High Court dismisses judicial review of deportation order, upholding Minister's discretion on public policy grounds.

Neutral Citation Number: [2010] IEHC 343

THE HIGH COURT

JUDICIAL REVIEW

2010 93 JR

BETWEEN/

S.O., O. O. AND 5 MINORS [SUING BY THEIR

MOTHER AND NEXT FRIEND O. O.]

APPLICANTS

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

JUDGMENT of Mr. Justice Cooke delivered the 1st day of October, 2010.

1. This is an application for leave to seek judicial review of a deportation order made against the first named applicant by the

respondent under s. 3 of the Immigration Act 1999 on 18th November, 2009, (the “Contested Order”). An injunction to restrain

implementation of that order pending the determination of the present proceeding is also sought.

2. The background to the proceeding can be briefly stated. The first named applicant (“Mr. O.”) is from Nigeria. He arrived in the

State in October, 2002 and claimed asylum. That application was ultimately unsuccessful and he was refused a declaration of refugee

status by the respondent under s. 17 of the Refugee Act 1996 (the “1996 Act”). He is thus a person to whom s. 3 (2) (f) of the 1999

Act applies and in respect of whom a deportation order may be made.

3. Mr. O is married to the second named applicant (“Mrs. O.”) who is a native of South Africa. She arrived in the State in March 2002.

They have together five children (the above minor applicants) of whom the three eldest (the third, fourth and fifth named applicants)

are Irish citizens having been born in the State respectively in 2002, 2003 and 2004. Mr. O. also has two children from a previous

relationship who have remained in Nigeria. The Court has been given no information as to their circumstances or as to what role, if

any, Mr. O. plays in their upbringing or support. According to Mr O’s asylum application, he also has parents, two brothers and three

sisters who live in Nigeria. In his affidavit of 17th February, 2010 in this proceeding he mentions that his father was given permission

to be in the State until 6th April, 2010, apparently for the purpose of seeking medical treatment.

4. On the basis of her being the mother of the three eldest children, Mrs. O. has been granted permission to remain in the State which

is currently valid until 3rd November, 2010. However, Mr. and Mrs O., while still married, have been estranged and separated since at

least an unspecified date prior to May 2008 and Mr. O. no longer lives with this family. He claims, however, that he and his wife are

still on good terms and that he is involved in the upbringing of all of the children and makes a weekly maintenance contribution to

their support. Although joined as a party in the proceeding, Mrs O. has not chosen to provide any affidavit evidence on the matters

advanced in relation to the family by her husband.

5. Mr. O. was also granted permission to remain in the State on the same basis originally for two years from 3rd November, 2005 and

then up to 3rd November, 2010 but this was revoked by letter of 23rd July, 2008 from the Irish Naturalisation and Immigration Service

(INIS) upon grounds which were stated in that letter in the following terms:

“You were informed by letter dated 14/11/2007 that your permission to remain in the State had been renewed for a

further three years until 3rd November, 2010. As you are aware this permission was conditional and subject to the results

of inquiries as to whether you have obeyed the laws of the State or have been convicted of any offence. You were

advised that your permission to remain in the State may be revoked if you are found to have given false or misleading

information in the course of your renewal application. This office has been advised that you have been convicted of

several offences since being granted permission to remain in the State. These were not disclosed on your renewal

application form. I am satisfied that you are a person who has not been of good behaviour in the State and who has

provided false and misleading information in your renewal application. On this basis you do not meet the criteria for

granting permission to remain in the State and your permission is hereby revoked. I am directed by the Minister for

Justice, Equality and Law Reform to refer to the letter of 11/09/2003 stating that the Minister proposes to make a

deportation order in respect of you, in accordance with s. 3 of the Immigration Act 1999, as amended. … You are invited

to update any representations you may already have made in response to the letter referred to and to make any further

representations if you so wish.”

6. By letter of 8th September, 2008, Mr. O.’s then solicitors, Ceemex & Co., made representations on his behalf. In the letter the

solicitors claimed that “our client first became aware that the Minister was proposing to revoke his residency on or about mid-August,

2008 when he accidentally stumbled upon the Minister’s letter dated 12th June, 2008”. That statement is not strictly correct because

in May 2008 Mr. O. had instructed another firm, Messrs. Niall Sheerin & Co. to write a letter dated 29th May, 2008 to the INIS on the

basis of a letter originally written to the applicant dated 9/4/08 but reissued to him on 16th May, 2008. Although the letter from the

INIS mistakenly included the name of another person as addressee in addition to that of Mr. O., he was clearly in no doubt from the

detail of its reference to his original application for renewal of his permission, that it referred to him and it was for that reason that

the solicitors in question demanded to be furnished with the grounds and evidence for the proposed revocation of his permission to

remain.

7. In January, 2009 Mr. O. consulted a third firm, Messrs. A.C. Pendred & Co. who wrote, without any further explanation of their

intervention, asking to be furnished with a copy of his file. This letter described Mr. O. as having a “previous address of 28, [W] Road,

Lucan, Co. Dublin” but gave no current address for him. On 11th March, 2009 without having received the file from either of Mr. O.’s

previous solicitors, A.C. Pendred wrote making a brief representation on his behalf. This letter referred to him as being “previously of

41, [S]… House, Clonee, Dublin 15” but gave no current address for him.

8. On 2nd September, 2009 the INIS wrote to Mr. O. advising him of his entitlement to apply for subsidiary protection under the

European Communities (Eligibility for Protection) Regulations 2006 (the “Regulations”). That letter addressed to him at 78, [L] Park,

was apparently returned marked “not called for”.

9. On 18th November, 2009 the contested deportation order was made and was sent to the applicant by letter of 27th November,

2009 and copied to Messrs. A.C. Pendred & Co. It included by way of statement of the Minister’s reasons for his decision the

memorandum of examination of the file under s. 3 of the 1999 Act (“the File Note”). The File Note runs to some 33 pages of which

approximately 16 pages consist of extracts from documentation consulted by the writer by way of country of origin information.

10. Mr. O. has sworn that he did not receive the letter of 27th November, 2009 and only became aware of it on some unspecified

date in December, 2009 when he went to the GNIB to have his passport stamped. He does not say that the letter was not received

by A.C. Pendred & Co. but appears to invite the Court to infer that A.C. Pendred & Co. failed to inform him of it because he does not

mention having had any further contact with that firm and says that he changed to yet a further firm, his present solicitor, Kevin

Tunney “because of the lack of information from my previous legal representative”.

11. On 3rd February, 2010, when the applicant called to the GNIB he was detained for the purpose of deportation but then released

and required to report again on 17th February, 2010. The present proceeding was then initiated by his current solicitor on the same

day.

12. An issue therefore arises as to whether if leave is to be granted an extension of time for the purpose of making the application is

required and if so whether “good and sufficient reason” for extending the period of fourteen days fixed by s. 5 of the Act of 2000 has

been established. If Mr. O. admits knowing of the order in December, 2009, it is clear that an extension of at least one month may be

required and it has been strongly urged on behalf of the Minister that no explanation let alone any good and sufficient reason has

been put forward which would justify extending the period. Without questioning the force of that argument the Court considers it

appropriate to examine first the merits of the issues proposed to be raised having regard to the significance which the deportation

order may have for the applicant’s family. It is thus necessary to outline the analysis made in the File Note and the reasons given by

the Minister for his decision and then to consider the grounds proposed to be raised as to why the decision is unlawful and ought to

be quashed.

13. The File Note extends over 33 pages and is signed by an executive officer of the Repatriation Unit on 10th November, 2009 and

then countersigned as approved by superior officers on subsequent days. It comprises broadly three sections:

(a) A consideration of the matters required to be taken into account under the headings at s. 3 (6) (a) – (k) of the

Act of 1999;

(b) Consideration of the statutory prohibitions in s. 5 of the Act of 1996 (Refoulement) and s. 4 of the Criminal

Justice (U.N. Convention against Torture) Act 2000;

(c) Consideration of the factors and interest arising under Article 8 of the ECHR and the constitutional rights of the

Irish citizen children under Articles 40, 41 and 42 of the Constitution.

14. Although the main grounds relied upon are directed at the appreciation contained in the third section of the File Note, the

following matters addressed in the headings of section 3 (6) of the first section are also relevant:

(c) – Family and Domestic Circumstances:

It is noted that the first and second named applicants are married but living apart. Mrs. O. has permission to remain

as mother of the citizen children and it is currently renewed until 03-11-2010. The other members of the family are

noted as is the fact that the Irish citizen children would be entitled to Nigerian citizenship under the Nigerian

constitution. The members of Mr. O.’s family in Nigeria are noted. It is recorded that Mr. O. claims to provide

maintenance of €200.00 per week towards the family.

(d) – Connection with the State

Mr. O.’s connection with the State is said to lie in his asylum application, his parenthood of the three citizen

children and his earlier permission to reside since November, 2005. The note then records the numerous convictions

accumulated by Mr. O. and the circumstances which led to the revocation of his permission to remain for breach of

the conditions of that permission and the failure to disclose the convictions when applying for renewal.

(e) (f) – Employment and Employment Prospects

Here Mr. O.’s education and work in Nigeria and the fact that he set up a business in South Africa which he later

sold are recorded. It is noted that while he is not permitted by law to work in the State the representations indicate

that he is presently working for a particular enterprise. There then follow extensive extracts from reports and

information about the Irish economy which are quoted in support of the conclusion that the applicant’s “chances of

obtaining legal employment in the current economic climate are poor”.

(g) – Character and Conduct

The various convictions acquired by the applicant between 2003 and 2008 are listed. The first being for the use of

a false passport in 2003 which carried a sentence of 28 days imprisonment and the last in February, 2008 for

possession of drugs for sale and supply for which Mr. O. is recorded as having been sentenced to six months

imprisonment. (It was explained at the hearing that the former relates to the false South African passport held by

the applicant on arrival in the State.)

(h) – Humanitarian Considerations

Under this heading the circumstances of the family are noted including information given on their behalf by Ceemex

& Co. in their representations. This includes the fact that the children have been attending full-time in education in

Ireland for a number of years and the comment is made: “However no further details have been submitted in relation

to the children’s educational progress in the State. Given the young ages of these children it is reasonable to

assume that Mr. O.’s children who are attending school are in the early stages of their primary education in the

State.”

(i) – Representations

Here matters advanced by Ceemex & Co. are quoted including details of the “on/off relationship” which subsisted

between Mr. and Mrs. O. The submission that Mr. O. plays an active part in the children’s lives and his active

interest in their performance at school is noted as is the submission that if he is deported it will “severely disrupt

their lives and cause psychological harm to the children who have made much progress and become accustomed to

the Irish system of education”.

(j) – National Security and Public Policy

It is noted that national security has no bearing on the case but, by reason of the convictions, “public policy

regarding the prevention of disorder in crime has a bearing on this case”.

15. In considering the possible application of the prohibition on refoulement, the author of the File Note notes that when renewing his

permission to remain in the State Mr. O. mentioned that he had voluntarily travelled back to Nigeria on at least three occasions and it

is concluded that “there is nothing to suggest that he encountered any difficulties during these visits”. It is also notable that under

the heading of s. 5 of the Act of 1966 the File Note also records an extensive consultation of information relating to conditions in

Nigeria as regards children’s healthcare, education and the recognition and protection of children’s rights.

16. In the third section of the File Note there is a lengthy and detailed analysis extending to some ten pages of the considerations

arising in relation to the impact of the deportation on the family and its members from the point of view of Article 8 of the ECHR and,

so far as concerns the citizen children, of their constitutional rights.

17. In dealing with Article 8 of the Convention the File Note acknowledges that the deportation would interfere with both the private

life of Mr. O. and the family life of the applicants. In relation to the former, the author again recites the history of Mr. O. since arrival

in the State, the revocation of his leave to remain; and the fact that he has developed strong links with the community while residing

here and participating in the workforce. It is submitted, nevertheless, that the deportation is (i) in accordance with Irish law; (ii)

pursues a pressing need and legitimate aim namely, to prevent disorder and crime and ensure the economic wellbeing of the country;

and (iii) that, in terms of Article 8 (2) it is necessary in a democratic society in pursuit of that pressing need and is proportionate to

the legitimate aim being pursued. That submission is then explained by reference to the convictions and Mr. O.’s poor prospect of

obtaining employment not only because of the economic downturn in the country but of his criminal record which, it is said, “may

inhibit his re-integration into society and perpetuate the cycle of offending”. It is said “Mr. O. has already demonstrated a high

propensity to re-offend as he has been convicted of a substantial number of offences over a number of years which has resulted in

his imprisonment in the State”. While it is acknowledged that the convictions “individually are not at the most serious end of the

spectrum of criminal activity” it is nevertheless considered that “the nature, number and time span of the offences which include,

inter alia, use of false passport, assault, possession of drugs for the purpose of sale and supply, no insurance, no road tax, etc.

demonstrates that the applicant has shown a prolonged and flagrant disregard for the criminal laws of Ireland giving rise to a

compelling public interest in his deportation”.

18. The conclusion in respect of interference with private life is then stated: “In weighing the rights of the applicant against these

rights of the State, it is submitted that the deportation of the applicant is not disproportionate, as the State has the right to prevent

disorder and crime and to protect the economic wellbeing of the country. This is a substantial reason associated with the common

good and which requires the deportation of (Mr. O.).”

19. A corresponding analysis is then made under the heading of “Family Life” in which the circumstances of the family and the children

are again recalled and weighed against the pressing need and legitimate aim being pursued by the State. The circumstances in which

the convictions came to light and led to the reconsideration of the three year extension of permission to remain made in November,

2007 is described and the fact that the applicant has been working with a particular enterprise although not entitled to do so since

the revocation. Under the heading “Balancing Rights” the rights of the State are then considered as against the circumstances of the

children. Information obtained on primary and secondary education in Nigeria is set out and it is pointed out that there is an

established functioning police force in Nigeria to enforce the rule of law; that there is a functioning healthcare system with

government run public facilities where girls and boys have equal access to treatment as well as private health facilities. It is noted

that Nigeria has ratified the Convention on the Rights of the Child. This passage then includes observations which were the subject of

specific attack in the submission made to the Court:

“…should the Minister make a deportation order in respect of (Mr. O.) the disruption to the family life would not have the

same impact as it would if the family had been living together as a family unit for a much longer time. In this regard it is

noted that Mr. O. and his wife are now separated and that Mr. O. is no longer living with his children as a family unit in

the State. Furthermore, Mr. O. has been convicted of a substantial number of offences over a number of years, which has

resulted in his imprisonment in the State, therefore, he was not actively involved in the upbringing of his children for a

notable period of time in their lives.”

20. Finally, under the heading “Constitutional Rights of the Irish born Children” the File Note again assesses the circumstances of the

citizen children and balances their rights against the interests being pursued by the State as the reason for deportation. The rights of

the children as citizens under the Constitution as reiterated in the jurisprudence of the Supreme Court are outlined and the writer

says: “I have taken into consideration the best interests of the citizen children which undoubtedly involves having the care and

company of their parents. However, these rights are not absolute.” The balancing exercise is then repeated and the observation as to

the effect of the separation and the periods of imprisonment on the involvement of Mr. O. in the upbringing of the children is again

made. The overall conclusion is then stated as follows:

“Having weighed and considered all of the factors outlined above relating to the position of the family and in particular

(the Irish citizen children) as well as factors relating to the rights of the State, it is submitted that the factors relating to

the rights of the State are weightier than those factors relating to the rights of the individual family. In weighing the

rights of the applicant and his family against the rights of the State, it is submitted that the deportation of the applicant

is not disproportionate as the State has the right to prevent disorder and crime in the State and to protect the economic

wellbeing of the country. This is a substantial reason associated with the common good which requires the deportation of

(Mr. O.).”

21. It will be apparent from this summary of a lengthy analysis set out in the File Note that the Minister’s officers have followed

carefully and in detail the guidelines suggested for this exercise by the Supreme Court in cases such as, for example, Oguekwe v.

M.J.E.L.R. [2008] 3 I.R. 795. A substantial reason namely, the prevention of disorder and crime and the protection of the economic

wellbeing of the State, has been identified and the rights and interests of the children and the family have been set out and balanced

against the interests of the State with a view to assessing whether the impact of the deportation would be proportionate.

22. It is against those reasons for the decision that the present application is brought for leave to challenge the content of the File

Note supporting the decision as unlawful. Of the eleven grounds put forward in section (d) of the Statement of Grounds, a number are

of an introductory or general character and do not identify any specific basis of illegality in the decision but allege that “the reasoning

and analysis is unsatisfactory” or there has been a general “failure to respect the rights under Article 8 of the Convention or Article

41 of the Constitution”. The Court considers that an application for leave to review a reasoned decision of this nature is inadequate

and cannot be considered to raise a substantial ground to the extent that it contents itself with general assertions of that kind and

fails to identify specific flaws or illegalities. The Court considers that it is therefore unnecessary to consider the grounds sought to be

raised at paragraphs d) A, D, K and J of the Statement of Grounds dated 1st February 2010. Of the grounds which are sufficiently

specific to be considered as a basis for the grant of leave, the issues raised can be paraphrased as follows:

(1) The Minister failed to have due regard to the fact that the minors are children of a Nigerian father and a South

African mother and/or in that regard did not adequately consider the impact upon them of the deportation in the

particular context of the mother’s own background and/or that of the other family members.

(2) The determinations of the Minister are made on incorrect information and deductions.

(3) The Minister failed to consider the circumstances of Mr. O. vis-à-vis his children including the nationality of the

second named applicant but “contented himself” with pro-forma extracts about Nigeria and the Irish law without

any proper application to the facts of the applicant’s case.

(4) There was no grave and substantial reason or pressing reason associated with public policy or the common good

to warrant termination of (Mr. O.’s) residence in the State.

(5) The economic reasons detailed have no applicability to the case as Mr. O. has employment and there is no

suggestion that he will lose that employment.

(6) The Minister failed to ascertain the views of Mrs. O. and the children or to ascertain the capacity of all of the

applicants to express their own views.

(7) The Minister breached the European Convention of Human Rights Act 2003 with particular reference to Article 8

thereof (sic) and failed to respect the constitutional rights of the applicants and particularly those under Article 41.

23. When these grounds were developed in argument at the initial hearing of the application, the central thrust of the approach was

directed at the validity of the overall analysis made in the File Note with particular reference to the result achieved in balancing the

rights of the State against the rights of the family and children and the failure to reach a proportionate result. While key facts in the

circumstances of the applicant’s were not disputed including the fact that Mr. and Mrs. O. were separated; that Mr. O. was not living

with the family and the fact of the accumulated convictions, it was argued that the balance was distorted by the failure of the

Minister to give proper weight to the support contributed by Mr. O. and the fact that he had no difficulty in obtaining and keeping

employment. More importantly, it was argued that the Minister had erred in fact when relying upon the sentences of imprisonment in

connection with the degree of Mr. O.’s involvement with the family because, apart from the period of 28 days spent in prison on his

arrival for use of the false passport, he had not in fact served any term of imprisonment on foot of the other sentences. It is further

argued that the Minister erred in failing to give greater weight to the South African nationality of Mrs. O. and the difficulty which that

would constitute as an obstacle to her relocating to Nigeria.

24. This application for leave to review the Contested Order is, of course, covered by s. 5 of the Illegal Immigrants (Trafficking) Act

2000. The Court cannot grant leave unless if is satisfied that substantial grounds are shown for contending that the decision to make

the deportation order is invalid and ought to be quashed as required by subs. (2) (b). In addition, as in this case the application has

been brought some considerable time after the expiry of fourteen days following the date when the applicant admits having learned of

the order in December, 2007, leave cannot be granted unless the Court considers that there is good and sufficient reason for

extending the period of fourteen days limited by subs. (2) (a) of that section.

25. Having considered the submissions made by the parties at the initial hearing and noting the considerable emphasis placed by the

applicants upon the proposition that the balancing exercise carried out by the Minister was flawed and necessarily distorted by

particular errors such that the conclusion reached overall could not be said to be the proportionate result required by law, the Court

considered it appropriate to raise with counsel the issue as to the correct approach to be adopted by the Court in such

circumstances when assessing whether the arguments raised could constitute “substantial grounds” for the purposes of the test in s.

5 of the Illegal Immigrants (Trafficking) Act 2000. Having regard, in addition, to the judgments of the Supreme Court in Meadows v.

M.J.E.L.R. (Unreported, 21st January, 2010), the Court invited the parties to make additional submissions as to how the “substantial

grounds” test ought to be applied in the context of arguments which are, in effect, directed at the judgment made by the Minister

when balancing the rights, interests and other factors which fall to be considered. The Court invited their submissions on the issue as

to whether in considering whether “substantial grounds” are made out, it is permissible or appropriate to consider whether a ground is

likely to be sustained at a substantive hearing having regard to the fact that in this particular context such a hearing would

effectively amount to a rehearing of the issues considered upon the leave application. Counsel for the parties duly lodged written

submissions in response to the Court’s invitation and further argument was heard at a resumed hearing on 11th June, 2010.

26. In dealing first with the criterion to be applied under s. 5 (2) (b) for the grant of leave, the High Court has on numerous occasions

adopted for the purpose of that section the test originally articulated by Carroll J. in McNamara v. An Bord Pleanála [1995] 2 I.L.R.M.

125 when construing the same words as applied to applications for leave to seek judicial review under s. 82 (3B) of the Local

Government (Planning and Development) Act 1963, as amended by s. 19 (3) of the Local Government (Planning and Development) Act

1992. Subsequent judgments invariably cite the description of “substantial grounds” from that judgment as being “reasonable,

arguable, weighty and not trivial or tenuous” but it is useful to recall the full passage from which these terms come in the judgment of

Carroll J.:

“In order for a ground to be substantial it must be reasonable, it must be arguable, it must be weighty. It must not

be trivial or tenuous. However, I am not concerned with trying to ascertain what the eventual result would be. I

believe I should go no further than satisfy myself that the grounds are ‘substantial’. A ground that does not stand

any chance of being sustained (for example, where the point has already been decided in another case) could not

be said to be substantial. I draw a distinction between the grounds and the various arguments put forward in

support of those grounds. I do not think I should evaluate each argument and say whether I consider it is sound or

not if I consider a ground, as such, to be substantial I do not have to say if the applicant is confined in his

arguments at the next stage to those which I believe may have some merit.”

27. It is notable that in this passage Carroll J. was primarily concerned with construing the term “substantial grounds” as applied to

applications under Order 84 of the Rules of the Superior Courts for judicial review of decisions of An Bord Pleanála introduced in 1992.

Apart from pointing out that once the Court was satisfied that a ground was “substantial” and was not therefore concerned to predict

the result of the application or to evaluate the arguments advanced to sustain it, Carroll J. did not consider the possible significance

of that higher test in the light of the legislative purpose of filtering the number of cases to be submitted to a substantive hearing by

requiring that leave be obtained at an inter partes hearing. At that time s. 82 (3B) was the only provision applying such a test and

notice requirement to the application of Order 84. The same approach later operated or now operates also under a number of other

statutes apart from the present context and the Planning Acts: see for example:

Section 43(5)(b)(iii) of the Waste Management Act 1996 –subsequently repealed:

Section 13(3) of the Irish Takeover Panel Act 1997:

Section 73(2)(b)(iii) of the Fisheries (Amendment) Act 1997:

Section 38(2) of the Aviation Regulation Act 2001.

Section 47(2) of the Transport (Railway Infrastructure) Act 2001.

(It might be observed that the decisions to which Order 84 is thus applied have, as with those under the Planning Acts, the common

characteristic of involving the application of specialised criteria of a technical nature in areas of complex regulatory control.)

28. The standard to be applied to applications for leave made ex parte under Order 84 was authoritatively defined by the Supreme

Court in G. v. D.P.P. [1994] I.R. 374. The statement of the law by Finlay C.J. in that case at p.377 was reaffirmed by the Supreme

Court in D.C. v. D.P.P. [2005] 4 I.R. 281 at 287 following a query that had been raised by Kelly J. in Gorman v. Minister for the

Environment [2001] 1 I.R. 306 as to whether the test might not be different in cases where leave was applied for on notice to a

respondent. That issue arose however where an application which otherwise fell to be made ex parte was directed by the court to be

made on notice and was ruled upon after an inter partes hearing.

29. In the latter case Kelly J. had expressed some doubt as to whether the low ex parte standard would be appropriate also in cases

of an inter partes hearing and referred to the approaches adopted in the English cases of Mass Energy v. Birmingham C.C. and R. v.

Cotswold D.C. He explicitly refrained however from deciding the issue in that case, saying at page 310 of the judgment: “That

approach appears to me to make a great deal of sense and to make more economical use of court time than the application of the

substantially lower standard of arguable case to a hearing of this sort. This question must however wait to be decided on another

day and in another case where the issue can be fully debated.”

30. In the D.C. v D.P.P. case the Supreme Court declined to alter the test applied to cases outside those where a specific and

different statutory test falls to be applied. Denham J. warned of the danger of developing a multiplicity of different approaches to the

test for the grant of leave under Order 84. Clearly, however, where a specific test for leave applications under that order is

prescribed by statute for particular applications, it is the intention of the Oireachtas based upon an interpretation of that provision in

the legislative context concerned which must determine the scope or level the test to be applied.

31. The present case is one in which such a statutory test falls to be applied and, when the approach of Carroll J. is transposed to

the context of applications for leave to seek judicial review of decisions in asylum and deportation matters covered by s. 5 of the Act

of 2000, there is, in the Court’s judgment, a further dimension which ought to be borne in mind.

32. In these matters the State is discharging obligations which it has undertaken in international law in the Geneva Convention on the

Status of Refugees of 1951 and under European Union law in the form of the minimum qualification and procedural standards to be

achieved by the Member States under Council Directives 2004/83/EC of 29th April, 2004 and 2005/85/EC of 1st December, 2005.

Thus, decisions affecting the entitlement of a non-Union immigrant to be present or to remain in the State should be processed

carefully, objectively and impartially but also with such expedition as is commensurate with ensuring that the process is not rushed or

the consideration rendered is superficial or inadequate. In particular, where substantive administrative decisions have been taken, the

circumstances of the addressee ought not to be left in suspense or uncertainty by appeal or review procedures which are

unnecessarily protracted, complex or cumbersome. This imperative in respect of decisions to which s.5 applies was referred to by the

Supreme Court when considering the constitutional validity of the bill: “All statutory instances where the ‘substantial grounds’

requirement have a common leitmotif: the need for legal certainty and the swift determination of the validity of the administrative

measure impugned in the proceedings has been present.” (See Re: Article 26 of the Constitution & ss. 5 & 10 of the Illegal

Immigrants (Trafficking) Bill 1999, [2000] 2 IR 360 at 381.)

33. There is therefore a material difference between the issues likely to arise in the legislative context of the 1996 Act as compared

with the complex technical and regulatory issues that invariably arise in the context of the Planning Acts or the other statutes

mentioned in paragraph 27 above.

34. It is clearly consistent with those considerations that the legislative purpose of s. 5 of the Act of 2000 of requiring leave to be

applied for upon notice, should be construed and applied so as to ensure that the section operates as an effective filter so that only

those cases in which grounds of clear substance with the potential of being sustained and requiring the more detailed examination of

a substantive hearing in the light of pleaded grounds of opposition, should be submitted to the necessity of a further hearing. To put

the matter another way, a ground advanced as the basis for obtaining leave cannot, in the judgment of the Court, be said to be

substantial by virtue only of the fact that it is proposed to sustain it by arguments which are apparently serious or important, if it is

clear to the Court at the leave stage where all relevant evidence is before the Court and following full argument between the parties,

that the arguments are capable of a definitive answer which will not be altered by the pleading of grounds of opposition and by re-

argument at a further hearing. In those circumstances the court is in as good a position on the leave application to assess the effect

and adequacy of the evidence as it will be at a substantive hearing.

35. Counsel for the applicants submitted that a clear distinction must nevertheless be made between the issue at a leave hearing as

opposed to the substantive hearing and that all that the Court can and ought to consider at the leave stage was whether the ground

relied upon “ stands some chance” of being sustained. If it has some chance, the ground will be “substantial”. It is not relevant to

consider whether the counter arguments of a respondent have merit. He relied in particular on the passage quoted above from the

judgment of Carroll J. (see para 26,) where she distinguishes between the grounds relied upon and the merits of the supporting

arguments and then says:

“It is not for me at this stage to decide whether the removal of the additional sand and gravel is a permissible

modification of or a radical alteration of the original application. The arguments advanced by the Applicant may or

may not succeed in the substantive hearing and I express no view on that but I do hold that the ground is

substantial.”

He also referred to the observation of Murray C.J. in his ex tempore judgment on behalf of the Supreme Court in A.G. v. Skripakova

[2006] (Unreported, IESC 68);

“An application for leave to apply for judicial review is, as the description suggests, an application to the Court for

access to the courts in order to have certain questions of law and fact litigated and determined by the Court. The

only question to be decided in that context is whether the person should have liberty to bring such proceedings.

There is no final determination of the merits of the applicant’s grounds. In that sense the Court does not have to

accept that the grounds are valid grounds. That remains for the final determination in the substantive proceedings

after leave is granted.”

36. It does not appear to the Court that these arguments of counsel adequately respond to the issue now raised, namely, whether it

is consistent with the intention of the Oireachtas in introducing the higher test and an inter-partes leave application for cases coming

within s.5 of the 2000 Act, that the Court must always remit an application for substantive rehearing because a ground raised is one

which can be characterised as reasonable and weighty but is nevertheless clearly susceptible of an immediate answer and where the

issues are such that the delivery of pleadings or the adducing of other evidence will not alter the necessary rejection of the claim. In

the first place it appears clearly inconsistent with the statutory purpose of requiring a specific threshold to be reached on notice to

the deciding authority that the merits of the arguments which the latter then advances are effectively to be ignored in deciding

whether the threshold has been reached. Secondly, the Skripakova case was not an application for judicial review under Order 84 but

a challenge to an extradition order based on s. 11(2) of the Extradition Act, 1965. Under that provision extradition might be refused

“…if there are substantial grounds for believing that a request for extradition for an ordinary criminal offence has been made for the

purpose of prosecuting or punishing a person on account of his race, religion, nationality or political opinion…”.

37. As the Supreme Court pointed out, that was a fundamentally different legislative context of the use of the term “substantial

grounds”. The proceeding before the High Court was itself a substantive proceeding by way of challenge to the extradition application

and not merely an application for leave. As a result, the meaning to be attributed to the term “substantial grounds” did not follow

from that attributed to it in judicial review proceedings but: “The question as to what may constitute ‘substantial grounds’ for the

purposes of s.11 of the Act of 1965 is one which falls to be resolved in the context of the provisions and statutory purposes of that

Act.” The same must be said, in the view of this Court, of the context and statutory purpose of s. 5 of the Act of 2000. Thus, in

addition to the desirability of expedition and legal certainty in cases coming within the scope of that section already mentioned above

(see paragraph 32,) that context includes, in applications relating to decisions to deport and determinations by the Refugee Appeals

Tribunal, the fact that the background facts relating to an applicant’s circumstances and history will invariably have been the subject

of examination already by that Tribunal and by the Office of the Refugee Applications Commissioner.

38. Thirdly, there is no denial of access to the Court when an application for leave is definitively rejected after full argument between

the parties rather than at a second substantive hearing. The purpose of the requirement that leave be sought upon notice to the

deciding authority is clearly that of enabling a definitive determination of the issues to be made at that point when it is possible to do

so in cases where a further substantive hearing will make no difference to the determination. The right of access to the Court is a

right to have the claim determined judicially: it is not a right to a particular form of hearing or to some minimum run of court

appearances.

39. Accordingly, in the judgment of the Court where, on the hearing of a leave application under s.5, the ground advanced as

substantial is fully argued between all the necessary parties; where the issues raised are not such as require to be refined by the

delivery of pleadings; and the facts and arguments asserted do not require to be substantiated or rebutted by the adducing of further

evidence: the ground will not be “substantial” in the sense of the McNamara judgment if it is already clear that the arguments

submitted in support of it will not sustain it at a substantive hearing of the application. In such cases the Court considers that, given

the asylum law context and legislative objective of s.5 of the Act of 2000 that an effective filter should operate, leave ought not to

be granted. To so hold does not involve introducing a new or different test contrary to the advice of Denham J. (see paragraph 30

above,) but rather the application of the McNamara concept of reasonableness, arguability and weight to the particular statutory

context and purpose of s. 5 of the Act of 2000.

40. It is necessary, therefore, to consider whether the grounds raised as to the illegality of this Contested Order are “substantial” in

this sense. Is a reasonable, tenable and weighty case made out which requires a substantive hearing in order to determine definitively

whether the Contested Order is legally flawed to an extent that requires that it be quashed?

41. As outlined above, (see paras. 22 and 23,) the broad thrust of the case made in that regard has two elements. First, the

Contested Order is said to be vitiated by mistakes as to pertinent facts. The second challenge is directed at the manner in which the

Minister is claimed to have weighed or to have failed to weigh various relevant factors relating to the circumstances of Mr. O. and his

family members. It is proposed to argue that, in the result, the Contested Order is unlawful as unreasonable because of the alleged

disproportion of the deportation sanction as compared with the obvious impact of that sanction on the wellbeing of the family and

particularly upon the rights and interests of the Irish citizen children.

42. It is not disputed that there is indeed a mistake in the File Note. The Minister accepts that the note is in error in believing or

assuming that the applicant had served a sentence of imprisonment for six months on foot of a conviction in the District Court on 6th

February, 2006, for possession of drugs for the purpose of sale and supply. That sentence had in fact been suspended so that the

term of imprisonment was not served. This, it is argued, is a material error which goes to the legality of the decision because it is

relied upon to diminish the extent or duration of the applicant’s involvement with and his role in the life of his family.

43. Although it is true that, as a matter of fact, Mr. O. did not serve that sentence, it is clear that the error is not sufficiently

material to the overall assessment made in the File Note to call in question the legality of the Contested Order. The only term of

imprisonment served by Mr. O. was the 28 day term imposed on his arrival in the State for using a false passport. It is however, the

fact of the conviction for the drugs offence in 2008 that is material to the consideration in the analysis of the File Note rather than

the length or service of the sentence as such. This is evident from the significance attached to it in the comment as follows:

“While it acknowledged that Mr. O.’s convictions individually are not at the most serious end of the spectrum of

criminal activity, looked at as a whole the nature, number and time span of the offences which include inter alia

use of a false passport, assault, possession of drugs for the purpose of sale and supply, no insurance, no road tax,

etc. demonstrate that the applicant has shown a prolonged and flagrant disregard of the criminal laws of Ireland,

giving rise to a compelling public interest in his deportation.”

44. It is true, of course, that the six month sentence is also referred to in the context of the role of Mr. O. in the life of the family. It

should be noted, however, that the conviction was recorded in February 2008 so that it would have been presumably during 2008

that the six month sentence would have been served had it not been suspended. It thus coincides with the period during which the

applicant ceased to live with Mrs. O. and the children. The consequences of the error so far as concerns the involvement of the

applicant in the day to day life of his family must therefore be marginal. In the judgment of the Court the identification of an admitted

or proven error of fact in a decision of this nature involving the assessment and balancing of numerous facts, factors, circumstances

and other considerations does not of itself constitute a “substantial ground” justifying the grant of leave where the error is not

material to the validity or reasonableness of the decision or to the process by which the decision has been reached.

45. The second limb of the proposed challenge is, as already indicated, directed at the way in which the File Note assesses those

facts, factors, circumstances and other considerations and in which it balances them against the declared interests of the State

which the Minister seeks to pursue by ordering the deportation.

46. In the judgment of the Court it is not sufficient in order to raise a “substantial ground” in this context merely to allege in the face

of a statement of reasons such as that contained in the File Note that the Contested Order is unreasonable because its consequence

is disproportionate or that the analysis is unsatisfactory; or that the consideration of the representations was inadequate. The burden

of establishing a specific illegality remains with the applicant.

47. In this regard the law has been definitively restated by the Supreme Court in the judgments in the Meadows case (see above

para. 25). The majority judgments in that case make it clear that the test of “unreasonableness” in judicial review as the basis for

obtaining an order of certiorari of any administrative decision is and remains that laid down by the Supreme Court in The State

(Keegan) v. Stardust Victims Compensation Tribunal [1986] I.R. 642; and O’Keefe v. An Bord Pleanála and Others [1993] 1 I.R. 39. As

the majority judgments in the Meadows case point out once again, Finlay C.J. expressed his “complete and precise agreement” in the

Keegan case with the test enunciated there by Henchy J. namely: “whether the conclusion reached in the decision can be said to

flow from the premises. If it plainly does not, it stands to be condemned on the less technical and more understandable test of

whether it is fundamentally at variance with reason and common sense.” In the O’Keefe case Finlay C.J. (with whom the other

members of the court agreed) reaffirmed that test and summarised the circumstances under which the court could intervene to quash

a decision on grounds of unreasonableness or irrationality as follows:

“1. It is fundamentally at variance with reason and common sense.

2. It is indefensible for being in the teeth of plain reason and common sense.

3. Because the court is satisfied that the decision maker has breached his obligation whereby ‘he must not

flagrantly reject or disregard fundamental reason or common sense in reaching his decision’.”

48. The significance of the Meadows judgment lies not in any alteration of the O’Keefe test of unreasonableness in favour of the so

called “anxious scrutiny test” – which the Supreme Court explicitly rejects – but in the clarification that the principle of proportionality

is applicable as a facet of that test. The lack of proportionality in a decision is not defined as a new or separate ground of illegality. It

is identified as one of the factors which may render a decision illegal as unreasonable in the sense of the pre-existing law where the

decision under examination bears upon the constitutional or fundamental rights of the persons to whom the decision is addressed.

49. This approach is clear from, inter alia, the following extracts from the majority judgments. Thus Murray C.J. says:

“In examining whether a decision properly flows from the premises on which it is based and whether it might be

considered at variance with reason and common sense I see no reason why the court should not have recourse to the

principle of proportionality in determining those issues. … The principle requires that the effects on or prejudice to an

individual’s rights by an administrative decision be proportional to the legitimate objective or purpose of that decision.

Application of the principle of proportionality is, in my view, a means of examining whether the decision meets the test

of reasonableness.”

“Accordingly, I am satisfied that the principle of proportionality has a legitimate and proper function in examining

whether, in accordance with the principles of Keegan and O’Keefe, in particular those outlined by Henchy J., an

administrative decision is valid.”

50. Similarly, in her judgment, Denham J. says:

“While the test of reasonableness as described in Keegan and in O’Keefe did not expressly refer to a concept of

proportionality, and while the term ‘proportionality’ is relatively new in this jurisdiction, it is inherent in any analysis of

the reasonableness of a decision.”

“In a case where fundamental rights are in issue, such rights form part of the constitutional jurisdiction of the court in

which a reasonable decision is required to be made and, if made, analysed. As Keane J. stated in Radio Limerick Ltd. v.

I.R.T.C. [1997] 2 I.R. at p. 311-312, the disproportion between the gravity or otherwise of a breach of a condition

attached to a statutory privilege and the permanent withdrawal of the privilege could be so gross as to render the

revocation unreasonable within the (Keegan) formulation. Thus a decision could be so disproportionate as to justify the

court in setting it aside on the ground of manifest unreasonableness.”

51. Again, in his judgment, Fennelly J. said:

“It seems to me that the principle of proportionality, more fully developed in the judgments which have been delivered

by the Chief Justice and of Denham J., can provide a sufficient and more consistent standard of review without resort to

vaguer notions of anxious scrutiny. The underlying facts and circumstances of cases can and do vary infinitely. The

single standard of review laid down in Keegan and O’Keefe is sufficiently responsive to the needs of any particular case.

… I would say that a court may not interfere with the exercise of an administrative discretion on substantive grounds

save where the court is satisfied, on the basis of evidence produced by the applicant, that the decision is unreasonable

in the sense that it plainly and unambiguously flies in the face of fundamental reason and common sense. … This test,

properly applied, permits the person challenging the decision to complain of the extent to which the decision encroaches

on rights or interests of those affected. In those cases the courts will consider whether the applicant shows that the

encroachment is not justified. Justification will be commensurate with the extent of the encroachment. The burden of

proof remains on the applicant to satisfy the court that the decision is unreasonable in the sense of the language of

Henchy J. The applicant must discharge that burden by producing relevant and cogent evidence.”

Significantly, Fennelly J. then concludes: “This does not involve a modification of the existing test as properly understood. Rather it

is an explanation of the principles that were already implicit in our law.”

52. It is necessary, therefore, to determine whether the issues listed at para. 22 of this judgment can be said to raise one or more

substantial grounds in this sense. Has the applicant established a tenable, reasonable and weighty case to the effect that, by reason

of the issues thus raised, the Minister’s decision to deport him is fundamentally at variance with common sense because the

deportation of the applicant in the circumstances put to and considered by the Minister is manifestly disproportionate having regard

to the interest of the State which the Minister purports to safeguard?

53. In this regard the fundamental point already referred to in the quotation from Fennelly J. above bears repetition. The Court is not

concerned with the merits of the Contested Order but with the legality of the process by which it has been reached. The making of

the decision to deport under s. 3 of the Act of 1999 is the exclusive function of the Minister and the onus of establishing that it is

legally flawed remains with the applicant. This fundamental characteristic of the Court’s function in judicial review is not altered by

the fact that the infringement of the principle of proportionality is invoked. The Court cannot simply substitute its own assessment of

what is proportional for that of the Minister. If the decision to deport is shown to “flow from the premises” that is, to be tenably

based on the facts and factors before the Minister and considered by him, the Court cannot intervene. To put it another way, unless

the balance struck as proportional by the Minister is fundamentally at variance with reason and common sense, his decision cannot be

struck down as unlawful. In a further passage from his judgment in Meadows, the Chief Justice put the point as follows:

“I am of the view that the principle of proportionality is a principle that may be applied for the purpose of determining

whether, in the circumstances of a particular case, an administrative decision may properly be considered to flow from

the premises on which it is based and to be in accord with fundamental reason and common sense. In applying the

principle of proportionality in this context I believe the court may have regard to the degree of discretion conferred on

the decision maker. In having regard to the degree of discretion a margin of appreciation should be allowed to the

decision maker in choosing an effective means of fulfilling any legitimate policy objectives.” (See also the further

observation of the Chief Justice on the discretion exercised by the Minister in this context, quoted in paragraph 63

below.)

54. Finally in this regard, it should perhaps be pointed out that, strictly speaking, the Supreme Court did not in fact apply the principle

of proportionality in the Meadows case as the basis for allowing the appeal and holding that a substantial ground had been raised as

to the illegality of the decision in that case. In effect, the ground which succeeded was based upon the failure of the decision in

question to disclose the reason why “refoulement was not found to be an issue” for the purposes of s. 5 of the Act of 1996. Thus

Murray C.J. says:

“An administrative decision affecting the rights and obligations of persons should at least disclose the essential

rationale on foot of which the decision is taken. That rationale should be patent from the terms of the decision or

capable of being inferred from its terms and its context. … In my view the decision of the Minister in the terms

couched is so vague and indeed opaque that its underlying rationale cannot be properly or reasonably deduced. …

The decision is open to multiple interpretations which would include one that refoulement was not an issue and

therefore did not require any discretionary consideration. On the other hand it may well be that the Minister did

consider refoulement an issue and that there was evidence of the appellant in this case being subject to some risk

of being exposed to F.G.M. but a risk that was so remote that being subject to F.G.M. was unlikely. … The fact

remains that it is not possible to properly discern from the Minister’s decision the actual rationale on foot of which

he decided s. 5 of the Act had been ‘complied with’. Accordingly, in my view there was a fundamental defect in the

conclusion of the Minister on this issue.”

55. In the light of all of these considerations the Court is satisfied, for the following reasons, that no substantial ground has been

made out in the present case as to the illegality of the Contested Order by reason of the inadequacy of the assessment made of

relevant facts and factors considered by the Minister or of the alleged disproportionality of the consequences of the decision for the

applicants.

56. As already indicated above in this judgment (see paras. 14-20,) the File Note in this case has addressed in detail all of the

relevant considerations required to be taken into account under s. 3 (6) of the Act of 1999 and has then considered, assessed and

balanced the matters put to the Minister pertinent to the rights of the family members under Article 8 of the Convention and to the

constitutional rights of the Irish citizen children. A substantial reason associated with the common good namely, the prevention of

disorder and crime and the protection of the economic wellbeing of the State is expressly identified and, as already pointed out above

in para. 21, the Minister’s officers have carefully followed the guidelines suggested for this exercise in cases such as Oguekwe.

57. In relation to all of these facts and considerations the following matters, for example, are not in dispute:

• Mr. O. does not live with Mrs. O. and the children and has been estranged from her since 2008;

• Mr. O. has acquired a series of criminal convictions for a variety of offences during his time in the State including

one for possession of drugs;

• Although not permitted to work as an employee or in self-employment since the revocation of his permission to

remain in the State in 2008, he has continued to do so illegally;

• Since his first arrival in the State Mr. O. has on at least four occasions voluntarily returned to Nigeria on visits

without encountering any difficulty;

• Mr. O. has parents and siblings and two children from another relationship who live in Nigeria.

58. Again, as already indicated, the conclusions reached in the File Note include:

o While the convictions individually are not at the most serious end of the spectrum of criminal activity, the nature,

number and time span of the offences demonstrate that the applicant has shown a prolonged and flagrant disregard

for the criminal law of the State;

o Mr. O. has already demonstrated a high propensity to re-offend as he has been convicted of a substantial number

of offences over a number of years which has resulted in his imprisonment in the State:

o Having weighed and considered all of the factors relating to Mr. O.’s private life as well as factors relating to the

rights of the State, it is submitted that the factors relating to the rights of the State are weightier and that the

deportation of the applicant is not disproportionate as the State has the right to prevent disorder and crime and to

protect the economic well being of the country;

o Given the current economic downturn there is no guarantee that Mr. O. would secure employment legally.

59. In the judgment of the Court there is no reasonable or tenable basis in these circumstances for asserting that such conclusions

do not flow from their premises or are fundamentally at variance with common sense. They are logical conclusions based upon facts

and factors pertaining to the circumstances of the applicant which are not in dispute.

60. In evaluating and balancing the rights of the family members under Article 8 and the constitutional rights and interests of the Irish

citizen children, the File Note concludes:

• Deportation to the extent that it disrupts the family life would not have the same impact as if the family were

living together as a family unit and had been doing so for a longer time;

• The children are entitled to Nigerian citizenship and would be entitled, should the family so decide, to accompany

Mr. O. to Nigeria; equally as Mrs. O. has permission to remain in the State they are entitled to continue to reside

and be brought up and educated here;

• In weighing the rights of the applicant and his family against the rights of the State it is submitted that the

deportation of the applicant is not disproportionate as the State has the right to prevent disorder and crime in the

State and to protect the economic wellbeing of the country. This is a substantial reason associated with the

common good which requires the deportation of Mr. O.

61. Again, it cannot be said, in the judgment of the Court that these conclusions do not flow from the premises on which they are

based as outlined in far greater detail in the body of the File Note nor that they are fundamentally at variance with reason or common

sense. Nor could it be said, in the view of the Court, that there exists any reasonable or tenable ground for asserting that the

decision to deport Mr. O. is manifestly disproportionate having regard to the reason associated with the common good relied upon in

the particular circumstances of Mr. O. Having satisfied himself that the family unit in question will not necessarily be broken up by the

deportation because all family members have a choice available to them to accompany Mr. O., the Minister was clearly entitled on the

basis of the factors before him to conclude, without infringing the principle of proportionality, that the deportation would be justified.

It is true that, as already mentioned, this part of the assessment of the impact of the deportation involves in part, the mistaken belief

that Mr. O. had been convicted of offences over a number of years “which has resulted in his imprisonment in the State, therefore he

was not actively involved in the upbringing of his children for a notable period of time in their lives”. Nevertheless, this error is not, in

the judgment of the Court, of itself sufficient to alter the validity of the balancing exercise given that Mr. O. has not in any event

been living with his wife and children since mid 2008. Having regard to the particular reason associated with the common good

identified by the Minister, it is the fact of the convictions, their number and time span which is treated as significant. So far as the

assessment of the disruption of the family unit by the deportation is concerned, it was the absence of Mr. O. from the household

which was the dominant consideration not the particular cause of his absence. It follows in the judgment of the Court that the ground

paraphrased at item (7) of paragraph 22 above cannot be said to meet the test for the grant of leave.

62. Finally, for the sake of completeness it is appropriate to deal with the remaining specific points listed in para. 22 above as having

been highlighted in the grounds and arguments relied upon.

(1) & (3). It cannot be said that there was any failure to take account of the fact that Mr. O. was Nigerian and

that Mrs. O. was South African. The latter fact is expressly mentioned as is the fact that they had lived together in

South Africa where Mr. O. had successfully established an internet café business which he later sold. Furthermore,

no particular difficulty was raised in the representations made to the Minister by reference to the South African

nationality of Mrs. O. As already indicated, although she has lent her name to this proceeding Mrs. O. has made no

case as to the existence of any particular difficulty that she might face by reason of her South African nationality in

the event of her wishing to accompany her estranged husband. It is well settled that the Minister is under no

obligation to consider under the heading of humanitarian considerations, possibilities or scenarios that have not

been put to him on behalf of an applicant. Nor can it be said, in the view of the Court, that the File Note

assessment is inadequate in its reliance on what are characterised as “pro-forma extracts about Nigeria”. Having

regard to the fact that no specific case was made in representations as to any particular problem that might be

faced in Nigeria, the File Note has probably gone further than might have been strictly necessary in consulting

relevant country of origin information in order to assess the circumstances, conditions and facilities (including

education) that would be available to the family in Nigeria.

(4) The claim that there was no grave or substantial reason associated with the common good which justified the

deportation is clearly unfounded. As already detailed in this judgment, a specific reason was explicitly identified by

the File Note and justified by reference to Mr. O.’s criminal convictions and his unlawful working.

(5) The assertion that the economic reasons invoked have no application is also misconceived. The point made in

the File Note is that Mr. O. has been working unlawfully and it is considered that in the current severe economic

climate there is no guarantee that he would obtain lawful employment. Although no particular case was made to the

Minister in representations under this heading, Mr. O. now says that he has two businesses in Phibsborough in

Dublin, a newsagents and “Okwytex Enterprises” in which he has six employees. No information is given as to the

nature of the latter business undertaking and no explanation advanced as to when and how the businesses were

lawfully established by an individual who has had no permission to be either employed or self-employed since 2008.

No attempt has been made to show that the businesses are VAT registered and otherwise tax-compliant.

Furthermore, no mention appears to have been made of either of these businesses in the representations made on

behalf of Mr. O. by Ceemex & Co. on 8th September, 2008 or by A.C. Pendred & Co. on 11th March, 2009.

(6) Finally, it is suggested that the Minister erred by failing to ascertain the views of Mrs. O. and the children. This

proposition too, is misconceived. The Minister is under no obligation to solicit such views. Under s. 3 (3) of the Act

of 1999 the Minister is obliged to notify a potential deportee of his proposal to make a deportation order and to

consider any representations made to him in response. If the views of family members are to be relied upon, that is

the means by which they are to be put before the Minister. As already commented upon in this judgment; such

views as Mrs. O. may have in this case are unknown because she has not, although a party to the proceeding, at

any stage, expressed them.

Conclusion

63. In conclusion the Court would respectfully cite the view expressed by Murray C.J. in his consideration of s. 3 (6) of the 1999 Act

in the Meadows case. He said:

“In virtually every case there will be some humanitarian consideration and, unlike s. 5, even if he is of the opinion that

there are humanitarian considerations which tend to support a claim that a deportee be permitted to remain, even

temporarily, he is not bound to accede to such a request since he has to balance those considerations with broader

public policy considerations which may not be personal to the person concerned. It is evident from the terms of the

decision that he took all the relevant considerations into account but explained that ‘the interests of public policy and

the common good in maintaining the integrity of the asylum and immigration systems outweigh such features of your

case as might tend to support your being granted leave to remain in the State’. This is quintessentially a discretionary

matter for the Minister in which he has to weigh competing interests and only the Minister who has the responsibility for

public policy in this area is in principle in a position to decide where that balance lies. One cannot rule out that there

might be exceptional circumstances in which the principle of proportionality might arise but as a general rule the

principle of proportionality would not arise for consideration in such cases and in any event the appellant has not shown

that there is any basis for considering that there was any lack of proportionality in the decision taken by the Minister in

this particular respect.”

64. With the substitution of the different substantial reason associated with the common good, that conclusion could apply equally

well to the present case. Thus, it is only exceptionally that the criterion of proportionality will have application in assessing the

legality of the judgment made by the Minister in deciding whether a deportation order should be made in the light of humanitarian

considerations advanced in representations. Where that principle does arise, the Keegan/O’Keefe test of reasonableness as reaffirmed

by the Supreme Court in Meadows will still apply. The balance struck by the decision-maker in the exercise of the statutory discretion

will only be unlawful as irrational or unreasonable if it is clear that the result does not flow from the premise on which the assessment

has been made so that it “flies in the face of reason and common sense” in the words of Henchy J.

65. Accordingly, if on an application for leave made on notice to the decision-maker, a substantial ground for the grant of leave is to

be made out based upon an alleged lack of proportionality it is insufficient, in the judgment of the Court, merely to disagree with the

balance struck in the impugned decision; or to assert that the result is untenable because greater weight or significance should have

been given to some factors or less to others. It is at least necessary to demonstrate the existence of some specific factor which was

material to the balancing exercise made which is demonstrably wrong or absent; or to identify some consideration which has been

relied upon as material and which is irrelevant or has been improperly considered.

66. For the reasons outlined above in this judgment, the Court considers that this test has not been met and no substantial ground

has therefore been made out as to the illegality of the Contested Order such as would justify the grant of leave. It is, accordingly,

unnecessary to consider the application for an extension of time. The application for leave is refused as is the claim for an injunction.