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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> K.I. (a minor) & ors -v- Minister for Justice and Equality & ors [2014] IEHC 83 (21 February 2014) URL: http://www.bailii.org/ie/cases/IEHC/2014/H83.html Cite as: [2014] IEHC 83 |
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Judgment Title: K.I. (a minor) & ors -v- Minister for Justice and Equality & ors Neutral Citation: [2014] IEHC 83 High Court Record Number: 2012 459 JR Date of Delivery: 21/02/2014 Court: High Court Composition of Court: Judgment by: McDermott J. Status of Judgment: Approved |
Neutral Citation: [2014] IEHC 83 THE HIGH COURT JUDICIAL REVIEW [2012 No. 459 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 K.I. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND M. I.) A.A.O. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND M.I.) A.O. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND M.I.), M.I. AND R.O. APPLICANTS AND
THE MINISTER FOR JUSTICE AND EQUALITY, ATTORNEY GENERAL AND IRELAND RESPONDENTS AND
THE HUMAN RIGHTS COMMISSION NOTICE PARTY JUDGMENT of Mr. Justice McDermott delivered on the 21st day of February, 2014 1. The fifth named applicant (R.O.) is a Nigerian national and a failed asylum seeker. The fourth named applicant (M.I.) is R.O.’s partner. She is the mother of the first named applicant (K.I.), a minor, who is an Irish citizen born on 1st October, 2002. R.O. is not the natural father of K.I., but R.O. and M.I. are the parents of the second named applicant (A.A.O.) and the third named applicant (A.O.), who are not Irish citizens but were born in Ireland on 2nd April, 2009 and 16th April, 2011, respectively. 2. R.O., according to his initial claim for asylum, arrived in the state on 15th April, 2009, having departed Nigeria on 13th April. He claimed to have worked as a cameraman in Nigeria between October, 2006 and September, 2008 and to have fled Nigeria following the making of a documentary which implicated a number of senior politicians in corruption as a result of which the producer of the programme was murdered and he was wounded. He was subsequently beaten. He feared for his life because of his involvement in the making of the documentary and the resulting prosecution of a number of politicians. Following a series of threats the applicant claimed that he moved to the city of Ibadan in Oyo State, but returned to Lagos on 14th February, 2009, believing it was safe to do so. He claimed that on 2nd April armed men called to his house and threatened to kill him. He was spared but his house and car were burnt. He was then advised by another politician to leave the country, which he did. His application for asylum was rejected on credibility grounds in June, 2009 and the recommendation of the Refugee Applications Commissioner was affirmed by the Refugee Appeals Tribunal in a decision made on 29th August, 2009, following an oral hearing on 4th August. A deportation order was made in respect of R.O. on 27th July, 2010. 3. In grounding affidavits to these proceedings R.O. claimed that he left Nigeria in February, 2008 and he and M.I. deposed that they formed a relationship at that time shortly after R.O. arrived in Ireland. R.O. complained that he never received notification of the decision of the Refugee Appeals Tribunal and the Minister concerning the refusal of asylum, or notification of the deportation order. 4. By letter dated 20th May, 2011, R.O.’s solicitors wrote to the INIS (Irish Naturalisation and Immigration Service) claiming that he was the father of three Irish citizen children, namely, K.I., A.A.O. and A.O.. This was incorrect. Original birth certificates were furnished in respect of A.A.O. and A.O. and an Irish passport in respect of K.I.. A letter from a national school confirmed K.I. was enrolled and attending the school since March, 2008 and that R.O. delivered and collected him every day. A claim was made that as a result of the decision by the European Court of Justice in Case C-34/09 Ruiz Zambrano v. Office National de l’Emploi [2011] ECR 1-1449, delivered after the making of the deportation order, Ireland was precluded from refusing R.O., a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in Ireland which was also their place of residence and nationality, and from refusing to grant him a work permit, insofar as that decision deprives the children of the genuine enjoyment of the substance of their rights as European Union citizens. Further documentation was supplied over the subsequent months in support of this claim. 5. The first named respondent considered these representations under s. 3(11) of the Immigration Act 1999, as amended. Amongst the documents furnished was a letter from M.I. in which she stated that R.O. was a caring and loving partner whom she had known for years, and was a caring father. In addition, a letter from Our Lady’s Hospital for Sick Children, Crumlin of 7th February, 2012, stated that K.I. had been diagnosed with severe eczema and would, for the foreseeable future, require regular follow up and blood tests to monitor and treat his condition. 6. The first information received by the first named respondent concerning R.O.’s claim to be the parent of an Irish citizen child was contained in the letter of 20th May. In his asylum application he claimed only to be the father of two children living in Nigeria, born in 1998 and 2000 respectively. The Irish birth certificate submitted in respect of K.I. clearly indicated that R.O. was not his natural father. His father was A.I. to whom M.I. was married on 26th January, 2001. The other two children, A.A.O. and A.O. are not Irish citizens, though born in Ireland. The Decision 8. The examination of file contained an extensive consideration of the applicants’ right to respect for family life under Article 8 of the European Convention on Human Rights. It was accepted that R.O. had established family life in the state with M.I. and that a decision to affirm the deportation order would constitute an interference with R.O.’s right to respect for that right. It was noted that in the case of Abdulaziz & Ors v. United Kingdom [1985] 7 EHRR 471, the European Court of Human Rights acknowledged that the state enjoys a wide margin of appreciation in determining steps to be taken to ensure compliance with the Convention and that the extent of its obligations to admit to its territory relatives of settled immigrants will vary according to the particular circumstances of the case. It was emphasised that the state has a right to control entry of non-nationals onto its territory. The court held that the applicants had not shown that there were obstacles to establishing family life in their own or their husband’s home countries or that there were special reasons why that could not be expected of them. In addition, the court laid particular emphasis on the fact that their husbands had been admitted for limited periods and that they were obliged to leave after the expiration of those periods. The court found that there was no lack of respect for family life and, therefore, no breach of Article 8 when considered on its own. 9. The conclusion was reached in the examination of file that where a person establishes family ties in the state while fully aware that he has no lawful residency or entitlement to a right to reside in the state, it will only be in exceptional circumstances or for compelling reasons that the enforcement of a deportation order will be contrary to or in breach of Article 8. There were no such exceptional circumstances demonstrated in the s. 3(11) application. In addition, the unemployment rate in the economy and the relatively poor chances of R.O. obtaining employment in the state, the potential impact on the health and welfare systems of the state of granting him permission to remain and the state’s interest in maintaining control of its borders had to be balanced against other aspects of the claim. 10. It was also considered that there was nothing to suggest “that there are any insurmountable obstacles for the family being able to establish family life in Nigeria”. 11. It should be noted that in the affidavit of M.I. it is accepted that R.O. is not the biological father of K.I. and that neither A.A.O. or A.O. are Irish citizens. She states that:-
The Challenge Grounds 1 to 8 Ground 9 16. It is necessary in an application under s. 3(11) to advance specific matters additional to those considered in the deportation order and more particularly, if not advanced at the time it was made, some compelling reason as to why not. It is clear that both R.O. and M.I. were fully aware of his precarious status in the state at the time they formed their relationship. The evidence offered that he was unaware of the making of the deportation order is, in the circumstances, a feeble excuse and not accepted by the court. The history of this case is one of drip feeding of information by R.O. when it suits him as is now clear from the untrue history furnished in the course of the asylum application, and his decision to reveal to the Minister the existence of an entirely new family formed within the state during the period which he claimed in the asylum process, not to have been here. I am not satisfied that Ground 9 affords the applicants any basis upon which to seek leave. Furthermore, I consider the ground to be so unclear and imprecise in its focus and lacking in particulars that it would be inappropriate to grant leave on such terms. Ground 10 Ground 11 Grounds 12 and 13
13. In concluding that the deportation of the fifth named applicant was proportionate on the grounds that the family unit could relocate to Nigeria, the first named respondent acted in breach of Article 8 of the European Convention on Human Rights and/or Article 7 of the Charter of Fundamental Rights and Freedoms, in conjunction with Article 20 of TFEU. In this regard, having regard to the fact that the first named applicant is an Irish national, the interference with the family rights of the applicants can only be justified on the basis that the conduct of the fifth named applicant gives rise to considerations of such weight as to justify his separation and not on the basis that the family can relocate to Nigeria.” 20. The claim made in this respect concerns the European Union rights of K.I. as a European Union citizen. Article 20 of the TFEU provides that every person holding the nationality of a member state shall be a citizen of the European Union and Article 20(2) provides that:-
(a) The right to move and reside freely within the territory of the member states. These and other rights under Article 20 must be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder.”
(3) Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with his or her parents, unless that is contrary to his or her interests.
23. It was claimed, however, that the Minister was required to examine whether R.O.’s deportation violated K.I.’s right to family life under Article 7 of the Charter of Fundamental Rights. I am not satisfied that the provisions of Article 7 apply to this case. Article 51 provides that the provisions of the Charter are addressed to the institutions of the European Union and to member states “when they are implementing Union law”. The deportation of R.O. is pursuant to domestic legislation and is not in the course of the implementation of European Union law. The exercise of K.I.’s rights as a European Union citizen are not affected by R.O.’s deportation in any respect. New Facts
25. It is important to identify what relevant new fact, apart from the Zambrano decision, was being relied upon in the s. 3(11) application. The Minister is only obliged to consider genuinely new facts or facts, which for some special and compelling reason, could not have been advanced at the deportation stage. The focus of any judicial review in respect of a s. 3(11) determination must focus on how that new material was considered. In Smith & Smith v. Minister for Justice and Equality and Ors, Clarke J. in delivering the judgment of the court stated:-
5.6 … 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 obligation. The mere fact that what is said to be a new consideration was not before the Minister when an earlier decision was made does not of itself render it the 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. 5.7 There does not seem to me to be any basis, on the facts of this case for suggesting that Mr. Smith had any difficulty in asserting any family rights which he wished in the course of his various applications to the Minister. It follows that, on the facts of this case, an assessment of the Minister’s second decision not to revoke necessarily involves only a consideration of any new circumstances which arose subsequent to the previous, and unchallenged, decisions of the Minister to deport and declined to revoke the deportation order. Against that background, it is necessary to asses the arguability of the grounds asserted on behalf of the Smiths which are said to constitute such new and changed circumstances.” 27. The officials recognised that they were now dealing with a claimed new relationship between the applicants. Having read the documents submitted in support of the hopeless Zambrano application, they proceeded in fairness to the applicant to consider the application as one under s. 3(11) rather than simply dismiss it out of hand. With minimal help from the applicants they deduced the correct relationship between the parties and considered all of the documents submitted on behalf of R.O. Notwithstanding the difficulties created for the officials, a consideration of the applicants’ rights under Article 8 of the Convention was carried out. Based on the correct relationship between the applicants, it was accepted that R.O. had established family life in the state with M.I. and that the affirmation of the deportation order would constitute an interference with the right to respect for family life. It was determined that the proposed deportation was in accordance with Irish law, pursued a legitimate aim of maintaining control of state borders and operating a regulated system for processing and monitoring non-nationals within the state, and ensuring the economic wellbeing of the state. It was also considered that there was no less restrictive process available which would achieve those aims. The proportionality of that decision was considered in detail. 28. The status of K.I. as a European Union citizen was considered and that he would not be deprived of his genuine enjoyment of the substance of the rights attaching to his citizenship in that he could continue to live with his mother and siblings who enjoyed a right of residency in the state. It was noted that it was open to M.I., a Nigerian national, to follow R.O. to Nigeria if she chose to do so. In addition, it would be open to K.I.’s mother under Nigerian law to apply for Nigerian citizenship on his behalf if she chose to do so. It is stated in the consideration:-
(ii) The fact that K.I. is now attending school; (iii) The fact that K.I. suffered from eczema; and (iv) The correct legal status of each of the applicants in the state. 32. Having considered the balance of the application made on behalf of the applicants under s. 3(11), I am not satisfied that any of the factors advanced could not have been advanced at an earlier stage of the process. I am also satisfied that the reason they were not advanced prior to the making of the deportation order was the continued intention of R.O. to persist in the deception that he had arrived in the state in 2009. It has not been adequately explained to the court why or how R.O. was inspired to tell his solicitors the truth following the delivery of the Zambrano decision. In any event, the application was then made but, as already noted, on an entirely incorrect basis. It is clear, therefore, that the above factors were nonetheless treated as “new” for the purpose of the s. 3(11) application by the first named respondent. The remaining elements of the challenge concern the treatment of these factors having regard to the respective rights of the applicants under the Constitution and Article 8 of the European Convention on Human Rights. The Constitution 34. The natural mother, though not having rights under Articles 41 and 42 of the Constitution, has rights arising under Article 40.3 which a natural father does not share (see Nicolaou v. An Bord Uchtala [1966] I.R. 567, G. v. An Bord Uchtala [1980] I.R. 32). Thus, a natural father does not have a constitutional right to the custody of his non-marital child. M.I. is the primary carer of K.I. who remains in her custody in accordance with her constitutional rights as the natural mother. Furthermore, though a natural father has a statutory right to apply to be appointed as a guardian of his child under s. 6(A), he does not have a constitutional right to guardianship (see J.K. v. V.W. [1990] 2 I.R. 437, W.O’R. v. E.H. (Guardianship) [1996] 2 I.R. 248 and W.S. v. An Bord Uchtala [2010] 2 IR 530 (per O’Neill J.)). Therefore, R.O., as the natural father of A.A.O. and A.O. is not vested with the same constitutional rights or status as if the children had been born within a lawful marriage and a legal connection between him and his two natural children has not been established pursuant to section 6(A). As Finlay C.J. stated in J.K. v. V.W.:-
The extent and character of the rights which accrue arising from the relationship of a father to a child or to his mother who is not married must vary very greatly indeed, depending on the circumstances of each individual case. The range of variation would, I am satisfied, extend from the situation of the father of a child conceived as a result of a casual intercourse, where the rights might well be so minimal as practically to be non-existent, to the situation of a child born as the result of a stable and established relationship and nurturing to the commencement of his life by his father and mother in a situation bearing nearly all of the characteristics of a constitutionally protected family, when the rights would be very extensive indeed.”
36. The facts relevant to a consideration of the constitutional and legal rights of the natural father and the rights of his children in guardianship proceedings fall to be considered in entirely different circumstances, and are of a different order to the issues and circumstances in a deportation case. However, I am satisfied that the factors outlined by Hamilton C.J. are also relevant to a consideration of the welfare or best interests of R.O.’s children in this “de facto” family arising out of the proposed deportation. This does not arise from any constitutional right vested in R.O. or any legal right arising under an order made pursuant to s. 6(A). 37. The Supreme Court has recognised on numerous occasions that a child born outside marriage has the fundamental rights of every human being and the fundamental rights which spring from the child’s relationship to its natural mother. In the Nicolaou case it was determined that the mother’s natural rights include the right to the custody and care of her child. In G. v. An Bord Uchtala, Walsh J. noted at p. 67 that:-
38. It follows that when considering whether to deport a non-national parent of a family based on marriage under Article 41 or a “de facto” family in which the parents are not married but demonstrates all the other attributes of family relationships and life, similar consideration should be given when assessing the affect of the deportation on children whether their rights arise under Article 41 or Article 40.3.. The core element of any such consideration is the affect of the disruption of family life and its consequences for R.O.’s children, when they or their other parent are otherwise entitled to lawful residence in the state. Their constitutional rights to the care, support and society of their parent must be assessed against the reality that the applicants constitute a “de facto” family and that there are, on the evidence, strong bonds between R.O. and the children formed during the course of his relationship with M.I. following their births. It is incumbent upon a decision maker to take into account the extent and character of the relationships in a family which may differ from case to case. A natural father may have little or no relationship with his children or, as in this case, have developed and sustained a close relationship with his partner and children bearing nearly all of the characteristics of a constitutionally protected family. A consideration of the children’s best interests and welfare based on those established circumstances was an essential part of the balancing of rights required in making the s. 3(11) decision. It is clear, therefore, that “de facto” family life was established and, as recognised by the decision maker, a deportation would disrupt that family life. Article 8 40. The objective is to ensure that effective family life is respected, not to guarantee the right to family life in a particular country. The nature and extent of the children’s relationship with and dependence upon the parent are important. 41. When assessing the proportionality of the decision which is otherwise in accordance with law and deemed to be necessary in the interest of public safety, the economic wellbeing of the country or the prevention of disorder or crime, the decision maker must approach the matter in the terms set out by the European Court of Human Rights in Boultif v. Switzerland [2001] 33 EHRR 1179. Though that case concerned a proposed deportee who had been convicted of a criminal offence, the principles outlined in the decision are of a wider application:-
(ii) The solidity of social, cultural and family ties of the host country and with the country of destination.” Adapting the Oguekwe Guidelines
2. The right to be reared and educated with due regard to his welfare including to have his/her welfare considered in the sense of what is in his/her best interests in decisions affecting him/her. 3. Where, as in the case of the applicants herein, the applicants are married to each other, the rights to which as an individual the child derives from being a member of the family within the meaning of Article 41.” 44. I am also satisfied that “matters relevant for consideration” by the Minister in making a decision to deport as outlined by Denham J. (as she then was) in Oguekwe can be usefully adapted to the circumstances of a “de facto” family. In particular, the court is satisfied that the personal rights of the children of the non-marital relationship under Article 40.3 can only be given due weight by a consideration of the relationships between the children and the proposed deportee. The nature and history of the family unit and the potential interference with the children’s rights must be considered. The legal rights of A.A.O. and A.O. to reside in the state and their constitutional rights to the society, care and company of their parents are important aspects of the factual and legal matrix. The Convention rights of the applicants should also be considered and overlap to some extent with the constitutional rights referred to above. The constitutional and Convention rights of the applicants in this regard are not absolute and the Minister is not obliged to respect the choice of residence of a non-married couple. 45. The Minister is also entitled to take account of the state’s rights to control the entry, presence and exit of foreign nationals subject to the Constitution and international agreements. The state may consider issues of national security and public policy, and the integrity of the immigration system. There may be a substantial reason associated with the common good for the Minister to make an order to deport a foreign national who is the parent of a child having constitutional rights under Article 40.3, vis-à-vis, his natural father. The decision should not be disproportionate to the end sought to be achieved. In that regard as in Oguekwe, the Minister is entitled to take into account whether it would be reasonable to expect family members to follow the deported parent to the country of origin. 46. It is clear that the extent of the constitutional rights enjoyed by R.O.’s natural children are not the same as those of K.I., an Irish born citizen child. However, in terms of the relationships formed within a family unit and the factors relevant to those relationships as previously outlined in this judgment, a decision maker is obliged to consider the affect of separation of the natural father from his children on their rights under Article 40.3 of the Constitution and Article 8 of the Convention. Of course, by its very nature, the deportation order has the potential to cause family separation. Balancing the Rights and Proportionality 48. The Minister should consider the circumstances of each case by due inquiry in a fair and proper manner as to the relevant factors affecting the family. The respondent is not required to inquire into matters other than those that have been submitted to him by or on behalf of the applicants. The paucity of information furnished by R.O. in respect of the children and the suggested effect upon them and M.I. of disruption of family life is a feature of this case. However, it is clear that the decision maker considered the circumstances of the family insofar as they were known which included a mother who had been given residency in the state and whose eldest child, K.I., is an Irish citizen child but not related by blood link or otherwise to R.O., two other children, A.A.O. and A.O, who are the natural children of R.O. and who have personal rights under Article 40.3 of the Constitution to the care, support and society of their father. Regard was also had to the relationship between M.I. and R.O. and that K.I. was part of the extended family. The first named respondent considered the ages of the applicants, the duration of their residence in the state, the family and domestic circumstances of the applicants, R.O.’s employment prospects, K.I.’s health, and any relevant submissions made. 49. It is accepted that there is no express reference in the examination of file to the constitutional rights of A.A.O. and A.O. under Article 40.3, but it is clear that the status and rights of the applicants as a family unit and the welfare of the children insofar as they might be affected by the deportation were identified and considered. It is unrealistic to conclude that because Article 40.3 was not specifically referenced, the core substance of these rights was not considered. It is not necessary to recite or invoke the relevant provision in every case (see Pok Sun Shum v. Minister for Justice, Equality and Law Reform [1986] ILRM 593: P.F. v. Minister for Justice (Unreported, High Court, Ryan J., 26th January, 2005: B.I.S. & Anor v. Minister for Justice, Equality and Law Reform [2007] IEHC 398) though it might be prudent and appropriate to do so, especially where more extensive submissions or evidence is furnished concerning the likely affect of a father’s deportation on a member or members of a family, than was available in this case. Therefore, the court is satisfied that in this case the first respondent gave fair and proper consideration to the respective constitutional and Convention rights of the applicants. The reality that deportation necessitated a separation of the children from their father, R.O., and the consequences of that disruption were clearly a necessary and primary feature of the assessment made in this case. 50. The court is satisfied that the objection taken to the conclusion that the family could relocate to Nigeria is unsustainable. The test applied in this case was that which was also applied in Alli and Others v. Minister for Justice, Equality and Law Reform [2010] 4 IR 45, to the deportation of a citizen child’s non-national father (prior to Zambrano). Clark J. held that the Minister could deport a father notwithstanding the child’s citizenship in pursuance of an orderly and fair restrictive immigration policy provided a full and fair assessment of the particular child and family situation was balanced against the state’s interest and that the decision was proportionate to those interests. The court found that the Minister had not erred in law in applying the test as to whether there were “insurmountable obstacles” to the family moving with the father to Nigeria and continuing family life there. It was held that the evaluation of whether there were such “insurmountable obstacles” incorporated an assessment of the reasonableness of expecting the family to move. 51. In that case it was also submitted that before the father could be deported the Minister would have to demonstrate “a very compelling reason” which would justify the rupture of a family (in that case the family based on marriage). Clark J. was not satisfied that the Minister could only deport the father of a citizen child in exceptional circumstances. The Zambrano case has considerably altered the position in respect of an Irish citizen child as a European Union citizen, but for the purposes of the present case in which no legal relationship exists between K.I. and R.O., M.I. and R.O. are not a married a couple, and A.A.O. and A.O. are not Irish citizen children (though legally entitled at present to remain in the state), the principles in Alli provide assistance in dealing with the complicated “de facto” family circumstances. 52. It is clear that the question of whether it is reasonable for the family to relocate to Nigeria is accepted by the European Court of Human Rights as one of the numerous aspects of the case that should be considered in an inquiry as to whether a deportation order was reasonable or proportionate. Clark J. noted that:-
55. The first respondent was obliged to weigh each of the foregoing matters when considering R.O.’s deportation. As Denham J. said in Oguekwe concerning the deportation of a non-national parent of a Irish born citizen child (pre Zambrano):-
12. The Minister should consider whether in all the circumstances in the case there is a substantial reason associated with the common good which requires the deportation of the foreign national parent. In such circumstances the Minister should take into consideration the personal circumstances of the Irish born child and the foreign national parents, including in this case whether it would be reasonable to expect family members to follow the first applicant to Nigeria. 13. The Minister should be satisfied that there is a substantial reason for deporting a foreign national parent, where the deportation is not disproportionate to the ends sought to be achieved, and that the order of deportation is a necessary measure for the purpose of achieving the common good. . . . 15. There should be a substantial reason given for making an order of deportation of a parent of an Irish born child.” 57. The respondent was entitled to consider the other aspects of the case. R.O. had entered the state and made a false application for asylum. During the course of that application and for up to a year prior to that, he was involved in a relationship with M.I. His first child was born when he was illegally within the state and thirteen days before he applied for asylum. The couple’s second child was born approximately nine months after the making of the deportation order. Throughout, he acted in complete disregard of the immigration and asylum laws and established and maintained a family life in the knowledge of his very precarious status. The first respondent was entitled to take this conduct into account in relation to maintaining the integrity of the state’s immigration and asylum laws. The respondent also considered that R.O. was not permitted to work in the state and the fact that he would be dependent on the state’s health and welfare systems. He was entitled to do so and to conclude that it was proportionate to deport R.O.. It was concluded that these factors constituted “a substantial reason” associated with the common good which required the affirmation of the deportation order – an order that was never challenged. The court is not satisfied that this decision can be regarded as disproportionate or unreasonable. I am satisfied that the applicants have failed to establish that the respondent’s decision is fundamentally flawed on grounds 12 and 13. I am also satisfied that the applicants’ rights under Article 40.3 of the Constitution and Article 8 of the Convention were appropriately considered and that the welfare and best interests of the children insofar as they could be assessed having regard to the minimal information supplied by M.I. and R.O. were fairly and properly assessed. Conclusion |