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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> E. (A.) (A Minor) & Anor v. Minister for Justice, Equality & Law Reform [2006] IEHC 347 (14 November 2006)
URL: http://www.bailii.org/ie/cases/IEHC/2006/347.html
Cite as: [2006] IEHC 347
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[2006] IEHC 347
[2006 No. 222 J.R.]
BETWEEN/
APPLICANTS
RESPONDENT
NOTICE PARTIES
SUPPLEMENTARY JUDGMENT of Ms. Justice Finlay Geoghegan delivered on the 14th day of November, 2006.
This judgment is supplementary to the judgment given today in proceedings 2006 No. 102 J.R. Deborah Olarantimi Bode and Others v. The Minister for Justice to which I will refer as the "the Bode judgment".
These proceedings were heard contemporaneously four other applications of judicial review referred to in the Bode judgment and it was agreed that in reaching my conclusions on the common issues I should take into account the facts of each of the applications. For the reasons set out the applicants herein were factually in a different position.
The first named applicant is a citizen of Ireland having been born in the State on the 10th December, 2002. The second named applicant is his mother and is a national of Nigeria. The second named applicant arrived in Ireland in November, 2002 and left Ireland following the making of a deportation order, but was not deported, in July, 2004.
The factual position of the second named applicant differs significantly from that of the parent applicants in the other four sets of proceedings heard contemporaneously in two important respects. Firstly Ms. E. made her application on IBC/05 in March, 2005, whilst resident in Nigeria. Secondly, the decision made on her application under IBC/05 was a refusal to consider her application for permission to remain in the State "under the revised arrangements". In the letter of refusal of the 14th September, 2005, having referred to her application it was stated:
"The revised arrangements apply to persons who are currently resident in the State and have been resident with their Irish born child in the State on a continuous basis since his or her birth. Applications from persons who are not currently resident in the State with their child cannot be considered.
In this case, I note from the completed form IBC/05 that you are not resident in the State.
Accordingly, I am to inform you that an application from you for permission to remain in the State cannot be considered under the revised arrangements. The application form IBC/05 and your supporting documents are returned herewith."
The refusal at issue in this application was a refusal to consider Ms. E.'s application under the revised arrangements which became known as IBC/05 as distinct from a refusal of an IBC/05 application for permission to remain in the State.
Leave and Reliefs Sought
Leave was granted on the 3rd March, 2006, to seek an order of certiorari quashing the decision of the respondent dated the 14th September, 2005, which is described in the statement of grounds as a decision "to refuse to grant permission to reside in the State to the second named applicant". Declarations were also sought as to the illegality of the respondent's alleged refusal to grant permission to the second named applicant to reside in the State and an order of mandamus sought requiring the respondent "to reconsider the second named applicant's application for permission to reside in the State made by letter dated the 24th March, 2005.
The submissions made by the parties in these proceedings were similar to those advanced in the other four sets of proceedings and considered in the Bode judgment. In addition the applicants sought to rely on article 3 of Protocol 2 to the European Convention of Human Rights.
Whilst no application was made to amend the statement of grounds it appears to me that the court must consider this application as an application to quash the actual decision made of 14th September, 2005 as distinct from a decision with the characterisation in the statement of grounds. It should also be pointed out that the notice of opposition does not challenge the characterisation of the decision in the statement of grounds and in the multiplicity of cases being progressed in relation to the IBC/05 Scheme it appears that this may have been overlooked.
On the submissions made the issues to be determined in relation to the claims of the applicants herein are:
1. As a matter of fact was Ms. E. excluded from the revised arrangements or IBC/05 Scheme established by the respondent in January, 2005; and
2. If so was such exclusion unlawful.
Factual Assessment of Application of IBC/05 to Ms. E.
The terms of the revised arrangements or IBC/05 Scheme as announced by the respondent are fully set out in the principal judgment analysed therein. Ms. E. is the mother of an Irish born child who was born before 1st January, 2005. However as already determined the essential feature of the new or revised arrangements was that "applications from non-national parents of Irish born children born before 1st January, 2005, for permission to remain in the State can be made on form IBC/05".
Whilst the terms "residency" and "permission to remain in the State" were used interchangeably in the submissions and many of the affidavits it does not appear to me that the respondent in announcing revised arrangements for the making of applications "for permission to remain in the State" as announced on the 15th January, 2005, can be considered as a matter of fact to be announcing revised arrangements which would include the receipt and consideration of applications from parents of Irish born children born before the 1st January, 2005, who were outside of the State at the date upon which they might make the application. Such an application would inevitably have had to have been an application to enter the State and an application thereafter to remain in the State. Construing the announcement and other relevant documents in accordance with their plain meaning I have concluded that they do not include persons who were outside the State at the date of application.
On the facts herein, I have concluded that Ms. E. was excluded from the IBC/05 Scheme or revised arrangements announced by the respondent on the 14th January, 2005. Accordingly it is necessary to consider the legality of that exclusion.
Legality of Exclusion of Ms. E.
It is important in considering the legality of the exclusion of Ms. E. from IBC/05 to recall the limits of the decision taken. Much of the submissions made on behalf of the applicants herein were more properly relevant to a decision of the Minister either to refuse permission to enter the State and/or residency or to refuse to consider an application for permission to enter the State and/or residency from Ms. E. The decision taken cannot be construed as a matter of fact to constitute either of the above. Following decision of the 14th September, 2005, no application was pursued by or on behalf of Ms. E. for residency independently of the application made on IBC/05.
A. E. is a citizen of Ireland and has the same constitutional rights as the other children who are parties to the proceedings referred to in greater detail in the Bode judgment. The fact that at the date of the determination of his mother's application or the introduction of the IBC/05 Scheme he was living in Nigeria does not deprive him of those constitutional rights. However in considering those rights he is in a factually different position to the other citizen children and consequently the constitutional guarantee may give rise to differing obligations on the State.
In each of the other cases (including Adio) the citizen children had a parent who was a person to whom the IBC/05 Scheme was addressed. Each of those parents made an application pursuant to an invitation from the respondent to apply for leave to remain under the Scheme. The decision to be taken by the respondent in respect of their parent under the Scheme was a decision which potentially affected the welfare of those children.
The other children were in the position where the respondent had determined as a matter of policy to establish revised arrangements the addressees of which included their parents. Having established such a scheme the respondent then for the reasons set out in the Bode judgment was bound by the Constitution and his obligations under s. 3 of the European Convention on Human Rights Act 2003 to act in a manner consistent with article 8 in the taking of individual decisions under the Scheme.
On the contrary as far as A. E. is concerned his mother and himself were not persons to whom the IBC/05 was addressed. There is no scheme or administrative procedure established which includes him and his mother to which the constitutional principles or the obligations under s. 3 of the Act of 2003 apply.
It is undisputed that the respondent has a discretion to receive, consider and determine an application for residency from any non-national without the necessity of either legislation or an administrative scheme. Such discretion includes an application from a non-national who is outside of the State. If such an application were made from outside of the State by the parent of an Irish citizen child for the purpose of that citizen child effectively being able to re-enter the State and exercise his constitutional right to live and be reared in Ireland then the submissions made on behalf of A. E. in reliance upon his entitlement to have his rights guaranteed by Article 40.3 of the Constitution would be relevant to a claim either that the respondent was obliged to consider and determine the application for residency by his mother or his obligations in taking any such decision.
Counsel for the applicants sought to rely upon the respondent's obligation under s. 3 of the Act of 2003 having regard to the State's obligation under article 3 of the fourth protocol to the Convention. This provides:
"2. No one shall be deprived of the right to enter the territory of the state of which he is a national."
Whilst the submissions made under each of the above may well be of relevance if the factual situation had been as suggested in the statement of grounds that the respondent had refused residency or refused to consider an application for residency, it does not appear to me that any of the submissions made support a mandatory obligation on the respondent to include in administrative procedures determined to "revised arrangements for considering applications for permission to remain in the State" to people not resident in the State at the date of application under the scheme.
If the court were now to determine, as requested that the rights of the citizen child herein guaranteed by Article 40.3 of the Constitution required the Minister to consider an application for residency from his mother under the IBC/05 Scheme it appears to me that this court would be acting in contravention of the separation of powers and directly contrary to the decision of the Supreme Court in T.D. v. Minister for Education [2001] 4 IR 259. The effect of such a decision would be to require the Minister to deal with an application for residency from the mother of the child within a particular administrative procedure which was not addressed to her.
It is important to emphasise that there is no refusal by the Minister to consider an application for residency in the sense of an application to enter and thereafter remain in the State by Ms. E. whilst she was resident in Nigeria. Also, whilst Ms. Hynes's affidavit was filed in these proceedings. She asserts at paragraph 42 that the Minister does not operate at this time any separate or standalone arrangements for considering applications for residency but does so in a context of asserting that the Minister will consider an application to remain in the State in the context of whether or not to make a deportation order in respect of the person under s. 3 of the Act of 1999. This cannot be intended to apply to a person such as Ms. E. who at the relevant time was outside of the State and in respect of whom a deportation order had already been made.
Ms. E. and A. E. have now re-entered the State, albeit in the case of Ms. E. without permission, and accordingly quite different considerations will apply if and when an application is made by her for leave to remain, residency or revoke the deportation order or the respondent seeks to enforce the deportation order.
Conclusion
The applicants' claims in these proceedings will be dismissed.
Approved: Finlay Geoghegan J.