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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> O.I. & anor -v- The Refugee Appeals Tribunal [2015] IEHC 408 (17 June 2015)
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Cite as: [2015] IEHC 408
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Neutral Citation [2015] IEHC 408 THE HIGH COURT JUDICIAL REVIEW [2010 No. 1547 J.R.] BETWEEN O. I. O. P. I. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND O. I.) APPLICANTS -AND-
THE REFUGEE APPEALS TRIBUNAL THE MINISTER FOR JUSTICE AND LAW REFORM ATTORNEY GENERAL IRELAND RESPONDENTS JUDGMENT of Mr. Justice Mac Eochaidh delivered on the the 17th day of June, 2015 1. This is a “telescoped” application for leave to seek judicial review seeking an order of certiorari to quash a decision of the Minister making deportation orders in respect of the first and second named applicants. Challenges to other decisions affecting the applicants have not been pursued. Two broad grounds of challenge were advanced based on the European Convention on Human Rights and based on the U.N. Convention on the Rights of the Child, a ratified but non-implemented international instrument. The latter ground was adjourned pending a decision of the High Court in a case where an analogous point was raised. Background: 3. Further, she did not seek to move elsewhere within Nigeria as the M.E.N.D. members are everywhere. As the second named applicant was only one month old at the date of her s. 11 interview, the first named applicant outlined her fears as being wholly based on her own. In this regard, she claimed she feared that the militants would use her daughter as a human sacrifice as they knew she was pregnant before she left Nigeria. 4. Both applications for asylum were rejected by the Commissioner primarily on the basis of a lack of credibility. The applicants duly appealed to the Refugee Appeals Tribunal. The Tribunal upheld the recommendation of the Commissioner on the basis of the lack of credibility in a decision dated 15th June, 2009. The applicants received a “three options letter” on 31st July, 2009, and thereafter made an application for leave to remain in the State and for subsidiary protection to the Minister with the aid of the Refugee Legal Service on 11th August, 2009. 5. The applicants’ applications for subsidiary protection were refused on the 29th October, 2010, and the applicants were informed by letter of 17th November, 2010. By letter of 26th November, 2010, the applicants were informed that they were also unsuccessful in their application for leave to remain pursuant to s. 3 of the Immigration Act 1999 and that the Minister had made deportation orders against them dated 24th November, 2010. The applicants now seek to quash the decision to make the deportation orders contained in the “Examination of file under Section 3 of the Immigration Act 1999, as amended”. Examination of File:
If the Minister signs a Deportation Order in respect of O. I., this decision would engage her right to respect for private and family life under Article 8(1) of the ECHR. Private Life (1) Will the proposed removal be of 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 or 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 ends sought to be achieved? In considering the first question, it is accepted that if the Minister decides to deport O. I., that this has the potential to be an interference with her right to respect for private life within the meaning of Article 8(1) of the ECHR. This relates to her educational and other social ties that she has formed in the State as well as matters relating to her personal development since his arrival in the State. (sic) In addressing the second question, and having weighed and considered the facts of this case as set above, it is not however accepted that any such potential interference will have consequences of such gravity as potentially to engage the operation of Article 8. As a result, a decision to deport O. I. and her daughter does not constitute a breach of the right to respect for private life under Article 8 of the ECHR.” 7. It is submitted by Mr. Mark de Blacam S.C., on behalf of the applicants, that the author of the Examination of File has erred in law because she stopped her inquiry by answering the second of Lord Justice Bingham’s questions in Razgar in the negative. It is contended that owing to the applicants’ degree of integration into Irish society the Minister’s official should have found that their deportation would cause interference of sufficient gravity as to engage the operation of Article 8. Having so found she should have proceeded to apply the remaining steps of the test. Counsel relies on the decisions of this court in A.M.S. v. Minister for Justice, Equality and Law Reform [2014] IEHC 57 and in C.I. v. Minister for Justice & Equality [2014] IEHC 447 in this regard. 8. The decision in A.M.S. related to an application for family reunification and the assessment of family life rights pursuant to Article 8. It is noted by counsel that this court remarked that the phrase “consequences of such gravity” does not mean that there must be “grave consequences” arising from a decision before Convention rights are engaged. Further the court found at para. 67 that:-
68. Such an approach to an Article 8 assessment is not in accordance with law. The analysis should start by asking whether a negative decision on family reunification would interfere with article 8 rights and then ask whether that interference would have consequences of such gravity as to potentially engage Article 8 rights, bearing in mind the proper meaning of ‘consequences of such gravity’. Following that analysis, the decision maker may decide that the interference is justified notwithstanding the engagement of rights...” 10. Counsel also refers to the decision of this court in C.I. v. Minister for Justice & Equality (supra) where the legality of the Minister’s approach to the Razgar questions was also considered in the context of deportation decisions. In particular, the applicants refer to the dicta of the court which found:-
Respondents’ Submissions: 14. In the first instance, it is submitted that the ground claiming that “the deportation decisions are unreasonable and / or disproportionate” is void for uncertainty and fails to identify even the basic legal provision which is relied upon. Counsel refers to the decision of Cooke J. in Lofinmakin v. Minister for Justice [2011] IEHC 38 in this regard, where he states:-
16. Without prejudice to this submission, it is contended that the rationality of the Minister’s decision can only be considered in light of the information which was put before the decision maker. In this regard, counsel notes that the decision maker considered all of the specific personal and background facts relevant to the applicants. Further, it is submitted that given the infancy of the second named applicant at the date of the impugned decision (one year and eight months), the contention by the applicants that their “level of integration” into Irish society was such that the interference with their private life would have had consequences of such gravity so as to engage Article 8 rights is simply unsustainable. 17. In any event, counsel contends that their preliminary objection remains that the applicants’ arguments in respect of Article 8 are not pleaded and are not relevant to these proceedings. 18. It is submitted that the Minister is required to examine Article 8 rights in the context of the statutory requirements of s. 3 of the Immigration Act 1999. In this regard the consideration is deemed warranted by the Minister as deportation had the “potential” to be an “interference” with the applicants’ right to respect for their private life. However, it is noted that the Minister then concluded that “Having weighed and considered the facts of the case as set out above, it is not however accepted that any such potential interference will have consequences of such gravity as potentially to engage the operation of Article 8.” It is submitted that the Minister makes it clear that in reaching this conclusion he is relying on matters previously set out in the decision such as the s. 3(6) considerations. 19. The respondents submit that European Court of Human Rights (E.Ct.H.R.) case law requires an applicant to demonstrate that a measure taken by the State, which is alleged to be an interference with their right to respect for private life, surmounts a particular threshold and shows sufficiently adverse effects on them. Counsel refers the court to the decisions in Bensaid v. United Kingdom (Application no. 44599/98, 6th February 2001), Nnyanzi v. United Kingdom (Application no. 21878/06, 8th April 2008) and N. v. United Kingdom (Application no. 26565/05, 27th May 2008) in this regard. 20. Counsel refers the court to the dicta of the E.Ct.H.R. in Nnyanzi:-
77. Nor does the Court find there to be sufficient evidence that the applicant’s removal with her asthma condition, which she asserts is exacerbated by stress, would have such adverse effects on her physical and moral integrity as to breach her rights under Article 8 of the Convention. 78. Accordingly, the applicant’s removal to Uganda would not give rise to a violation of Article 8 of the Convention.”
[14] 3.3 In considering immigration law under article 8 the European Court of Human Rights has focused on an analysis of the individual facts in each particular case to ascertain whether the individuals asserting breach of rights are in truth asserting a choice of the State in which they would like to reside, as opposed to an interference by the State with their rights under article 8...” 22. The respondents submit that the Minister was correct in reaching the decision that the removal of the applicants would not have consequences of such gravity so as to engage the operation of Article 8. It is submitted that the European case law cited above indicates that any private life developed in the State by non-settled migrants would not be sufficient to come within the ambit of Article 8 and that the E.Ct.H.R. has consistently come to the view that the removal of persons in positions such as the applicants will not result in a breach of Article 8. In this regard, it is contended that the applicants’ reliance on the decisions in A.M.S. and C.I. (supra) is misconceived. Findings: The Pleading Point 24. I note that the respondents claim no prejudice based on the alleged pleading deficiency. In so far as greater detail was required from the applicants as to what precisely their complaint was, this was provided in written submissions delivered by the applicants in advance of the hearing. The respondents replied with detailed written submissions and then made an oral submission. 25. It is also of some consequence that the respondent raised a complaint about lack of precision in pleading for the first time in written submissions delivered shortly before the hearing. This case commenced in December, 2010 and was heard in December, 2014. In K. B. v. Minister for Justice and Law Reform [2013] IEHC 169, I decided that it would be wrong to accede to a delay point raised by the respondents for the first time at trial which could have been made as soon as the proceedings issued. I repeat that view here in respect of a pleading point. My view is that the respondent in asylum cases should not delay a pleading point which is believed to be of such strength as to warrant the dismissal of an applicants’ case or of part of a case. This is particularly so when the State has an interest in ensuring that asylum litigation is brought to finality expeditiously and when the state is actively aware of the state of this list and how long it takes to achieve a hearing date.. The state is aware that litigants in this list often face severe personal circumstances while awaiting the outcome of proceedings. If litigation can be dealt with on the basis of procedural irregularity, my view is that such points should be pursued expeditiously. Given the extreme delays in this list, jf left to the trial date, such points loose their sheen. For these reasons I am unwilling to accede to the respondent’s pleading point. Article 8 of the E.C.H.R. 27. Counsel for the respondent refers me to certain decisions of the E.Ct.H.R. and in particular to it’s decision in Nnyanzi in support of the proposition that this line of jurisprudence has closed down the argument that deportations might breach Article 8 E.C.H.R. rights. I disagree with this assessment of the E.Ct.H.R. case law. 28. In my view the Strasbourg Court in Nnyanzi was prepared to assume that deportation would interfere with the deportee’s private life and placed emphasis on the questions which a Contracting State must ask and answer in compliance with the requirements of Article 8(2) of the E.C.H.R.. The Court decided that removal of the deportee was not disproportionate, (“the Court [E.C.tH.R.] finds that any private life that the applicant has established during her stay in the United Kingdom when balanced against the legitimate public interest in effective immigration control would not render her removal a disproportionate interference.”, as set out in para. 20 above). Contrary to the submission of the respondents, the court conducted a proportionality assessment of the effect of deportation on a non-settled migrant. In other words the exercise avoided by the Irish officials was, in the cases to which I have been referred, carried out by the E.Ct.H.R.. 29. It is not the applicants’ complaint in these proceedings that the respondents have irrationally concluded that deportation would not be disproportionate. The complaint is that the respondents have comprehensively avoided asking the questions required to be answered by Article 8(2) E.C.H.R. because it was decided that none of the rights required to be respected under Article 8 are engaged by the proposed deportation. 30. My view is that the applicants are correct when they say that the manner in which the Razgar questions are answered is irrational. The respondents decided that although the applicants did have private lives in the State, their removal would not have grave consequences relative to those private lives. This led the respondent to say that Article 8 rights were therefore not engaged and consequently there was no need to carry out any proportionality assessment or to ask the other questions required by Article 8(2). I cannot accept that this is a lawful approach. A lawful approach based on the acceptance of the existence of private life requires the decision maker to ask whether deportation would interfere with the applicant’s private lives and then to ask whether the interference is serious enough to engage Article 8 rights to respect private life. If so, then the other considerations in Article 8(2) must be assessed. 31. I reject the respondent’s argument that the .ECt.H.R. case law decides that non-settled migrants do not have private life rights required to be respected by Article 8 of the E.C.H.R.. My view is that the E.Ct.H.R. has never stated that non-settled migrants do not enjoy private lives worthy of Article 8 respect. Contrarily, the Strasbourg Court has conducted a proportionality analysis resulting in decisions which decided that the removals of non-settled migrants are not disproportionate measures. In other words the proportionality of deporting non-settled migrants was actively considered by the Human Rights Court which would have been unnecessary if it had been decided that non-settled migrants enjoyed no private life requiring respect under Article 8 of the Convention. 32. Finally, though counsel tried to persuade me that the second named infant applicant enjoyed no private life in the State due to her infancy, this was not the basis upon which her claim was assessed by the decision maker and thus it cannot be advanced now by the respondent. The applicants must succeed on these grounds and orders of certiorari will issue. The UN Convention on the Rights of the Child
35. It was argued that by operation of the principles of customary and conventional international law the ratification of the U.N. Convention on the Rights of the Child by Ireland had the effect of requiring the Minister to treat the best interests of the child as a primary consideration in deciding whether to deport that child, notwithstanding non-implementation of the Convention in Ireland. (By reference to decisions of the Supreme Court and in particular to the judgment of Henchy J in Ó Domhnaill v. Merrick [1984] I.R. 151, this court, on the application for leave to seek judicial review in Dos Santos & ors v. Minister for Justice & ors [2013] IEHC 237 had accepted (to the standard of arguability) that rules in international conventions ratified by the State had application in Ireland regardless of non-implementation provided such rules were not contrary to the express intention of the Oireachtas. In other words there existed a rebuttable presumption that Acts of the Oireachtas made after ratification by the Executive of an international instrument were not intended to contradict the content of the international instruments and should, in so far as possible, be construed in consonance with them.) 36. The effect of ratification without implementation of international instruments was reviewed by the Supreme Court in Kavanagh v. Governor of Mountjoy Prison [2002] 3 IR 97 where Fennelly J. said at p. 129:-
In the decision on the substantive application for judicial review in Dos Santos McDermott J. ruled, at paragraph 55 that:-
38. However, in the case at bar, no argument was made that the provisions of the Convention found expression in Irish law by operation of the principle of direct effect. That is a concept borrowed from E.U. law which has particular meaning based on the doctrine of supremacy of E.U. law and which has no application in these proceedings. The applicant has argued that the Minister’s statutory powers to make deportation orders (under s. 3 of the Immigration Act, 1999) must be read in light of the Convention on the Rights of the Child, even though the convention has not been implemented. This argument was rejected by McDermott J. in Dos Santos when he said at para. 59:-
39. I note that McDermott J. did not accept that the minor applicants in Dos Santos had a legitimate expectation (derived from ratification by the State of the Convention) that their best interests would have primacy over other rights or interests in a deportation decision making process. This is surely a correct conclusion. Not even the Convention, if implemented, would require such result. 40. I accept that in the submission to the Minister (dated 24 August, 2009) on why deportation orders should not be made the applicants’ solicitors said “We would in particular like to bring to the Minster’s attention Ireland’s obligations under the 1989 UN Convention on the Rights of the Child and in particular its article 3.1 …”. Though it is not expressly stated it is reasonable to infer that the letter meant to convey that the rule in Article 3.1 of the Convention had application in a decision on whether a child should be deported. The Minster’s decision does not refer to this submission. No view is expressed as to whether the Convention has application when the deportation of a child is under consideration. The failure to deal with the submission is expressly pleaded. 41. The case argued on behalf of the applicants is that when interpreting the powers of the Minister to make a deportation order under the Immigration Act, 1999, I should interpret the Minister’s powers in a manner which is in consonance with provisions of Article 3(1) of the U.N. Convention on the Rights of the Child unless doing so would contradict the Irish legislation. In so far as I am thereby asked to “write in” the text of Article 3 of the Convention into the legislation, I am precluded by Article 29 of the Constitution from doing any such thing. 42. I am also asked to find that public international law requires that I read the Immigration Act in consonance with the Convention provided that doing so would not contradict the Immigration Act. 43. The respondent has argued that the Immigration Act requires the Minister to consider the interests of the child before making a deportation order. This may be correct, though I have doubts about the proposition, but I do reject the respondent’s corollary argument that in considering the child’s interests this equates to a consideration of the child’s best interests. In my view these are not matching concepts. Even if they were, what is missing is any rule in the Act as to the primacy of that consideration. 44. I conclude that no provision of the Immigration Act requires the Minister to consider the best interests of the child as a primary consideration in making a deportation order. The act does not direct or permit a decision maker to place any consideration in a hierarchy whereby greater weight would be given to that factor over any other factor. There is an enormous difference between a rule which says “the best interest of the child shall be a primary consideration in a decision concerning that child” and a rule which says “the decision maker shall have regard to the age of a person about whom a decision as to deportation is to be taken” Thus, it is impossible to read the rules in the Act in consonance with the rule in Article 3 of the Convention. They are at a far remove one from the other. In so far as there exists a presumption (derived from public international law) that the Immigration Act was not intended to contradict the Convention, the presumption is rebutted by the terms of the Act which makes no mention of any particular interest being of primary importance in a deportation decision making process. This is the central difference between the terms of the Convention and terms of the Act and they cannot be reconciled. They stand in contradiction of each other and therefore the rule in the Convention fails to find expression within the State by operation of the pricniples of public international law. 45. Customary rules of public international law have application in the State. As described by Fenelly J., such rules may sometimes create a legitimate expectation that the State will respect the terms of a Convention ratified but not implemented. It is clear that reliance was placed on the terms of Article 3 of the Convention in the submission made to the Minister. It’s terms were expressly invoked and were said to have application to consideration of whether to deport the child. In other words, it was said that because Ireland had ratified the instrument, the child had a legitimate expectation that its terms would be respected and applied when deciding whether to make a deportation order. 46. It must be recalled that Fennelly J. did not say that on ratification of an international instrument a pure, actionable legitimate expectation was thereby created. He qualified his statement by adding the important caveat “However, it [the State] could not accept such an obligation so as to effect either the provision of a statute or the judgment of a court without coming into conflict with Constitution” (see para. 36 above). As I am of the view that the terms of the Convention and of the Immigration Act are in conflict, in this instance no legitimate expectation exists that the Minister will respect the rule in Article 3(1) of the Convention when deciding on the deportation of a child. 47. I accept that the Minster did not address the argument of the applicant in relation to the Convention. However, as the only lawful reply which could have been given would be to reject the idea that the Convention had any application I cannot see that that any harm was done by the failure to answer the point. Judicial review being a discretionary remedy, I decline to grant relief on this aspect of the claim, notwithstanding the failure of the respondent to deal with the submission made as to the applicability of the Convention. To grant relief would result in the matter being sent back and court is entitled to assume that the respondent will apply the law in the manner expressed in this decision. No benefit could be achieved by such result and this court should not, in judicial review proceedings, rule in vain. 48. I dismiss this ground of challenge. |