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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> J.S. & ors -v- Minister for Justice and Equality & anor [2014] IEHC 195 (28 March 2014)
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Cite as: [2014] IEHC 195
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Judgment Title: J.S. & ors -v- Minister for Justice and Equality & anor Neutral Citation: [2014] IEHC 195 High Court Record Number: 2012 249 JR Date of Delivery: 28/03/2014 Court: High Court Composition of Court: Judgment by: McDermott J. Status of Judgment: Approved |
Neutral Citation: [2014] IEHC 195 THE HIGH COURT JUDICIAL REVIEW [2012 No. 249 J.R.] BETWEEN J.S., M.A., A.B.S. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND J.S.), J.S.A. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND J.S.), R.B.S.A. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND J.S.) APPLICANTS AND
THE MINISTER FOR JUSTICE AND EQUALITY RESPONDENT AND
THE ATTTORNEY GENERAL NOTICE PARTY JUDGMENT of Mr. Justice McDermott delivered on 28th day of March, 2014 1. This is an application for judicial review whereby the applicant seeks to quash the decision of the respondent to affirm a deportation order made against the second named applicant, M.A., on 7th March, 2012, following a grant of leave on 16th April, 2012 (Cooke J.). Leave was granted on the following grounds:- “The decision of the respondent of 7th March, 2012, refusing the second named applicant’s application for revocation of the order dated 2nd April, 2009, is unlawful and ought to be quashed in that:-
(b) The respondent erred in law in construing and applying to the said personal and family circumstances of the applicants the protections afforded to them (and particularly to the minor applicants as Irish and European Union citizens) by Articles 40.3, 41 and 42 of the Constitution and by Articles 3 and 8 of the European Convention on Human Rights. (c) The conclusions reached and the reasons given for them in refusing to revoke the deportation order are unreasonable and disproportionate to the permanent impact of the order on the personal and family circumstances of the applicants having regard particularly to the changed facts and circumstances presented to the respondent in the application of 6th April, 2011, and to the fact that the minor applicants are Irish and European Union citizens.” 2. M.A. is a Nigerian national who entered the state lawfully on 17th December, 2002, having been given permission to do so in accordance with the terms of a visa and work permit on 30th October, 2002, the validity of which extended to 30th October, 2004. Thereafter, he failed to comply with the “stamp 4 conditions” of his permission to work. He did not work fulltime as an I.T. professional. He claimed social welfare. He also committed a series of criminal offences, mostly concerning theft and dishonesty and was a drug addict using heroin and “crack cocaine”. His application for renewal of his visa was refused on 27th October, 2004. 3. While in the state the applicant formed a relationship with H.P., an Irish citizen and they had one child, B.P.. M.A. sought residency under the IBC05 Scheme based on his parentage of B.P.. This application was refused on 18th November, 2005, on the basis that he failed to provide evidence of playing an active parenting role in B.P.’s life. This decision was not challenged and this aspect of M.A.’s life is not the subject of these proceedings. 4. In or about April, 2004 M.A. met J.S., the second named applicant, and formed a relationship. They had three children, namely A.B.S. (the third named applicant) born on 10th February, 2005, J.S.A. (the fourth named applicant) born on 16th January, 2007, and R.B.S.A. (the fifth named applicant) born on 27th January, 2008. M.A. and J.S. have joint guardianship of the children in accordance with an order of the District Court “with primary care and control to the mother”, as recorded in an order of 18th May, 2009. J.S., and the children are Irish and European Union citizens. 5. M.A. was convicted of numerous offences between 2000 and 2008, including theft and dishonesty offences in respect of which he received and served sentences as follows:-
2. 5th July, 2007 (1) – conviction of an offence contrary to s. 4 of the Theft Act 2001, a sentence of four months imprisonment from that date. (2) – conviction of handling stolen property contrary to s. 17 of the Criminal Justice (Theft and Fraud Offences) Act 2001, a sentence of one month imprisonment from that date. 3. 30th October, 2007 (1) – conviction under s. 4 of the Theft Act 2001, a sentence of six months imprisonment from that date. (2) - conviction for handling stolen property contrary to s. 17 of the Criminal Justice (Theft and Fraud Offences) Act 2001, a sentence of seven months imprisonment from that date. (3) - conviction of theft contrary to s. 4 of the Theft Act 2001, a sentence of eight months imprisonment from that date. (4) - conviction of possession of stolen property, a sentence of eight months imprisonment from that date. (5) - conviction of possession of stolen property, a sentence of nine months imprisonment from that date. (6) - conviction for failing to appear contrary to s. 13 of the Criminal Justice Act 1984, ten months imprisonment from that date. (7) - conviction under s. 4 of the Theft Act 2001, a sentence of ten months imprisonment from that date. (8) - conviction of theft contrary to s. 4 of the Theft Act 2001, a sentence of ten months imprisonment from that date. (9) - conviction of theft contrary to s. 4 of the Theft Act 2001, a sentence of ten months imprisonment from that date. (10) - conviction of theft contrary to s. 4 of the Theft Act 2001, a sentence of eleven months imprisonment from that date. (11) - conviction for handling stolen property, a sentence of eleven months imprisonment from that date. (12) - four counts of possession of stolen property, ten months imprisonment from that date. (13) - handling stolen property, taken into consideration. (14) - conviction of theft contrary to s. 4, a sentence of ten months imprisonment from that date. (15) - conviction of theft contrary to s. 4, a sentence of eleven months imprisonment from that date. (16) - conviction for failure to appear s. 13 of the Criminal Justice 1984, a sentence of eleven months imprisonment from that date. All of the sentences passed on 30th October, 2007, were to run concurrently. 4. 12th February, 2008 – conviction for possession of drugs for sale or supply contrary to ss. 15 and 27 (as amended) of the Misuse of Drugs Act 1977, a sentence of three years imprisonment, one year suspended to date from 11th November, 2007. That conviction arose from a charge laid on 3rd December, 2005. 7. By letter of 21st May, the applicant’s solicitors sought the revocation of the deportation order pursuant to s. 3(11) of the Act. Further representations were made and the deportation was affirmed by the respondent on 27th January, 2010. On 6th April, 2011, a second application for revocation was made to the respondent based primarily on the Zambrano decision and enclosing further documentation concerning the suggested progress made by M.A. and J.S. in dealing with his drug addiction, their respective medical conditions and the welfare of the children. The request to revoke the deportation order was refused and the order affirmed on 7th March, 2012. 8. The deportation order and the first refusal to revoke it have not been subjected to legal challenge and this case is solely concerned with a challenge to the second refusal of 7th March, 2012. Section 3(11) of the Immigration Act 1999
11. There is no doubt that an exclusion from the state under s. 3(1) is unlimited in time. Section 3(11) confers a wide discretion on the Minister to revoke or amend a deportation order and the circumstances in which that may occur are not expressly limited by the terms of the section, though its reasonable operation will be constrained by the reality of the facts of a particular case. An application must be based on new circumstances which did not exist or, if they did exist, could not have been advanced at an earlier stage. For the latter circumstances to be considered the applicant must establish a special reason or offer a compelling explanation as to why the new facts were not advanced at an earlier stage (Smith & Smith v. Minister for Justice and Equality & Ors [2012] IESC 4). In that regard, it must be recalled that the making of the order itself requires an extensive inquiry into the facts, circumstances and rights of the proposed deportee and members of his/her family. As Fennelly J. stated in T.C. v. Minister for Justice, Equality and Law Reform [2005] 4 IR 109 (para. 26):-
43. But, as it happens, there is such a mechanism. In the immigration sphere, the applicants have a tailor-made remedy which can address new post-decision facts, namely, the power to revoke the deportation order under s. 3(11) of the 1999 Act. Should, for example, the Minister fail to revoke the deportation order in the light of new material facts, then this Court could quash that decision in an appropriate case… 44. For these reasons I cannot accept that the remedy of judicial review must be regarded as an inadequate method of vindicating constitutional rights by reason of the fact that new evidence is not admissible in judicial review proceedings once regard is had to the fact these applicants can avail in appropriate cases of the protections contained in s. 3(11) of the 1999 Act so that new, material evidence can be considered by the Minister.”
5.5 To that general principle, I would add two observations. First, it seems to me that the overall approach which I have identified applies, at least in the vast majority of cases, notwithstanding the fact that some of the persons whose rights may be affected are persons who are not subject to the deportation order in the first place. It is, of course, the case here that the rights of the other members of the Smith family, who are not subject to the same deportation order as Mr. Smith is, are engaged. However, in the vast majority of cases, and in the absence of some special or unusual factors, it is reasonable to assume that any person seeking the revocation of a deportation order on the basis, amongst other things, of the rights of other family members, will address, in their relevant application to the Minister, any points which can be made in favour of the revocation sought which derived from the rights of those other family members. There is nothing, on the facts of this case, to suggest that there was any difficulty encountered by, or indeed failure of, Mr. Smith in putting forward the rights of relevant family members to the Minister at all material times. On that basis, it does not seem to me that counsel for the Smiths was correct when she suggested that the jurisprudence relied upon by the trial judge as to the test to be applied was incorrect on the basis that the rights of persons not subject to the deportation order are engaged on the facts of this case whereas the cases from which the jurisprudence derived involves cases where that was not so. The rights of each relevant member of the Smith family, at least as far as they stood at the time when the original deportation order was made or when the original application for revocation was advanced, were asserted and considered. The need to bring finality and certainty to the immigration process in a timely fashion applies just as much to cases involving the rights of the other family members, not the subject of a deportation order, as it does to cases involving only those sought to be deported. I would leave to a case in which there was a factual basis for the consideration of the proper approach where there was some serious failure to advance the rights of family members. 5.6 The second observation is that there is an obligation on persons seeking to invoke their right to invite the Minister to revoke a deportation order to put before the Minister all relevant materials and circumstances on which reliance is sought to be placed. The question of the presence of new and significantly material considerations such as might justify a reconsideration of a previous deportation decision (including a previous refusal to revoke) must be judged against that sort of consideration which requires the Minister to actively reconsider. If what is asserted to be a significant and material new consideration was actually available to the applicant at the time of the previous application, but was not advanced or brought to the Minister’s attention, then, in the absence of special circumstances, it is difficult to see how the existence of such a consideration can properly be advanced as a new consideration requiring an active reassessment by the Minister of the substantive merits of the case. For a new circumstance to require such a reassessment it must either have arisen after the earlier decision of the Minister or there must be compelling explanation as to why, notwithstanding the existence at the relevant time, it was not then advanced. 5.8 …I should start by indicating that it is in my view, sufficiently arguable for the purposes of a leave application that a change in circumstances such as obliges the Minister to reconsider the merits of a deportation order can include material changes in relevant and applicable legal frameworks including developments in both domestic and European Union jurisprudence. It follows that, again for the purposes of a leave application there is no reason in principle why a material change in relevant jurisprudence may not amount to a sufficient change in circumstances to require the question of deportation to be reconsidered (although it does not, obviously, follow that any such reconsideration would necessarily lead to a different result). Furthermore, any asserted change in the legal framework would have to be demonstrated to be of real materiality to the facts of the case concerned.”
15. This Court is obliged to apply these principles in considering the challenge to the refusal in this case. Leave to apply for judicial review was confined to the grounds set out above based on what Cooke J. considered to be “the only obviously new events or circumstances capable of being considered in the context of a further application under s. 3(11)”, namely:-
(ii) the related disclosure of M.A.’s health condition and need for treatment. Zambrano Decision – Ground (a)
18. The claim was based, inter alia, on the provisions of Article 20 of the Treaty on the Functioning of the European Union (TFEU) which states:-
2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the treaties. They shall have, inter alia:- (a) the right to move and reside freely within the territory of the member states; …. These rights shall be exercised in accordance with the conditions and limits defined by the treaties and by the measures adopted thereunder.”
21. The court noted that the applicants’ family members in the proceedings enjoyed the status of Union citizens under Article 20(1) TFEU and could, therefore, rely on the right pertaining to that status against the member state of origin. The Zambrano decision precluded national measures which had the effect of depriving Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of that status. It was noted that the court in Zambrano considered, in particular, that refusal of a right of residence or work permit to the applicant would lead to a situation where the children, as citizens of the Union, would have to leave the territory of the Union “in order to accompany their parents”. However, the court noted that:-
… 68. Consequently, the mere fact that it might appear desirable to a national of a member state for economic reasons or in order to keep his family together in the territory of the Union, for the members of his family who do not have the nationality of a member state to be able to reside with him in the territory of the Union, is not sufficient in itself to support the view that the Union citizen will be forced to leave Union territory if such a right is not granted. 69. That finding is, admittedly, without prejudice to the question whether on the basis of other criteria, inter alia, by virtue of the right to the protection of family life, a right of residence cannot be refused. However, that question must be tackled in the framework of the provisions on the protection of fundamental rights which are applicable in each case.”
23. L., an Algerian national, lawfully resided in Finland where she obtained a permanent residence permit following marriage to a Finnish national. They had a child in 2004 who had dual Algerian and Finnish nationality and always lived in Finland. The couple divorced in 2004, and L. was granted sole custody. The child’s father lived in Finland. L. then married M., an Algerian national, who arrived lawfully in Finland in 2006 and sought asylum. He lived with L. from April but was returned to his country of origin late in 2006. A child of the marriage was born in Finland in 2007, who has Algerian nationality and of whom they have joint custody. It was not clear if M. had any contact with this child. M. was refused an application for a residence permit. 24. The question arose as to whether European citizenship law precluded member states from refusing to grant to third country nationals a residence permit on the basis of family reunification where that national continued to reside with his spouse, also a third country national who lawfully resided in the state and is the mother of a child from a previous marriage, who is a Union citizen and a child of their own marriage who is also a third country national. The reference also raised the issue as to whether on an application for residence the fact that the applicant was not the biological father of a child who was a Union citizen and did not have custody of the child, may affect the interpretation of citizenship law. The court restated the principles set out in Zambrano and Dereci and noted that it was important for the national decision-maker to establish whether the Union citizen had, in fact, to leave not only the territory of the member state but also the European Union as a whole. 25. The court considered the factors to be taken into account when determining whether the refusal of the applications for permits submitted on the basis of family unification in such circumstances constituted a denial of the genuine enjoyment of the substance of the European Union right conferred by citizenship status. It stated:-
51. For the purpose of examining whether the Union citizens concerned would be unable, in fact, to exercise the substance of the rights conferred by their status, the question of the custody of the sponsors’ children and the fact that the children are part of reconstituted families are also relevant. First, since Ms. S and Ms. L. have sole custody of the Union citizens concerned who are minors, a decision by them to leave the territory of the member state of which those children are nationals, in order to preserve the family unit, would have the effect of depriving those Union citizens of all contact with their biological fathers, should such contact have been maintained up to the present. Secondly, any decision to stay in the territory of that member state in order to preserve the relationship, if any, of the Union citizens who are minors with their biological fathers, would have the effect of harming the relationship of the other children, who are third country nationals, with their biological fathers. 52. However, the mere fact that it might appear desirable, for economic reasons or in order to preserve the family unit in the territory of the Union, for members of a family consisting of third country nationals and a Union citizen who is a minor to be able to reside with that citizen in the territory of the Union in the member state of which he is a national is not sufficient in itself to support the view that the Union citizen would be forced to leave the territory of the Union if such a right of residence were not guaranteed (see, to that effect, Dereci & Ors, para. 68). 53. In connection with the assessment mentioned…which it is for the referring court to carry out, that court must examine all the circumstances of the case in order to determine whether, in fact, the decision refusing residence permits at issue in the main proceedings are liable to undermine the effectiveness of the Union citizenship enjoyed by the Union citizens concerned.”
57. Subject to the verification which it is for the referring court to carry out, the information available to the court appears to suggest that there might be no such dependency in the cases in the main proceedings.” 28. These principles were again applied in the case of Ymeraga & Ors v. Ministre du Travail de l’emploi et de l’immgration Case 87/12. The applicants were from Kosovo. K.Y. arrived in Luxembourg at the age of 15 to live with his uncle, a Luxembourg national who became his legal guardian. Although his application for asylum was rejected by the Luxembourg authorities, his situation was regularised and he went on to study and find regular employment. His mother and father and two brothers arrived in Luxembourg between 2006 and 2008. In 2009 K.Y. acquired Luxembourg nationality and in August, 2009 his mother and father applied for a residence permit as family members of a citizen of the Union. Residence permits were also sought for his two brothers. The court found:-
39. In the main proceedings, according to the referring court, the only factor which could justify a right of residence being conferred on the family members of the citizen concerned is Mr. … Ymeraga’s intention to bring about, in the member state in which he resides and of which he holds the nationality, reunification with those family members, which is not sufficient to support the view that a refusal to grant such a right of residence may have the affect of denying Mr. Kreshnik Ymeraga the genuine enjoyment of the substance of the rights conferred by virtue of his status as a citizen of the Union.” 29. The applicants accept that following the decisions in Dereci and Iida, the derivation of a right of residence for a third country national and the rights of child European Union citizens who have not exercised a right of free movement will be the exception rather than the rule. However, it is submitted that the illness of the mother, J.S., gave rise to the basis for the application of an exception in this case. It was submitted that where, as here, the deportee’s spouse is unlikely to bring the children to Nigeria and a substantial factor in that decision is her own precarious health, a matter of an exceptional nature relevant to the issue of dependency and whether the rights of the children have been breached under Zambrano was established. However, it is clear that the children will not be obliged for any reason to leave the state or the territory of the European Union. The health issue in those circumstances falls to be determined in accordance with the provisions of Article 40.3 of the Constitution and Articles 3 and 8 of the European Convention on Human Rights (see Dereci, O.S. & l and Ymerega). Therefore, the court is satisfied that the respondent did not err in law in applying the principles enunciated by the Court of Justice in the Zambrano and Dereci decisions to the facts of this case. It is clear that the decision did not cause J.S. or the children to leave the state or the territory of the European Union with their father or since his departure on 7th March, 2012, and it is not realistically suggested that this is likely to occur in the future. The Charter of Fundamental Rights 31. Article 7 of the Charter of Fundamental Rights of the European Union provides:-
3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.”
33. The provisions of s. 3(1) and 3(11) of the Immigration Act 1999, are part of domestic legislation concerned with the implementation of immigration policy. Having regard to the fact that the state is not precluded from deporting a third party national even though that person is a parent of a European citizen child, when that child is not dependent upon the applicant and will not be deprived of the genuine enjoyment and substance of his/her rights as a European Union citizen by reason of that deportation, I am satisfied that Article 7 has no application. 34. As stated by the CJEU in Dereci:-
71. However, it must be borne in mind that the provisions of the Charter are, according to Article 51(1) thereof, addressed to the member states only when they are implementing European Union law. Under Article 51(2) the Charter does not extend the field of application of European Union law beyond the powers of the Union, and it does not establish any new power or task for the Union, or modify powers and tasks defined in the treaties. Accordingly, the court is called upon to interpret, in the light of the Charter, the law of the European Union within the limits of the powers conferred on it… 72. Thus, in the present case, if the referring court considers, in the light of the circumstances of the disputes in the main proceedings, that the situation of the applicants in the main proceedings is covered by European Union law, it must examine whether the refusal of their right of residence undermines the right to respect for private and family life provided for in Article 7 of the Charter. On the other hand, if it takes the view that that situation is not covered by European Union law, it must undertake that examination in the light of Article 8(1) of the ECHR. 73. All the member states are, after all, parties to the ECHR which enshrines the right to respect for private and family life in Article 8.”
44. Such a finding does not prejudge the question whether, on the basis of an examination in the light of the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms, to which all member states are parties, to the third country nationals in the main proceedings may not be refused a right of residence.” The Health of the Parents - Grounds (b) and (c) 38. The original application for leave to remain on humanitarian grounds under s. 3 was based on the submission that M.A. was an active parent within the family and played a very important role in the life of his children and partner. It was supported by reports from the Probation Service of 28th February, 2007, and 10th April, 2008. A letter from J.S. of 9th April, 2008, outlined their four year relationship and plan to marry. The application also outlined M.A.’s third level education and his desire and intention to abstain from crime in the future and support his family. 39. The examination of file noted that he had been convicted of more than 40 offences and was serving a sentence of three years imprisonment with one suspended. It noted his immigration history. Although he had a working visa valid until 30th October, 2004, following his arrival in the state, he did not obtain fulltime employment and had claimed social welfare benefits. He was described as an habitual criminal who had come to the attention of the Gardaí over the years on a regular basis in respect of a wide range of criminal offences. A garda report recommended that deportation be considered before his release from prison. The various reports and his intention to up-skill and lead an honest life were considered. It was noted that he spent a considerable period of the relationship with his partner since 2004 in prison. The sentence he was serving commenced in November, 2007 and was due to expire in May, 2009. There was an extensive consideration of the constitutional and Article 8 rights of the applicants. Following a detailed consideration of all the submissions made, the reports submitted and the various rights attaching to each of the parties (including the best interests of the children), deportation was recommended and an order was made on 2nd April, 2009. At this stage, no submissions concerning the medical condition of either J.S. or M.A. had been submitted, nor had concerns been expressed about health issues relating to the children that required monitoring, though it later emerged that the parents respective conditions were first diagnosed in 2004. 40. An application was made within a matter of weeks of the making of the order on 21st May, 2009, under s. 3(11) for the revocation of the deportation order. It was submitted that the reference to 40 previous convictions was in error and, in fact, M.A. had only been convicted of 31 matters, none of which related to road traffic or public order offences. It was accepted that he had incurred 29 previous convictions at his sentencing in respect of the three year sentence in the Circuit Court relating to theft and fraud. It was also submitted that the relationship with his partner and children had been maintained during the course of his imprisonment by regular visits. M.A.’s convictions largely related to his drug addiction which involved the misuse of cocaine and heroin, and it was claimed that the offences were largely committed to assist in the funding of his drug habit. Two reports dated 4th November and 21st December, 2009, were submitted in that regard. 41. A letter was submitted from St. James’s Hospital dated 20th May, 2009, from a medical social worker concerning M.A. and J.S. It outlined that J.S. attended the hospital on an out-patient basis “for medical monitoring of a long term illness”. J.S. submitted a letter in which she outlined that she had a “life time medical issue and that I can only get proper treatment in Ireland for my illness. I am registered with St. James’s Hospital and I attend there every three months”. She also stated that their three children “attended Temple Street Hospital and also have to attend there every three months”. Their doctors’ names were furnished and their next appointment dates, which were in July, 2009. No medical reports were submitted in support of any aspect of these submissions. 42. A consideration of the file was completed on 13th January, 2010, and a recommendation against revocation of the deportation order was made and affirmed. All additional documentation was considered. It was acknowledged that there was a discrepancy between the number of convictions said to have been incurred (in excess of 40) in the examination of file prior to deportation and the factual position that the applicant had been convicted of, on his own admission, 29 offences prior to his sentencing for the drugs offences which his solicitors said had been acknowledged in the Circuit Court. However, the consideration of file opted for a more conservative figure of 22 convictions, notwithstanding his solicitor’s submission. The reports concerning his drug rehabilitation previously considered were reconsidered. The following was noted in respect of the medical history of the family:-
44. In the absence of any legal challenge to the deportation order and the refusal to set it aside, this Court must consider the two decisions to be correct in fact and law on the basis of the evidence and materials before the decision makers at the time the decisions were made. 45. The first notice given to the first named respondent that M.A. had any medical condition was received by letter dated 2nd February, 2011, from Dr. Dominic Rowley in St. James’s Hospital. The letter presumed an awareness that M.A. had a long term illness and was under treatment. He was said to be doing “extremely well” and to be very compliant with his medication. The letter confirmed that he had a history of drug abuse but had been progressing through rehabilitation on a reducing dose of methadone under the care of his general practitioner, Dr. Mullen. The doctor expressed concern about M.A.’s ability to continue his medication and the long term consequences if he were to be deported to Nigeria. The letter also stated that he was “for consideration” for hepatitis C treatment which would continue over the course of a year and be very intensive. It was indicated that his health would suffer greatly if he were not treated for these two matters. A further letter had also been sent by Professor Fiona Mulcahy to the Minister dated 11th May, 2010, confirming that M.A. had a long term illness that would require monitoring and treatment. An application under s. 3(11) was not made at this time. 46. The second s. 3(11) application was made on 6th April, 2011, on the basis of the Zambrano decision which had been delivered on 8th March (already discussed). A submission was also made on the basis of health matters regarding M.A. and his family. At this stage the Minister was informed that M.A. had been diagnosed with the same long term illness as J.S. and had hepatitis C since 2004. This was linked to his drug taking. A report from Dr. Mullen dated 11th January, 2011, and the same report of Dr. Rowley dated 2nd February, 2011, accompanied the submission. 47. In Dr. Mullen’s report of 11th January it was noted that M.A. had failed, following his diagnosis in 2004, to follow up with the services in St. James’s at that time. He first attended the practice in November, 2009 to start a methadone maintenance programme and re-engaged with St. James’s from in or about April, 2010 when he was commenced on medication. He attended regularly every three months since that time and his condition was significantly improving. 48. It was stated in the submission that at the time of the original s. 3(11) application the applicant and his family were reluctant to disclose the extent of their health problems as they felt the matter was a personal one. Their problems were known only to family and the Minister was asked not to prejudice M.A. on the basis that the information would be regarded as a form of “drip feeding” in order to take advantage of s. 3(11). However, J.S. had already made reference to her health issues and the children’s attendance at Temple Street Hospital in the initial s. 3(11) application. It is difficult to understand why medical reports were not furnished at a much earlier stage but were sent in the aftermath of the initial refusal of the s. 3(11) application and why silence was maintained for a period in excess of twelve months following the decision before the further s. 3(11) application was submitted. Clearly, the inhibition no longer existed as far as M.A. was concerned having regard to the letter from Professor Mulcahy in May, 2010. It would appear that M.A. did nothing about his illness from 2004 to 2010. It is difficult to resist the conclusion that this is a “drip feeding” case. However, even though it is possible to draw that inference, the first named respondent did not refuse to consider the second s. 3(11) application based on this additional material. 49. A further more detailed medical report in respect of M.A. was submitted from Professor Colm Bergin of St. James’s Hospital on 14th March, 2011. It was noted that on presentation in September, 2004 M.A. was asymptomatic at time of first attendance. He failed to attend follow up appointments throughout 2006 and 2007. He presented in April, 2010 having been referred by his general practitioner. Medication was prescribed. He reported that he resided with J.S. who was not at that time on therapy for her condition. A further review was to take place in May, 2011. Professor Bergin stated that M.A. would require indefinite treatment for his condition and further treatment might be required in respect of hepatitis C. 50. A similar report was obtained from Professor Bergin in respect of J.S. She had also attended since September, 2004. She was treated appropriately during this period, especially in relation to issues concerning the risk of transmission during her pregnancies. She failed to attend for clinical appointments in October, 2010 and February, 2011 despite recalls. It was thought inevitable that over the coming years further intensive medication would be required. 51. On 6th March, 2012, a further examination of file was completed by Mr. Mark Carleton which was subsequently reviewed and it was recommended that the Minister affirm the deportation order in respect of M.A. It was noted that no medical reports were ever submitted in respect of the three children from Temple Street Hospital or the general practitioner. The Right to Medical Treatment
The country of origin information excerpted below indicates that the applicant would be able to avail of healthcare in Nigeria. This information indicates that, despite the limitations of Nigeria’s healthcare system, a large number of diseases and conditions can be treated including (the diseases from which the applicant suffers)…Moreover, treatment for (his condition) is free at almost all public hospitals in Nigeria and 41 new…treatment centres (catering for this disease) were opened in Nigeria in 2006 and started handing out free (drugs) to those in need of them. According to a report released in March, 2010, one of the government’s main priorities for 2010 and 2011 is better treatment of (the disease) and related conditions. It is hoped that at least 60% of eligible adults and 60% of children will receive (appropriate drug medication) and it is hoped to provide at least 60% of…patients with quality management…in 2010 and 2011. The government stated that it provides an adequate system to manage (the disease)…and this involves over 200,000 patients on (the treatment programme). Although those with (the disease) do face discrimination in Nigeria, the authorities and NGO’s have implemented public education campaigns to reduce the stigma and change perceptions. Policies have been put in place to reduce discrimination and stigmatisation of people living with (the disease). The key objective of the Nigerian government is to create an enabling social, legal and policy environment by a 50% increase in the number of reviewed and operational gender sensitive and human rights friendly policies, legislation and enforcement of laws that protect the right of the general population, particularly those with (the disease).”
In the case of D. v. the United Kingdom, the European Court of Human Rights found that Article 3 does not require contracting states to undertake the obligation of providing aliens indefinitely with medical treatment. It is only where there are exceptional circumstances that the return of an applicant to their country may amount to a breach of Article 3. From the information on file, it cannot be said that M.A.’s particular circumstances come within the range of “exceptional circumstances”. Furthermore, it is still the case that case law has set out clearly that a state is not under any general obligation to permit an individual to remain in their state solely for the purpose of obtaining medical treatment of a level which would not be available to them in their country of origin. In relation to the issue of medical care obligations and contracting states in the case of N (F.C) (appellant) v. Secretary of State for the Home Department [2005] UKHL 31, the court held that:- ‘The Strasbourg Court has constantly reiterated that in principle aliens subject to expulsion cannot claim any entitlement to remain in the territory of a contracting state in order to continue to benefit from medical, social and other forms of assistance provided by the expelling state. Article 3 imposes no such “medical care” obligation on contracting states. This is so even where, in the absence of medical treatment, the life of the would be immigrant would be significantly shortened.’ It was also held in this case that:- ‘The expulsion of a failed immigrant to a country which could not provide medical treatment equivalent to that which she had received in the United Kingdom was not a breach of the obligation to ensure, under Article 3 of the European Convention on Human Rights that no one was subject to inhuman or degrading treatment.’ The court went on to find that:- ‘For an exception to be made where expulsion is resisted on medical grounds, the circumstances must be exceptional.’ The above excerpts make it clear that Article 3 of the European Convention on Human Rights does not impose any obligation to provide medical care on contracting states. Having considered all of the above factors, it is not accepted that there are any exceptional circumstances in this case such that there is a sufficiently real risk that deporting M.A. to Nigeria would be a breach of Article 3. the fact that the circumstances of the applicant in Nigeria may be less favourable than those enjoyed by the applicant in Ireland does not in itself exist as exceptional circumstances.” 55. In M.E.O. (Nigeria) v. The Minister for Justice, Equality and Law Reform [2012] IEHC 394 Cooke J. considered the constitutional and Article 3 rights of a person afflicted with a similar potentially life threatening disease to that of the applicant and the extent of the state’s duty to provide medical care in these circumstances. He considered whether the duty of the state to protect and vindicate the personal rights of life extended to the provision of particular medical care to a non-citizen present in the state without permission. The learned judge concluded that the Constitution did not impose a positive obligation on the state to provide any particular type of medical treatment to an individual under Article 40.3.2 of the Constitution, and stated:-
56. Cooke J. also considered the application of D. v. United Kingdom [1997] 24 EHRR 423. He noted that the applicant in that case was on the verge of certain death and that his condition was already terminal. He had become dependent for palliative treatment on the care he had received while in prison in the United Kingdom. The absence of such care facilities in his country of origin and the fact that the very transfer of the applicant to that country would have exposed him unjustifiably to a more distressing death than he would have inevitably faced in the United Kingdom, was determinative of the European Courts finding that his deportation would contravene his rights under Article 3. It was noted that withdrawal of treatment would have had dramatic consequences and hastened his death. The court viewed the circumstances as exceptional. It acknowledged, however, that aliens who has served prison sentences and are subject to expulsion could not in principle claim any entitlement to remain in order to continue to benefit from medical, social or other forms of assistance provided by the expelling state while in prison. Cooke J. outlined the essential elements which determined whether or not a violation of Article 3 is potentially raised by a proposal to deport a person who has been receiving treatment for a life threatening condition as follows:-
(ii) Secondly, the practical consequence for the person’s health of removal to the country of origin including consequences of interruption of the treatment and the limited availability or non-availability of adequate treatment in the country of origin; (iii) the personal circumstances of the individual including age, sex, family and the conditions likely to be faced in the country of origin; (iv) the particular context in which the person has received treatment in the host State including the length of time and whether the person’s presence in the State was originally lawful, or for the purpose of claiming asylum; (v) whether the diagnosis of the medical condition predated the person’s arrival in the host State; (vi) whether the individual is physically fit to be deported and not likely to suffer a material worsening of the condition as a result of the transportation itself; and (vii) whether any anticipated deterioration in the condition is likely to occur whether or not a deportation takes place.” 58. M.A.’s application was also considered under Article 8(1) of the European Convention on Human Rights as part of his right to private life. It is submitted that the deportation of the applicant and the refusal to revoke the order give rise to serious concern for his health should he be returned to Nigeria and that he should be entitled to remain in the state in order to continue to benefit from the treatment which he is receiving here. In the examination of file it was concluded that appropriate medical treatment was available to him in Nigeria. It was not accepted that the applicant’s deportation would have consequences of such gravity as to constitute an interference with his right to respect for private life because the treatment available to him in Nigeria would be less favourable to that available in Ireland. M.A.’s medical condition was considered in the context of whether his expulsion could be shown to be in accordance with law and necessary in the interests of a democratic society as set out in Article 8(2) taking account of the assessment of the risk of damage to his health caused by interruption of his medical treatment if returned to Nigeria. As already stated, it was clearly established that any interference with the applicant’s treatment or health was not such as to give rise to a risk of violation of Article 3. Consequently, it was entirely appropriate to consider whether M.A.’s deportation was warranted under Article 8(2) taking account of his right to private life and other issues related to immigration policy and his previous convictions. 59. In Agbonlahor & Ors v. The Minister for Justice, Equality and Law Reform, Ireland and the Attorney General (Unreported, High Court, Feeney J., 18th April, 2007) it was concluded that a similar approach should be adopted to Article 3 and Article 8 rights and, in particular, that aliens who were subject to an expulsion cannot claim any entitlement to remain in the territory of a contracting state in order to continue to benefit from medical, social or other forms of assistance provided by the expelling state unless exceptional circumstances are demonstrated. Otherwise, large numbers of people who had no entitlement to be or remain in the country would be entitled to remain indefinitely so that they could take the benefit of medical resources available in this country. 60. The court is satisfied that the conclusion reached that the decision to deport M.A. in pursuant of lawful immigration control did not constitute a breach of the right of respect for his private life under Article 8 was reasonable and rational. It was noted that further information had also been submitted from M.A.’s solicitor that he had committed a further six theft offences between August and September, 2009. It was concluded that he had demonstrated that he had a propensity to re-offend which gave rise to a compelling public interest in his deportation. The court is satisfied that the applicant has failed to establish a breach of his right to private life by the first named respondent. Family Life
Conclusion |