicitor informing them that they had that day commenced Judicial Review proceedings to challenge the Deportation Order dated 8th November 2002, and they enclosed a copy Order of the President of the High Court dated 10th December 2002 which restrains the Respondent from deporting the applicant until after 16th December 2002 and gave the applicant liberty to seek Judicial Review by Notice of Motion returnable for that date. Those proceedings are now before me for decision.
The Statement of Grounds served with this Notice of Motion seeks relief in the form of an injunction restraining the deportation of the application, as well as an order of certiorari quashing the decision of the Respondent to deport the applicant which was
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communicated to the applicant on the 1st December 2002, and a declaration that the applicant is entitled to remain in the State. The grounds relied upon are:

1. The Deportation is in breach of Regulation (EEC) 1612/68 which, it is stated, confers a right of residence on a spouse of a European Union citizen exercising European Treaty rights in member states of the EU, and that the Respondent failed to take into consideration the applicant's right to reside in the State as a spouse of such an EU citizen, and that the decision to deport the applicant is an infringement of his spouse's right of residence in the State under the said Regulation.

The only affidavit filed in support of the application is one appearing to be sworn on the 11th December 2002, by the applicant's wife, Beverly Animashaun (nee Darnell). I say "appearing to be sworn" because I cannot help observing that the signature of the deponent bears no resemblance to the handwriting of the signature of Beverly Darnell appearing on her passport. However, for present purposes, I am assuming that it is a proper affidavit sworn by the applicant's wife.
In her grounding affidavit Mrs Animashaun deposes that she met the applicant "sometime in April 2001 while holidaying in Ireland". She says that their relationship developed rapidly as they kept in touch constantly after her return to the UK, by letters and telephone, and that she made several trips to Ireland to spend time with him, mostly over weekends as she had a full time job as a catering assistant in the UK.
She says that one of these trips, the applicant proposed marriage to her and that she accepted and then made plans for their wedding. They were married on 5th March 2002, after which she returned to the UK to conclude arrangements for moving to Ireland. She says that she moved to Ireland to live with the applicant in May 2002, and that soon thereafter they instructed Equity Consultants to apply for an EU residence permit for herself and her husband. She says that they informed her that the application might take
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six months and that in the meantime she should not apply for unemployment benefit as this might affect her husband's application.

She then deposes that around the middle of June 2002 she became pregnant and that she was very ill as a result and was unable to take up employment, and that in August 2002 she suffered a miscarriage on 27th August 2002, and that she had to return to the UK to be with her mother as this had been her first pregnancy and she did not know what to expect. She says that she saw her family doctor in the UK who prescribed a course of anti-depressants. She says that her family were a great support to her, as was her husband who telephoned her constantly. She says she returned to Dublin on the 10th October 2002, and that she has been looking for work here since then, but was afraid to apply for any welfare benefit or to register with FAS having been advised that it might affect their application for a residency permit. At this point I just draw attention to the fact that almost one month previously, namely 16th September 2002, Equity Consultants, in their letter to the Department, stated that as of that date the applicant's spouse was "presently in search of gainful employment". That sits uncomfortably with her own averment in her affidavit that she returned to Dublin on the 10th October 2002.
She then says that in October/November 2002 she made a couple of enquiries with Equity Consultants regarding the applications but was told that there had been no developments, and that the firm would contact them when they received any communication from the Department.
She states that the first time they learned of the existence of the Deportation Order was when the applicant was arrested in O'Connell Street on 11th November 2002, and that prior to that date they had received no correspondence from the Department. She says that she has now registered with FAS and "a couple of employment agencies" having received professional advice, and that she intends to work and live in Ireland, and that having lived all her life in the UK, she would find it extremely difficult to relocate in Nigeria, where her husband's life is under threat.
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There are no exhibits or other supporting documents attached to this affidavit, but I allowed the applicant's solicitor to hand into court a copy certificate from FAS bearing date 10th December 2002 which certifies that a Beverly Animashaun of 13A, Berkeley Road, Dublin 7 registered with FAS on the 10th December 2002, being the day prior to the date of swearing of her affidavit, and in which her address is stated to be "16, Killarney Parade, Dublin 7."
The affidavit of Charles O'Connor to which I have already referred, was filed on behalf of the Respondent. It is from that affidavit that I have set out the sequence of events relating to the applicant's applications to the Respondent at the commencement of this judgment.
Submissions on behalf of the applicant were made to the Court by Mr Matthew Ezeani, solicitor of Ceemex & Co., solicitors. He relied firstly on Article 7.1 of the Regulation which provides:

"A worker who is a national of a member state may not, in the territory of another member state, be treated differently from national workers by reason of his nationality in respect of any conditions of employment and work in particular as regards remuneration, dismissal, and should he become unemployed, reinstatement or re-employment."

More importantly, he relies on Article 10.1 which provides:

"The following shall, irrespective of their nationality, have the right to install themselves with a worker who is a national of one Member State and who is employed in the territory of another Member State;

(a) his spouse and their descendants who are under the age of 21 years or are dependents;

(b) dependent relatives in the ascending line of the worker and his spouse."

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The evidence as set out above regarding the applicant's spouse is that she has not worked in this State, and on a superficial reading of Article 10 she would not be regarded as a worker, and therefore the applicant could not benefit from her status accordingly. However, Mr Ezeani referred the Court to a passage in Immigration Law and Practice (5th ed.) Butterworth (2001) by Ian McDonald QC at paragraph 7.59 where the author states:

"The term 'worker' does not cover only actual workers, but also job seekers, those between jobs, workers undergoing vocational training in their own field or in some cases retraining in a different field, the involuntarily unemployed, and the sick; injured and retired workers."

Mr Ezeani referred to a decision of the European Court of Justice in Regina v. Immigration Appeal Tribunal, ex parte Gustaff Desiderius Antonissen (Case C292/89), (1991) 2 C.M.L.R. 373 at page 399 where the judgment of the Court states as follows:

"It follows that Article 48(3) must be interpreted as enumerating, in a non-exhaustive way, certain rights benefiting nationals of member-States in the context of the free movement of workers and that that freedom also entails the right for nationals of member-States to move freely within the territory of the other member-States and to stay there for the purpose of seeking employment.

Moreover, that interpretation of the Treaty corresponds to that of the Community legislature, as appears from the provisions adopted in order to implement the principle of free movement, in particular Articles 1 and 5 of Regulation 1612/68 on freedom of movement of workers within the Community which presuppose that Community nationals are entitled to move in order to look for employment, and hence to stay, in another member-State.

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It must therefore be ascertained whether the right, under Article 48 and the provisions of Regulation 1612/68, to stay in a member-State for the purpose of seeking employment can be subjected to temporal limitation.

In that regard it must be pointed out in the first place that the effectiveness of Article 48 is secured in so far as Community legislation or, in its absence, the legislation of a member-State gives persons concerned a reasonable time in which to apprise themselves, in the territory of the member-State concerned, of offers of employment corresponding to their occupational qualifications and to take, where appropriate, the necessary steps in order to be engaged.

The national court referred to the declaration recorded in the Council minutes at the time of the adoption of Regulation 1612/68 and of Council Directive 68/360 on the abolition of restrictions on movement and residence within the Community for workers of member-states and their families. That declaration reads as follows:

'Nationals of a member-state as referred to in Article 1 [of the directive] who move to another member-state in order to seek work there shall be allowed a minimum period of three months for that purpose; in the event of their not having found employment by the end of that period, their residence on the territory of this second State may be brought to an end.

However, if the above-mentioned persons should be taken charge of by national assistance (social welfare) in the second State during the aforesaid period they may be invited to leave the territory of this second State.'

However, such a declaration cannot be used for the purpose of interpreting a provision of secondary legislation where, as in this case, no reference is made to the content of the declaration in the wording of the provision in question. The declaration therefore has no legal significance."

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The Court ruled that it is not contrary to the provisions of Community law for the legislation of a member-State to provide that a national of another member-State who entered the first State in order to seek employment, may be required to leave the territory of that State (subject to appeal) if he has not found employment there after six months, unless the person concerned provides evidence that he is continuing to seek employment and that he has genuine chances of being engaged.
I have quoted this long passage fully because it deals with the principle submission made on behalf of the applicant. The applicant submits that his wife is in this country and is seeking employment and that therefore she comes within the definition of a worker. In fact Counsel for the Respondent accepted that the definition of a worker includes a person seeking work. The only evidence that she has been looking for work here is the certificate from FAS dated 10th December 2002 which is the day prior to the swearing of the grounding affidavit herein. It is important also to refer to what is actually stated in the grounding affidavit by the applicant's wife, because the judgment in Antonissen above, refers to "a national of another member-State who entered the first State in order to seek employment". The clear evidence from the applicant's wife is that she entered this country "to live together with my husband in May 2002". No reference is made to seeking employment, although she does say that she became so sick on becoming pregnant that she could not take up employment, but there is no evidence of a medical nature to support this assertion. She says that since October 2002 she has been actively seeking work, but again there is nothing to support that assertion. I would have expected that some evidence of attempts to get work would have been forthcoming if it were so. The onus is on the applicant to establish sufficiently the basis of his assertion that he is the spouse of national of another EU member-State who is either working or seeking work here, and that onus has not been discharged in this case. The fact that it was only the day before the swearing of the grounding affidavit that his wife registered with FAS speaks for itself, let alone the absence of any supporting evidence of attempts to gain employment, such as placing her details with employment agencies, answering advertisements and so forth. In this case there is nothing except a bald assertion to the
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effect that she has been seeking work. Mr Ezeani submitted that it was not necessary that evidence be provided in this regard, and that it was sufficient that the assertion be made. I cannot accept that this submission is correct.

In addition of course there is the fact that when invited on a number of occasions to provide the necessary documentary evidence to the Department to support his application, no response was made.
I am concerned only with the decision-making process, not the decision itself. In other words, was the Minister entitled to arrive at the decision to deport the applicant based on the information, or lack of information, before him. Given the lack of any response to the invitations from the Department to supply the necessary documentation, the Minister was perfectly entitled to conclude that the applicant was not in a position to comply with the request. Even if I were satisfied that the wife of the applicant was a worker here within the wider definition of 'worker', the fact is that no proof of that was submitted in spite of adequate opportunity being given to the applicant. But, as I have stated, I am of the view that he has not even at this stage established adequately that she comes within the definition.
The last matter I want to refer to is what I regard as unsatisfactory aspects of the way this case has been presented to the court. I make no criticism of the solicitors for the applicant in this regard, who have come into the case in recent times. I have already referred to the fact that the photographs of the applicant's wife as supplied to the Department by Equity Consultants, do not appear to me to bear any resemblance to the photograph of her in the passport. I have also referred to the dissimilarity between the handwriting of the deponent of the grounding affidavit, and that which appears on the passport, both supposedly by the same person. I have already referred to my suspicion that the signatures on the two testimonials proffered in support of the application to the Department are written by the same person, in view of the similarity of the writing.
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I am also concerned that the address of the applicant as shown on the FAS Certificate dated 10th December 2002 is different to the address given for the same person in an affidavit sworn the following day. Neither of these addresses is the same address as appears on the marriage certificate some 9 months previously, but of course in this regard they may have moved to alternative accommodation. By 29th April 2002, as appears from the letter dated 29th April 2002 from Equity Consultants to the Department, their address had changed to 10, North Circular Road, Dublin 7. However, one of the testimonials referred to already is from the North Circular Road landlord and it is dated 17th April 2002, and he says that the applicant has been a tenant of his "for some time now". However, a letter from Equity Consultants dated 16'th April 2002 gives the address of the applicant still as 12 Mary Terrace, off Manor Street, Dublin 7.
I note also that in the Decision of the Refugee Appeals Tribunal dated 24th January 2002, a conclusion is reached that the applicant's evidence was lacking credibility and that it was fabricated for the purpose of the asylum application.
All of these matters, some of which are a matter only of speculation, nevertheless fill me with a sense of unease about the candour and bona fides of this application. However, I have not allowed these matters to weigh with me in reaching my decision. That decision is based on the failure of the applicant to satisfy the Respondent's reasonably made requests for further information to support the case that the applicant's wife is a worker here, even by reference to the wider definition of that term. In the circumstances the decision was one which he could arrive at from the information available and supplied to him.
In making these observations I am mindful of the remarks of Mr Justice T.C.Smyth in his judgment date 2nd October 2002 in the case of Akinyemi v. The Minister for Justice Equality and Law Reform, High Court, unreported in which he set forth observations about the veracity of documents and about the activities of the same Mr O. Illori of Equity Consultants who advised the applicant in that case and in this one. At the end of
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his judgment, he directed the Registrar to send a complete copy of all the papers, the order and judgment of the court to the DPP, the Garda Commissioner, and the Garda National Immigration Bureau so that enquiries could be made and so that such action as they consider appropriate might be taken, in particular concerning the involvement or activities of Mr Illori of Equity Consultants.

I make the same direction, except to add that the Respondent's Department should be urged to exercise the greatest vigilance with regard to documents, photographs, affidavits and so forth which are used to support this type of application, particularly in cases in which Mr O. Illori is rendering assistance to applicants.