High Court of Ireland Decisions

You are here: BAILII >> Databases >> High Court of Ireland Decisions >> D. (O.A.) & Ors v. Minister for Justice, Equality and Law Reform [2006] IEHC 140 (3 May 2006)
URL: http://www.bailii.org/ie/cases/IEHC/2006/H140.html
Cite as: [2006] IEHC 140

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

Neutral Citation Number: [2006] IEHC 140

THE HIGH COURT

JUDICIAL REVIEW

[2006 No. 442 J.R.]

BETWEEN

O. A. D., Y. D. (A MINOR)

D. D. (A MINOR) SUING THROUGH THEIR NEXT FRIEND AND MOTHER O. A. D.

APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

EX-TEMPORE JUDGMENT of O'Neill J. delivered the 3^rd day of May, 2006.

The applicants in this case seek leave to challenge by way of judicial review the decision of the respondent whereby he refused to revoke a deportation order already made in respect of the applicants. The application to the respondent was made pursuant to s. 3(11) of the Immigration Act, 1999 and the decision challenged was communicated by letter of 4^th April, 2006.

Curiously applications under s. 3(11) are not listed amongst those matters set out in s. 5(1) of the Illegal Immigrants Trafficking Act, 2000, which can only be challenged by way of judicial review and in respect of which leave must be sought by motion on notice and substantial grounds shown to merit leave being granted. Thus it was conceded by Ms. Butler S.C. for the respondent that the test which must be applied to determine whether or not leave should be granted in this case, is whether or not the applicant has demonstrated arguable grounds for contending that the decision in question should be quashed.

The applicants also apply for an interlocutory injunction retraining their deportation pending the determination of these proceedings.

The background to this matter is as follows. The first named applicant was born in 1966. She is the mother of the second and third named applicants who were respectively born in 1993 and 1995. The applicant is divorced from the father of the two children and all three applicants are Nigerian nationals. The first named applicant came to this country in January of 1998 and sought asylum. The second named applicant arrived in May of 1999 and the third named applicant in January of 2000. The applicants applied for asylum under the "Hope - Hanlon Procedure" and at the initial stage their application was refused and on 18^th March, 2000, their appeal also refused. On the 11^th April, 2000, the applicants were notified of a proposal to deport them. On 20^th April, 2000, a letter written on behalf of the applicants sought leave to remain in the State. A letter of the 19^th November 2001, confirmed the proposal to deport the applicants and also confirmed the refusal of refugee status. This letter expressly referred to the second and third named applicants for the first time. On 5^th March, 2004, the applicants were told by letter of a decision to make a deportation order for all three applicants and the deportations orders in question were made on 27^th February, 2004. All three applicants were deported to Nigeria on 6^th April, 2004. The three applicants had instituted judicial review proceedings seeking to challenge their deportation orders but these had not been served prior to their deportation. Leave was sought from Mr. Justice MacMenamin in respect of that application and that leave was granted on 9^th December, 2005, by Mr. Justice MacMenamin in a reserved judgment. On 19^th December, 2005, an interlocutory injunction was granted restraining their removal from the State. The judicial review application challenging the validity of the deportation order was heard and judgment was given by Mr. Justice MacMenamin on 31^st January, 2006 and he refused all of the reliefs sought. Subsequently an application was made under s. 3(11) of the Immigration Act, 1999, in respect of all of the applicants seeking the revocation of the deportation order and additionally in respect of the second and third named applicants, an application was made under s. 17(7) of the Refugee Act, 1996, to permit the second and third named applicants back into the asylum process individually. In due course all of those applications were refused.

When the applicants arrived in Nigeria on their deportation it is claimed that all three were detained in a place called Alagbon for a period of about four weeks or a month and could not secure their lease until money was paid. This was arranged by a friend of the first named applicant named Remi. When she in due course produced the money, they were released. The applicants complain that their conditions during the detention were extremely poor; that they were subject to intense heat, that they were sleeping on sacks; that they had insufficient water and food and were plagued by mosquitoes. And as a consequence of these hardships and deprivations all three became ill and after release from detention were admitted to hospital on 11^th May, 2004 and discharged on 16^th May, 2004.

While they were in Nigeria, for a period of in excess of a year, according to the affidavit of the first named applicant, she sought to put the children into school and on application to the first school they were refused admittance. In the second school chosen, the school wished to put them back a class and obviously they didn't want that, and also it is claimed that they were unwilling to go to school because of a fear that their father who it was claimed had become aware of their whereabouts, would apprehend them and they feared that they would have Female Genital Mutilation imposed on them. As a consequence of this they moved to a place called Akodo where it is claimed living conditions were poor and the school was very poor and that because of that and their alleged fear of their father, the children did not attend school.

According to the affidavit of the first named plaintiff as a result of all these circumstances, she grew desperate, and in due course arranged with a man called Mr. Malik to whom she paid the sum of €3,000, to travel to Ireland. He arranged a false passport for the first applicant with the second and third named applicants on it and on this passport they flew to London and from there to Belfast from where they took a taxi to Dublin. Thereafter the application was made to the respondent pursuant to s. 3(11) of the Immigration Act, 1999, to revoke the deportation order and in due course he responded and communicated his refusal to do that by letter of 4^th April, 2006 and it is that decision which is now sought to be challenged in these proceedings.

In challenging the decision to refuse to revoke the deportation order the applicants raise three concerns. The first of these is in respect of the practice of Female Genital Mutilation and the complaint which the applicants make in that regard is that in his decision as represented by the letter of the 4^th April, 2006 and the accompanying documents, it is said that there was a reliance upon country of origin information which had not been alerted to or exposed to the applicants so that they could comment on same, and that this was a breach of the applicants right to constitutional justice and fair procedures. It was contended that there was a failure, by the respondent to consider the applicants fears in regard to Female Genital Mutilation as breaches of their rights under Article 3 of the European Convention on Human Rights.

Secondly the applicants make the case that the respondent failed to consider the risk of unlawful detention being imposed upon the applicants if they were returned, having regard to their claim to have been unlawfully detained for a month on arrival in Nigeria, on deportation previously, and that failure by the respondent to consider such risk was a breach of s. 4 of the Criminal Justice (UN) Convention Against Torture) Act, 2000 and also was contrary to Article 3 of the European Convention on Human Rights.

Thirdly the applicants complain that the respondent failed to consider the position and status of the applicants as integrated aliens in this State and failed to consider and balance the rights of the applicants pursuant to Article 8 of the European Convention on Human Rights to private and family life and specifically the detriment to the education of the second and third applicant and failed to balance their rights in these respects against the upholding of the integrity of the immigration policy of the State.

Before entering on a consideration of these grounds in order to ascertain if those grounds can be said to be arguable, the scope or the review or inquiry to which the applicants are entitled must be considered and determined.

In this regard it must be borne in mind that the decision sought to be challenged comes at the end or at the last potential stage of an elaborate and lengthy process of inquiry into the status in this State of the applicants. First there was the asylum process in which it was ultimately determined that the applicants were not entitled to refugee status. Secondly there was the immigration process in which the applicant sought leave to remain in the State but in the end a deportation order was made and executed against them. Finally the applicants have made application to have that deportation order revoked under s. 3(11) of the 1999, Act and this was refused.

Whilst that application could and indeed should have been made by the applicants from Nigeria, in fact they first illegally re-entered the State in breach of the deportation order and then made that application.

It is clear that the nature and extent of the inquiry which is appropriate in this later phase of the process, thus described, is significantly more restricted than for example in the asylum phase. Likewise the extent of review of the later phase is undoubtedly more restrictive than in the earlier phase. In the case of Baby O v. the Minister for Justice Equality and Law Reform [2002] 2 I.R. at 129, it was held that an applicant seeking to oppose a deportation order relying upon the prohibition on refoulement under either s. 5 of the Refugee Act, 1996, or s. 4 of the Criminal Justice (UN) Convention on Torture Act, 2000, was merely entitled to have his representations considered and was not entitled to a discursive reserved judgment. The scope for review by this court of a decision to revoke a deportation order under s. 3(11) is, if anything more restricted still. In the Baby O case Keane C.J. said the following at p. 184.

"Finally, it was urged that the first respondent should have taken into account what were said to be changed circumstances which should have led him to revoking the deportation order pursuant to s. 3(11) of the Immigration Act, 1999. Those circumstances were alleged to be the second applicant having become pregnant and the assassination on the 23rd or 24th December, 2001, of the Attorney General and Minister for Justice of Nigeria, who was stated to be a prominent Yoruba politician. (The applicant was herself a member of the Yoruba tribe).

By letter dated the 28th December, 2001, addressed to the applicant's solicitors, the Chief State Solicitor said:-

'I am instructed that the first respondent is not aware of any change of circumstances that would lead him to revoke the deportation order dated the 11th December, 2000, against the second applicant or to undertake a full reconsideration of this case.'

It was entirely a matter for the first respondent to determine whether the circumstances relied on were such that he was obliged to revoke the deportation order already made. I was satisfied that neither the High Court nor this court on appeal had any jurisdiction to interfere with the first respondent's determination that the change of circumstances referred to would not justify him in revoking the deportation order.

For these reasons, I was satisfied that both appeals should be dismissed and the orders of the High Court affirmed."

In this case it is clear from the letter of 4^th April, 2006, that the applicant's extensive submissions or representations on the concerns advanced then and now, in these proceedings as arguable grounds, were considered by the respondents and rejected in terms very similar to those used in the latter at issue in the Baby O case. I am satisfied that having regard to the authority of the Baby O case, by which I am bound, and having regard to the fact that the applicant is not entitled to a reasoned judgment or to be given reasons in correspondence for the refusal, and where the evidence establishes on affidavit, to my satisfaction that the respondent did consider the applicants submissions and representations, it is not open to this court now to review the decision to refuse to revoke the deportation orders. Whilst in the Baby O case, what was in issue was a consideration of a refoulement issue, in my view, issues of lesser weight such as arise, in a reliance on Article 8 would a fortiori have to be dealt with in the same restrictive fashion. Issues arising from Article 3 would seem to me to be very similar to issues arising in the context of s. 5 of the Refugee Act, 1996, or s. 4 of the Criminal Justice (UN) Convention on Torture Act, 2004 and would in my view necessarily have to be treated in the same way as in the Baby O case.

It was submitted on behalf of the applicant that because of the importation of the ECHR into our domestic law by the European Convention on Human Rights Act, 2003, that the approach adopted by Keane C.J. in the Baby O case to convention issues for example Article 3 or Article 8 issues, can no longer be considered to be good law. In my view that submission must fail as the applicants have not demonstrated to my satisfaction that the rule in the Baby O case, is contrary to any aspect of the E.C.H.R. or that in interpreting or applying that rule, pursuant to s.2(1) of the European Convention on Human Rights Act 2003, that any departure from the application of the rule is required.

In my view, the rule in the Baby O case remains good law unless and until a declaration of incompatibility is made in respect of it under s. 5(1) of the Act of 2003.

In the light of the above conclusion it cannot in my view be said that any of the grounds put forward can be considered to be arguable grounds. This conclusion would be sufficient to dispose of this application however in deference to the submissions made it is appropriate that I express an opinion on them.

In general it can fairly be said that an essential part of the applicant's criticism of the decision made was to the effect that the documents that accompanied the letter of the 4^th April, 2006, did not reveal a consideration of the legal detention issue and did not reveal a consideration of the Article 8 issue, e.g. family rights and education and insofar as there was a consideration of the Female Genital Mutilation issue, it was complained that there was a reliance on the country of origin information not exposed to the applicants in breach of fair procedures.

In my view the approach of the applicants in this regard is impermissibly restrictive. The documents which accompanied the letter of the 4^th April, 2006, were not the only and exclusive basis for the decision. By the time the respondent made this decision he had available to him a very large quantity of material dealing with the applicants and their claim to refugee status, their claim to remain in this State on humanitarian grounds and also their claim to have the deportation order revoked. In addition there was the earlier judicial review application in which the applicants challenged the deportation order. In those proceedings the Minister was the respondent and he has available to him all of the evidence in that case together with the two judgments of Mr. Justice MacMenamin. In this extensive process, there was an exhaustive consideration of the fears and apprehensions of the applicants concerning their country of origin and also of their situation here in Ireland. It would be wholly unrealistic if not downright non-sensical to say that all of this material was not available to the respondent. In addition the respondent had available to him and was entitled to have regard to and consider a large volume of relevant country of origin information accumulated in his department in consequence of the discharge of his duties in relation to asylum and immigration matters. In this regard see the judgment of Finlay Geoghegan J. in Muresan v. Minister for Justice Equality and Law Reform & Ors. [2004] 2 I.L.R.M. at 364.

An extraordinary feature of the case is the fact that no complaint was made in relation to Female Genital Mutilation during the asylum process or in resisting the proposal to deport. The first time this matter was raised was in the application to revoke the deportation order. In my view the fact that this issue was not raised in the earlier processes renders the complaint at this stage wholly incredible. Mr. Justice MacMenamin reached a similar conclusion in the earlier judicial review application in his judgment of 30^th January, 2006. I fully agree with him in that regard.

A complaint which is devoid of credit cannot in my view be said to have arguable grounds for judicial review, and on this basis alone this ground would fail.

The applicants claim to have a fear of illegal detention if deported to Nigeria based on their alleged experience, when last deported. It is not necessary for me to decide the truth or otherwise of their claims in this regard. I am satisfied from the evidence that the respondents had available to him country of origin information from authoritative sources and from the extensive experience in his own department, which indicates that illegal detention of the kind apprehended by the applicant is not an established or known risk. I am satisfied that there was ample material to support a conclusion by the respondent that there was not a likely risk of the applicants being subject to illegal detention as feared by the applicants and hence there was ample material to support a conclusion that Article 3 of the European Convention on Human Rights was not engaged nor was the prohibition on refoulement under s. 5 of the Act of 1996 or under s. 4 of the Act of 2005 invoked. I am satisfied that the applicants have failed to demonstrate that having regard to the range of material available to the respondent as discussed above that there are arguable grounds for contending that the respondent failed to consider the risk to the applicants of illegal detention, under the relevant legal provisions.

Finally, there is the Article 8 rights, i.e. family or private rights and specifically the right to education. The correct approach to this aspect of the case in my view is set out in the speech of Lord Bingham in the case of R.(Razgar) v. Home Secretary [2004] 2 A.C. at p. 389 where he says:

"17. In considering whether a challenge to the Secretary of State's decision to remove a person must clearly fail, the reviewing court must, as it seems to me, consider how an appeal would be likely to fare before an adjudicator, the tribunal responsible for deciding the appeal if there were an appeal. This means that the reviewing court must ask itself essentially the questions which would have to be answered by an adjudicator. In a case where removal is resisted in reliance on article 8, these questions are likely to be: (1) will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life? (2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8? (3) If so, is such interference in accordance with the law? (4) If so, is such interference necessary in a democratic society in the interests of national security, public safety for the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others? (5) If so, is such interference proportionate to the legitimate public end sought to be achieved?

18. If the reviewing court is satisfied in any case, on consideration of all the materials which are before it and would be before an adjudicator, that the answer to question (1) clearly would or should be negative, there can be no ground at all for challenging the certificate of the Secretary of State. Question (2) reflects the consistent case law of the Strasbourg court, holding that conduct must attain a minimum level of severity to engage the operation of the Convention: see for example, Costello-Roberts v. United Kingdom [1993] 19 EHRR 112. If the reviewing court is satisfied that the answer to this question clearly would or should be negative, there can again be no ground for challenging the certificate. If question (3) is reached, it is likely to permit of an affirmative answer only.

19. Where removal is proposed in pursuance of a lawful immigration policy, question (4) will almost always fall to be answered affirmatively. This is because the right of sovereign states, subject to treaty obligations, to regulate the entry and expulsion of aliens is recognised in the Strasbourg jurisprudence (see Ullah [2004] 2 AC 323, 339 para (6) and implementation of a firm and orderly immigration policy is an important function of government in a modern democratic state. In the absence of bad faith, ulterior motive or deliberate abuse of power it is hard to imagine an adjudicator answering this question other than affirmatively.

20. The answering of question (5), where the question is reached, must always involve the striking of a fair balance between the rights of the individual and the interests of the community which is inherent in the whole of the Convention. The severity and consequences of the interference will call for careful assessment at this stage. The Secretary of State must exercise his judgment in the first instance. On appeal the adjudicator must exercise his or her own judgment, taking account of any material which may not have been before the Secretary of State. A reviewing court must assess the judgment which would or might be made by an adjudicator on appeal. In Secretary of State for the Home Department v. Kacaj [2002] Imm AR 213, 228 para 25, the Immigration Appeal Tribunal (Collins J, Mr C M G Ockelton and Mr J Freeman) observed that: "although the [Convention] rights may be engaged, legitimate immigration control will almost certainly mean that derogation from the rights will be proper and will not be disproportionate." In the present case, the Court of Appeal had no doubt [2003] Imm AR 529, 539 para 26, that this overstated the position. I respectfully consider the element of overstatement to be small. Decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority of exceptional cases, identifiable only a case by case basis."

In this case the applicant and her family consists of the first named applicant and her two daughters, the second and third named applicant and as said earlier the first named applicant is divorced from the father of the two children. Deportation in this case does not involve any question of separation of any of the applicants from each other. The major concern which was expressed by the applicants in respect of the deportation seemed to focus around the education of the second and third named applicants. There was also a concern expressed as to the disruption of their status, as they described it, as integrated aliens and the loss of social connections built up in this country.

Insofar as the concern over education is concerned it is clear from the affidavit of the first named applicant that appropriate education is available in Nigeria for the second and third applicants. The evidence establishes that the children ceased attending school because of an alleged fear of Female Genital Mutilation being imposed by their father. I have already found that allegation to be not credible.

The fact that lower standards of education may prevail, although that is far from clear, in Nigeria, is neither here nor there. It is well settled that lower standards of education or indeed lower standards of living generally in the country of origin is not a ground which engages Article 8 rights.

Insofar as their status as integrated aliens is concerned, in my view the applicants' status in this jurisdiction is of a provisional nature. The only reason they were here in the first place was as asylum seekers and they ultimately became failed asylum seekers and then deportees. It would seem to me to me that the jurisprudence of European Court of Human Rights does not establish or give to persons in this category some kind of special legal status which gives them an entitlement to remain in this jurisdiction, unless there were extraordinary circumstances present which demonstrated some kind of extraordinary connection to this jurisdiction warranting a different conclusion. There is nothing in the evidence in this case to suggest that the applicants' status or position in this jurisdiction is anything other than as asylum seekers and indeed their various incidents of social engagement are no more and no less than one would expect from persons in their position and the mere fact that the second and third named applicants attend schools, again is not in my view a consideration of such potency as to disturb the balance which must necessarily be struck in favour of the upholding of the immigration laws of the State.

I am not satisfied that there are arguable grounds set out by the applicant for contending that Article 8 rights have been engaged on their behalf. It seems to me that having regard to the case law of the European Court of Human Rights, the matters which are put forward as allegedly engaging those rights fall significantly short of the threshold required.

Even if Article 8 rights indeed had been engaged it would seem to me that if it were necessary to balance those rights against the necessity and indeed the duty of the respondents to uphold the immigration policy of the State as represented by its immigration laws, in that regard the unusual status of the applicants, as being in effect illegal returnees following a deportation order would have to be given a quite significant weight. It seems quite clear to me that the applicants have brazenly disregarded the immigration laws of this State by returning illegally in circumstances where they could have made their application for a revocation of the deportation order from Nigeria. I would be of opinion that it would require the most extraordinary circumstances to be demonstrated on their behalf and an extraordinary high level of intrusion into their Article 8 rights, to outweigh the duty in all situations which rests on the respondent to uphold the immigration laws of the State. In the circumstances of these applicants, the weight to be attached to the enforcement of the immigration laws of the State would have to be so much greater, because of the fact that the applicants chose to re-enter the State illegally having been lawfully deported and it would seem to me that in looking at the balance which would have to be established between Article 8 rights if they exist, and I don't think they do, the weight which would have to be given to the upholding of the immigration laws of the State, in this case would be such, that I am unable to discern any grounds upon which it could be argued that there was anything at all wrong with the manner in which that balance was struck by the respondent in this case and hence the applicants have failed to demonstrate any arguable ground for contending that the respondent failed to consider their Article 8 rights or failed to consider a correct balance between any such rights and the enforcement of the Immigration laws of the State.

For all of these reasons I have come to the conclusion that this application must fail.

Approved: O'Neill J.