Court grants injunction restraining deportation of parents to protect children's constitutional right to care and company.

THE COURT OF APPEAL

Appeal No. 2014/445

[Article 64 Transfer]

Kelly J.

Irvine J.

Hogan J.

BETWEEN/

CLEMENT CHIGARU, ANGELA PETERS, CHLOE CAROLINE CHIGARU (AN INFANT SUING BY HER FATHER AND NEXT FRIEND

CLEMENT CHIGARU) AND CLARKE CHIGARU (AN INFANT SUING BY HIS FATHER AND NEXT FRIEND CLEMENT CHIGARU)

APPLICANTS

AND

MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 27th day of July 2015

1. The applicants in these proceedings are all nationals of Malawi who have unsuccessfully sought asylum in this State. Applications

for asylum were rejected by the Refugee Appeals Tribunal on 19th November 2009. The applicants then made applications for

subsidiary protection which were rejected by the Minister for Justice by letter dated 12th May 2011. The Minister then proceeded to

make deportation orders in respect of all four applicants under s. 3 of the Immigration Act 1999 on 11th August 2011.

2. The applicants then applied to the High Court seeking leave to challenge the validity of the orders refusing subsidiary protection

and the making of the deportation orders. These applications were dismissed by the High Court (Cooke J.) by decision dated 19th April

2012. The applicants then appealed to the Supreme Court by a notice of appeal dated 9th May 2012. This appeal was then

subsequently transferred to this Court pursuant to Article 64 of the Constitution by order of the Chief Justice (and the concurrence of

the other members of the Supreme Court) dated 29th October 2014 following the establishment of this Court on that day.

3. Although deportation orders in respect of all four applicants were made by the Minister as long as August 2011, this family have

managed through subterfuge on the part of the adult applicants thus far to avoid the deportation process in circumstances I will

presently describe. It was only following lengthy correspondence with their solicitors that the respondents learnt in April 2015 of their

present whereabouts in the State. The Minister now seeks to give effect to the earlier deportation orders, but the applicants have

now issued a motion seeking an interlocutory injunction restraining their deportation pending the outcome of an appeal to this Court.

4. The first two applicants are the parents of the third and fourth applicants respectively. The third applicant, Chloe Chigaru, (“the

daughter”) was born in Malawi on 2nd March 2007 so that she is now almost eight and a half years old. The daughter arrived in

Ireland with her mother in April 2008 when she was just one year old, but she has lived in the State since that date. The fourth

applicant, Clarke Chigaru, (“the son”) was born in the State on 23rd July 2008, but he is not an Irish citizen. He is now just seven

years old.

The criteria regarding the grant of an interlocutory injunction in asylum cases

5. The criteria regarding the grant of interlocutory relief in immigration cases of this kind was fully explored by the Supreme Court in

Okunade v. Minister for Justice and Equality [2012] IESC 49, [2012] 3 I.R. 152. It is clear from that judgment that, absent special or

particular features, the courts should not generally grant a stay restraining the enforcement of a deportation order. As Clarke J.

pointed out in his judgment in that case, any decision regarding the circumstances in which a foreign national should be permitted to

remain in the State is, in principle, an executive decision for the purposes of Article 28.2 of the Constitution. As with any decision of

this kind, there is a presumption that any such decision is regular and valid.

6. In order, therefore, for an applicant in a case of this kind to obtain a stay on a deportation order, it would be necessary to show,

first, that he or she had established a fair or arguable case and, second, that the balance of convenience favoured the granting of

such relief. While the issue of the adequacy of damages as a remedy is of considerable importance in many applications for an

interlocutory injunction, it is, as Clarke J. recognised in Okunade, of somewhat lesser importance is a case of this kind. It is against

this general background that I turn to the first question, namely, whether the applicants have established a fair, arguable case.

Whether the applicants can demonstrate the existence of a fair, arguable case

7. The issue of whether the applicants can establish a fair, arguable case is inextricably bound up with the decision of the Court of

Justice in Case C-277/11 MM v. Minister for Justice [2012] E.C.R. I-000. The applicant in that case was a Rwandan of Tutsi ethnicity

who claimed that he would suffer persecution if he were returned to his country of origin in part by reason of the research which he

carried out into the 1994 Rwandan genocide.

8. Mr. M had been originally arrived in Ireland on a student visa, but shortly after his visa had expired, he sought asylum. Although

this application was refused in December 2008. Mr. M. then applied for subsidiary protection. That application was rejected by the

Minister in September 2010 and in that decision the Minister relied to a large extent on the adverse credibility findings contained in

earlier asylum decision of the Refugee Appeals Tribunal from 2008.

9. At that point the applicant sought judicial review of the Minister’s subsidiary protection decision. As it happens, those proceedings

came before me as a judge of the High Court in May 2011. That application presented a single issue of European Union law, namely,

whether the requirement contained in Article 4(1) of Directive 2004/84/EC that Member States must co-operate with applicants for

international protection meant that an applicant for subsidiary protection must be informed that it was minded to reject that

application so that he or she was given an opportunity to respond before any final decision was taken. This was the specific question

which I referred to the Court of Justice pursuant to Article 267 TFEU.

10. The Court answered that question adversely to the applicant, saying that there was no such obligation on the part of Member

States: see paragraph 74 of the judgment. Critically, however, the Court of Justice continued by stating (at paragraph 75) that the

case raised “more generally the question of the right of a foreign national to be heard” in respect of the subsidiary protection

application when that application was made following the rejection of the original refugee status application.

11. Following an analysis of the right to be heard under EU law the Court then concluded (at paragraphs 90-94) of the judgment as

follows:

"90. In that regard, the Court cannot accept the view put forward by the referring court and Ireland that, where – as in

Ireland – an application for subsidiary protection is dealt with in a separate procedure, necessarily after the rejection of

an asylum application upon conclusion of an examination in which the applicant has been heard, it is not necessary for the

applicant to be heard again for the purpose of considering his application for subsidiary protection because the formality

of a hearing in a sense replicates the hearing which he has already had in a largely similar context.

91. Rather, when a Member State has chosen to establish two separate procedures, one following upon the other, for

examining asylum applications and applications for subsidiary protection, it is important that the applicant’s right to be

heard, in view of its fundamental nature, be fully guaranteed in each of those two procedures.

92. Furthermore, that interpretation is all the more justified in a situation such as that of the case in the main

proceedings since, according to the information provided by the referring court itself, the competent national authority,

when stating the grounds for its decision to reject the application for subsidiary protection, referred to a large extent to

the reasons it had already relied on in support of its rejection of the asylum application, although, under Directive

2004/83, the conditions which must be fulfilled for the grant of refugee status and for the awarding of subsidiary

protection status are different, as is the nature of the rights attaching to each of them.

93. It should be added that, according to the Court’s settled case-law, the Member States must not only interpret their

national law in a manner consistent with EU law but also make sure they do not rely on an interpretation which would be

in conflict with the fundamental rights protected by the EU legal order or with the other general principles of EU law (see

Joined Cases C-411/10 and C-493/10 N.S. and Others [2011] ECR I-0000, paragraph 77).

94. It is in the light of that guidance as to the interpretation of EU law that it will be for the referring court to determine

whether the procedure followed in the examination of Mr M.’s application for subsidiary protection was compatible with the

requirements of EU law and, should it find that Mr M.’s right to be heard was infringed, to draw all the necessary

inferences therefrom.

95. In the light of all the foregoing considerations, the answer to the question referred is that:-

the requirement that the Member State concerned cooperate with an applicant for asylum, as stated in the

second sentence of Article 4(1) of Directive 2004/83, cannot be interpreted as meaning that, where a foreign

national requests subsidiary protection status after he has been refused refugee status and the competent national

authority is minded to reject that second application as well, the authority is on that basis obliged – before

adopting its decision – to inform the applicant that it proposes to reject his application and notify him of the

arguments on which it intends to base its rejection, so as to enable him to make known his views in that regard;

however, in the case of a system such as that established by the national legislation at issue in the main

proceedings, a feature of which is that there are two separate procedures, one after the other, for examining

applications for refugee status and applications for subsidiary protection respectively, it is for the national court to

ensure observance, in each of those procedures, of the applicant’s fundamental rights and, more particularly, of the

right to be heard in the sense that the applicant must be able to make known his views before the adoption of any

decision that does not grant the protection requested. In such a system, the fact that the applicant has already

been duly heard when his application for refugee status was examined does not mean that that procedural

requirement may be dispensed with in the procedure relating to the application for subsidiary protection.”

12. It is perhaps idle at this juncture to deny that the reasoning of the Court of Justice on this second question – which, it must be

recalled, was not actually asked by the referring Court – is not without its own difficulties. In particular, it is not, with respect,

entirely clear what the Court of Justice had in mind so far as its comments regarding the future interaction of the asylum subsidiary

protection and asylum systems in this State was concerned. I endeavoured to address these questions in my judgment in the High

Court in MM. v. Minister for Justice and Equality (No.3) [2013] IEHC 9, [2013] 1 I.R. 370.

13. There is probably little point for the purposes of this judgment in re-visiting these issues. It is sufficient to say that, based on

what the Court of Justice had decided on the second question, I ultimately quashed the Minister’s decision on the subsidiary

protection decision insofar as it had relied on the adverse credibility findings contained in the earlier asylum application decision.

14. The Minister duly appealed that decision to the Supreme Court. That Court in turn decided to make a further reference to the

Court of Justice arising from the earlier MM decision in November 2014: see Case C-560/14. We were informed at the hearing of this

application for an interlocutory injunction that no date has been assigned by the Court of Justice for the hearing of this reference

which might take the best part of a further year.

15. It is against this general background that the issue of whether of the applicants have established a fair case falls to be

evaluated. For my part, having regard to the comments of the Court of Justice in MM, it seems to me that it inevitably follows that

the applicants have established such a fair case. It is true that the notice of appeal which the applicants had originally filed with the

Supreme Court refers only in the most general terms to the first question which was the subject of the reference in MM. This notice

of appeal was, however, filed on the 9th May 2012 and one can scarcely fault the applicants for failing to anticipate that the Court of

Justice would subsequently proceed to answer a question which was in addition to the actual question referred by the High Court in

MM.

16. In any event, given that the Court of Justice has, in fact, pronounced on the second question this Court is now duty bound to

apply EU law in the manner determined by that Court. So far as the merits of the point are concerned, it must be acknowledged that

there is much to suggest that the subsidiary protection decisions which are under challenge relied heavily on the credibility analysis

which had been conducted in the earlier asylum application, so that the adverse conclusions drawn from the latter process might be

thought to have infected the subsidiary protection decision itself.

17. In the present case the central contention made by the parents during the asylum case was that the wife’s father had consulted

a local witchdoctor in Malawi in respect of this HIV status. The witchdoctor is said to have informed him that in order to be cured he

needed to have sexual intercourse with a virgin from his own bloodline. The father then threatened to violate his granddaughter for

this purpose, thus causing the family to flee. The Tribunal rejected this claim on credibility grounds, saying that police protection was

available and that the parents (who, it is accepted, are highly educated) could internally locate within Malawi:

“Notwithstanding the applicant’s advanced level of education, the applicant professed to have had no knowledge of any

other agencies available to assist her and her daughter in Malawi. While the applicant claimed that her father was a big

businessman and a loan shark, he was uneducated. However, the applicant’s profile and high level of education simply

does not fit that which she claims caused her to flee Malawi in fear of her life and that of her infant daughter.”

18. The Tribunal further stated:-

“The applicant’s husband, in the course of his hearing, was asked why the family had not chosen to relocate elsewhere in

Malawi. He told the Tribunal that given his wife was some six months pregnant, he did not want her to experience any

pressure in re-locating. The applicant left for Europe and came to a country unknown to the applicant when six months

pregnant. Neither account is acceptable to the Tribunal”.

19. It is clear that the subsequent decision in respect of the subsidiary protection relied heavily on the “inconsistencies and credibility

issues” of this kind identified in the decision of the Refugee Appeals Tribunal in respect of the asylum application. Thus, for example,

the executive officer with responsibility for preparing the memorandum in the case of Ms. Peters (the mother) and Chloe (the

daughter) stated that “because of the many doubts surrounding her credibility the applicant does not warrant the benefit of the

doubt.” The Assistant Principal who actually took the decision in their case noted in hand on the margin of the decision: “Agreed. I

have major doubts as regards the bona fides of Ms. Peters given the level of the credibility issues.”

20. It is, perhaps, not altogether surprising that the officials took the approach which they had. The High Court had, after all, for

many years proceeded on the basis that as the subsidiary protection procedure was just one further step in our system of

international protection, it followed an adverse credibility finding which had been made in the asylum phase could be relied on by the

Minister in arriving at a decision refusing subsidiary protection at a later stage of the process: see, e.g., the decision of Cooke J. in

Debisi v. Minister for Justice and Law Reform [2012] IEHC 44, a decision which pre-dated by a few months the decision of the Court

of Justice in MM.

21. As I pointed out in the High Court in MM (No.3), the reasoning of Cooke J. in Debisi must, however, be now regarded as having

been superseded by the judgment of the Court of Justice in MM, precisely because that Court commenced the analysis contained in

the second part of the judgment from an entirely different perspective, namely, that in a bi-furcated system of international

protection such as ours, subsidiary protection must be evaluated separately and distinctly from the determination on the asylum

application. It was, therefore, for those reasons that I concluded in MM (No.3) that:

“In these circumstances, in the light of the guidance given by the Court of Justice on the reference, I must hold that the

Minister failed to afford the applicant an effective hearing at subsidiary protection stage, precisely because he relied

completely on the adverse credibility findings which had been made by the Tribunal in respect of the contention that Mr.

M. would come to harm if he were returned to Rwanda by reason of his involvement in the office of military prosecutor

and because he made no independent and separate adjudication on these claims.

In order for the hearing before the Minister to be effective in the sense understood by the Court of Justice in such

circumstances, such a hearing would, at a minimum, involve a procedure whereby (i) the applicant was invited to

comment on any adverse credibility findings made by the Refugee Appeals Tribunal; (ii) the applicant was given a

completely fresh opportunity to revisit all matters bearing on the claim for subsidiary protection and (iii) involve a

completely fresh assessment of the applicant’s credibility in circumstances where the mere fact that the Tribunal had

ruled adversely to this question would not in itself suffice and would not even be directly relevant to this fresh credibility

assessment.”

22. Much the same could be said of the subsidiary protections decisions at issue in the present case. Applying, therefore, by analogy

my own reasoning in MM. (No.3) I find myself obliged to hold that the applicants have established a fair case to be tried.

Where does the balance of convenience lie?

23. I can now turn to the question of the balance of convenience. It is plain that both the father and the mother have each engaged

in wholescale abuse of the asylum system. In the period since the deportation orders were first made in against them in August 2011

they have each worked illegally and have also avoided their reporting obligations with the Garda National Immigration Bureau. If one

looked at the cases of the parents in isolation, their applications for interlocutory relief would have little to commend them given that

both of them have deliberately and contumeliously thwarted and evaded their obligations under the immigration system.

24. One nevertheless cannot look at the position of the parents in isolation from that of the children. It is true that the children are

not Irish citizens, but they have known nothing other than this country. As has been noted, the girl is eight and a half years of age

and the boy is just seven years of age. They, however, are completely innocent of the various deceptions which their parents have

practised and it would be entirely unjust to visit them with the consequences of their parents’ wrongdoing.

25. There is no doubt but that the dislocation which the two children would suffer if they were suddenly wrenched from the only

environment which they have known or experienced would be significant. It would mean a massive dislocation from home, friends and

school with the State forcibly transporting these young children to a distant country. One can only imagine the distress which these 8

and 7 year old children would suffer if they were deported in this fashion.

26. It is significant that in Okunade the Supreme Court thought that this was a very important factor, as in his judgment Clarke J.

stated:

“However, I feel that it is not possible, on the facts of this case, to overlook the fact that one of the applicants is a child

of some four years of age who has known no country other than Ireland. It is hardly the fault of that child that the

substantial lapse of time involved in this whole process has led to such a situation. Rather that current status is a

function of the lack of a coherent system and sufficient resources. As pointed out earlier a significant disruption of family

life is a countervailing factor which, provided it be of sufficient weight, can be enough to tip the balance in favour of the

granting of a stay or an injunction.

On the facts of this case I have come to the view that the trial judge was wrong in failing to afford sufficient weight to

that factor and was, therefore, wrong in failing to grant an injunction restraining deportation until the hearing of the

application for leave.”

27. Here the case is if, anything, even stronger, as the children are considerably older (8 and 7 respectively, as compared with the

child of four years of age in Okunade) and are integrated to an even greater extent into Irish society. Given that they have already

established at least an arguable case regarding the validity of the subsidiary protection decision it follows that in the light of the

Supreme Court decision in Okunade it is plain that the balance of convenience very strongly supports the granting of an interlocutory

injunction restraining the deportation of the two children.

Re-assessing the position of the parents in the light of the position of the children

28. Whatever the parents’ other faults vis-à-vis the flouting of our immigration laws, it has not been suggested that they have not

been good parents to these two children. Quite the contrary, as the evidence shows that they have been solicitous of the welfare of

the two children, including attending to a medical condition which affects their son. So far as can be judged, the children’s education

and welfare needs have been fully attended to by the parents within the limits of their resources.

29. It is clear that the right of children to the care and company of their parents is a core constitutional value which is inherent in the

entire structure of Article 41, Article 42 and Article 42A of the Constitution. This point has been repeatedly by the Supreme Court

even before the enactment of the new Article 42A : see, e.g., Re JH (an infant) [1985] I.R. 375, 394-395, per Finlay C.J.

30. As I pointed out as a judge of the High Court in AO v. Minister for Justice (No.2) [2012] IEHC 79 (again, a decision which pre-

dated the insertion of the new Article 42A of the Constitution):

“Article 42.1 of the Constitution envisages that it is the "right and duty" of the parents of a child to provide for its

education, welfare and upbringing. Insofar as the Constitution speaks of it being the "duty" of parents, it is because that

the child enjoys -presumptively, at least- the right to have both of its parents engaged in that vital and responsible task.

This is because, as O'Donnell J. put it in Nottinghamshire C. C. v. B. [2011] IESC 48, [2012] 2 I.L.R.M. 170, 217:

“...the Articles [41 and 42] at least in general terms, state propositions that are by no means eccentric, uniquely Irish or

necessarily outdated: there is a working assumption that a family with married parents is believed to have been shown by

experience to be a desirable location for the upbringing of children; that as such the family created by marriage is an

essential unit in society; that accordingly, marriage and family based upon it is to be supported by the State.

Consequently the State's position is one which does not seek to pre-empt the family, but rather seeks to supplement its

position so that the State will only interfere when a family is not functioning and providing the benefits to its members

(and thus the benefits to society) which the Constitution contemplates. In that case, the State may be entitled to

intervene in discharge of its own duty under the Constitution and to protect the rights of the individuals involved.’ I would

merely add that the active involvement of both parents in child-rearing is also inherently desirable from the child's

perspective, even if the parents are not married, assuming always that this is feasible and practicable.”

31. In AO (No.2) I granted an interlocutory injunction restraining the deportation of a Nigerian national who was the father of an Irish

citizen. He had entered the State by deception and had, indeed, engaged in passport fraud. I took the view, however, that the

substance of the child’s constitutional right to the care and company of his father would be infringed if he were deported to Nigeria,

since it was likely that in such circumstances the child would never see his father again.

32. I adopted a similar approach in EA v. Minister for Justice [2012] IEHC 371 where I granted an interlocutory injunction restraining

the deportation of another Nigerian father who had also engaged in duplicitous behaviour in circumstances where I concluded that his

son would otherwise be deprived of any meaningful contact with his father for the duration of his childhood:

“A practical consideration in the present case is that Mr. A. – whatever about his other failings – has sought to take an

active role in the rearing of his son. How, then, would be P. be affected if his father were to be deported? In all likelihood

the Ms. O. and P. would remain indefinitely in Ireland and it is not clear to me how father and son could continue to have

any meaningful contact if Mr. A. were deported. After all, the very fact that Ms. O. were granted refugee status in itself

provides that clearest possible indicator that she could not be expected to travel to Nigeria, even assuming that the

family could afford to make such a trip or that Ms. O. would otherwise to do so. In all probability, therefore, if Mr. A. were

to be deported, it would mean that P. would never see him again during his minority. In these circumstances, I am

therefore coerced to the conclusion that there abundant grounds for suggesting that the substance of P’s constitutional

right to the care and company of his father would be denied were his father to be deported. This would ordinarily be

sufficient in itself to justify the grant of an interlocutory injunction restraining the deportation of Mr. A., his disreputable

and egregious conduct notwithstanding. It is obvious that damages are not an adequate remedy and the balance of

convenience suggests that the child’s right to the care and company must be accorded due weight and protection. But

before reaching this conclusion, it is necessary to examine the submissions of counsel with regard to the weight of

precedent on this issue.”

33. The same considerations essentially hold true by analogy to the present case as well. If the balance of convenience favours

permitting the children (who, it must be recalled, are not Irish citizens) to remain in the State, then it is plain that they have a

compelling interest in having their parents look after them. Indeed, it would scarcely be realistic to expect the children to remain in

the State – otherwise than in care – if their parents are to be deported. It is accordingly necessary to grant an interlocutory

injunction to restrain the deportation of the parents as otherwise the substance of the children’s constitutional right to the care and

company of their parents would be compromised.

Conclusions

34. In summary, therefore, I would conclude as follows:

35. First, in the light of the decision of the Court of Justice in MM, the applicants can all establish the existence of a fair case to

demonstrate that the decision refusing to grant them subsidiary protection is each case invalid inasmuch as the decision-maker relied

on the adverse credibility findings made in the asylum process without having given them an opportunity at least of disputing those

findings.

36. Second, if the position of the parents was looked at in isolation, I would not have been in favour of granting them any

discretionary relief in view of their calculated and contumelious efforts to thwart the immigration process.

37. Third, the situation of the children is entirely different. They have lived all (or, in the case of the daughter, effectively all) of their

lives in this State. The deportation of these children to Malawi would be massively disruptive for them, as it would have huge

implications for their schooling, friendships and family structures. In the light of the Supreme Court’s decision in Okunade this is a

factor which weighs heavily when determining where the balance of convenience lies.

38. Fourth, given that the balance of convenience favours the children remaining in this State for these reasons, I would accordingly

grant an interlocutory injunction restraining their deportation pending the outcome of this appeal.

39. Fifth, in view of the fact that the balance of convenience favours the granting of such relief vis-à-vis the children, it is plain that

this has implications for the position of the otherwise undeserving parents. The children have a constitutional right derived from

Article 41, Article 42 and Article 42A.1 of the Constitution to the care and company of their parents. The substance of that right

would otherwise be compromised if this Court were not to grant an interlocutory injunction restraining the deportation of the parents

on this ground as well.

40. Finally, it follows that for the reasons stated, I would grant an interlocutory injunction restraining the deportation of the

applicants.