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Cite as: [2004] IEHC 119

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HC 196/04

THE HIGH COURT

JUDICIAL REVIEW

[2003 795 JR]

BETWEEN/

OVIDIU ERNO GRITTO, ANDREEA DANIELA MICU AND DENISA GRITTO (A MINOR SUING BY HER MOTHER AND NEXT FRIEND, ANDREEA DANIELA MICU)

APPLICANTS

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

Judgment of Miss Justice Laffoy delivered on 27^th May, 2004.

The Application

The applicants seek leave to apply by way of judicial review for certain reliefs relating to deportation orders made by the respondent pursuant to s. 3(1) of the Immigration Act, 1999 (the Act of 1999) deporting the first and second named applicants.

The primary reliefs sought are orders of certiorari quashing the decisions to make deportation orders and the concomitant decisions to refuse the applications of the first and second named applicants, as the parents of an Irish-born child, for leave to remain in the State, on the basis that such decisions are ultra vires, void and of no force or effect. The third named applicant (the child) is a child of the first and second named applicants, who was born in the State on 30^th December, 2002 and is an Irish citizen.

It is common case that in deciding whether to make the deportation orders the respondent was obliged to consider the position of the child as required by the decision of the Supreme Court in A.O. and D.L. v. Minister for Justice [2003] 1 I.R. 1. It is contended on behalf of the applicants that the respondent did not do so; and that his consideration was more in line with what is required of him by virtue of s. 3 of the Act of 1999 as interpreted by the Supreme Court in F.P. v. Minister for Justice [2002] 1 IR 164.

As the core issue in this matter is the validity of the process by which the Minister reached a decision to deport non-national parents of an Irish-born child subsequent to the decision of the Supreme Court in the A.O. and D.L. case, before considering the facts and the grounds on which invalidity is alleged, I propose considering the majority judgments of the Supreme Court in that case in some detail to ascertain from them what guidance was given as to the proper manner of processing such an application and the matters to be taken into consideration and the principles to be applied by the respondent.

First, however, I will outline the decision of the Supreme Court in the F.P. case insofar as it is relevant to the issues with which I am concerned.

This Court is, of course, bound by the decisions of the Supreme Court.

The F.P. case

In that case, the court was concerned with challenges to the validity of deportation orders made under s. 3(1) of the Act of 1999 which encompassed complaints as to –

(a) the proposal to make the deportation orders;

(b) the consideration given to representations made under s. 3(3)(b) of the Act of 1999; and

(c) the actual deportation orders.

Each of the applicants had applied for asylum in the State, was refused at first instance and unsuccessfully appealed.

In relation to the proposal to make a deportation order, the Supreme Court held that the respondent could make a deportation order in respect of any person who fell within one of the categories listed in s. 3(2) of the Act of 1999, subject to the subsequent provision (section 3(6)) that representations for leave to remain on humanitarian grounds were sought and, if made, considered. It also held that, as a matter of interpretation, s. 3(3)(a) of the Act of 1999, which provides that the respondent must notify and give reasons for a proposed deportation order, embraces a singular reason.

In relation to consideration of representations made pursuant to a request under s. 3(6) of the Act of 1999, in his judgment, with which the other four judges of the Supreme Court who heard the appeal concurred, Hardiman J. said, at p. 173:

"In the circumstances of this case, the respondent was bound to have regard to the matters set out in s. 3(6) of the Act of 1999. In my view he was also clearly entitled to take into account the reasons for the proposal to make a deportation order, i.e. that the applicants were in each case failed asylum seekers. If the reason for the proposal had been a different one, he would have been entitled to take that into account as well. He was obliged specifically to consider the common good and considerations of public policy. In my view he was entitled to identify, as an aspect of these things, the maintenance of the integrity of the asylum and immigrations systems. The applicants had been entitled, in each case, to apply for asylum and to remain in Ireland while awaiting a decision on this application. Once it was held that they were not entitled to asylum, their position in the State naturally falls to be considered afresh, at the respondent's discretion. There was no other legal basis on which they could then be entitled to remain in the State other than as a result of a consideration of s. 3(6) of the Act of 1999. In my view, having regard to the nature of the matters set out in sub-paras. (a) to (h) of that sub-section, the decision could be aptly described as relating to whether there are personal or other factors which, notwithstanding the ineligibility for asylum, would render it unduly harsh or inhumane to proceed to deportation. This must be judged on an assessment of the relevant factors as, having considered the representations of the person in question, they appear to the respondent. These factors must be considered in the context of the requirements of the common good, public policy, and where it arises, national security."

In relation to the manner in which the decision was formulated, Hardiman J. stated as follows, at p. 175:

"Where an administrative decision must address only a single issue, its formulation will often be succinct. Where a large number of persons apply, on individual facts, for the same relief, the nature of the authorities' consideration and the form of grant or refusal may be similar or identical. An adequate statement of reasons in one case may thus be equally adequate in others. This does not diminish the statements essential validity or convert it into a mere administrative formula."

The Supreme Court also rejected an argument that the reasons for the respondent's decision should be set out in the deportation order rather than in a letter accompanying a copy of the deportation order.

Aside from personal circumstances, the factual situation of the first and second named applicants differs from that of the applicants in the F.P. case. While, on arrival in the State, the first and second named applicants had applied for asylum, they withdrew their applications before they came to be determined at first instance, whereupon their entitlement to remain in the State ceased (s. 9(2) of the Refugee Act, 1996, substituted by s. 7(c) of the Immigration Act, 2003).

The A.O. and D.L. case

That case concerned two families. In the case of each family the parents were non-nationals and each had a child who was born in the State after the making of the relevant deportation order. A factor which was present in relation to each family, which does not apply in the instant case, was that the applications for asylum came within the ambit of the Dublin Convention. In outlining what I believe to be the aspects of the judgments delivered in the Supreme Court which are of relevance for present purposes, generally I will be omit consideration of the application of the Dublin Convention and its ramifications.

The ratio decidendi of the decision of the Supreme Court, insofar as it is relevant for present purposes, is summarised in the head note in the official reports as follows:

1) The constitutional rights of the Irish-born applicant in each case to the company, care and parentage of its parents within the State was not absolute and unqualified.

2) The respondent was obliged to consider whether, in the circumstances of the case, there were grave and substantial reasons associated with the common good which required the deportation of the non-national applicants.

3) In so doing, the respondent was not restricted to taking into account only those matters which were personal to the non-national applicants which would render their continued residence inimical to the common good, but could also take into account policy considerations which would arise from allowing a particular applicant to remain which would inevitably lead to similar decisions in other cases.

4) In deciding whether to deport non-national applicants, the respondent was entitled to have regard, inter alia, to the legislative scheme at present obtaining in the State.

In his judgment, having considered the decision of the Supreme Court in Fajujonu v. Minister for Justice [1990] 2 IR 151, Keane C.J. stated as follows at p. 38:

"It is . . . an authority of this court for the proposition that, in the particular circumstances that arose in that case and which might, of course, similarly arise in other cases, the respondent was obliged to give consideration to whether, in the light of those circumstances, there were grave and substantial reasons associated with the common good which nonetheless required the deportation of the non-national members of the family, having as its inevitable consequence, either the departure of the entire family from the State or its break up by the departure of the non-nationals alone with the consequent infringement of the constitutional rights of the Irish citizens who were members of the family."

Keane J. distinguished the circumstances before him from the circumstances which arose in the Fajujonu case. He inferred from the judgments delivered in the Supreme Court in that case that there were special circumstances to which the court thought the respondent should have regard, together with the constitutional rights of the family and other matters relevant to their continued stay in the State which might come to the Minister's attention, i.e. the "appreciable time" for which they had resided as a family in Ireland, the fact that the family had made its "home and residence" in Ireland, and the fact that Mr. Fajujonu had been offered employment but had been refused a work permit on the ground only that the respondent had refused to grant him permission to stay in Ireland.

Keane C.J. also recorded that the factual and statutory context in which the respondent was required to decide whether a deportation order should be made had altered radically since the Fajujonu case was decided. He went on to state as follows at p. 39:

"The executive is entitled to take the view, it being entirely a matter for it, that in the public interest immigrants seeking to make their home in this country should not be allowed to bring about a situation in which their applications are dealt with in priority to other applications (to the possible detriment of later applicants), by entering the State illegally and instituting what proved to be unfounded applications for refugee status. In particular, they are entitled to take the view that the orderly system in place for dealing with immigration and asylum applications should not be undermined by persons seeking to take advantage of the period of time which necessarily elapses between their arrival in the State and the complete processing of their applications for asylum by relying on the birth of a child to one of them during that period as a reason for permitting them to stay in the State indefinitely. It must be emphasised that, whether the respondent is right in forming that view is not a matter for the courts: they do not exercise any appellate jurisdiction in respect of decisions by the respondent under the relevant statutory code."

Following on from that, Keane C.J. elaborated on the type of policy considerations which the respondent was entitled to take into account in the following passage at p. 40:

"While the respondent must consider each case involving deportation on its individual merits, he is undoubtedly entitled to take into account the policy considerations which would arise from allowing a particular applicant to remain where that would inevitably lead to similar decisions in other cases, again undermining the orderly administration of the immigration and asylum system."

Having stated that the State was unquestionably entitled to apply the provisions of the Dublin Convention in the cases before him, his conclusion, for the reasons he had given, would be the same even if the Dublin Convention had not arisen for consideration.

Denham J., at p. 62, summarised the obligations of the respondent in considering whether to deport the non-national parents of an Irish-born child as follows:

"The respondent is obliged to consider the facts of each case by an appropriate inquiry in a fair and proper manner as to the facts and factors affecting the family. If the respondent is satisfied for good and sufficient reason that the common good requires that the residence of the parents within the State should be terminated, even though that has the necessary consequence that in order to remain a family unit the child who is a Irish citizen must also leave the State, then that is an order he is entitled to make. The child has rights of citizenship and as a consequence he or she also has rights of residence in Ireland. He or she also has the right to the society, care and company of his or her parents. However, it does not flow from the rights of the child that the family or parents and siblings of Irish children have the right to reside in Ireland. It is for the respondent to weigh the factors in a fair and just manner in each case in accordance with the law and the Constitution. The respondent may deport parents if he is satisfied that for good and sufficient reason the common good requires that the residence of the parents within the State should be terminated, even though that has the necessary consequence that in order to remain a family unit, the child who is an Irish citizen must also leave the State. It is appropriate in balancing all the factors of a case to place weight on the time factor, the integrity of the immigration system and the Dublin Convention."

Murray J. in his judgment, in a passage at p. 79, which was relied on in this case by counsel for the respondent in responding to a submission on behalf of the applicants that the respondent had not addressed the possibility that, on being deported, the non-national parents would leave the Irish-born child in the State, stated as follows:

"There is no evidence whatsoever in this case that there is any reality in the prospect that the parent applicants would abandon their infant children if deported. It was suggested at one point, in a letter to the respondent written by the solicitor for one of the parties, that he should not presume that, if deported, the parents concerned would necessarily bring the infant with them. That, he said, was a matter on which they would take a decision if and when a deportation order was enforced. The matter was put no further than that. In my view the respondent was perfectly entitled to presume, in the absence of concrete material to the contrary, that the parents would act in a natural, responsible, and humane fashion so that if, like other non-national parents, they should be deported they would continue to give care and parentage to their child as part of their family."

Murray J. rejected an argument which had been advanced on behalf of the applicants that judgment in the Fajujonu case established that any reasons relied upon by the respondent in making a deportation order must be reasons which are personal to the non-nationals, such as where they pose a threat to national security or have engaged in serious criminal wrongdoing; and, obversely, that the respondent could not rely on any routine immigration reason, such as illegal immigrant status or non-entitlement to asylum or refugee status. In the context of the making of a deportation order Murray J. contrasted the position of a family where all the members are non-nationals and the position of a family comprising non-nationals and an Irish-born child in the following passage at p. 84:

". . . the point being that, unlike a family of non-nationals who can be deported simply because they are non-nationals, having no personal rights whatsoever to be within the State (where rights arising under the immigration and asylum systems have been excluded) the Minister must take into account in a case such as the present one, the prima facie constitutional rights deriving from the citizenship of the infants in question and consider whether, notwithstanding those rights, there are, in the circumstances of the case, good and sufficient reasons associated with the common good for the deportation of their parents with the inevitable consequences for their child."

Later, in his judgment, at p. 91, Murray J. said that the respondent should ensure that his decision to deport, in the circumstances of the case, is not disproportionate to the ends sought to be achieved. In setting out his conclusions at p. 92, he considered the proportionality of the respondent's decision and stated as follows:

"It has been shown that the respondent decided to deport the non-national parents in these cases because, inter alia, of concerns that the process could be circumvented by reason only of the fact that during the relatively short period during which that process takes place applicants may become parents of a child born in the State. The respondent had a stark choice to make, either to deport or not to deport. There is no half-way house. No circumstances have been disclosed or shown to exist upon which one could consider the respondent's decision to be disproportionate. In my view it has not been established that the respondent's decision to deport in these cases was unlawful or unconstitutional. Cases may arise which are so wholly exceptional and unique in their circumstances which might require further evidence of the manner in which the integrity of the immigration and asylum systems could be called in question if no deportation order was made but this is clearly not such a case.

Hardiman J., with whom Geoghegan J. agreed, also rejected the argument that "routine immigration reasons", or reasons of general policy, could not provide a sufficient reason to deport stating as follows at p. 155:

"It seems wholly artificial to contend that 'a great and substantive reason associated with the common good', in the words of Finlay C.J., is to be read as excluding general considerations of that common good, including the statistical pattern of immigration and asylum-seeking, the demands thereby created on the State's resources, the State's international obligations and the need to ensure that one applicant for permission to reside in the State does not gain an unfair advantage over others."

Later in his judgment, Hardiman J. summarised matters to which the respondent is entitled to have regard in the following passage at p. 162:

"Specifically, the respondent is entitled to have regard to the State's general policy in relation to immigrants and specifically to asylum seekers; to the jurisprudence on the same subject as it evolves; to the volume of persons seeking asylum and the social and economic demands which this imposes; to changing patterns in this volume; to the matters he is required by statute to consider including the length of time a particular person has been in this State and his or her family and domestic circumstances; to the constitutional rights of all persons concerned including the Irish-born child and the State itself; to the requirement of a coherent and efficient immigration and asylum system; and to our international obligations."

Having stated that the need to preserve respect for the asylum and immigration system (including the Dublin Convention) is a generally applicable open-ended administrative reason capable of satisfying the grave and substantial reason associated with the common good test, Hardiman J. stated that it must, of course, be considered in the light of the facts of each individual case. He continued as follows at p. 164:

"Equally, the consideration of individual cases should as far as possible be consistent one with the other. The detailed exercise required in each individual case is a function of the executive, to be discharged with reference to the finding of the relevant statutory bodies and with the advice of the civil service. The courts have no appellate role in the process. Their role is solely to ensure that all decisions are taken by the proper bodies and in the proper manner. The element of discretion in any such decision has been conferred, not on the judiciary, but on the executive which is democratically accountable for it."

The A.O. and D.L. case: standard of review

It is convenient at this juncture to consider the standard of review which was applied in the A.O. and D.L. case and the dictae in the judgments delivered in the Supreme Court on the issue of the appropriate standard of review in a case where the constitutional rights of an Irish-born child are at issue. Unlike the instant case, a standard other than the normal standard of review was not contended for in that case and the normal standard was applied.

In his judgment, at p. 39, Keane C.J. stated:

"In all applications by way of judicial review, the test for determining whether the respondent was entitled to make the orders of deportation in either or both of the present cases is whether the decisions were so manifestly contrary to reason and common sense that they must be set aside by the High Court."

Denham J., in her judgment at p. 61, recorded that the standard of judicial review had not been in issue on the appeal. The degree of review in cases where a decision of a public authority may interfere with a fundamental right of a person was not in issue before the court and she awaited a full argument on the issue.

Murray J. also recorded, at p. 92, that no issue had been raised concerning the principles to be applied in scrutinising the lawfulness of the respondent's decision and the established principles as to rationality fell to be applied.

In her dissenting judgment, at p. 126, McGuinness J. dealt with the issue of standard of review as follows:

"The matter of the standard for judicial review of administrative decisions was not argued in this case and was specifically stated by counsel for the respondent not to be relevant to the case. I would, however, concur with Fennelly J. in believing that where constitutional rights are at stake as in this case, the standard of judicial scrutiny as set out in particular in O'Keeffe v. An Bord Pleanála [1993] 1 I.R. 39 may fall short of what is likely to be required for their protection."

Hardiman J., at p. 164, made it clear that he was applying the criteria summarised in the judgment of Finlay C.J. in the O'Keeffe case, absent any argument that the court should "adopt new or special criteria in relation to judicial review of deportation decisions".

Geoghegan J., at p. 166, reserved until a suitable case any consideration of whether in a judicial review of a ministerial decision the court is confined to the criteria set out in the O'Keeffe case.

Finally, in his dissenting judgment, Fennelly J. made the following remarks which he pointed out must be obiter, as a standard of review other than the normal standard (O'Keeffe principles, similar to Wednesbury principles applied in the United Kingdom) had not been contended for, at p. 203:

"It seems to me that where as in this case, constitutional rights are at stake, such a standard of judicial scrutiny must necessarily fall well short of what is likely to be required for their protection. This appears to have led to some modification of the test in other jurisdictions. In R. (Mahmood) v. Secretary of State for the Home Department [2001] 1 WLR 840, the decision of the English Court of Appeal upon which the Minister has relied, Laws L.J. and Lord Phillips M.R. both applied a significantly modified test as expounded in the case of Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 KB 223, one based on 'anxious scrutiny' to a case involving interference with fundamental rights. In a case such as the present, the routine application of the unmodified test as expounded in the case of Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation . . . makes decisions of the Minister virtually immune from review."

The facts

The first and second named applicants are Romanian nationals of Roma ethnicity. Each regards the other as her or his common law spouse. They arrived in the state on 7^th November, 2002. At the time the second named applicant was in the eighth month of her pregnancy. They both applied for asylum on arrival.

As I stated at the outset, the child was born to the second named applicant after their arrival in the State. She was born at the Rotunda Hospital in Dublin on 30^th December, 2002.

In January, 2003 the first and second named applicants applied for permission to remain in the State as the parents of an Irish-born child. It would appear that that application was made on 17^th January, 2003. It was acknowledged by the Immigration Division of the respondent's department on 6^th February, 2003.

On 23^rd April, 2003 both the first and second named applicants signed forms at the office of the Refugee Applications Commissioner in Dublin stating that they wished to withdraw their applications for asylum. The reason for withdrawal was stated to be their Irish-born child. They acknowledged that they had been advised that they should seek legal advice, that they had sought legal advice and that they still wished to proceed with the withdrawal. Despite those statements and despite an acknowledgment that they were being generally advised by the Refugee Legal Service at the time, both aver that the position as represented on the form was not the case and that they did not receive legal advice. An affidavit of Martin O'Mahoney of the office of the Refugee Applications Commissioner, sworn on 3^rd February, 2004, has been filed on behalf of the respondent. Mr. O'Mahoney outlines the manner in which the first and second named applicants were dealt with by his organisation between 30^th January, 2003, when the first named applicant attended at the offices for the purpose of withdrawing his application for asylum and 23^rd April, 2003, when the applications were withdrawn. On the basis of that affidavit, and the documents exhibited with it, the contents of which have not been refuted, it is difficult to conclude other than that the applicants were indeed advised to seek legal advice and that legal advice was available to them.

By letters dated 18^th July, 2003 the first and second applicants were notified that the respondent proposed to make deportation orders in respect of them under the power given to him by s. 3 of the Act of 1999, as amended. Each letter set out the reasons for the respondent's proposal as follows:

"You are a person to whom permission to remain in the State was granted for the purpose of having an asylum claim determined. You subsequently withdrew that claim and thus your entitlement to remain temporarily in the State in accordance with s. 9(2) of the Refugee Act, 1996 thereupon ceased. You have since remained in the State without the permission of the Minister.

Accordingly you are a person whose deportation would, in the opinion of the Minister, be conducive to the common good."

The letter then set out the alternatives open to the first and second named applicants, one alternative, and the one which was availed of, being to make representations in writing to the Minister within 15 working days of the sending of the notification. The letter then stated:

"It is noted that you have made an application to remain in the State on the basis of an Irish-born child. There is no longer a separate process for either the making of applications of this nature or for considering applications which have been made but not determined. The non-national parent of an Irish-born child does not derive an automatic right to remain in the State by virtue of that fact alone.

In determining whether to make a deportation order the Minister will be obliged to consider a number of factors including, not alone the constitutional rights of the child, but also the common good. Your aforementioned application will be considered in that context. Should you choose to make representations . . . those representations may include further information in relation to your child."

By letters dated 11^th August, 2003 the Refugee Legal Service made separate representations on behalf of each of the first and second named applicants. The representations were expressed to be without prejudice to "reapplication for entry into the asylum process". This aspect of the matter has not been in issue on the application before the court. The representations dealt with the relevant applicant's background, the personal matters referred to paras. (a) to (g) inclusive of s. 3(6) of the Act of 1999 and humanitarian considerations. There were very few references to the child in the representations. Her birth was referred to and the fact that she lives with her parents in the State. It was also stated that both parents were anxious to gain employment so as to provide the best they could for the child. The documents submitted with the representations included a statement from the second named applicant in which she stated that if she were returned to Romania she would be "scared about the future of our baby, the fear of torture and even death".

By letters dated 16^th October, 2003 the first and second named applicants were informed of the outcome of the representations. The letters stated that the respondent had decided to make deportation orders, copies of which were enclosed with the letters. The reasons for the decisions to deport were set out as follows in the letters:

"The reasons for the Minister's decision are that you are a person whose refugee status has been refused and having regard to the factors set out in section 3(6) of the Immigration Act, 1999, including the representations received on your behalf, the Minister is satisfied that interests of public policy and the common good in maintaining the integrity of the asylum and immigration systems outweigh such features of your case as might tend to support your being granted leave to remain in this state."

Characterisation of each as a person whose refugee status had been refused was patently incorrect: each application for asylum had been withdrawn before consideration at first instance. Each deportation order, however, recited that the applicant to which it related "is a person in respect of whom a deportation order may be made under sub-s. (2)(i) of the said s. 3". Paragraph (i) of s. 3(2) relates to "a person whose deportation would, in the opinion of the Minister, be conducive to the common good". While relying on the errors and the inconsistencies between the letters and the deportation orders, counsel for the applicants acknowledged that these were subsidiary points in support of his application for leave. In my view, on their own, these errors and inconsistencies could not invalidate the process or its outcome. The applicants' true legal status within the State was correctly set out in the letters of 18^th July, 2003 and was the basis of the respondent's consideration of their representations and his decision to make deportation orders.

The child was not referred to at all in the letters of 16^th October, 2003, nor, as was entirely appropriate, was she referred to in the deportation orders.

This application for judicial review was initiated by notice of motion dated 4^th November, 2003.

Executive decisions post the A.O. and D.L.

On 18^th July, 2003 the respondent's department issued and published a notice to non-national parents of Irish-born children whose applications to reside in the State had not been determined. The notice disclosed that, following the decision of the Supreme Court in the A.O. and D.L. case, the separate procedure which then existed to enable persons to apply to reside in the State on the sole basis of parentage of an Irish-born child ended on 19^th February, 2003. The government had decided that a separate procedure would not apply to cases which were outstanding on that date. In relation to the outstanding claims the government had decided that every case would be examined and decided individually. The notice further stated that in any case where the respondent proposed to deport a person affected that person would be given an opportunity to make representations in relation to the proposal, and the range of factors relevant under existing law to the respondent's determination would be taken into account in making the decision in every case. It was stated that the relevant factors include the person's individual family and domestic circumstances and humanitarian considerations, in the context of parentage of an Irish-born child and the implications for effectiveness and integrity in the context of the State's asylum and immigration systems.

The letters of 18^th July, 2003 are consistent with the public notice.

Examination of files

Examination of files of the first and second named applicants took place in the respondent's department on 18^th September, 2003. There were two examinations: first by a clerical officer and, secondly, by an executive officer in the repatriation unit. The memoranda of those officials were considered by Noel Dowling, a principal officer in the department, on 25^th September, 2003. Mr. Dowling in a minute of that day recommended that the respondent deport the first and second named applicants. The matter was considered by the respondent on 10^th October, 2003, who agreed with the recommendation.

Each memorandum of the clerical officer recorded the personal details of the relevant applicant and the factual position in relation to the matters to be considered in accordance with s. 3(6) of the Act of 1999.

Each memorandum by the executive officer specifically stated that it related both to the relevant applicant and the child. It dealt with the following matters:

(1) background;

(2) section 5 of the Refugee Act, 1996 (prohibition of refoulement), expressing the opinion that the repatriation of the applicants would not be contrary to s. 5 or the International Covenant on Civil and Political Rights, 1966 and the Universal Declaration of Human Rights, 1948;

(3) section 3(6) of the Act of 1999, including, in relation to para. (h), that the humanitarian considerations were not such for the official to conclude that the relevant applicant ought not to be returned to Romania;

(4) the principles applicable to the respondent's decision in cases involving Irish-born children, the Irish-born status of the child being stated to be the principal issue to be considered in the case; and

(5) overall consideration of the case, which summarised previous conclusions and involved a consideration of the rights of the child.

The primary focus of the challenge by the applicants to the deportation orders was the consideration given to the matters referred to at (4) and (5) above, which will be explored in depth later. The recommendation of the executive officer was that the Minister should sign the deportation orders.

In his minute Mr. Dowling submitted that the only arguable case which the first and second named applicants had for remaining in the State was their parentage of an Irish-born child, who was born less than a year previously. Mr. Dowling submitted that it would be contrary to the requirements of the common good to allow residency solely on that basis and an effective immigration policy required that the first and second named applicants be deported in the absence of other sustainable grounds for remaining. It was further submitted that it would be expected that the necessary consequence would be that their child would go with them in order to maintain the family unit. The respondent signified his agreement with Mr. Dowling's submission on the minute.

In outlining the principles applicable to consideration of an application to remain in the State by non-national parents of an Irish-born child, the executive officer set out, in general terms, matters which the decision of the Supreme Court in the A.O. and D.L. case "confirmed" including the following:

(a) that while the respondent must consider each case involving deportation on its individual merits, he is entitled to take into account the considerations which would arise from allowing a particular applicant to remain in the State where that would inevitably lead to similar decisions in other cases;

(b) that the statistical patterns of immigration and asylum seeking and the demands thereby created on the State's resources are entitled to be taken into account;

(c) that the length of time that the child in question has been in the State is a relevant and necessary consideration, but the respondent is entitled to take the view that the system should not be undermined by persons seeking to take advantage of the period of time between arrival in the State and the complete processing of applications for asylum by relying on the birth of a child during that period as a reason for permitting them to reside in the State indefinitely; and

(d) that in examining the individual cases the respondent was "entitled to" consider such facts as the constitutional rights of the child, the length of stay of the family in the State, the Dublin Convention, the government's immigration policy and the requirement of the common good, the public interest in a fair and rational effective asylum and immigration system being "a grave and substantial matter of high importance". (para. 17(f))

In the overall consideration of the case, the executive officer gave the following consideration to the child:

(i) It was accepted that she has Irish citizenship.

(ii) There is no reason to believe that as an Irish citizen she would be at risk if her parents were repatriated to Romania. Her parents have a tenuous connection with the State, having arrived during the eighth month of the second named applicant's pregnancy, just ten months previously.

(iii) It was to be presumed that if the respondent deported the parents, they would preserve the family unit by taking her with them.

(iv) That infants are incapable of making decisions as to residence (per Keane C.J. in the A.O. and D.L. case).

(v) Non-national parents do not have the right to exercise on behalf of an Irish-born child a right of residency in the State even if such residency, with its attendant privileges compared to those in the parents' country of origin, would be in the interests of the child.

Applicants' grounds for seeking relief

In their statement grounding the application for leave, the applicants put forward a range of grounds in relation to the impugned decisions: that the respondent erred in law; that he failed to take into account all relevant considerations; that he failed to act in accordance with fair procedures and natural and constitutional justice; that he took into account irrelevant matters; that his decisions were vitiated by unreasonableness and/or irrationality in all the circumstances and that he acted in breach of the constitutional and other rights of the third named applicant. The specific grounds which were advanced at the hearing of the application for relief were the following:

"(vii) In failing to state the criteria used and the matters considered to determine the residency application made by the first and second named Applicants the Respondent has failed to act in accordance with the principles of constitutional and natural justice, and, without prejudice to the foregoing, the Respondent has in particular breached the principles of audi alteram partem and further by that failure has failed to protect and vindicate the rights of the third named applicant.

(viii) In failing to state the criteria used and matters considered to determine the impact on the third named applicant of the deportations from the State of the first and second named Applicants the Respondent has failed to act in accordance with the principles of constitutional and natural justice, and further by that failure has failed to protect and vindicate the rights of the third named applicant.

(ix) The Respondent has failed and/or neglected to afford the Applicants an opportunity to make proper and/or adequate representations to vindicate their rights.

(x) The respondent has failed to state how the State, its servants or agents shall take the place of the third-named Applicant's parents and have regard to her rights and welfare in the event of her remaining within or returning to the State without her parents."

A further ground that the respondent acted contrary to the legitimate and/or reasonable expectation of the applicants in failing to process their application for residency within the State in accordance with the procedures in being when they made the application, in January 2003, was not advanced at the hearing.

Submissions on behalf of the applicants

In developing the grounds relied on, at the hearing of the application for leave counsel for the applicants made submissions which, in my view, can be considered under two broad heads.

First, he contended that, as, in reaching the impugned decisions, the respondent took into account consideration of the common good, the applicants should have been told which principles of the common good the respondent had in mind and what criteria he was applying. Further, the applicants should have been given an opportunity to make representations in relation to those principles and criteria. Failure to do so was a breach of fair procedures. The applicants should have had an opportunity to address potential exclusionary considerations. Other considerations should have been individualised, which I understand to mean that they should have been stated in terms which were specific to the applicants. These points were illustrated by reference to the consideration in the memoranda of the executive officer of the principles enunciated in the A.O. and D.L. decision of the Supreme Court as follows:

(1) The applicants should have been apprised of the manner in which a favourable outcome to their applications would create a precedent which would inevitably be followed in other cases and should have been afforded an opportunity to comment thereon.

(2) As regards statistical patterns of immigration and asylum seeking and the consequent demands on the resources of the State, while recognising that the respondent was entitled to take such factors into account, the issue was the manner in which he took them into account. As I understand the argument, it was that it should be transparent at a particular time what the level of immigration and asylum seeking is, what the impact on the State's resources is and how a favourable outcome of the applicants' applications would bear on that impact.

It was submitted that it was not the case that the applicants were aware of the criteria applicable to the consideration of their applications as a result of the decision in the A.O. and D.L. case. Counsel for the applicants referred to a passage from the judgment of Fennelly J. in that case at p. 205, in which he referred to the lack of evidence as to the number of applications for residency on the basis of parentage of an Irish-born child which were granted and on what basis. Having emphasised that it was not part of the case before the Supreme Court that the decisions under consideration were incorrect, capricious, inconsistent or discriminatory by reference to any policy relating to permitting some persons to remain in the State on the basis of the parentage of an Irish-born child, Fennelly J. went on to say:

"It seems to me, nonetheless, that it may be that many cases are resolved in a manner different from the present and in accordance with criteria not stated in the relevant decisions. Unlike the case of R (Mahmood) v. Secretary of State for the Home Department [2001] 1 WLR 840, where the policy of the United Kingdom government regarding non-nationals marrying United Kingdom citizens was before the court in the form of written guidelines, the court knows nothing of the policy of the respondent past or present."

Fennelly J. stated that, as the matter had not been argued or referred to in any way during the conduct of the appeal, it was not possible to draw any firm conclusion.

Secondly, it was submitted that the respondent failed to take into account all relevant considerations in relation to the Irish-born status of the child. This was canvassed in the context of the two choices available to her parents on deportation: either to take the child with them to Romania; or to leave the child in the State. In the context of the child being brought back to Romania with her parents, it was submitted that no consideration was given to the conditions which the child would encounter or to the fact that the child might be discriminated against. In the context of the other choice, the possibility that the parents might leave the child in the State on their return to Romania was not considered at all by the Minister, nor was the protection and welfare of the child in that eventuality.

Drawing on both strands, counsel submitted that it is not apparent from the examination of the files that the analysis was directed to showing a particularised set of factors which establish that grave and substantial reasons exist favouring the deportation of the first and second named applicants. The only reference to a "grave and substantial matter of high importance" was contained in para. 17(f) of the executive officer's memorandum. The contention was not that too much weight was given to the public policy of preserving the integrity of the immigration and asylum systems; the contention was that the applicants were not told what features of public policy outweighed the rights of the child and were not given an opportunity to make representations on the issue.

A broader argument underpinned the case made on behalf of the applicants. It was submitted that they were in a stronger position than mere failed asylum seekers in pursuing an application to remain in the State. The respondent should have considered their application as one emanating from the parents of an Irish-born child, not from non-nationals who had withdrawn their applications for asylum. As the parents of an Irish-born child they must have some entitlement and it was suggested that such entitlement as the child has must inhere in the parents.

Finally, it was submitted that as the rights of the child at issue on this application are constitutionally protected fundamental rights, in reviewing the decisions of the respondent, the court should adopt a standard of anxiously scrutinising the degree of interference with the rights of the child against the exigencies of the common good which he asserts justifies such interference, similar to the standard adopted by the Court of Appeal in England in R. v. Lord Saville, ex p A [1999] 4 All ER 860.

Submissions on behalf of the respondent

The broad underpinning of the applicants' submission is fundamentally incorrect, it was submitted by counsel for the respondent. As regards the first and second named applicants, on the withdrawal of their application for asylum, their only entitlement was to remain in the State pending the application of fair procedures to them in accordance with s. 3 of the Act of 1999. As the parents of an Irish-born child they had no greater entitlement to remain in the State than persons in the category of non-nationals whose position was considered in the F.P. case, failed asylum seekers. In trying to attach rights to the parents of an Irish-born child, the applicants are wrong in law. An Irish-born child of non-national parents does not have a right to reside with his or her parents in the State, it was held by the Supreme Court in the A.O. and D.L. case, in effect, disassociating the child's right of residence from that of the non-national parents. Such parents may benefit if the respondent forms a view as to the right of the child on an application by the parents to remain in the State. However, such benefit does not derive from any inherent rights in the non-national parents themselves.

Insofar as counsel for the applicants relied on the decision of the Supreme Court in In the Matter of the Matrimonial Home Bill, 1993 [1994] 1 I.L.R.M. 241 and, in particular, on the recognition there of the extreme importance of the authority of the family as acknowledged in Article 41 of the Constitution, such reliance was misplaced. It is not within the competence of non-national parents of an Irish-born child to elect to remain in the State, nor are they competent to make a decision for a young child. They are constrained because of legal capacity. The decision of the Supreme Court in the reference on the Matrimonial Home Bill, 1993 relates to a situation where the family is acting autonomously. The applicants as a family cannot act autonomously in relation to choosing to reside in the State.

Counsel for the respondent submitted that in the letters of 18^th July, 2003 the applicants had been notified of the principles of the common good relevant to them. The personal position of each at that time was set out, as was the opinion of the Minister that each was a person whose deportation would be conducive to the common good. This submission does not address the specific points made by counsel for the applicants. Nor does it address the distinction drawn by both the High Court and the Supreme Court in the F.P. case (per Hardiman J. at p. 174) between the context in which the phrase "the common good" occurs in s. 3(6)(j) of the Act of 1999 and the context in which it is used in s. 3(2)(i). Clearly the reference to the common good in relation to the opinion formed by the Minister that deportation orders should be made was intended to show that the first and second named applicants were within one of the categories of persons in respect of whom a deportation order may be made under sub-s. (1) of s. 3 of the Act of 1999 as set out in sub-s. (2). It is difficult to infer that it was designed to elicit representations as to the Minister's consideration under sub-s. (6) of the same section.

It was submitted that the respondent does not have to make out a case for deportation in respect of which the prospective deportee is entitled to notice and to be heard. That is not the way the legal framework is structured. The respondent may deport a person who falls within a certain category. The person has to be apprised that it is proposed to deport him and given an opportunity to make an application to remain in the State in the nature of an ad misericordiam application (per Hardiman J. in the F.P. case at p. 172). Thus the onus is shifted to the prospective deportee to make submissions. This process was adhered to in relation to the first and second named applicants and all relevant matters were considered and the relevant criteria were properly applied by the respondent and his officials.

That there was a failure to consider the position of the child was controverted. The status of the child as an Irish citizen was given great consideration by the respondent and his officials. The parents were informed of the legal position in consequence of the decision of the Supreme Court in the A.O. and D.L. case in the letters of 18^th July, 2003 and were invited to make representations. In fact there was very little reference to the rights of the child in their representations of 11^th August, 2003. Nonetheless, there was a detailed consideration of the constitutional rights of the child and the other relevant matters, which, it was contended, went beyond what was urged in the representations. There was no further obligation on the respondent, either administratively or under statute, to apprise the parents of the criteria or to furnish a checklist. Further, it was submitted that the respondent was entitled to presume that, on their deportation, the first and second named applicants would take the child with them. It is not the function of the respondent to bargain or haggle with non-national parents as to the conditions on which they will take with them or leave behind an Irish-born child on deportation. Such an approach would be undesirable on public policy grounds. In any event, it was submitted that there are statutory measures in place, for example, the Child Care Act, 1991 under which the State would be obliged to care for the child which could be brought into play should the eventuality occur that the child was abandoned (a solution which had also been addressed by the respondent's department in the A.O. and D.L. case – per Fennelly J. at p. 175).

On the issue of the appropriate standard of review, it was submitted on behalf of the respondent that consideration as to the appropriateness or otherwise of the "anxious scrutiny" standard should only arise where it is sought to quash a decision on the ground of irrationality, not where the basis of the review is that the decision maker erred in law. In the instant case, it was submitted that, as a matter of law, the applicants were either entitled to have their application to remain in the State processed in the manner contended for or not so entitled.

Conclusions

The legal basis on which a person who falls into any of the categories set out in sub-s. (2) of s. 3 of the Act of 1999 is entitled to remain in the State and to have an application to remain on humanitarian grounds processed and adjudicated on has been definitively determined by the Supreme Court in the F.P. case. In the instant case, the first and second named applicants were brought within one of those categories (the category set out in para. (i)) when the respondent formed the opinion that their deportation would be conducive to the common good. There is no specific challenge to the formation of that opinion in these proceedings. In any event, it is reasonable to infer that the common good would not be served if a person who voluntarily withdraws his or her application for asylum could avoid being subject to the deportation process provided for in s. 3, whereas a person who has unsuccessfully gone through the asylum process could not.

In my view, apart from their parentage of an Irish-born child, the position of the first and second named applicants is not materially distinguishable from the position of the applicants in the F.P. case. The processing and adjudication of their individual applications accorded with the type of process and adjudication which withstood challenge in the F.P. case. The first and second named applicants, in my view, have not established any arguable grounds for challenging the decisions to deport them in accordance with s. 3 of the Act of 1999.

The position in Irish law of the non-national parents of an Irish-born child and the right of an Irish-born child of non-national parents to reside in the State with his or her parents have been definitively determined by the Supreme Court in the A.O. and D.L. case. Parentage of an Irish-born child gives non-national parents no rights of residence in the State. An Irish-born child is an Irish citizen and has a constitutional right to the company, care and parentage of his or her parents within the State. Such right, however, is not absolute and unqualified and it can be displaced where there are grave and substantial reasons associated with the common good which require the deportation of the non-national parents. The integrity of the asylum and immigration systems was identified in all of the majority judgments in the A.O. and D.L. case as a factor to be weighed in the balance in determining whether to deport the non-national parents of an Irish-born child. It was recognised that asylum and immigration policy is a matter for the executive and that various rationale may justify the executive's policy: the deterrence of a situation in which one applicant gets an unfair advantage over another; the avoidance of creation of precedents which would skew the orderly administration of the immigration and asylum systems; the protection of advantages which the State has, such as the common travel area between the State and the United Kingdom; and the observance of the international obligations of the State. There was also a recognition in the judgments that the level of asylum applications and immigration at a particular time may inform policy.

I have already alluded to one feature of the instant case which distinguishes it from the circumstances under consideration by the Supreme Court in the A.O. and D.L. case – that the application of the Dublin Convention arose in the latter. In my view, that distinction is not of materiality, nor are the other distinguishing features: that in this case the applications for asylum were withdrawn, rather than processed to completion; and that the birth of the Irish-born child pre-dated the making of the deportation orders. In all material respects, the instant case, both factually and in terms of the legal status of the applicants, is similar to the A.O. and D.L. case.

In considering the application of the principles enunciated by the Supreme Court in the A.O. and D.L. case, it seems to me that the starting point is to identify precisely on what basis the respondent exercised his discretion to make deportation orders against the first and second named applicants and to reject their applications to remain in the State on the basis of their parentage of the child. The nub of Mr. Dowling's submission in September, 2003, with which the respondent agreed, was that it would be contrary to the requirements of the common good to allow residency solely on the basis of the applicants' parentage of the child, who was born in the previous December. On the authority of the decision of the Supreme Court, it was open to the respondent to decide to make deportation orders for that reason.

It will be clear from the copious references I have made to, and quotations from, the judgments in the A.O. and D.L. case above that the arguments which have been advanced on behalf of the applicants in the instant case were raised and dealt with in that case, at least inferentially. In relation to statistical patterns in immigration and asylum seeking and consequent demands on the resources of the State, in his judgment, at p. 165, Hardiman J. commented on the observations of Fennelly J., to which counsel for the applicants referred, as to the absence of background information or statistics and also on the absence of "any cost-benefit analysis" in relation to immigration and asylum. He stated as follows:

". . . in my view there is no necessity for the respondent to provide the court with the sort of information it might require if it were hearing an appeal against his decision, because it is emphatically not doing so. The issue before it is limited to whether the applicants have met the established standard for judicial review. I have already held that the statistical information which I have cited is, in accordance with the requirements of a judicial review application, relevant only for a very limited purpose, that of establishing that there is an area of rational policy choice which the executive must address and that considerations which affect that choice are rapidly changing. If the court were to consider whether the respondent's determination, apart from being lawful and rational, was conducted on the basis of acceptable policy decisions, we would be guilty of a clear invasion of the executive sphere."

It must be inferred from the foregoing that the proper exercise by the respondent of the State's power to control immigration does not require that persons who are the subject of such control be afforded an opportunity to make representations in relation to policy in this sphere.

Having carefully considered submissions made by counsel on behalf of the applicants including the child, who had no independent voice in either the process which led to the respondent's decisions or these proceedings, and the manner in which the application for residency based on the parentage of the child was processed and adjudicated on in the light of the decision of the Supreme Court in the A.O. and D.L. case, I am constrained to conclude that no arguable ground has been established for challenging the decisions to deport the first and second named applicants, notwithstanding that the consequence may be that either the right of the child to reside in the State is effectively negatived or she is deprived of the company, care and parentage of her parents.

As the validity of deportation orders made under s. 3(1) of the Act of 1999 is in issue on these proceedings, by virtue of s. 5(2)(b) of the Illegal Immigrants (Trafficking) Act, 2000 the court is mandated not to grant leave to apply for judicial review unless it is satisfied that there are substantial grounds for contending that the orders are invalid or ought to be quashed. In this case, having concluded that the applicants have not established any arguable grounds, I could not be satisfied that they have crossed the threshold imposed by that provision.

As I have stated earlier, the standard of review applied by the Supreme Court in the A.O. and D.L. case was the normal standard - the O'Keeffe principles - and is the standard I have applied in determining this application for leave. I am of the view that the applicants have established that there are substantial grounds for contending that, where constitutionally protected fundamental rights of a child are at issue, a more rigorous standard of review should be applied. As Fennelly J. found on the basis of his consideration of the A.O. and D.L. case, on the basis of my consideration of this case I believe that the application of the normal standard of review makes the decisions of the respondent virtually immune from review. Moreover, it leaves one with the sense that the careful and comprehensive analysis conducted by the respondent's officials in most cases is a meaningless exercise. The court was informed that the issue of the standard of the review is already the subject of an appeal from this Court to the Supreme Court in a matter entitled Meadows v. Minister for Justice, Equality and Law Reform. In the circumstances, I do not think it appropriate to grant leave in this case on the basis of a "stand alone" ground as to the standard of review.