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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Caldaras & Anor v. Minister for Justice Equality and Law Reform [2003] IEHC 89 (9 December 2003) URL: http://www.bailii.org/ie/cases/IEHC/2003/89.html Cite as: [2003] IEHC 89 |
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Caldaras & Anor v. Minister for Justice Equality and Law Reform [2003] IEHC 89 (9 December 2003)
[2003 No. 74 J.R.]
BETWEEN
APPLICANTS
RESPONDENT
JUDGMENT of O'Sullivan J. delivered the 9th day of December, 2003
Introduction
The applicants, Romanian citizens, are husband and wife who came to Ireland on the 22nd January, 2000, with their son Daniel Caldaras and daughter-in-law Euginia Gruia. The applicants applied for refugee status in this State and were refused by letter of the 19th June, 2000. They were informed that they had a right to appeal but did not do so. Subsequently their current solicitors wrote to the repatriation unit of the respondent's department and following this on the 16th August, 2001, a "15 day letter" was sent to the second named applicant (an earlier one having been sent to the first named applicant) stating that it was the respondent's intention to make a deportation order and indicating, inter alia, that the recipient had fifteen days to indicate why she should not be deported.
As a result the applicants' present solicitors made representations on behalf of both applicants, following which and notwithstanding these, deportation orders were made in respect of the applicants and notified by letter of the 24th January, 2003. It is these orders which are challenged in the present proceedings and at the hearing before me counsel for the applicants confined the challenge to the proposition that in
determining whether or not to make the challenged orders the Minister failed to have regard to "the family… circumstances" of each of the applicants as he is bound to do by s. 3(6)(c) of the Immigration Act, 1999. This well known section authorises the Minister to make a deportation order but only subject to an obligation to consider inter alia the family circumstances of the intended deportee. "Family" is not defined in the Act of 1999.
Background
As stated the applicants arrived in this country on the 22nd January, 2000, together with their son Daniel and daughter-in-law Euginia Gruia. On the 24th June, 2000, a grandson Daniel was born to their son and his partner. Permission to remain in this State was granted to Daniel Caldaras and his partner as the parents of an Irish citizen. Subsequently a second son Ionatan Caldaras was born to them on 4th February, 2002.
In addition to the foregoing a daughter of the applicants, Aurica Caldaras, is living in Ireland with her partner and their two daughters who are not, Irish citizens.
The submissions
The case made on behalf of the applicants is that they together with their son, his partner and their two Irish born grandsons form part of a close knit family unit comprising those three generations. Their two Irish born grandsons and their parents now have a right to live in the State and this close knit unit will be sundered if the Minister's deportation order is put into effect.
In particular it is submitted that:
(a) There was no analysis of the proposition that the applicants are part of a close knit family unit as there should have been in the considerations taken into account by the Minister prior to making the challenged orders; and
(b) Whilst it is acknowledged that in a similar case not distinguishable on its facts from the present one Olenczuk v. Minister for Justice Equality and Law Reform (Unreported, High Court, 25th January, 2002), Smyth J. decided that the family in s. 3 of the Act of 1999 comprised father and mother with or without children, that is the family as recognised by the Supreme Court under Article 41 of the Constitution, and that under the doctrine of stare decisis this decision would be followed by a judge of coordinate jurisdiction in the absence of good reason to the contrary, it was submitted that there is in fact good reason to the contrary because since Olenczuk was decided, the Supreme Court delivered several judgments in the associated cases of Lobe v. Minister for Justice Equality and Law Reform and Osayande v. Minister for Justice Equality and Law Reform (Unreported, Supreme Court, 23rd January, 2003) (hereinafter "the O & L litigation") the effect of which was that whilst there was no absolute right enjoyed by an Irish citizen who was a child not to be deported from the State, this could only be done for grave and substantial reasons (per Hardiman J.) or for a reason that was proportionate to these important rights (per Murray J.). It was submitted that the same principle of proportionality should now, following O & L, apply to the Minister's considerations under s. 3 of
the 1999 Act in the context of deciding whether to make a deportation order in respect of grandparents of an Irish citizen.
The Minister's consideration
The cases of both applicants were considered for all practical purposes together and accordingly may be treated together in this judgment.
In the course of a lengthy submission in the context of the "humanitarian grounds" application, the applicants' solicitors by letter of the 5th August, 2001, stated at paragraph 6 as follows:
"In addition to the many friends the Caldaras have made, they are a very close family unit. They are residing with their son and his wife and eighteen month old child. Their daughter-in-law is expecting her second child. Mr. and Mrs. Caldaras hope to play a vital role in their grandchildren's upbringing."
Attached to that letter were many letters supporting the application and acknowledging their status as welcome and respected members of the community and indeed of the importance of the second applicant's role as grandmother in the family unit.
An examination of the file under s. 3 of the Immigration Act, 1999 was prepared for the Minister by a Clerical Officer in the repatriation unit of his department and this included the following:
"Section 3(6)(c) – Family and Domestic circumstances of the person. Mr. and Mrs. Caldaras are married. They have three sons and two daughters. One of their sons Daniel and his partner Euginia Gruia accompanied them to Ireland. They both withdrew from their Asylum application and were granted residency in Ireland in December, 2001 on the basis of their parentage of an
Irish born child. One of Mr. and Mrs. Caldaras' daughters, Aurica Caldaras, reference 69/3190/97 is residing in Ireland with her partner and their two daughters. They are currently awaiting a decision on their case. Mrs. Caldaras' parents are deceased and she has one sister who resides in Romania. Mr. Caldaras has two brothers residing in Romania, his mother is also residing in Romania but the department is uncertain if his father is still alive."
A second report was prepared by an Executive Officer in the same unit and concluded by recommending that the applicants be repatriated to Romania.
These reports were considered by a further Officer who having considered them recommended that the Minister make the challenged deportation orders.
The submissions
It was submitted initially that the Minister had not considered at all the family and domestic circumstances of the person. It would appear, however, that having regard to the statement by the third Officer that both reports had been considered that this proposition cannot stand at least in its unqualified form.
A second criticism was made of the paragraph already cited above that this was merely a recital of facts but not an assessment or an analysis of those facts and in particular that there was no assessment or analysis of the case made on behalf of the applicants that they formed part of a family unit two members of which were indeed Irish citizens.
Of relevance, in my view, to this criticism is the fact that the applicant's solicitor's submission to the effect that the applicants formed such a family unit was also material on file which was before the Minister and considered by the Officers making the recommendation. I consider that this point can be comprehensively
determined by me only after consideration of the next point made by counsel for the applicants, namely that after the Supreme Court judgments in O & L the concept of "family" must now be extended to include grandparents, and in particular that the principle that the rights (albeit not absolute rights) of the family not to be deported can only be infringed by the Minister for grave and substantial reasons or reasons which are proportionate, applies in this case.
In order to assess the foregoing submission I reread all the judgments in the O & L litigation. In the first place I would observe that the O & L cases were concerned with nuclear families in the sense that the families concerned comprised children and parents only. The word "grandparent" does not appear in any of the seven judgments delivered in that case nor indeed is there any indication in those judgments that the Court was concerned with the rights of the family other than in the sense of family comprising parents and children.
Having reread the judgments in the O & L cases I cannot see in them any warrant for extending the concept of "family" as considered in those judgments to include grandparents within the concept of "family" as guaranteed by Article 41 of the Constitution or indeed otherwise.
In particular it does not seem to me that the test of proportionality or the requirement that the Minister can only deport an Irish citizen member of a family (that is a member of the nuclear family) are principles which apply to the respondent's duties when considering family and domestic circumstances as identified in s. 3(6)(c) of the 1999 Act - or at any rate are principles which apply to those duties because of what was decided in the O & L litigation.
I cannot therefore agree with the proposition that there is good and sufficient reason why I should not follow the decision of Smyth J. in Olenczuk v. Minister for
Justice Equality and Law Reform (Unreported, High Court, Smyth J., 25th January, 2002) because I do not think that as a result of the O & L decision in the Supreme Court the meaning of the word "family" in s. 3(6)(c) of the Act of 1999 has been widened to include grandparents.
It was submitted that apart from a recital of the relevant facts the Minister should subject those facts and circumstances to analysis and that the portion of the report which I have cited above is not such an analysis. On the other hand, before the Minister was the submission on behalf of the applicants from their solicitor to the effect that the applicants comprise a tight knit family unit and I must proceed on the basis that due weight was given to this submission as to all other material on the file which was considered. I am unable to agree that any further analysis or process of sifting and weighing was required of the Minister under the terms of s. 3(6)(c) which requires the Minister to have regard to a number of matters including the family and domestic circumstances of the intended deportee. There is nothing in the material before this Court to suggest that the Minister failed to have such regard.
It was further submitted that the word "family" has been held to include grandparents in the jurisprudence of the European Court of Human Rights and specific reference was made to Marckx v. Belgium [1980] 2 EHRR 330. The Convention on Human Rights is not part of the domestic law of this country and until it is I do not think that this jurisprudence comprises a good and substantial reason for departing from the decision of Smyth J. in Olenczuk v. Minister for Justice Equality and Law Reform (Unreported, High Court, Smyth J., 25th January, 2003).
I would conclude by observing that in the absence of a definition of what is comprised under the word "family" in the 1999 Act it may well be that this word would comprise parents and children of a marriage which is not acknowledged as
comprising the institution of marriage contemplated by Article 41 of the Constitution for want of regularisation recognised by the laws of this country. That does not mean, however, that there is anything - apart from the indications in the jurisprudence of the European Court of Human Rights - to suggest that the extent of the word is enlarged to include grandparents as distinct from parents and children. I would make it clear that I am expressing no view one way or the other as to whether this aspect might change when the Convention on Human Rights becomes part of the domestic law of this country. In the circumstances I do not consider the applicant has established substantial grounds for contending that there was a failure on the part of the Minister to consider family and domestic circumstances of the applicants and would refuse to grant the leave sought.