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Cite as: [2013] IEHC 480
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Judgment Title: A.N & ors -v- Minister for Justice and Equality Neutral Citation: [2013] IEHC 480 High Court Record Number: 2012 869 JR Date of Delivery: 31/07/2013 Court: High Court Composition of Court: Judgment by: Clark J. Status of Judgment: Approved |
Neutral Citation: [2013] IEHC 480 THE HIGH COURT JUDICIAL REVIEW Record No. 2012/869 J.R. Between: A.N., M.C. AND C.C. (A MINOR, SUING BY HIS MOTHER AND NEXT FRIEND M.C.) APPLICANTS -AND-
THE MINISTER FOR JUSTICE AND EQUALITY RESPONDENT JUDGMENT OF MS JUSTICE M. H. CLARK, delivered on the 31st day of July 2013 1. The applicants seek an order quashing the decision of the respondent Minister dated the 9th August, 2012, to affirm a deportation order made against the first applicant A.N. on the 21st December, 2011. A.N., who is a national of Albania, has been in Ireland since 2008. He married the second applicant M.C. on the 29th February, 2012. The third applicant C.C., who was born on the 17th December, 2011, is M.C.’s son from a previous relationship. M.C. and her son are Irish citizens. Their challenge to the Minister’s refusal to revoke is based on Article 8 of the European Convention on Human Rights (ECHR). Leave to apply for judicial review was granted on an ex parte basis on the 23rd October, 2012 and the substantive hearing took place on the 3rd July, 2013. Ms Rosario Boyle S.C. with Mr Anthony Lowry B.L. appeared for the applicants and Mr Robert Barron S.C. with Ms Kilda Mooney B.L. appeared for the respondent. Background 3. On the 21st November, 2011, A.N. and M.C. gave notice of their intention to marry to their local Civil Registration Office. This fact was not notified to the Minister. Similarly, he was not informed when on the 17th December, 2011, M.C. gave birth to her son C.C. Thus when he made the deportation order four days later, the Minister was totally unaware that A.N. intended to marry an Irish citizen. 4. By letter dated the 11th January, 2012, the Minister informed A.N. that he had made a deportation order in respect of him on the 21st December, 2011, and informed him that he was required to leave the State by the 28th January, 2012, and to remain outside the State thereafter. It is no surprise that the examination of file appended to that letter (dated the 24th November, 2011,) treats A.N. as a single man with no family connections in the State. 5. On the 18th January, 2012, Kelleher O’Doherty Solicitors wrote to the Minister on behalf of A.N. seeking revocation of the deportation order as they were awaiting a decision in respect of “his outstanding application” by which it can be inferred that they believed that a subsidiary protection decision was awaited. They were informed that there was no such outstanding application. They made no further representations to the Minister at that time. 6. On the 6th March, 2012, the Minister wrote to A.N. noting that he had not complied with the requirements of the deportation order. The Minister offered to pay for his return flight on an agreed date, as a commercial passenger, without a GNIB escort. The offer was not accepted. Revocation Application 8. On the 28th May, 2012, the Minister received further documents; a copy of M.C.’s Irish passport, a document from Albania dated the 11th November, 2011, certifying A.N.’s identity, a letter from the Civil Registration Office acknowledging the couple’s notification of intention to marry, and some photographs of the couple’s wedding. A.N. was then informed that his file had been transferred by the Spouse of Irish National Unit of the INIS to the Repatriation Division of the Department of Justice. 9. On the 4th July, 2012, a third firm of Solicitors, Murchan & Co. Solicitors, formally applied to the Repatriation Unit on behalf of A.N. seeking revocation of the deportation order under s. 3(11) of the Immigration Act 1999. It was submitted that the couple had been in a stable relationship for some time and that it would be disproportionate to deport A.N. and contrary to Article 8 ECHR. There was no reference to M.C.’s son C.C. 10. On the 14th July, 2012, M.C. emailed the Spouse of Irish National Unit of the INIS, begging them in a cri de coeur not to deport her husband. Her email was forwarded to the Repatriation Unit. M.C. explained that if her husband were deported their lives including that of her baby son would be put on hold. She was suffering from depression as they were walking on egg shells since “we honestly don’t know when a knock will come to our door and for (A) a husband and a father to be taken away from his loving family”. She said she cries every time he signs on with GNIB “in case thats the day he has to turn his back on me and our son [sic]”. The Impugned Decision 12. The key part of the refusal to revoke is found in that part of the recommendation which finds that “It is considered that it would be open to (M.C.) to apply to reside with (A.N.) in Albania as husband and wife. (M.C.) states (A.N.) acts as a step father to her child (C.C.). However, no further information in relation to the child was submitted”. The recommendation consults passages from a UNHCR document on Albanian Law for Foreigners dated 1999 and concludes that “(M.C.) if she chooses, would be entitled to apply for a stay permission in order to reside in Albania with her husband.” It also relies on the judgment of this Court in H.U. & Others v. The Minister [2010] IEHC 371 and concludes:
I have also considered that (M.C.) is an Irish citizen and that she and (A.N.) were marred in the State on 29/02/2012. I have also considered the fact that the applicant did not inform the Minister of his relationship with (M.C.) prior to their marriage.” Grounds
b. The Minister failed to adequately consider the obstacles that the applicants face in relocating to Albania, including the matters raised by M.C. in her letter dated the 8th March, 2012 (summarised above); c. The Minister failed to adequately consider the effect of the deportation of A.N. on the family as a whole and, in particular, that as a result, M.C. will have to decide whether to stay in Ireland without her husband or to relocate to Albania and raise her son there; and d. Further or in the alternative the Minister failed to have adequate regard to the fact that relocation to Albania would deprive M.C. and C.C. of their right to reside in the territory of the EU and of the rights attaching to Irish citizenship. The Applicants’ Submissions 18. The applicants nailed their colours, so to speak, on C.C.’s EU citizenship and on a proposition advanced in paragraphs 93-95 of the decision of the UK Upper Tribunal (Immigration and Asylum Chamber) in Sanade (British Children – Zambrano – Dereci) [2012] UKUT 00048 (IAC). They argue that even though A,N, does not qualify for a right of residence under the principles established in Zambrano v. ONEm (Case C-34/09, judgment of 8th March 2011), E.C.R. [2011] Page I-01177, M.C. and C.C.’s EU citizenship mean that it will never be reasonable to expect them to relocate outside the EU and the Minister was therefore precluded from considering whether it would be reasonable for them to join A.N. in Albania. Instead he was confined to considering whether the inevitable rupture of the family would be proportionate to the aims to be achieved. In other words, the traditional approach to Article 8 proportionality assessments has been overtaken. The Respondents’ Submissions 20. Mr Barron SC, for the respondent was invited by the Court to confine his oral submissions to the Sanade point. In that respect he argued that the only occasions when the Minister is obliged to consider family rights guaranteed by Article 7 of the Charter of Fundamental Rights of the EU and the right to reside in the territory of the EU under Article 20 TFEU is when the Minister is implementing EU law, and that this point was not argued in Sanade. Zambrano and subsequent decisions give rights to certain non-EEA family members of dependent EU citizen children to reside in the territory of the EU. An applicant therefore comes under Zambrano or does not and if not, that is the end of the matter. In this case, A.N. did not qualify for Zambrano rights so his case falls to be considered under Article 8 ECHR, not with EU law. This view is supported by Cooke J. in Smith v. The Minister [2012] IEHC 113 at paragraph 24 and by O’Keeffe J. in Troci & Healy v. The Minister [2012] IEHC 542 at paragraph 48. The proposition was not argued in Sanade, which the Respondent firmly argues is wrongly decided and where the Secretary of State for Home Affairs accepted the proposition . The imposition of a deportation order is a purely internal matter and, unless Zambrano applies, EU law has no bearing upon the assessment of whether it is proportionate to impose a deportation order. THE COURT’S ANALYSIS 22. The Minister’s corresponding obligation is to consider all relevant information which is put before him in a full and fair manner. He must, under s. 3(6) of the Immigration Act 1999, consider the family and domestic circumstances of the applicant “so far as they appear or are known to the Minister”. This applies equally when new or changed facts, materials or circumstances are put before him in a revocation application under s. 3(11) as occurred in this case. The Minister is not in the normal course required to himself seek out additional information from such applicants as such a requirement could render the revocation system unworkable. In Oguekwe v. The Minister [2008] 3 IR 795, where family rights under the Constitution and under the Convention were engaged, Denham J. (as she then was) discussed the correct approach to the Minister’s discretion under s. 3 of the Immigration Act 1999 thus:
2. Save for exceptional cases, the Minister is not required to inquire into matters other than those which have been sent to him by and on behalf of applicants and which are on the file of the department. The Minister is not required to inquire outside the documents furnished by and on behalf of the applicant, except in exceptional circumstances.” 24. No information was furnished on the child’s religion or about any particular developmental, medical or educational requirements he may have. There was no information on M.C.’s current and prospective domestic arrangements and her intentions for the baby’s future care and education. It was not specified whether she and the baby and A.N. were living together as a family unit, if she was working and contributing financially to the baby’s upbringing or whether A.N. was contributing. Nothing was said about A.N.’s family in Albania or what their attitude was to the marriage with an Irish woman considering their Muslim background. It was not said whether if they relocated to Albania they would be living with the in-laws or whether they would set up a home of their own or whether A.N. would have employment. The Minister was unaware whether C.C. has a relationship (legal, financial or emotional) with his biological father, about whom there is a startling absence of information. It was not known if the father has sought custody or access rights to the child. No information about that former partner’s nationality, means or whereabouts was furnished. There was quite simply a total information vacuum in relation to C.C.’s father which is clearly unsatisfactory. 25. No information was provided about M.C. herself. While she made it clear that she did not think she could live in Albania because she did not speak Albanian and would be unable to socialise and communicate with Albanian people and would find it difficult to gain employment or to go to college for further study, she furnished no information about her education or employment background. She was silent as to what language she speaks with A.N., the extent of his English, and how he or indeed they support themselves financially. There is nothing beyond assertion that it would it be difficult for her to get a job or to study in Albania. It is not even known if it would even be possible for her to bring her baby with her, given that the lack of formal legal relationship with A.N.. No information was provided as to the relative merits or deficits in the Albanian and Irish health and schooling systems for C.C. 26. The facts are that A.N. has manifestly neglected to engage with the Minister’s office since the summer of 2009 when he was made aware that his asylum application was refused. He now seeks at the eleventh hour to mend his hand at a very late stage without a sound legal basis. The Court simply cannot grant the reliefs sought as it is apparent that the Minister engaged in a fair analysis of the limited information presented to him. He relied on the unequivocal jurisprudence of the European Court of Human Rights which state that it is open to domestic authorities to have regard to the circumstances in which family life is created and in particular, whether family life was developed in the knowledge of an applicant’s precarious immigration status. The jurisprudence also firmly establishes that Contracting States are not obliged to respect the choice of residence of a married couple. It must be assumed that A.N. was fully aware that he had been refused a declaration of refugee status and that deportation was a logical next step. While M.S. is eight years younger and from her personally drafted email may possibly not be educated to any high level and was only 19 when they married, she had enough initiative to sit down and write to the Minister not once but twice to provide him with information which should have come through A.N. and his solicitor. It must be assumed that she was also aware that he faced the prospect of deportation at the time they married. 27. It cannot be said that the Minister failed to have regard to M.S.’s Irish citizenship or the consequences for her of the choice she faces as to whether she should relocate to Albania and raise her son there with her husband within the family unit, or whether to remain in Ireland with her son but without her husband. These are undoubtedly difficult decisions but as this Court has held on previous occasions, such decisions are not uncommon for married couples comprising different ethnicities, religions, races and nationalities. Couples from different parts of Ireland have to forego their places of origin in pursuit of jobs. As this Court held in H.U. & Others v. The Minister [2010] IEHC 371, at paragraph 54:
29. No information was put before the Minister which would warrant the conclusion that it would be unreasonable to expect M.C. and her child to relocate to Albania. That is not to say that no such information exists, but the Minister cannot be criticised for failing to engage in speculation given the deficit of information which he faced. THE SANADE PROPOSITION 31. The applicants contend however that Sanade imports a new limitation on the Minister’s assessment of Article 8 ECHR and now represents Irish law. The proposed limitation is summarised in the headnote to the Sanade decision as follows:
35. The applicants argue that the approach taken by the Upper Tribunal at paragraph 95 of Sanade represents the law in Ireland. This means that when the Minister was assessing the proportionality of the proposed deportation of A.N. under Article 8 ECHR, it was not open to him to consider whether it would be reasonable to expect M.C. and her son to relocate; the Minister should instead have focused his assessment on the proportionality of the rupture of the family. In the applicants’ submission, this follows from the concluding paragraphs of the CJEU judgment in Dereci & Others v. Bundesministerium für Inneres (Case C-256/11, judgment of 15th November 2011). Even if Zambrano rights do not arise, the fact that there is an EU citizen child involved means that this is not purely a matter of domestic law and the implications of EU citizenship must therefore be considered when assessing the proportionality of the proposed deportation under Article 8 ECHR. 36. As noted above, the respondent argues that paragraph 95 of Sanade is wrongly decided and that either one falls to be protected by EU law under Article 20 TFEU or one does not and if not, the implications of EU citizenship have no role to play in an assessment conducted under Article 8 ECHR. The Court’s Observations 38. There are a number of reasons why the validity of this proposition is doubtful. It may have represented the view and policy of the UK Border Agency that the concession was made but cannot be accepted as representing the law as it currently applies in Ireland. First and foremost, it seems to this Court that the Upper Tribunal may in error have conflated Britain’s obligations under EU law with its obligations under the ECHR. The applicants accept that the rights of M.C. and C.C. under Article 20 TFEU are not engaged in this case. Non-EEA nationals acquire rights under Article 20 TFEU only if their expulsion from the territory of the EU would have the necessary consequence that a dependent EU citizen child would be required to leave the territory – effectively, the constructive expulsion of an EU citizen child. It is clear from McCarthy v. Secretary of State for the Home Department (Case C-434/09, judgment of 5th May 2011) and Dereci (cited above) that nothing short of the constructive expulsion of the EU citizen will suffice and the rupture of family life will not engage Article 20 TFEU. By the applicants’ own admission, A.N.’s deportation would raise no entitlements under Article 20 TFEU1 as they are not dependent on A.N. and he is not C.C.’s primary carer. They have not argued that the Minister was obliged to consider their rights under Article 72 of the Charter of Fundamental Rights of the EU, presumably because the Charter is of no application since the Minister, in affirming the deportation order was applying domestic law and was not implementing EU law. The position with regard to purely internal situations such as the present was clearly set out by Cooke J. in Smith v. The Minister [2012] IEHC 113, at paragraph 24:
41. The Court agrees with the submission made by the respondent that there is no analysis in the Sanade judgment of the premises on which the paragraph 95 proposition is based or on the consequences of its acceptance. The Upper Tribunal simply put the proposition to the Secretary of State for her comment and she accepted its applicability by way of a written submission drafted on her behalf by the UK Border Agency. It appears from the Sanade judgment that no oral submissions were received with regard to the proposition and the applicants were not consulted. The Upper Tribunal did not hear any arguments on the qualifying decision of Dereci and it did not consider the import of McCarthy on the Zambrano decision. This Court is unaware of any decision in which the paragraph 95 proposition has been tested with any rigour, although the same concession has been made by the Secretary of State and accepted by the Upper Tribunal in a number of subsequent decisions (see e.g. MF (Article 8 – new rules) Nigeria [2012] UKUT 00393 (IAC), Izuazu (Article 8 – new rules) [2013] UKUT 45 (IAC) and Ogundimu (Article 8 – new rules) Nigeria [2013] UKUT 60 (IAC)). However, in Izuazu, the Secretary of State’s concession (annexed in full to the Upper Tribunal’s judgment) was tempered by the following proviso:
43. This Court is hesitant to accept that Sanade represents the law for further reasons. First, despite the fact that the point was not fully argued before this Court or indeed before the Sanade Tribunal, it seems that if the proposition advanced by the applicants is accepted, then the jurisprudence of the European Court of Human Rights has been swept away when addressing the right of Contracting States to deport the foreign national parent or parents of children who are citizens of a Contracting State. The foundation of human rights law does not rely on preferences for nationality or citizenship but applies because people enjoy rights as human drawn from their common humanity and from citizenship rights. The application of the rights guaranteed by the ECHR are not confined to citizens of the Contracting States; they extend to all persons residing in the territory of the Council of Europe. 44. The domestic courts of this State have also tackled situations of that nature, for example in A.O. and D.L. and Oguekwe (cited above) by requiring a substantial reason for the deportation of the parent of an Irish citizen and a decision which is proportionate to the effect on the family. The Court is unaware of any such case where the Strasbourg Court or the domestic courts have found that it would be illogical to expect the family to relocate because the child would lose the benefits of his or her citizenship, or that the loss of the benefits of citizenship creates an irrebuttable presumption that it would be unreasonable to expect the person to relocate. The consistent approach has been that the reasonableness of relocation is to be assessed in each case according to the particular family’s circumstances. The citizenship or nationality of the family members is a factor to be weighed in the balance but it is not determinative. As Lady Hale noted in ZH (Tanzania) (cited above), nationality is not a “trump card”. If this is the case for national citizenship, there is no reason to treat EU citizenship any differently and Zambrano does not import any such requirement. Certainly, it seems to this Court that Irish citizenship embodies rights which are more extensive and more numerous than those envisaged in the TFEU. 45. Finally, it is relevant to note that the context in which Sanade was decided is fundamentally different to the situation which pertains in the present case. As previously noted, in Sanade the Upper Tribunal was considering the obligation of the Secretary of State, pursuant to s. 32 of the UK Borders Act 2007, to impose an automatic deportation order in respect of a person convicted of a criminal offence and sentenced to more than twelve months’ imprisonment. There is no equivalent provision in Irish law and there is no known element of criminality in this case. 46. The position therefore remains unchanged. Where it is accepted that an expulsion measure will interfere with family life, Contracting States are obliged to assess whether the expulsion is in accordance with law and is necessary in a democratic society. A measure will be necessary in a democratic society if it corresponds to a pressing social need and is proportionate to the legitimate aims of the State which are being pursued. The proportionality assessment consists of two steps. First, the Contracting State must consider whether it is reasonable to expect the family members to relocate with the proposed deportee so as to maintain family life with him or her. Where the expulsion has the potential to affect a child, the best interests of that child must be weighed in the balance irrespective of the nationality of the child (see e.g. Üner v The Netherlands (2006) 45 EHRR 421). The decision-maker must consider the seriousness of any difficulties the child might encounter in the country to which it is proposed that the family could relocate and balance the solidity of social, cultural and family ties with the host state with the country to which relocation is proposed. As noted above it is the obligation of the person seeking to rely on the child’s rights to put pertinent information in this regard before the Minister and the Minister cannot be faulted for failing to speculate where little or no relevant information is furnished to him about the child. Where the child to be affected by the expulsion measure is a national of the host state, the State must also consider the rights enjoyed by the child by reason of that citizenship and the impact on that child of being deprived of the enjoyment of those rights – but again, only so far as the circumstances of the child are known to the Minister. As Denham J. held in Oguekwe (cited above), addressing the Minister’s obligation where a proposed deportation will interfere with the family life of an Irish citizen child:
(a) reside in the State, (b) be reared and educated with due regard to his welfare, (c) the society, care and company of his parents, and (d) protection of the family, pursuant to Article 41. The Minister should deal expressly with the rights of the child in any decision. reference to the position of an Irish born child of a foreign national parent is required in decisions and documents relating to any decision to deport such foreign national parent. 7. The Minister should also consider the Convention rights of the applicants, including those of the Irish born child. These rights overlap to some extent and may be considered together with the constitutional rights.”
"In short, the fact of belonging to a country fundamentally affects the manner of exercise of a child's family and private life, during childhood and well beyond. Yet children, particularly young children, are often considered parcels that are easily movable across borders with their parents and without particular cost to the children.” 33. We now have a much greater understanding of the importance of these issues in assessing the overall well-being of the child. In making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This means that they must be considered first. They can, of course, be outweighed by the cumulative effect of other considerations. […]” 49. In sum, in the view of this Court, the judgment of the CJEU in Zambrano and the rights which flow from Article 20 TFEU do not preclude the Minister from considering whether it would be reasonable to expect an EU citizen to relocate outside of the EU to maintain family life with a non-EEA national in the event of his / her deportation. It remains a matter for the Minister to weigh all relevant facts and circumstances in the balance so far as they are known to him and to reach a reasonable and proportionate decision on a case-by-case basis. Conclusion 50. The applicants have not established an entitlement to the reliefs sought. The application fails. 51. The Court is concerned that information relevant to C.C. was simply not presented to the Minister when the applicants sought revocation of the deportation order. There is nothing to prevent the applicants from making a further and more informed s. 3(11) application, putting matters relevant to C.C.’s best interests before the Minister. In this regard, the applicants must consider whether C.C.’s best interests lie with knowing his biological father and family in Ireland and remaining with his mother and grandmother, or with his mother and step-father in Albania. As C.C. is an innocent child with no choice in his mother’s decisions, his best interests require that full information on the effect of a deportation order in respect of his step-father on his long term well being must be put before the Minister. In light of the information which was put before the Court by way of affidavits from the first and second applicants in relation to the infant, which was not before the Minister at the relevant time, and taking account also of the fact that the applicants do not appear to have had consistent legal assistance at the material times, the Court will grant a temporary injunction prohibiting the deportation of A.N. for a period of eight weeks from today’s date to enable the making of a focused, relevant and expanded Section 3(11) application which specifically addresses how C.C. will be affected if the benefits of Irish and EU citizenship now enjoyed by C,C, are suspended or replaced if he travels with the family unit to Albania. If the relevant application is made, the Court may continue the injunction pending the Minister’s decision. 2. Article 7 is in effect a reiteration of Article 8 of the ECHR
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