High Court grants leave to challenge deportation order due to risk of de facto deportation of infant child.

Neutral Citation Number: [2010] IEHC 296

THE HIGH COURT

JUDICIAL REVIEW

2010 569 JR

BETWEEN

J.B. (A MINOR), D.Q.B. & A. B.

APPLICANTS

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

JUDGMENT of Mr. Justice Cooke delivered the 14th day of July, 2010.

1. There are two applications before the Court in this proceeding: an application for an interlocutory injunction to restrain the

deportation of the third named applicant on foot of an order made under s. 3 of the Immigration Act 1999 dated 1st April, 2010 and

an application for leave to seek judicial review of that order with a view to its being quashed.

2. As compared with other applications to injunct deportation which come before this Court in analogous circumstances of Nigerian

parents with an Irish-born citizen child, this case is unusual in that the parent to be deported is the mother and the child, while born

in the State, was conceived in Nigeria when her father, the second named applicant was visiting the third named applicant there in

early 2009. The father had been granted residence in the State in 2005 on the basis that he was living here with his brother who had

in turn been granted residence as the father of an Irish born child.

3. The child was born here on 10th November, 2009, his mother having come here, she says, to find her boyfriend and make him face

up to his responsibilities, her father in Nigeria having disowned her. She nevertheless applied for asylum, a claim which was

understandably rejected. This led to the refusal of a declaration of refugee status and then to the making of the deportation order of

1st April, 2010. In advance of the making of that order representations had been made to the Minister on behalf of the third named

applicant by a letter of her solicitor dated 28th September, 2009.

4. The deportation order is, as usual, supported by the Minister’s memorandum of examination of file compiled within the department

setting out the analysis of the statutory considerations under s. 3 (6) of the Act of 1999, the statutory prohibitions against

deportation and the representations made to the Minister as well as the appraisal of the rights of the applicants both under the

Constitution and the European Convention of Human Rights.

5. The case to be made as to the illegality of the contested order if leave is granted is essentially directed at the adequacy of the

appraisal made in balancing the interests of the State in implementing the deportation against the countervailing interests of the

applicants as a family. Reliance was placed in particular upon the invocation by Fennelly J. in his judgment in A.O. and D.L. v. Minister

for Justice [2003] 1 IR 1, of the entitlement and birthright of every person born on the island of Ireland to be part of the Irish nation

as declared in Article 2 of the Constitution. This, it is argued, illustrates the fundamental right of any Irish citizen child to grow up and

to be educated in the State in order to be able to take full advantage of the benefits of being an Irish citizen. In the circumstances

of this family where the child is not yet a year old and the father alone is entitled to work (although he has in fact been unemployed

since January, 2010,) it is submitted that it is disproportionate to deport the child’s mother given that less restrictive measures would

be available to secure the two substantial reasons associated with the common good which are identified in and relied upon at the

conclusion to the file note namely “to safeguard the economic wellbeing of the country” and “to maintain control of its own borders

and operate a regulated system for the control, processing and monitoring of non-nationals in the State”.

6. The Court has decided to grant leave in this case but only upon two grounds which are more limited and more closely focussed

than those canvassed in the Statement of Grounds. Several of the grounds and arguments raised do not, in the Court’s view, justify

the grant of leave. In a case where the file note clearly demonstrates that the Minister’s analysis has carefully and thoroughly

extended over all the required considerations mentioned above it is not a valid ground for judicial review simply to allege that the

contested order breaches the Constitution or violates Convention rights; or fails to weigh relevant factors adequately or that it is

unreasonable or ultra vires. It is not enough simply to disagree with the Minister’s appraisal as disproportionate or unbalanced: it is

necessary to particularise some specific omission of a relevant consideration; some mistake of fact or error of law; some irrelevance

or other flaw which is so material to the tenability of the conclusion as to render the decision unlawful by reason of the excessive

impact of the deportation on the family as compared with the interests of the State which are sought to be pursued or protected.

7. Thus, it is clear that no issue arises in this case by reference to Article 8 of the Convention. Unlike many of the cases considered

by the Strasbourg Court with regard to the removal or exclusion of a family member from a contracting state in the context of Article

8 (Beljoudi, Boultif, for example,) the connection between this State and the adult applicants is recent and, in the case of the third

named applicant fortuitous and possibly contrived. As indicated above, the third named applicant became pregnant in Nigeria when

her boyfriend was on holiday there and the child happens to have been born in the State because she pursued his father here. Both

parents are natives of Nigeria and have spent most of their lives there. The child is entitled to Nigerian citizenship. Not only are there

no insurmountable obstacles to them preserving their existing brief family life by relocation to Nigeria, there are no actual difficulties of

language, religion, culture, politics or any other relevant factor which would make it difficult for them to do so. The child has not yet,

one would assume, learned to talk and even perhaps to walk and so may well be able to adapt to the country of his alternative

citizenship. Having regard to the settled principle of Article 8 that no Contracting State is obliged to accept a choice of residence

made by non-nationals, no stateable case can be made in these circumstances that the adult applicants have such an established

family life in this country that the expulsion of the third named applicant would constitute an interference with that life of such

gravity as to make it unlawful. The second named applicant has been a settled (although not necessarily a permanent,) resident only

since 2005: the third named applicant entered the State illegally and has been here on that basis a little over one year.

8. The other issue raised which the Court considers manifestly unstateable is that expressed in somewhat diffuse terms at para. 7 of

the grounds relied on in s. 5 of the Statement of Grounds. It is said that there is no “independent review mechanism” available to the

applicants of decisions made under s. 3 of the 1999 Act which would, as it was put, “allow a full and independent assessment to be

made of all of the facts and circumstances of the case”. Although the provision is not mentioned in the Statement of Grounds, this

appears to be an attempt to invoke Article 13 of the Convention which provides:

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a

national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

9. The Court considers this argument to be unfounded because it is for the very purpose of quashing the contested order that the

present application is now before the Court. It is not disputed that the judicial branch of this State is constitutionally established as

independent. The High Court is thus an independent national authority in that sense. A decision of the Minister to deport is explicitly

subject to the remedy by way of judicial review before the High Court by virtue of the legislative scheme of the 1999 Act and s. 5 of

the Illegal Immigrants (Trafficking) Act 2000 which, by laying down the terms of access to the remedy of judicial review, expressly

recognises the supervisory jurisdiction of the Court in relation to deportation orders. If a decision to deport made by the Minister is

bad it can be quashed by judicial review. It is sometimes suggested that judicial review is not a full effective remedy as compared

with a right of appeal because the High Court cannot substitute a new decision for that of the administrative decision maker. It can

only quash the decision for error of law, error fact or manifest unreasonableness including, nowadays, disproportionality. That is, in

this Court’s judgment, to underestimate the comprehensive and flexible character of the modern judicial review remedy in this

jurisdiction. The High Court can annul and set aside a decision by certiorari and injunct its implementation by prohibition. It is true, as

mentioned, that the Court cannot itself make a new decision but by the judicious and flexible use of declaratory relief it can identify

why an impugned decision is mistaken or fails to comply with the obligations arising out of the European Convention of Human Rights

Act 2003. By that means it can circumscribe the terms upon which the administrative decision maker is required to make a new

decision. In the view of the Court, the jurisdiction of the High Court in the review of administrative decisions including deportation

orders is at least as ample by way of effective remedy as that of the administrative courts of continental jurisdictions or, for that

matter, the Court of Justice of the European Union under Article 263 of the Treaty on the functioning of the Union. Furthermore,

insofar as the concept of “effective remedy” extends to an entitlement to compensation where a right or freedom has been violated,

the High Court has jurisdiction in the exercise of its judicial review function to award damages. Thus the scope of the jurisdiction of

the High Court in reviewing the legality of a decision made under s. 3 of the 1999 Act clearly fulfils the criteria established by the

case law of the Strasbourg Court for the provision of an effective remedy before a national authority in accordance with Article 13.

The High Court is independent and its orders in judicial review are binding and enforceable. Furthermore, as is made clear by the

judgment of Denham J. in the Supreme Court in the Oguekwe case, the High Court in reviewing the validity of a deportation order is

not only entitled but obliged to ensure that the order has been validly made in the light of any substantive arguments raised based

upon alleged violation of Convention rights and freedoms.

10. A further part of this claim can also be eliminated. In the Court’s judgment no arguable case can be raised as to the validity of the

two reasons identified as substantial reasons for the deportation by the Minister in the conclusion to the file note as mentioned

above. In circumstances where the second named applicant is not in employment and the third named applicant has poor prospects of

employment in the current economic climate, it cannot be said that the conclusion on this point is without valid foundation or

unreasonable. It is submitted nevertheless that this approach is inconsistent with the constitutional recognition of the contribution

made by a wife and mother to the common good by her work in the home. That is possibly so as an observation but the Minister is

entitled to be concerned when assessing the need for deportation as against granting leave to remain to have regard to the realities

of current economic conditions. How is the third named applicant to support her child if she remains when neither she nor the child’s

father is in employment and has no apparent means of support other than the public purse? Secondly, this is not a case in which it

could be said that the Minister’s concern for the State’s interest in maintaining the integrity of its asylum system and control of its

borders was unfounded or unreasonable. This is a case in which the asylum system has, in effect, been manipulated. The child was

conceived while the father was on holiday in Nigeria. The third named applicant came here to find him but made what was in effect a

bogus asylum application presumably in order to gain time so that the child would be born in the State. In accordance with Irish law

of course the child is an Irish citizen with rights which must be vindicated but that does not preclude the Minister having legitimate

regard to the circumstances in which the child’s citizenship was contrived to be obtained when considering the continued presence in

the State of the parent.

11. On the face, of it the Minister’s analysis in the file note has carefully followed the guidelines set out in the Oguekwe case in the

Supreme Court in considering the constitutional rights of the child and in seeking to balance the interests of the child against those of

the State in deporting the mother. Nevertheless the Court is satisfied that an issue of sufficient substance has been raised as to the

adequacy of the consideration given to the fact that the child is so very young and that it is the mother who is to be deported. Has

the correct proportionate balance been struck in considering the position of the child if left in the State on the one hand or if forced

to leave with her mother on the other? Have any less restrictive solutions been considered and why were they regarded as

unacceptable?

12. In the view of the Court the only substantial issue raised in this case relates, therefore, to the entitlement of this very young

infant to either be protected against a constructive or de facto deportation with its mother or to be required to forfeit the care of its

mother in order to exercise its constitutional entitlement to remain in the State. This is a serious issue and is therefore one of

substance which ought not to be adjudicated upon in a leave application. As has been pointed out by counsel, the consequence of a

deportation order in these circumstances should the child remain with the father in exercise of her entitlement as a citizen, is that the

mother may never be entitled to visit her here as she grows up. Once deported, the third named applicant, at least in principle, is

banned for life from re-entering the State.

13. For these reasons the Court is satisfied that a substantial ground has been raised in this case which justifies the grant of leave

but the basis for the challenge will be more directly focussed on those tenable issues as identified above. Leave will therefore be

granted to seek the reliefs sought in s. 4 of the statement of grounds at paras. (i), (iv) and (vi) (the remainder are superfluous).

Leave may be sought on the basis of the following two grounds:

(i) The respondent Minister failed to consider and to weigh correctly the balance of the opposing interests of the

applicants and the State, the possibility that the deportation of the third named applicant would constitute a de facto or

constructive deportation of her Irish citizen child by reason of the child’s very young age and dependence on his mother;

(ii) While stating that a deportation order was the least restrictive process available to achieve the legitimate aims of the

State identified as substantial reasons for the deportation, the respondent did not in fact consider and weigh in the

balance any other less restrictive measures available to him to control the limited or temporary presence of the third

named applicant in the State.

14. As these are substantial grounds as to the possible invalidity of the deportation order, it follows that a fair issue for trial has been

established. Having regard to the young age of the child and its effective dependence from day to day on the care of its mother, the

balance of convenience clearly lies with permitting mother and child to remain together pending the determination of the proceeding.

An interlocutory injunction will therefore be granted pending the hearing of the substantive application.

15. There is a preliminary issue raised as to the need for an extension of time for the bringing of this application. The delay in this

case is only marginal. The deportation order was communicated by letter of 14th April, 2010 which was presumably received on the

15th or 16th April, such that the period expired on or about 30th April. This proceeding was initiated on 5th May. Having regard to the

implication of the issues for the future of the Irish child the Court is satisfied that there is good and sufficient reason to grant the

short required extension.