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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> D. (G.D.) & Ors v. Human Rights Commission [2006] IEHC 348 (14 November 2006)
URL: http://www.bailii.org/ie/cases/IEHC/2006/348.html
Cite as: [2006] IEHC 348
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[2006] IEHC 348
Record No. 2005 1348 J.R.
BETWEEN/
APPLICANTS
RESPONDENT
NOTICE PARTY
Supplementary Judgment of Ms. Justice Finlay Geoghegan delivered the 14th day of November, 2006.
The third named applicant was born in Ireland on 14th November, 2001 and is and Irish citizen. He has resided in the State since the date of his birth. The first named applicant is his father and a Romanian national. The second named applicant is his mother and a Romanian national. They arrived in the State in October, 2001 and have lived as a family unit with their son in the State since that date.
The first and second named applicants made an application on IBC/05. On 12th September, 2005 the application of each was refused. It is common case that each had been convicted of a shoplifting offence. The substantive terms of the letters refusing their applications were in the following terms:
To Mr. D.:
"In announcing the revised processing arrangements the Minister stated that persons of good character who have not been involved in criminal activity can expect to be granted permission to remain in the State. I am advised by the Garda National Immigration Bureau that on 1 March 2004, you were convicted of a shoplifting offence contrary to Section 4 of the Theft Act, 2001.
On the basis of the foregoing, I am not satisfied that you are a person of good character who has not engaged in criminal activity as set out in the Minister's announcement and, accordingly, your application for permission to remain in the State under the revised arrangements is hereby refused."
To Ms. S.:
"In announcing the revised arrangements the Minister stated that persons of good character who have not been involved in criminal activity can expect to be granted permission to remain in the State. I am advised by the Garda National Immigration Bureau that on 9 May 2002 at the Dublin District Court 46, you were convicted of a shoplifting offence contrary to Section 2 of the Larceny Act, 1916, as amended and received a three year suspended sentence. I am advised that two other charges were also taken into consideration.
On the basis of the foregoing, I am not satisfied that you are a person of good character who has not engaged in criminal activity as set out in the Minister's announcement and, accordingly, your application for permission to remain in the State under the revised arrangements is hereby refused."
Subsequent to those refusals the solicitors for the applicants wrote requesting that the respondent reconsider the position in light of the submissions made. These included reference to the position of the Irish citizen child. By two further letters of 24th November, 2005 it was stated:
"The position regarding your client's application remains as detailed in my letter of the 12/9/2005. His application has been refused."
By order of the High Court (Peart J.) of 12th December, 2005 the applicants were granted leave to seek certain reliefs by way of judicial review including an order of certiorari quashing the decisions of 24th November, 2005.
Related proceedings and judgment
These proceedings were heard with the proceedings 2006 No. 504 J.R. Mercy Oviawe & Ors. v. The Minister for Justice, Equality and Law Reform and Ors. and immediately after the proceeding 2006 No. 102 J.R. Deborah Olarantimi Bode v. The Minister for Justice, Equality and Law Reform in both of which I have delivered judgments today. Insofar as relevant, the position of the applicants in these proceedings is similar to the position of the applicants in the Oviawe proceedings. In each there is an Irish citizen child and a non-national parent or parents who made an application from within the State under IBC/05 which was refused by reason of a criminal conviction. Further in each, the decision on IBC/05 was taken without any consideration of the rights of the citizen child.
Conclusion
There is nothing on the facts or submission in these proceedings which distinguishes the position and entitlement of the applicants from that of the applicants in Oviawe v. The Minister for Justice. Accordingly, for the reasons set out both in the Bode judgment and the Oviawe judgment I have reached the following conclusions in this application.
1. The decisions taken by the respondent on the applications under IBC/05 of the first and second named applicants as communicated in the letters of 12th September, 2005 and confirmed in the letters of 24th November, 2005 is unlawful as it was taken in breach of the third named applicant's rights under Article 40.3 of the Constitution.
2. The decisions of the respondent on the applications under IBC/05 of the first and second named applicants communicated in the letters of 12th September, 2005 and confirmed in the letters of 24th November, 2005 are unlawful as they were taken in breach of the respondent's obligations under section 3(1) of the European Convention on Human Rights Act, 2003, as they were taken in a manner which is not compatible with the State's obligations to the third named applicant under article 8 of the Convention.
Relief
Having regard to the above conclusions it appears to me that the applicants are entitled to orders of certiorari quashing the decisions of the respondent dated 12th September, 2005 and confirmed on 24th November, 2005 refusing the applications of the first and second named applicants under IBC/05 and an order remitting the applications for consideration and determination by the respondent in accordance with law.
Approved: Finlay Geoghegan J.