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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> S.L & ors -v- Minister for Justice & Equality & ors [2014] IEHC 16 (17 January 2014) URL: http://www.bailii.org/ie/cases/IEHC/2014/H16.html Cite as: [2014] IEHC 16 |
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Judgment Title: S.L & ors -v- Minister for Justice & Equality & ors Neutral Citation: [2014] IEHC 16 High Court Record Number: 2012 852 JR Date of Delivery: 17/01/2014 Court: High Court Composition of Court: Judgment by: McDermott J. Status of Judgment: Approved |
Neutral Citation: [2014] IEHC 16 THE HIGH COURT JUDICIAL REVIEW [2012 No. 852 J.R.] IN THE MATTER OF THE IMMIGRATION ACT 1999, AND IN THE MATTER OF THE CONSTITUTION, AND IN THE MATTER OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003, SECTION 3(1) BETWEEN S.L, A.L., P.L, R.L., O.L, O.L.L. (A MINOR SUING BY HER FATHER AND NEXT FRIEND A.L.), D.L. (A MINOR SUING BY HER FATHER AND NEXT FRIEND A.L.), A.D.L. (A MINOR SUING BY HIS FATHER AND NEXT FRIEND A.L.) APPLICANTS AND
THE MINISTER FOR JUSTICE AND EQUALITY, ATTORNEY GENERAL AND IRELAND RESPONDENTS JUDGMENT of Mr. Justice McDermott delivered on the 17th day of January, 2014 1. The first named applicant is a Nigerian national born on 15th November, 1985. His natural mother was killed in a motor accident on 4th May, 2001, in Nigeria. He and his sister, R.L., who was born on 10th March, 1987, resided and were raised by an uncle. The applicant’s natural father, the second named applicant, A.L., does not appear to have had any contact or engagement with him during the course of his childhood. His father married the third named applicant, P.L., with whom he had four children who are the fifth to eighth named applicants. R.L., the first applicant’s sister, is the fourth named applicant. 2. The fifth and sixth named applicants were born in Nigeria on 19th July, 1994 and 29th October, 1997, respectively and arrived in Ireland in 1998 with their parents. The seventh and eighth named applicants were born in Ireland on 1st December, 1998, and 1st December, 2001 respectively. Though the court is informed that some form of application for family reunification was made in February, 2002 to reunite the two children with their father by the second and third named applicants on the basis that they were not being properly cared for, no further details are available in respect of this application or in respect of the contact between the children and their father and extended family. 3. The fourth named applicant, the first named applicant’s sister, arrived in the state and was granted refugee status in January, 2007. 4. The first named applicant arrived in Ireland on a two month visitor’s visa on 12th October, 2008. He was entitled to remain lawfully within the state until 10th December, 2008. He applied for an extension of his visa on 15th August, 2008, which was refused on 22nd December, 2008. He was informed that he could apply for a further visa at a later stage. He then chose to remain in the state because he wished to be with his family. At that time he was 23 years old. At that stage all of the other members of the family were lawfully resident in the state and in time each would obtain citizenship. 5. Unsurprisingly, the first named respondent informed the first named applicant that it was proposed to consider his deportation on 26th January, 2009. Representations were made on his behalf pursuant to s. 3 of the Immigration Act 1999, for leave to remain. On 8th June, 2010, the applicant was notified that a deportation order had been made in his case on 3rd June, 2010. The letter contained a copy of the deportation order and the examination of file note prepared for and submitted to the Minister in the course of that process. The deportation order has not been the subject of a challenge by way of judicial review. 6. On 23rd June, 2010, some fifteen days after notification of the order, the first named applicant sought its revocation. It is instructive to outline the contents of the examination of file before examining the s. 3(11) application. The examination considered each of the matters which are required to be taken into account under s. 3(6) of the Immigration Act 1999. It was noted that though he had entered the state on foot of a travel visa ostensibly to visit his father and extended family members who were lawfully resident in the state, he now sought leave to remain on the basis that he wished to be with his family members who were now domiciled here. He was illegally in the state. No detail of past employment in Nigeria was produced by his solicitors, though he had a national diploma in Business Studies together with a letter from the Lagos State Polytechnic. No explanation was furnished by the applicant as to why he failed to comply with the conditions of his entry visa. It was also noted that on 15th December, 2008, a request had been made for a stamp for residency which appears to have been refused. A request to be allowed leave to remain temporarily in the state on the basis of “exceptional circumstances” was submitted by his solicitors. At that time the first named applicant’s father and step-mother had temporary permission to remain in the state and both had applied for “naturalisation”. Clearly no issue arose in respect of s. 5 of the Refugee Act 1996, and s. 4 of the Criminal Justice (UN Convention against Torture) Act 2000. 7. It was accepted that the deportation of the first named applicant would engage his rights with respect for private and family life under Article 8(1) of the European Convention on Human Rights. It was stated that full consideration had been given to the relationship between the first named applicant and the other applicants, and it was not accepted that the decision to deport him constituted an interference with his right to respect for family life under Article 8. In particular, the examination of file relied upon the case law of the European Court of Human Rights to the effect that relationships between adult relatives do not necessarily attract the protection of Article 8 without further elements of dependency involving more than the normal emotional ties. Of course, family life existed between father and son and the first named applicant and the other members of the family. However, it was not accepted that an extensive relationship between the family members had been established by the first named applicant because he had only lived in the state since late 2008. He had lived all his life in Nigeria. It is clear that other relevant factors, including the identification of the first named applicant’s relations, the nature and extent of their relationships, the age of the applicant, where and with whom he has resided in the past, and the forms of contact he has maintained with members of the family with whom he claims to have a family life were all considered. It was not accepted that the first named applicant’s circumstances suggested anything more than the existence of “normal emotional ties”. 8. It is clear that the Minister was furnished with all of the information relating to the family circumstances of the applicant before reaching his decision. There is ample provision under s. 18 of the Refugee Act 1996 (as amended), to enable applications for family reunification to be made within the terms of the Act. It was at all times open to the second named applicant in particular to seek family reunification with his two children in Nigeria at any stage. Though there is some suggestion that an attempt was made in February, 2002, the court has not been furnished with any details as to whether this application was pressed or whether a review of any refusal was sought. Furthermore, it was open to the first named applicant, an adult, to comply with the lawful terms of the visa upon which he entered the state and return to Nigeria from which a further application for permission to visit could have been lawfully made. Instead, the first named applicant decided that he wished to remain in Ireland permanently and has decided also that the best way of doing that was to breach the conditions of his visa and remain in Ireland illegally. 9. On 14th June, 2010, the second named applicant wrote on behalf of his son to the Department of Justice, Equality and Law Reform seeking to “appeal” the decision. This was followed on 23rd June, 2010, with a formal application under s. 3(11) of the Immigration Act for the revocation of the order. This application, once again, set out the family and domestic circumstances and the background to the first named applicant’s arrival in the state. Submissions were made concerning the further integration of the applicant into Irish society during the course of his stay and s. 5 of the Refugee Act 1996, based on country of origin information said to indicate a low level of human rights protection in Nigeria. The court notes that there is nothing new advanced of any relevance to the particular circumstances of the applicant in these submissions. The applicant was legally advised when making the application under s. 3(11) and the application under s. 3 for leave to remain. It is unsurprising, having regard to the short period between the s. 3(11) application and the making of the deportation order, that nothing new was advanced of any substance. However, further materials were submitted, including letters from the applicant’s siblings and testimonials, over the subsequent two year period. During that time the other applicants became Irish citizens and at the time of the preparation of the consideration under s. 3(11) this factor and other documents and submissions made were considered in detail. 10. In a letter of 23rd August, 2012, Trayers & Co. Solicitors emphasised that each of the other applicants had now become an Irish citizen, but no particular submission was made as to how the first named applicant’s deportation might infringe any asserted right under Article 41 of the Constitution. The submissions concentrated on the case law of the European Court of Human Rights which had already been considered in the examination of file prior to the deportation order. No complaint was made of any alleged inadequacy in the consideration of Article 41 rights and in respect of any failure to mention Article 41 specifically in the examination of file. The Challenge
2. The affirmation decision is a disproportionate interference with the applicants’ rights under Article 41 of the Constitution. 3. There was an inadequate consideration given to a proportionate balancing of the interests of the state in maintaining the integrity of the immigration laws as against the entitlement of the remaining applicants, all citizens, to invoke the protection of their family interests under Article 41 of the Constitution. 4. The affirmation decision is a disproportionate interference with the applicants’ rights under Article 8 and 14 of the European Convention on Human Rights. 5. The affirmation decision is a disproportionate interference with the applicants’ rights under Article 7 of the Charter of Fundamental Rights of the European Union. 6. The respondent failed when affirming deportation order in respect of the first named applicant to express in clear and unambiguous language that he had sufficient consideration of the relevant criteria, namely the Constitution and Article 8 and Charter rights of the whole family in this jurisdiction.” 12. The relevant provisions of Article 41 relied upon by the applicants’ are:-
2° The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.” 13. The court notes that when considering to make a deportation order under s. 3(6) of the Immigration Act, the Minister was required to “have regard” to a number of matters including the age of the first named applicant, the duration of his residence in the state, the family and domestic circumstances of the first named applicant, the nature of his connection with the state, if any, his employment record, humanitarian considerations and any representations duly made by or on his behalf, and the common good. It is clear that at all stages of this process the nature and extent of the first named applicant’s relationship with the other applicants was considered in great detail in the examination of file and in the consideration prior to the affirmation of the deportation order. I am not satisfied that simply because there is no reference to Article 41 of the Constitution in the consideration, that the decision is thereby vitiated. 14. In Pok Sun Shum v. The Minister for Justice, Equality and Law Reform [1986] ILRM 593, Costello J. held that the state was not precluded from deporting a foreign national simply because they are married to or related to an Irish citizen. He held that the decision of the Minister was not flawed simply because he and his staff “did not take down the Constitution and consider the constitutional provisions relating to the family before reaching a decision or making a recommendation”. In that case, as in this case, the Minister was well aware of the family circumstances of the applicant and it was clear from the evidence that the Minister had a full understanding and briefing in respect of the likely affect on the removal of the first named applicant from the state on the other applicants and their relationship with him as it had developed since his arrival. In P.F. v. Minister for Justice [2005] IEHC 9, a decision not to revoke a deportation order was challenged. It was submitted that the Minister was under an obligation to address the constitutional rights of the Irish husband. Ryan J. rejected the contention on the basis that as a matter of fact the issue of marriage was considered by the respondent, together with the impact of a deportation order upon the parties and their relationship. It was not necessary to have a specific recitation that the impact had been considered. (See also B.I.S. & Anor v. Minister for Justice, Equality and Law Reform [2007] IEHC 398). As Gannon J. said in Osheku v. Ireland [1986] I.R. 733:-
The right to reside in a particular place of the individual’s choice is not a fundamental or constitutional right of a citizen whether he be married or single.” 16. I am satisfied having considered all of the papers furnished in the course of the s. 3(11) application and the previous unchallenged decision made to deport the applicant and the very extensive consideration given to the family circumstances of all of the applicants, and their relationship in particular to the first named applicant, that it is unrealistic and artificial to contend that the applicant’s rights as a member of a family unit under the Constitution were not considered in this case. It is equally unrealistic to challenge the affirmation of the order as disproportionate interference with the applicant’s rights under Article 41, when the nature and extent of the relationship and its disruption of the family unit were fully considered in both decisions. The extensive letters of support written by his siblings were fully considered by the first named respondent in the s. 3(11) application. Indeed, there is nothing in this argument beyond the assertion of disproportionality offered to demonstrate why it must be viewed as disproportionate. 17. The authorities clearly indicate that the Minister has a wide discretion under s. 3(11) and that it is incumbent upon the first named applicant to advance something new to give the first named respondent a basis upon which to withdraw the order. In Smith & Smith v. the Minister for Justice and Equality & Ors [2013] IESC 4, Clarke J. stated:-
Article 8 of the European Convention on Human Rights 19. The principles relied upon and set out in the letter of 23rd August, were based upon the decisions in Bouchelkia v. France [1997] ECHR1, Boujlifa v. France [1997] ECHR 1, Maslov v. Austria [2008] ECHR 546 and Bousarra v. France [2012] EHCR1999. I am not satisfied that the A.A. case gives rise to a substantive change relevant to the first named applicant’s case. The European Court of Human Rights in that case determined the matter on the basis of private life rights under Article 8 of the Convention, though it was acknowledged by the court that the case law “would tend to suggest that the applicant, a young adult of 24 years, who resides with his mother and has not yet founded a family of his own, can be regarded as having “family life””. 20. It should be noted that a significant number of the cases cited concern the deportation of persons who had been convicted of criminal offences but who had lawfully resided within the respondent states for many years and, in most instances, since childhood. Each of these applicants, unlike this case, had been educated and worked for most of their lives within the respondent states and had little or no connection with their country of origin. 21. In B.I.S. (cited above) the applicant, a Nigerian, failed in an application for asylum. He and his two siblings were born in Ireland and resided here with their parents and challenged the deportation order made against him in August, 2006, the applicant having arrived in Ireland in April, 2006. The first named applicant’s parents had come to Ireland from Nigeria in 2001. He had one older sister who still resided in Nigeria. He and the older sister lived with his grandmother after the parents left Nigeria for Ireland. His parents visited him in Nigeria in 2003. It was claimed that the Minister in that case failed to consider the impact upon his Irish born siblings of the first named applicant’s deportation, and that there was a disproportionate breach of the applicant’s rights to private and family life under Article 8 of the Convention and the Constitution. It was also submitted that the deportation order did not strike the appropriate balance between the aim of removing the applicant from the state on the one hand and the rights of the applicants’ under Article 8 and the provisions of Article 41 of the Constitution in that the requirement that the applicant remain outside the state was not the most limited necessary restriction on the applicant’s Article 8 rights and, therefore, not proportionate and was a disproportionate restriction on his siblings constitutional rights. Similar arguments have been advanced in this case. These submissions were rejected by the court and Dunne J. concluded that it was impossible to argue that the applicant had established such a relationship with his siblings within the short period available sufficient to constitute family life within the meaning of Article 8. The applicants had not enjoyed any family life together outside the state prior to the arrival of the first named applicant. The court was also satisfied that if the relationship had been sufficient to establish family life under Article 8, deportation would be proportionate in such a case in all save a small minority of exceptional cases. 22. The period for which the first named applicant was lawfully in the state was two months. His contact with his natural father and extended family in Ireland was minimal prior to his arrival. He was not financially dependent upon his family and arrived in Ireland as a young adult who had spent all of his life in Nigeria residing with other members of his family. His sister, R.L., resided with him in Nigeria until she came to Ireland. He did not form part of a family unit comprising his father, step-mother and step-siblings prior to his arrival. At the time the deportation order was made on 3rd June, 2010, there was very little to suggest that more than “normal emotional ties” existed between them. Furthermore, it is appropriate to have regard to the lawfulness and length of stay of the first named applicant as significant factors when seeking to identify the exceptional case which might prevent the state from exercising its entitlement to impose immigration control. As in the B.I.S. case, I am satisfied that the first named applicant is, in effect, asserting a choice that he would like to reside in Ireland with his extended family. I do not consider that affirmation of the deportation order in any way interferes with his right to respect for family life under Article 8. 23. In K.A. v. Refugee Appeals Tribunal [2012] IEHC 109, Cooke J. reviewed the jurisprudence of the European Court of Human Rights on this matter and concluded as follows:-
- Who are the other members of the family in question and what is their degree of relationship to the individual concerned? - Are they immediate relatives in the direct line, such as parents, children, siblings or spouse? - In what circumstances does the family life in question come to be established within the contracting state? - Most importantly, for how long has it been established as the household situation in which the individual concerned has been living? - Has the individual’s presence in the state been lawful? - Has the presence of the individual concerned in the contracting state been brought about by some circumstance or purpose such as the making of a claim for asylum in which the family life in question is incidental or consequential? - What ties have been established in the course of that family life by way of education, employment and the other normal incidents of personal existence lived in a settled location? 16. The wide variety of these and other possible permutations can be seen readily illustrated in the judgments opened to the court, and those referred to above and to be found elsewhere in the case law. As has been seen, in many the subject of the proposed expulsion was a member of a family of settled migrants lawfully present in the state. In many instances the individuals concerned had arrived in the contracting state at a very young age with the family involved and had there grown up, been educated and pursued employment before, for example, facing expulsion as a result of committing a crime.” 25. I am satisfied that the applicants’ have failed to establish that the decision to affirm the deportation order was fundamentally flawed on any of the grounds advanced. The application is dismissed.
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