Supreme Court of Ireland Decisions

1. The first-named applicant is the mother of the second to sixth named applicants and appellants. She is not herself an appellant, because her application for leave to apply for judicial review was dismissed in the High Court and she did not obtain the certificate required to entitle her to appeal. Accordingly, I will refer to the second to sixth named applicants and appellants simply as the appellants.

2. The proceedings relate to Deportation Orders made in respect of the appellants by the First Named Respondent (“the Minister”) on the 2nd August, 2002. The appellants obtained leave from the High Court (Finlay Geoghegan J) to seek judicial review of those decisions by way of certiorari. Peart J in a judgment dated 26th May 2004 dismissed the application of the appellants for judicial review. The learned High Court Judge certified pursuant to Section 5 (3)(a) of the Illegal Immigrants Trafficking Act, 2000 that his decision involved points of law of exceptional public importance and by order dated 28th July 2004 granted leave to appeal against his decision to the appellants. The terms of the certificate are set out in the judgment of Finnegan J.

3. There is a single legal point at the centre of the appeal. The deportation orders were explicitly made on the basis that each appellant was “a person in respect of whom a deportation order may be made” pursuant to the provisions of section 3(2) (f) of the Immigration Act, 1999. That provision relates to:

“a person whose application for asylum has been refused by the Minister.”

“The Deportation Orders of 2nd August 2002 relating to the second to sixth named Applicants are invalid in that the second to sixth named Applicants were not on that date persons whose applications for asylum had been refused by the first named Respondent within the meaning of Section 3(2)(f) of the Immigration Act 1999.”

6. The question is whether an application for asylum made by the appellants had been refused by the Minister. In simple terms, the first-named applicant applied for asylum; no separate applications were made for the children; the Minister had a policy of treating such an application as having been made by the family; none of the communications emanating from the Minister or the Refugee Appeals Tribunal, up to and including the refusal of the first-named applicant’s application refer to any application by the appellants. They were, however, given notice of the Minister’s intention to make deportation orders in respect of them.

7. A related issue, which was decisive in the view of the learned High Court judge, was the principle of family unification. This gives rise, in turn, to a question of whether that principle can be deployed against as distinct from in favour of family members.

The Facts
8. These issues can be considered only in the light of detailed consideration of the facts.

9. The appellants are Nigerian nationals. They arrived in Ireland on the 10th May, 1998, accompanied by their mother. They were then respectively aged 12, 8, 6 and four-year old twins.

10. On 11th May 1998, the day after her arrival in Ireland, the first named applicant applied for asylum. She completed the official form provided by the Minister, “ASY-1.” The file reference number, 69/1346/98B was written on this application. In the box for “Name” only that of the first named Applicant was given i.e. A.N. The names of the appellants were listed in the part of the form headed: “children.” Their place of birth was stated to be Nigeria and “Ireland” was given in answer to the question: “where is the child now?” In answer to the question, “why are you seeking asylum?” an account is given of events in Nigeria concerning her brother in the army. This mentions “the children” in connection with her move from Nigeria.

11. Mr Charles O’Connell, Assistant Principal Officer in the Department of Justice Equality and Law Reform deposed on affidavit that file reference numbers were assigned to each of the children named in the ASY 1 form signed by the mother in accordance with the “policy of treating the application for asylum of accompanied minors as being an application on behalf of the First Named Applicant and each of the accompanied minors.” Thus the appellants were assigned file reference numbers with the suffixes (c), (d), (e), (f) and (g) respectively, following the (b) assigned to their mother. He continued:

“I say and believe that this was a proper course for the [the Minister] to take, taking into account the diminished capacity of the [appellants] herein. I further say and believe that no objection was taken by the First Named Applicant or by any of the Applicants herein to this course of action, and that none of the Applicants has suffered any prejudice or detriment as a result of this course being taken.”

“There is no special provision in the 1951 Convention regarding the refugee status of persons under age. The same definition of a refugee applies to all individuals, regardless of their age. When it is necessary to determine the refugee status of a minor, problems arise due to the difficulty of applying the criteria of “well-founded fear” in his case. If a minor is accompanied by one (or both) of his parents, or another family member on whom he is dependent, who requests refugee status, the minor’s own refugee status will be determined according to the principle of family unity”. (emphasis added).

14. Mr O’Connell exhibited the questionnaire under the heading, “Application for Refugee Status”, which was completed by the First Named Applicant on 13th May 1998. That document bore only the file reference number of first named applicant. She was described as the “Applicant.” The Minister makes the point that there is no reference whatsoever to any specific fears that any of the appellants might have. No questionnaire was completed either by or on behalf of any of the children. The children were, of course, of tender years. But there is no evidence of any administrative act, other then the purely internal one of assigning separate file reference numbers, showing that the Minister was treating the appellants as having applied for asylum.

15. The next relevant step was the sending, on 11th March 1999, of a letter to the first named applicant, calling her for interview. The letter refers throughout to a single application. The file reference, both on the letter and on a detachable slip designed to confirm attendance, was that of the first named applicant alone. The letter includes the following: “Unfortunately there are no facilities for children in the Department so arrangements should be made to have them looked after while you attend for interview.”

16. Similarly, the report on the interview of the first named applicant, held on 30th March 1999, refers throughout to her alone as the applicant for asylum and uses only her file reference number. The first named applicant was required, as part of that report, to sign an acknowledgement of a number of matters, running to some eighteen lines of text, concerning her application. No part of this text contained any reference to the application being made on behalf of her children or to the principle of family unity. It is true that, in answer to a question concerning her grounds for claiming asylum, she answered: “Political grounds because they would kill me and the five children.” This, of course, referred to her claimed fear of persecution in Nigeria. She has deposed that she was not asked any questions concerning her children or their welfare, or whether they had any grounds of persecution peculiar to themselves. There is an addendum, upon which the Minister relies: when asked if she wished to add anything, she said: “It’s up to you to keep us as we can’t go home”.

17. On 22nd September 1999, Pacelli Clancy of the Asylum Division made a written assessment of the application of the first named applicant for asylum. That document also refers only to her and uses only her file reference number. It states as a fact that she has five children and refers to the alleged threat to “kill her and her children.” It contains no mention of any application, deemed or otherwise, on behalf of the children.

18. The first named applicant appealed against the recommendation that she not be accorded refugees status. All documents connected with the processing or conduct of the appeal were in her name alone and under her file reference number. The recommendation of the Refugee Appeals Authority was dated 25th July 2000. That detailed assessment of the merits of the asylum claim contains no inkling that appeals on behalf of the appellants were under consideration. The children are twice mentioned in passing: that an agent had arranged a passport for the first named applicant and her five children; that she had presented three birth certificates. Under “Decision,” the substantive merits of the asylum application are assessed. There is no mention of the children.

19. By letter dated 23rd August 2000, the Minister gave notice to the first named applicant of the adverse recommendation of the Refugee Appeals Authority and of the fact that the writer, on behalf of the Minister, had decided to uphold the original decision and to refuse her appeal. The Minister, it was stated, proposed to make a deportation in respect of her. The letter did not mention the appellants.

20. Following this, the first named applicant made submissions requesting leave to remain. Nothing further happened and nothing was heard from the Minister until the letter of 1st July 2002, when the Minister, for the first time, mentioned the appellants. On that date, a letter from the Immigration Division and addressed to all six applicants (the mother and five children) gave notice that the Minister proposed to make deportation orders in respect of all six members of the family. It claimed that the reason was that: “you, all six named persons, failed in your asylum application.” By a letter of 9th August, similarly addressed, the Minister gave further notice of deportation proposals and procedures.

21. On 8th August 2002, the Minister made the separate Deportation Orders in respect of the appellants which are the subject of these proceedings.

22. The Minister points to the fact that no complaint was made by or on behalf of the appellants that they were not persons in respect of whom refusal orders had been made.

23. On the basis of all that evidence, the appellants submit that there was no investigation into the capacity of the children to apply separately or to be heard and that no efforts were made to interview the children. On the contrary, the invitation to A.N. to attend at interview was accompanied by a statement that the children were not to accompany her.

Issues in the Case
24. The single ground upon which Finlay Geoghegan J granted leave sets the boundaries to the issues on the appeal. We are concerned only to discern whether the appellants were persons whose applications for asylum had been refused by the Minister (“a refusal order”) on the date when he made the deportation orders.

25. The order granting leave limits the scope of this appeal. It does not extend to any question whether, assuming a refusal order to have been made, it was invalid by reason of failure to respect the rules of natural justice (audi alteram partem in particular). The question whether the Minister afforded to the appellants any opportunity for a hearing arises only as evidence of whether there was, in reality, in the view of the Minister, any application for asylum on behalf of the appellants. It is common case that the Minister took no steps to permit a hearing to any of the appellants. They were children of tender years, of “diminished capacity,” in the view of Mr O’Connell. Nonetheless, it is clear that the Minister gave no consideration at all to their status as applicants for asylum. He considered only the application of the first named applicant.

26. The appellants have made submissions on a wide range of issues which it is not necessary to determine. In particular, they submit that, by virtue of the language of the relevant sections of the Refugee Act, 1996, only a single individual may make an asylum application. I am unconvinced. For reasons mentioned later, I believe a single application could, in principle, be made on behalf of a number of persons, particularly where they are members of one family. It is not necessary to decide that issue finally, in view of the conclusion I have reached on the main issue in the case.

27. Nor do I believe that the extensive submissions made in respect of the constitutional rights of the family have any real bearing on the issue to be decided. It is not in question that, as individuals, they have rights to be heard with regard to any steps the State proposes to take in respect of them. The Minister simply claims that they were applicants for asylum.

28. Peart J accepted the case made on behalf of the Minister essentially on the basis that the first named applicant represented the appellants throughout the asylum process. The Minister relies particularly on the findings of Peart J that the First Named Applicant was lacking in credibility, but goes on to introduce the notion of family unity, as being, as indeed the Minister has at all times claimed , his guiding principle.

29. The decisive issue on this appeal remains, in my view, that which was defined by Finlay Geoghegan J in her order granting leave. It is whether the appellants were, in law, persons “whose application for asylum has been refused by the Minister,” for the purposes of section 3(2)(f) of the Immigration Act, 1999.

Conclusion
30. The statutory question relates to the refusal of an asylum application. It does not ask whether an asylum application has been made by or on behalf of the appellants. Obviously, a refusal of an application for asylum implies that an application has been made. To that extent, the questions are related. Nonetheless, the existence of a refusal of an asylum application was a fundamental prerequisite to the exercise by the Minister of his power. I do not understand this proposition to have been contested by the Minister.

31. There is no record of any decision refusing an asylum application on behalf of any of the appellants. The decision to refuse is made by the Minister. The only conceivably relevant decision made by the Minister is that dated 23rd August 2000. It is addressed only to the First Named Applicant. It is not addressed to the appellants. That decision could not be treated as being a decision to refuse an application by the appellants without doing violence to its clear terms. In my view, it is incapable of being read as a decision relating to the appellants.

32. On that basis alone, the claim of the appellants is unanswerable. To the extent that it may be thought necessary to consider whether there was ever an application for asylum, and I consider that it is not, by or on behalf of the appellants, I think it is clear that there was no such application. The Minister could have implemented the policy described by Mr O’Connell. He could, for example, have written to the first named applicant and/or to her children stating that several applications were deemed to exist. Whatever might have been done in this respect, nothing at all was in fact done.

33. The essence of the Minister’s defence is that he applied a policy of family unity in accordance with paragraph 213 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status. The key sentence states:

“If a minor is accompanied by one (or both) of his parents, or another family member on whom he is dependent, who requests refugee status, the minor’s own refugee status will be determined according to the principle of family unity”.

35. There is no question but that asylum seekers arrive in the State as family groups. There is equally no question but that the principle of family unity is central to asylum and immigration practices and policies. The most obvious consequence is that, where an asylum seeker is accompanied by his or her children of tender years and such a person is accorded refugee status, it quite obviously enures to the benefit of the children. Paragraph 184 of the same Handbook states: “If the head of the family meets the criteria his dependants are normally granted refugee status according to the principle of family unity.” It would be simply inhuman to permit a person to remain in the State and to expel or deport his children. Clearly, that is the principle underlying the Minister’s policy. As described, it is a proper and reasonable policy.

36. The Minister’s difficulty is that he has assumed that the converse is true. He extrapolates from the principle that a favourable asylum decision benefits other family members the further untenable proposition that a decision which is unfavourable to one is unfavourable to all.

37. Paragraph 185 of the Handbook states that

“the principle of family unity operates in favour of dependents and not against them.”

39. The ultimate question is whether the decision refusing asylum, which confers jurisdiction, which was exercised by the Minister, was made in the case of any of the appellants. Clearly it was not.

40. It follows that the claimed basis for the exercise of the power to make the deportations orders did not exist and that those orders are invalid.

41. I would emphasise that this decision involves no other or wider proposition regarding the immigration status of the appellants.

42. I would allow the appeals in these cases, set aside the judgment of the High Court and make an order of certiorari quashing each of the deportation orders.

“The deportation orders of the 2nd August 2002 relating to the second to sixth named applicants are invalid in that the second to sixth named applicants were not on the date persons whose applications for asylum had been refused by the first named respondent within the meaning of section 3(2)(f) of the Immigration Act 1999.”

The grounding affidavit was sworn by the minor’s solicitor and largely consists of the chronology set out above. However in paragraph 14 thereof he identified a separate well-founded fear of persecution particular to the minors and separate and distinct from that expressed by the next friend on the application and at interview. He did this in the following terms:-

“I am instructed that all the applicants herein fear that because of their race, ethnicity or membership of a social group, they will be subjected to female genital mutilation if returned to Nigeria and that their health and life will be severely impaired and threatened if so returned. I believe that such a procedure would be extremely harrowing and dangerous.”

He further deposes that the minors did not apply for asylum nor were they afforded the opportunity of an independent application or separate advocacy of their concerns. They were not interviewed. They did not get an opportunity to outline their concerns.

Charles O’Connell swore an affidavit on behalf of the first-named respondent in response to the grounding affidavit. He deposes that the next friend listed the names and dates of birth of each of her children in her application for refugee status. Five reference numbers were assigned of which reference number 69/1346/98(b) related to the next friend and 69/1346/98 (c), (d) (e) and (f) and (g) to the minors. The policy of treating the application for asylum of the next friend as being an application on her own behalf and on behalf of each of the minors who accompanied her was applied taking into account the diminished capacity of the minors. The policy has its origin in paragraph 213 of the E.C.H.R. Handbook on Procedures and Criteria for Determining Refugee Status. The reason given by the next friend for seeking asylum was a threat to herself and her children. The first named respondent believes that the next friend acquiesced in the procedures adopted and at no time did she object to the same.

The next friend swore an affidavit in reply to that of Mr O’Connell.

In her affidavit the next friend deposes that on the 11th May 1998 on applying for asylum she was given a Form ASY/1 for completion which she duly completed: she exhibits a copy of the same. The form states that it must be completed “by all persons seeking refugee status”: in fact only one form was completed and that relates to the next friend. It gives the name of the person making application as A N and contains her personal information – date of birth, place of birth, sex, marital status, religion, nationality and so forth. It required her to list her children and give their sex, date of birth, place of birth and where they then were. A great deal of further information was required of the next friend including details of her parents, her brothers and sisters, her education, her employment record and countries in which she had lived. Other than to set out in relation to the minors their name, sex, date and place of birth and where they now are no further information was sought in relation to the minors. She was required to set out why she was seeking asylum and this she did in the following terms:-

“I seek asylum because my brother in the Army and he get problem with Army and they looking for him and he run away and they say they will arrest his family, all the people, and kill them if brother don’t come out. Then they phone me to tell me that Army is coming to my house from the village because they go our village to look for brother but was not there. Then I ran to the agent that bring me. Then took me and children to Cotonu, France and Ireland. Then I tell him to take money from uncle in village. Uncle knows him.”

“Unfortunately there are no facilities for children in the Department so arrangements should be made to have them looked after while you attend for interview.”

“Because of the problem that my brother had. He is in the Army and they planned a coup 1997 in December and it failed and the Government is looking for him. Army officers who did not give me their names called at my house looking for him. I told them that he was not there. They left a message to tell him report at the camp within 24 hours and that if he did not do this his family would be in a problem. This was around the 27.04.98 and they left. They went to the village to threaten my parents so my uncle phoned me and they (military) left another message that if they don’t find him (brother) they would kill the family. So now my uncle told me that they said that they were coming back to the house and that if don’t find him they were going to arrest me and it is going to be very bad. Could even take my life. So I now ask my uncle what to do. He said that I would have to run away like my brother’s wife ran to America. I moved with the children to live with relatives at 13 Shogunle Street, Lagos. I called my uncle again and he told me to leave the country, that it is not safe. He told me to wait and give him time to contact an agent that he knows. On 3 or 4-05-98 I rang my uncle and he told me that he contacted an agent and that he would take me and children out of Nigeria. Then he gave me the agent’s address to meet the agent the following day. I went and met the agent and he talked and he told me that he was taking us to Ireland in a ship. He said that my uncle was paying the cost. I don’t know how much. The agent called to the place that I was staying on 8-5-98 and he took us in a bus from Lagos to Cotonu. I think it is in the Benin Republic. We spent some time there as we travelled on bus for 8-12 hours. Then we got a ship to France and I don’s know where we arrived in France. Then we went to Ireland arriving on the 10-5-98. Change please to 11-5-98. The agent was with us on the bus and in the ship. I don’t know what port in Dublin we came into. The agent’s name was Martin Bolojoko.”

“Because I lived with my brother and he was missing and his family said that I was the next person and that they (Army) would arrest me and put me in jail until my brother came out of hiding.”

“Q. Do you wish to add anything to what you have said?
A That it is up to you to keep us as we can’t go back.”

“She is applying for asylum because her brother who was a member of the military was allegedly involved in the December 1997 reported coup plot. Around 27-04-98 Army officers called to her house looking for her brother. She claims they threatened to kill her and her children if she did not find her brother.”