High Court dismisses judicial review application regarding deportation order of asylum seeker mother and minor child.

Neutral Citation Number: [2009] IEHC 186

THE HIGH COURT

JUDICIAL REVIEW

2005 1122 JR

BETWEEN

O. A. B. AND A. B. (A MINOR, SUING BY HER MOTHER AND NEXT FRIEND O.A.B.)

APPLICANTS

AND

THE REFUGEE APPLICATIONS COMMISSIONER,

THE REFUGEE APPEALS TRIBUNAL,

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, ATTORNEY GENERAL AND IRELAND

RESPONDENTS

AND

THE HUMAN RIGHTS COMMISSION

NOTICE PARTY

JUDGMENT OF MS. JUSTICE CLARK, delivered on the 21st day of April, 2009.

1. This is an application for leave to apply for judicial review of the decision of the Minister for Justice, Equality and Law

Reform (“the Minister”) to make a deportation order in respect of the first named applicant, who is the mother of the

second named applicant. Mr. Garry O’Halloran B.L. appeared for the applicants and Ms. Sinéad McGrath B.L. appeared for

the respondents. The hearing took place at the King’s Inns, Court No. 1, on the 19th March, 2009.

2. The applicants must show substantial grounds for the contention that the decision to make a deportation order ought

to be quashed. As is now well established, this means that grounds must be shown that are reasonable, arguable and

weighty, as opposed to trivial or tenuous.

The Asylum Application

3. The first named applicant is a national of Nigeria and the second applicant is her infant daughter. The first applicant

applied for asylum in the State on the 15th April, 2005 when she was approximately six months pregnant. She claims that

in February, 2005, her village in Adamawa State was attacked by neighbouring villagers. Her parents and 26 other local

residents were killed and the village was destroyed. The applicant fled to Lagos where she lived by begging on the streets

as she could not locate her husband or siblings. She was afraid of what might happen to her unborn baby and used the

money she made from begging to pay for her travel to Ireland. She left Nigeria in April, 2005 with an agent and flew to

Dublin via Amsterdam. She had no travel documents and, as is the now frequently recounted story, the agent held all

travel documents and showed everything at the airport for her when required and then retained the documents. She had

no documents to establish her identity or travel arrangements.

4. The first named applicant says although she could not locate her husband in Nigeria and did not see him after the

attack on her village she met him in Ireland ten days after she arrived here. She has given no explanation for this happy

coincidence. Her asylum application was dealt with on a priority basis and her interview with the Office of the Refugee

Applications Commissioner (ORAC) took place within weeks after her arrival. In the s. 13(1) report prepared after a

consideration of her questionnaire and interview, a finding was made under s. 13(6) (a) of the Refugee Act 1996, i.e. that

she had showed either no basis or a minimal basis for the contention that she is a refugee. She was therefore not entitled

to an oral hearing on appeal. Her document based appeal was not successful before the Refugee Appeals Tribunal (RAT)

and in June, 2005, she was notified that the Minister had refused to grant her refugee status and was proposing to make

a deportation order.

5. Representations were made on her behalf by the Refugee Legal Service (RLS) seeking leave to remain temporarily in the

State. The Minister was informed that she had been joined in the State by her husband and that she was pregnant and

due to give birth in July, 2005. No further submissions were made in relation to the expected child and when the second

applicant was born on the 9th August, 2005 the Minister was not notified. Under the Irish Nationality and Citizenship Act

2005, the baby is not entitled to Irish citizenship.

The Examination of the File

6. In September, 2005, an examination of the first named applicant’s file was conducted under s. 3 of the Immigration Act

1999. The applicant’s family and domestic circumstances were noted including that her spouse was in the State and was

in the asylum process; that her parents were deceased and the whereabouts of her eight siblings was unknown; and that

she had entered the State six months pregnant and gave birth to a child on 9th August, 2005. (It appears that the

Minister’s officials were aware of the birth as a result of enquiries they conducted with the Department of Social and

Family Affairs.)

7. The file was examined under s. 5 of the Refugee Act 1996 and each of the submissions relating to what are known as

the humanitarian grounds for leave to remain was examined and commented upon. It was noted that the applicant had

given birth to a child in the State in August, 2005 but was not eligible for inclusion under the IBC ’05 scheme.

Consideration was then given to the situation of the child born in Ireland who was not an Irish citizen and that it was

observed that even if she had been an Irish citizen, the judgment of the Supreme Court in Lobe and Osayande v. The

Minister for Justice, Equality and Law Reform [2003] 1 I.R. 32 makes it clear that there is no absolute right for a child to

have the care and company of its parents in Ireland and that this can be provided abroad. It was also noted that it

cannot be said as a matter of law that the parents of a minor can assert a choice to reside in the State on behalf of the

minor, even if that could be said to be in the interests of the minor. It was noted that “children can return to countries

which would have inferior welfare and health services to those available in Ireland” and that is not, in itself, a basis for

allowing them to remain here. It was concluded that “the fact that, in this instance, the child is not an Irish citizen lends

further weight to the conclusion that deporting the parent, along with the child, is not contrary to our national or

international obligations”. It was noted that the child is not entitled to Irish citizenship but is entitled to Nigerian

citizenship and “does not have an automatic right to remain in the State”. It was further noted that the child’s father is

in the State and that his application for asylum, made on the 25th April, 2005, had been rejected. It was pointed out that

the Supreme Court in P, B and L v. The Minister for Justice, Equality and Law Reform [2001] I.E.S.C. 107 rejected the

submission that the Minister is precluded from deporting one partner while the other’s leave to remain application is

pending.

8. The Executive Officer ultimately found that repatriating the first named applicant to Nigeria would not be contrary to s.

5 of the Refugee Act 1996 and no issues arose under s. 4 of the Criminal Justice (U.N. Convention against Torture) Act

2000. She recommended that the Minister sign a deportation order. An Assistant Principal endorsed that recommendation

the following day but added no substantive analysis to the examination on file. A deportation order was then signed

directed to the first applicant on the 29th September, 2005 and she was notified of that order by letter dated the 5th

October, 2005. At the date of the deportation order, the first named applicant had been in the State for a period of less

than six months.

9. The applicants’ current solicitors came on record on the 12th October, 2005 and on the 17th October, 2005, an

individual application for asylum was made on behalf of the child, who was then two months old. The child’s asylum file

was not before the Court and counsel for the applicants was unable to assist in providing any details on the progress of

that asylum application. Counsel for the respondent informed the Court that the child’s claim for asylum was unsuccessful

before the ORAC and the RAT. Judicial review proceedings were instigated and although leave was granted, the applicant

was unsuccessful at the substantive hearing and the second named minor applicant is now a failed asylum seeker. No

deportation order has been made against the child and the only deportation order made and now challenged is the order

relating to the first named applicant. The child’s leave to remain application is awaiting consideration by the Minister. The

father’s application for leave to remain is also before the Minister. He is not party to these proceedings.

The Validity of the Deportation Order

10. Mr. O’Halloran B.L., counsel for the applicants, seeks to impugn the deportation order on the basis that in deciding to

deport the first named applicant, who is the mother of the second applicant, the Minister failed to carry out any real

assessment of the minor applicant’s own circumstances but confined his examination to reviewing her citizenship rights.

He argued that at the time when the deportation order was made, no determination had been made in respect of the

child’s asylum application and no consideration had been given to the child’s best interests. He argued that as the Minister

is obliged to consider what is in the best interests of the child and there was therefore no legal basis for the making of a

deportation order and relied on A.N. (Nwole) v. The Minister for Justice, Equality and Law Reform [2007] I.E.S.C. 44. He

further argued that as the determination to make a deportation order was confined to the first named applicant, this it

was a breach of the concept of “family unity”. The applicants did not identify what other consideration the Minister

should have given to the existence of the then two month old baby when viewing her mother’s file.

The Respondent’s Submissions

11. Ms. McGrath B.L., counsel for the respondents, informed the Court that at the time the Minister was considering the

first applicant’s leave to remain and her deportation, no application for asylum had been made on behalf of the infant

second named applicant. The Minister was therefore viewing the file on the basis of evidence before him and evidence

which his own officers had obtained in relation to the birth of the second named applicant. She argued that the facts of

this case mirror those of Ebinum v. The Minister for Justice, Equality and Law Reform (Unreported, High Court, Peart J.,

27th July, 2007), a case in which leave was refused and where Mr. O’Halloran had been the counsel and made similar

arguments.

12. The respondent opened correspondence between the respondent and the applicants’ solicitor arising from an

application to adjourn this matter pending the determination of two cases, Ebinum (see above) and Omukoro in which the

applicants’ solicitor had an interest and where it was stated the same legal point arose. The respondent asked the

applicants’ solicitor, Mr. Mulvihill, to indicate the precise facts of both cases and the precise legal points which were said

to exist in all three cases. The response was that “the legal issue common to all three cases relates to the adequacy of

a consideration relating to a child which is limited to a consideration of its citizenship rights when making a deportation

order relating to the child’s mother.”

13. On 14th February, 2007, the respondent wrote again to the applicants’ solicitor, stating as follows:-

“By judgment dated the 27th July 2007 Judge Peart in Ebinum refused leave and in so doing he relied on the two

statutory pre requisites laid down by Clarke J. in Kouaype v. Minister for Justice, namely the Minister should be

satisfied that none of the conditions set forth in s. 5 of the Refugee Act, as amended, are present, and that he

considered the humanitarian and other matters set forth in s. 3 of the 1999 Act in so far as they are known to him

and in this regard he is required to have regard to representations made to him on the applicant’s behalf. See

page 4 of the Ebinum judgment.”

14. The applicant was twice requested to withdraw this particular application and was warned that the respondent would

be seeking his costs if he continued with this action in the light of the decision.

15. The facts in Ebinum were opened to the Court. In that case the mother entered the State in 2004 and made an

unsuccessful application for asylum. She was notified that the Minister was proposing to deport her and she made

representations seeking leave to remain in which she informed the Minister inter alia that she was pregnant and due to

give birth in about three weeks time. A few weeks later she gave birth to a child in the State but did not update the

Minister as to the birth. Some three months later in February, 2006, her file was examined under s. 3 and s. 5 and it was

recommended that a deportation order be signed. It appears from the judgment of Peart J. that the consideration given to

the Irish-born child in Ebinum was virtually identical to the consideration given to the Irish-born child in this case. The

child in Ebinum was not entitled to Irish citizenship but was entitled to Nigerian citizenship and it was found that there

was nothing in the State’s national or international obligations preventing the deportation of the mother along with the

child.

16. In his judgment Peart J. records the argument made by Mr. O’Halloran B.L., who acted for the applicants. It was

argued that the s. 3 consideration given to the mother’s file was invalid because no consideration was given to her child

other than the citizenship situation. He also argued that the Minister is obliged to consider what was in the best interests

of the child but he did not do so. These are identical to the submissions made by Mr. O’Halloran in the present case. In

Ebinum, Peart J. reviewed the principles outlined in Kouaype v. The Minister for Justice, Equality and Law Reform [2005]

I.E.H.C. 345, where Clarke J. had outlined the matters which must be considered by the Minister before making a

deportation order. The Minister must be satisfied that there is no risk to the person being deported which would offend

the provisions of s. 5 of the Refugee Act 1996 and he must consider the matters set forth in s. 3 of the Immigration Act

1999 in so far as they are known to him and to have regard to the representations made to him on the applicant’s behalf.

Once the Minister has complied with those requirements, his decision to make a deportation order is not reviewable since

it is entirely a matter for the Minister as to how various matters are to be weighed and determined. Peart J. was satisfied

that in Ebinum that all of the representations made on behalf of the mother were considered. He concluded:-

“In my view the Minister’s officials were perfectly entitled to consider matters arising from the birth of the second

named applicant by reference predominantly to the issue of his citizenship since no representations were made in

any other respect.”

17. Ms. McGrath for the respondent distinguished the facts of Nwole where the Minister had made a deportation order

directed to the mother who was a failed asylum seeker and also her five children on the basis that the children were

automatically included on her application in line with the Minister’s policy of family unity at the time. The children were

treated as failed asylum seekers and the deportation orders were made on that basis. In fact, there had never been an

application for asylum on their behalf and therefore the order was made on an incorrect premise and was quashed. It was

in those circumstances that the Supreme Court held that the application for refugee status on behalf of the mother did

not automatically include her children who were entitled to make applications in their own right based on their own

circumstances and reasons. Ms. McGrath pointed that in Nwole, the Minister had made a deportation order in respect of

both mother and children but that is not the case here. Ms. McGrath also argued that the facts in Ojuade were different

as in that case Peart J. granted leave to apply for judicial review of an RAT decision but refused leave to challenge the

deportation order.

Assessment

18. In this case, it is important to note that no deportation order was made in respect of the child and no application for

asylum had been made on behalf of the child when her mother’s application for leave to remain was submitted or when her

file was being reviewed by the Minister. It is of concern that the facts and issues in this case bear a striking similarity to

those in Ebinum to which the Court was referred by the respondent and which have already been determined. The

arguments in Ebinum and the later case of Ojuade in which the same legal representatives were acting, mirror the

submissions in this case. When the Court raised this issue with the applicant, Mr O’Halloran sought to argue that the ratio

in Ebinum had been overtaken by the later decision of the Supreme Court in Nwole and Oguekwe and that Ebinum is no

longer good law, a fact which he argues was recognised in a later decision delivered by Peart J. in Ojuade v. The Refugee

Applications Commissioner (Unreported, High Court, 2nd May, 2008). Mr. O’Halloran submitted that in that later case,

Peart J. granted leave to a minor applicant in identical circumstances as occurred in Ebinum and that the earlier case was

reversed due to the decision of the Supreme Court in Oguekwe and Nwole.

19. I have considered the judgments in all of those cases and fully accept the arguments made by the respondent relating

to the principles clarified in those cases and reject the argument made by the applicant. In Nwole, the Minister made a

deportation order in respect of a mother and her five children purportedly on the basis that s. 3(2)(f) of the Immigration

Act 1999 applied to each of them, i.e. that their asylum applications had been refused by the Minister. The Supreme

Court found that as there had been no application for asylum on behalf of the minors, s. 3(2)(f) did not apply and on that

premise alone there was no basis upon which the Minister purported to make deportation orders in relation the minors. In

this case, no deportation order was made in respect of the child and thus the issue for consideration is quite different.

20. Nwole was decided on very distinct facts where the order for deportation of the children’s parent was not impugned.

It was only the deportation orders relating to the children that were before the Court. The Supreme Court did not

determine that the policy of the Minister to treat the application of the parent as a family unit was wrong. Such a policy

was found by Fennelly J. to be reasonable provided that the asserted risk to each child was considered. The Supreme

Court also examined the concept of family unity when a family seeks asylum and restated what is in the UNHCR Handbook

on the concept. As Finnegan J. said:-

“The same definition of a refugee applies to all individuals regardless of their age: thus a minor will have to

establish a well founded fear within the Convention and where the minor is of tender years this clearly creates a

difficulty. Accordingly a minor accompanied by a parent and whose parent requests refugee status will have his

refugee status determined according to the principle of family unity. Where the head of the family fulfils the

necessary conditions for admission as a refugee the contracting state should ensure that the refugee’s family

unity is maintained. Paragraph 184 of the Handbook provides that if the head of a family meets the criteria of the

definition of refugee his dependants are normally granted refugee status according to the principle of family unity.

However under paragraph 185 if the head of the family is not a refugee there is nothing to prevent any one of his

dependants, if they can invoke reasons on their own account, from applying for recognition of their status as

refugees: the principle of family unity operates for the benefit of the minor and not against him. Minors under 16

years of age may normally be assumed not to be sufficiently mature to have a well founded fear of persecution.

The handbook envisages, it seems to me, an application by the parent of a minor child and if that is successful the

minor will be granted status and if unsuccessful the minor can apply based on his own circumstances and reasons:

see E.C.H.R. handbook paras. 184 and 185.

21. According to these principles, if a parent is granted refugee status then the children benefit from that status but if a

parent does not succeed, it does not preclude the right of the child to put forward its own case as to risk to him/her.

Family unity has not been breached in this case as the mother whose deportation was being considered was the mother

of a two month old baby. It was expected that the child would return with her to Nigeria. At the time the Minister was

considering whether to make a deportation relating to the first named applicant, no application had been made for asylum

on behalf of the second applicant. The decision to sign a deportation order was therefore made on information made

available to the Minister and it appears that the asylum application on behalf of the minor applicant was only commenced

after the making of the deportation order was notified to her mother.

22. I am also satisfied that the decision of Peart J. in Ojuade does not indicate a change of position from Ebinum. In

Ojuade, leave was granted to argue that the Tribunal Member had failed to consider the situation of the minor applicant

separately from that of her mother. Peart J. held as follows with respect to the effect of the grant of leave on the

deportation order made subsequently in respect of the child:-

“Insofar as a consequence of that appeal decision is that the Minister made a deportation order in respect of the

second named [minor] applicant based on the fact that she was a person whose application for refugee status had

been refused, the second named applicant should be granted leave to seek injunctive relief to restrain her

deportation at least until such time as her fresh appeal has been finally determiner, and thereafter in the event

that the appeal is determined in her favour.”

23. In Ojuade, Peart J. considered the submissions concerning the validity of the deportation order relating to the minor

made by Mr. O’Halloran, who represented the applicants. As in Ebinum, he found that in circumstances where the

applicants’ representations seeking leave to remain went no further than to assert that it would be disproportionate to

deport the minor applicant, “the Minister was entitled to be of the view that the making of that order was a

proportionate one, having considered the submission made.” Peart J. found that none of the matters set out in Kouaype

which might possibly form the basis for challenging a deportation order by a failed asylum seeker could avail the applicants

in Ojuade. He refused to grant leave to challenge the validity of the deportation order.

24. It is clear that Peart J. did not reverse the position that he took in Ebinum in Ojuade. The legal principles which were

very clearly outlined by Clarke J. in Kouaype were not altered by the Supreme Court decisions in Nwole and Oguekwe. In

those circumstances, it seems to me that the applicants are attempting to argue an issue which has already been

determined several times. The application is misconceived as the particular issue in the case is not affected by the

decision of the Supreme Court in Oguekwe which involved the deportation of the father of an Irish citizen child whose

mother had obtained leave to remain under the IBC 05 scheme and where the father and husband was outside of the

scheme. That case involved the consideration which ought to be given to such an Irish citizen child before a deportation

order is made in respect of its parent(s). The facts of this case are wholly different.

25. I refuse leave and direct an order of costs against the applicants.