Judgment Title: E (A Minor) -v- The Minister for Justice and Equality
Neutral Citation:  IEHC 100
High Court Record Number: 2011 637JR
Date of Delivery: 01/03/2012
Court: High Court
Composition of Court:
Judgment by: Cross J.
Status of Judgment: Approved
Neutral Citation Number:  IEHC 100
THE HIGH COURT
2011 637 JR
D. O. E. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND A. K. E.)
THE MINISTER FOR JUSTICE AND EQUALITY
JUDGMENT of Mr. Justice Kevin Cross delivered the 1st day of March, 2012
1. This is an application for leave to take up and quash by way of certiorari a deportation order made by the respondent on or about the 1st July, 20112, and received by the applicant on the 7th July, 2011. In order to succeed in this application the applicant must show there are “substantial grounds”.
4. The respondent submits that there was a full analysis of the applicant’s claim that the earlier medial report was superseded by the subsequent one, that in any event the respondent clearly did consider the submission that if returned to Nigeria that the applicant would “probably die” and further that in any event even if the respondent is at fault for this failure to consider, he has not demonstrated substantial or any grounds to take the applicant within the category of “exceptional circumstances” recognised in the leading case of D. v. United Kingdom 30240 96  ECHR 25.
5. Counsel on behalf of the applicant Mr. Stephen Dixon BL and counsel on behalf of the respondent Ms. Sinead McGrath BL are both to be congratulated on the succinct and economical yet thorough manner in which they argued this troubling case.
The Legal Position
7. In O.D. Odulana and F.A, Odulana (a minor suing by her mother and next friend O.D. Odulana v. The Minister for Justice, Equality and Law Reform (Unreported, High Court, Clark J. 25th June, 2009) stated:-
The Analysis in this Case
11. The May 2010 report is addressed to the applicant’s solicitor and is in the form of a more conventional medical report and is specific to the applicant. It indicates that the applicant has not had any Sickle Cell events in the first year of his life which is to be expected, though he did have an admission at the start of his second year and concluded:-
I can only reiterate that our health care programme for Sickle Cell disease is on a par with any in the European Union or the US and that irrespective of what type of disease Daniel has, we are in a far better position to manage his disease and to allow him to fulfil his true potential and to lead a long happy and hopefully relatively damage free life than if her returns to Africa.”
13. Under the heading “representations made by or on behalf of the person” the Minister in his decision lists four letters attesting to the applicant’s good character including a letter from Dr. McMahon and in the Minister’s consideration of the medical issues, the report of 2010, is commented upon and analysed. The Minister also states “it is submitted that without proper medical attention he would die of his illness were he to return to Nigeria”. This account may be taken from the applicant’s permission to remain under s. 3 in which it is stated “it is submitted that it would not be reasonable to deport (the applicant) to Nigeria as he is likely to die of his disease within five to ten years” or it may also, of course, be taken from the medical report of the 9th December, 2009, “. . . as if this child returns to Africa he will probably die”.
14. The Minister indulged in a lengthy consideration of the treatment for Sickle Cell Anaemia available in Nigeria and concluding, as was not unreasonable:-
16. The Minister then considered the case of D. v. United Kingdom and also the case of N. (FC) (Appellant) v. Secretary of State for Home Development (Respondent)  UKHL 31 in which it was held that:-
19. The Minister was in his decision aware of the submission on behalf of the applicant whether through his solicitor or through the doctor that it being was contended that there was a possibility of the applicant dying earlier, should he be returned to Nigeria. The Minister also gave full consideration to the later medical report. I do not see any deficiency in the Minister’s consideration of potential violation of Article 3.
20. Furthermore, the court holds that even if the Minister did not properly consider the letter of the 9th October 2009, (and I do not so hold) that no consideration of that letter could place the applicant (when taken together with the other matters considered including especially the later medical report of May 2010), in a position of the exceptional circumstances as outlined in D.
21. D. was at the time of the impugned decision on his deathbed, he had developed a relationship with his carers and were he returned to his home country, the likelihood is that he would have had no medical care at all.
22. This applicant has not yet had any Sickle events in the first year of his life and Dr. McMahon cannot say whether he will live to 80 or die at 10 and the most that he can say is that care would be better in Ireland than it would be in Nigeria.
23. As Clark J. stated in Odulana (above):-