High Court dismisses judicial review where deportation does not separate mother and child as they would travel together.

Neutral Citation Number: [2008] IEHC 359

THE HIGH COURT

2005 1031 JR

BETWEEN

P. A. AND F. O. E. E. (A MINOR, SUING BY HIS MOTHER AND NEXT FRIEND, P. A.)

APPLICANTS

AND

THE REFUGEE APPLICATIONS COMMISSIONER,

THE REFUGEE APPEALS TRIBUNAL,

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM,

IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

AND

HUMAN RIGHTS COMMISSION

NOTICE PARTY

Judgment of Mr. Justice Hedigan, delivered on the 18th day of November, 2008.

1. The first named applicant is the mother of the second named applicant. They are seeking judicial review of the decision of the

Minister for Justice, Equality and Law Reform (“the Minister”) to sign a deportation order in respect of the first named applicant. Leave

was granted by Finlay Geoghegan J. on 3rd March, 2008.

Background

2. The first named applicant, who is a national of Nigeria, claims that threats were made to her life in 2005 arising from her husband’s

involvement with a cult. She fled Nigeria on 13th March, 2005 and arrived in Ireland the following day. Soon afterwards, on 8th June,

2005, she gave birth to the second named applicant. He is now three years old. He is a citizen of Nigeria.

3. The Office of the Refugee Applications Commissioner (ORAC) recommended in May, 2005 that the first named applicant should not

be declared a refugee. That decision was affirmed by the Refugee Appeals Tribunal (RAT) in June, 2005. She was notified by letter

dated 30th June, 2005, that the Minister was proposing to make a deportation order in respect of her, and was invited to make an

application for leave to remain in the State. Representations were made on her behalf by the Refugee Legal Service (RLS) on 18th and

25th July, and 8th August, 2005. Reference was made therein to the fact that she and her infant son were living together. It was

submitted that her deportation would be in breach of the European Convention on Human Rights, but that submission was not phrased

in terms of her relationship with her son.

4. The first named applicant’s file was considered under section 3 of the Immigration Act 1999 and section 5 of the Refugee Act 1996

by two officials of the Minister’s Department on 27th and 28th July, 2005 and it was recommended that she should be deported. The

analysis and recommendation were approved by an Assistant Principal of the Repatriation Unit on 29th July, 2005 and the Minister

made a deportation order in respect of the first named applicant on 15th September, 2005.

5. Nothing turns on the analysis of the file under section 5 of the Refugee Act 1996; the applicants’ complaints centre upon the

consideration given to the matters set out in section 3 of the Immigration Act 1999.

The Section 3 Analysis

6. The analysis carried under section 3 of the Immigration Act 1999 was carried out in two stages, with the first official having regard

to all but sections 3(6) (h) and (i) of the Act of 1999. As to section 3(6) (c) (“family and domestic circumstances”), the first official

noted that the first named applicant gave birth to a son in June, 2005. As to section 3(6) (d), she noted that the applicant’s

connection with the State is grounded in her application for asylum. The second official noted, with respect to section 3(6) (h)

(“humanitarian considerations”), that the first named applicant suffers from hypertension and kidney problems, and that the second

named applicant was born by Caesarean Section. With respect to section 3(6) (i) (“representations made by or on behalf of the

person”), she observed that the RLS made representations regarding “the child born in Ireland” seemingly on the basis that the

second named applicant is entitled to Irish citizenship. She noted that under the Irish Nationality and Citizenship Act 2005, the child is

not entitled to Irish citizenship. She remarked that even if he was an Irish citizen, his right to the care and company of his mother

would not be absolute. She concluded that the fact that 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”, and she observed that the child

is entitled to Nigerian citizenship.

Position of the Second Named Applicant

7. A deportation order having been made in respect of his mother, an individual application for asylum was made on behalf of the

second named applicant on 27th September, 2005. His application was refused by ORAC in November, 2005 and his appeal to the RAT

was rejected in April, 2006. Judicial review proceedings in respect of the RAT decision are currently pending before the High Court.

Thus, no deportation order has been made in respect of the second named applicant.

The Submissions

8. The applicants submit that the Minister has erred in the following respects:-

a. Failure to comply with section 3(6) of the Immigration Act 1999;

b. Misapplication of the principle of family unity; and

c. Breach of section 3 of the European Convention on Human Rights Act 2003 owing to a failure to have regard to the

applicants’ rights under Article 8 of the European Convention on Human Rights.

(a) Section 3(6) of the Immigration Act 1999

9. The applicants contend that the Minister’s consideration of the factors set out in section 3(6) (c), (d), and (h) of the Immigration

Act 1999 was deficient. Reliance is placed on the decision of Kouaype v The Minister for Justice, Equality and Law Reform [2005]

IEHC 380.

10. As to the consideration given to “family and domestic circumstances”, the applicants complain that insufficient analysis was made

in respect of the family unit and the physical and psychological consequences of the proposed deportation on the first named

applicant and on her son. As to the consideration given to the applicant’s connection with the State, the applicants complain that the

Minister erred by failing to consider that the first named applicant’s connection with the State is grounded in her relationship with her

infant son, who was born in Ireland and who was entitled to apply for asylum in the State. An analogous complaint is made with

respect to the regard that was given to humanitarian considerations.

11. The respondents point out that in Kouaype, Clarke J. required the Minister to consider the factors set out in section 3(6) only

“insofar as they are known to him”. It is submitted that what the applicant is suggesting is that the Minister should have gone outside

of the representations that were made on behalf of the first named applicant and to examine issues that were not properly before him

– i.e. the possibility that the second named applicant might not leave the State with his mother upon her deportation. It is noted that

at no point was it suggested that the first named applicant would leave her son behind her in Ireland if deported. Reliance is placed

on the judgment of Peart J. in Lupascu v The Minister for Justice, Equality and Law Reform [2004] IEHC 400, to the effect that the

applicant is an active participant in the process.

(b) The Principle of Family Unity

12. It is submitted that the analysing officer erred by applying the principle of family unity against the second named applicant, on

the basis of a presupposition that upon the deportation of his mother, the second named applicant would also be taken away. It is

pointed out that the principle of family unity operates in favour of dependant children and not against them. Reliance is placed in this

regard on paragraph 185 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and the judgment of the

Supreme Court in A.N. & Others v The Minister for Justice, Equality and Law Reform & Anor [2007] IESC 44.

13. The respondents deny that the principle of family unity was applied to the detriment of the applicants. It is contended that in the

absence of any suggestion to the contrary, it was reasonable for the Minister to assume that the first named applicant would take

her infant son with her if she was deported. Reliance is placed on the decision of McCarthy J. to refuse leave in the case of Adegbemi

v The Minister for Justice, Equality and Law Reform [2007] IEHC 393. That case involved a challenge to a deportation order made in

respect of the mother of a child born in Ireland; both mother and child were Nigerian citizens. McCarthy J. noted as follows:-

“It seems to me, accordingly, that there is no inhibition on the deportation of the first named applicant and that, at this

juncture it is entirely a matter for her, in strictness, as to whether or not she brings the second named applicant with her.

There is no suggestion whatsoever that she would not do so, and I think that the Minister is entitled to proceed on the

basis that she will discharge her maternal duty to her child.”

14. McCarthy J. further noted that there was no inhibition on the enjoyment of family life by both applicants in Nigeria.

(c) Article 8, ECHR

15. The applicants contend that the Minister acted in breach of his obligations under section 2 of the European Convention on Human

Rights Act 2003, owing to his failure to consider whether the deportation would interfere with the applicants’ right to respect for

family and private life under Article 8(1) of the European Convention on Human Rights, and to assess whether such interference would

be justified under the Article 8(2) proviso. It is further submitted that the deportation would not be justified under Article 8(2).

Reliance is placed, in particular, on the decision of the European Court of Human Rights in Beerehab v The Netherlands 11 EHRR 322

[1988], Boultif v Switzerland 33 EHRR 1179 [2001] and Ciliz v The Netherlands (App. No. 29192/95, decision of 11th July, 2000). The

applicants also seek to rely on the decision of the High Court in Bode v The Minister for Justice, Equality and Law Reform [2006] IEHC

341 as to the right to respect for private life.

16. The respondents submit that the Minister performed his statutory duties in accordance with the European Convention on Human

Rights Act 2003. It is contended that if Article 8 rights were engaged, they were considered and that the decision to deport was

proportionate to the State’s interest in controlling immigration. It is noted that the second named applicant has no right to remain in

the State as he is not a citizen of Ireland. He therefore has no constitutional right to the society and care of his mother in Ireland

and on that basis, there was no requirement to carry out a reasoned analysis of the pros and cons of the deportation of his mother;

rather, the Minister has a prima facie entitlement to deport his mother. In this regard, reliance is placed on the judgment of the

Supreme Court in F.P. and A.L. v The Minister for Justice, Equality and Law Reform [2002] 1 IR 164.

The Court's Analysis

17. As to the appropriate standard of judicial scrutiny in respect of asylum and immigration decisions, my approach is – as I have now

stated on several occasions (see, among others, E.A.W v The Refugee Appeals Tribunal & Anor (Unreported, Hedigan J., High Court,

4th November, 2008); D.L. v The Refugee Appeals Tribunal (Unreported, Hedigan J., High Court, 11th November, 2008)) – that

whether it is given the label “anxious scrutiny” or otherwise, I sympathise with the adoption of a stricter approach in cases involving

potentially serious violations of human or constitutional rights, and I will continue to be careful and thorough when reviewing decisions

that potentially impact upon such rights.

(a) Section 3(6) of the Immigration Act 1999

18. In Kouaype v The Minister for Justice, Equality and Law Reform [2005] IEHC 380, Clarke J. set out two statutory prerequisites to

the making of a deportation order, the second of which is as follows:-

“The Minister is also required to consider the humanitarian and other factors set out in s. 3(6) of the 1999 Act insofar as

they are known to him. In this latter context it obviously follows that the Minister is required, inter alia, to have regard to

any representations on those matters which are made by or on behalf of the person concerned.”

19. It seems clear to me that in the present case, the Minister was entitled to assume, on the basis of the detailed representations

that were made by the RLS on behalf of the applicant and in the absence of any indication to the contrary, that the first named

applicant would take the second named applicant with her if deported; indeed, it would be extraordinary if he had assumed otherwise.

There was no obligation on the Minister to make any inquiries as to whether the child would go with his mother; it was entirely

practical and reasonable for him to proceed, as he did, on the assumption that she would have taken her child with her. I am fortified

in my view by the decision of McCarthy J. in Adegbemi v The Minister for Justice, Equality and Law Reform [2007] IEHC 393,

discussed above.

20. If the applicant had any intention of leaving her son behind, it was for her to inform the Minister of such, but she did not do so.

The following comments of Peart J. in Lupascu v The Minister for Justice, Equality and Law Reform [2004] IEHC 400 apply with equal

force in the present case:

“The applicant is not simply an inactive or passive participant in this process. He is obliged to act in his own interests,

and in this case it is a fact that he sat back and waited for things to happen and he cannot now complain in that regard.

Applicants are not inactive participants in the process.”

21. In the circumstances, I am of the view that the Minister gave adequate consideration to the factors set out in section 3(6) in

accordance with the obligations set out by Clarke J. in Kouaype.

(b) The Principle of Family Unity

22. It is beyond doubt that the principle of family unity is a fundamental principle of international refugee law and that the principle

must be applied to the benefit of dependants and not to their detriment. That notwithstanding, I can see no error in the manner in

which the principle of family unity was applied in the present case. There was never any question that the deportation of the first

named applicant would result in the family being separated; as I have held, it was practical and reasonable to assume that the family

would remain together in the event of a deportation. The unity of the family was, therefore, never in danger. If the family unit were

to be broken up, it would be the first named applicant who would have done so, by her own volition.

(c) Article 8, ECHR

23. Article 8 of the Convention unquestionably protects the right to respect for private and family life. As I have already noted,

however, there was no question that the applicants’ private and family life would be in any way interfered with in the event of the

deportation of the first named applicant. It was practical and reasonable for the Minister to assume that the first named applicant

would take the second named applicant with her if deported. Thus, although Article 8 rights were engaged, there was no potential

interference with those rights and so, it was not necessary to consider whether an interference would be justified under Article 8(2).

24. The decisions of the European Court of Human Rights upon which the applicants seek to rely are of no application in the present

case as they involve the separation of parent and child by means of the deportation of the former, whereas no such separation is

involved in the present case. The same is true of the decisions of the High and Supreme Courts in Bode v The Minister for Justice,

Equality and Law Reform [2006] IEHC 341; [2007] IESC 62.

Conclusion

25. I am satisfied that there has not been any error on the part of the Minister; it was open to him to reach the conclusion that he

did. Consequently, I must refuse the relief sought.