High Court holds joint asylum refusal valid for dependent children without separate investigations under Immigration Act 1999.
Sintesi Legislator
Generato dall'IAThe High Court dismissed the applicants' challenge to a deportation order against a minor born after her mother's asylum claim. The court found that a joint family application satisfies statutory requirements even without a separate investigation for the dependent child. Consequently, the Minister possessed the legal power to refuse the asylum claim for the minor alongside her mother's.
Regesto Legislator
Generato dall'IASection 3(1) and 3(2)(f) of the Immigration Act 1999; Section 13 of the Refugee Act 1996: A dependent child born after a parent's asylum claim is considered a person whose application has been refused if the family claim was lawfully investigated, without requiring a separate individual investigation for the child.
Parole chiave
Generato dall'IADisposizioni normative citate
Generato dall'IADecisioni correlate
Generato dall'IATesto completo
Neutral Citation Number: [2010] IEHC 368
THE HIGH COURT
JUDICIAL REVIEW
2009 402 JR
BETWEEN
P. I., P. O., O.O. (A MINOR, SUING BY HIS MOTHER AND
NEXT FRIEND P. I.) AND H.O. (A MINOR, SUING
BY HER MOTHER AND NEXT FRIEND P. I.)
APPLICANTS
AND
THE MINISTER FOR JUSTICE AND LAW REFORM,
REFUGEE APPEALS TRIBUNAL, ATTORNEY GENERAL
AND IRELAND
RESPONDENTS
JUDGMENT OF MS JUSTICE CLARK, delivered on the 28th September, 2010
1. The first and second applicants are nationals of Nigeria and are the parents of two children born in Ireland in 2005 and 2007 who
are the third and fourth named applicants. Neither child is an Irish citizen. While the applicants originally challenged the legality of
deportation orders made against both infants, the only issue before this Court is the legality of a deportation order made by the
Minister for Justice and Law Reform (“the Minister”) on the 12th March 2009 against the fourth named applicant H.O.
2. Section 3(1) of the Immigration Act 1999 permits the Minister to make deportation orders against a failed asylum seeker who is
described in s. 3(2) (f) as “a person whose application for asylum has been refused by the Minister”.
3. The applicants contend that H.O. - otherwise H, the fourth applicant and the couple’s younger child - was not such “a person
whose application for asylum has been refused by the Minister” because her application was never separately investigated by the
Refugee Applications Commissioner as she was born after her mother’s claim had been investigated and a recommendation made in her
case.
4. On the 31st July 2009 Cooke J. in a written decision granted leave to H to challenge the deportation order made against her on the
following ground:-
“The respondent Minister lacked power to make the said deportation order in respect of the fourth named applicant
because the applicant was not a person whose application for asylum had been lawfully refused within the meaning of s.
3(2) (f) of the Immigration Act 1999, there having been no investigation of her claim to refugee status by the
Commissioner and no report and recommendation in respect of her claim under s. 13 of the Refugee Act 1996.”
Background
5. The first named applicant (“the mother”) was pregnant when she arrived in the State in October 2005 and applied for asylum. She
claimed to be an orphan and that her father’s brother, who was a widower with one child, was raising her two siblings and herself in
his household. The basis of her fear of persecution was that her uncle was forcing her to enter a polygamous marriage with a third
party.
6. In December 2005 her son O (the third named applicant) was born in Ireland. O was brought by his mother to offices of the
Refugee Applications Commissioner (ORAC) a few weeks later where literally as a baby in arms he was photographed, given an asylum
application number and included as a dependent under his mother’s asylum application. No individual fear was ever asserted on his
behalf. His claim for asylum was joined to his mother’s claim in relation to her fear of a forced marriage. Very material credibility issues
emerged during the investigation of the mother’s claim leading to a negative recommendation in relation to both mother and son by
the Commissioner. An appeal in the names of mother and son O was lodged to the Refugee Appeals Tribunal in January 2006.
7. Later in 2006 and while the appeal was pending, P.O. (“the father”) who is the second named applicant joined his girlfriend and son
in Ireland and he too applied for asylum but on a completely different and unrelated basis. His application failed on credibility issues. In
April 2007 their second child H was born and on the 4th July 2007 the mother brought H, who shares her father’s family name, to the
Commissioner’s offices. As had occurred with her son O, she applied for asylum on behalf of H. She completed an ASY-1 asylum
application form on H’s behalf wherein the infant’s status was recorded by the clerical officer receiving the application as “Dependent
Minor – ASY-1 completed”. The mother signed and dated the ASY-1 form and acknowledged receipt of an asylum questionnaire. Each
child had now been assigned a separate asylum claim number. On the same date the mother signed a standard ORAC form, which read
as follows:
“I, wish to have by child H included under my application for asylum. I do not wish to have my child interviewed or
considered separately from my asylum application. I understand that the decision which will be made in relation to my
asylum application will also apply to my child.”
8. No asylum questionnaire was filled on behalf of either O or H. Both ASY-1 forms relating to O and H were left blank at the line
provided for “reason for claiming asylum”. The Refugee Appeals Tribunal was then notified by the mother’s solicitors that H was to be
included in the mother and O’s appeal.
9. The oral appeal to which O and H had been enjoined before the Tribunal consisted of a repetition of the mother’s claim that she
was being forced into a polygamous marriage. Again no separate or independent claim to any independent fear of persecution was
expressed on behalf of O and H. The oppressive rapist uncle was the only source of persecution feared by the family. The Tribunal
affirmed the Commissioner’s recommendation, again finding for fairly cogent reasons that the mother’s account lacked credibility. The
letter by which the Tribunal’s negative appeal decision was notified to the mother specifically noted that the two minor children O and
H were included as dependents in the appeal and that the appeal decision applied to all three of them. When later that month, the
Minister formally informed the mother pursuant to s. 17 of the Refugee Act 1996 that he had decided not to declare her and her
children refugees and that he proposed to deport them, he informed the mother of their right to apply for subsidiary protection and of
the three options open to her and her children now that their asylum claim had failed.
10. The mother was legally represented at all stages. The appeal documents prepared by her legal advisers referred to the children.
The applicants raised no issue at that stage relating to any failure to conduct a s. 11 interview on behalf of H or that no s. 13 report
had issued in relation to H. In fact, through her legal advisers the mother applied for subsidiary protection and leave to remain for
herself and her two children O and H. No fear in relation to O or H was expressed in either of those applications.
11. Ultimately, the Minister refused subsidiary protection and leave to remain and made deportation orders against the mother and her
two infants on the basis that each applicant was a person in respect of whom a deportation order may be made under s. 3(2) (f) of
Immigration Act 1999. The letters by which the deportation orders were notified to the applicants stated that the Minister was
satisfied that each was a person whose application for a declaration as a refugee had been refused. It was only when the deportation
orders directed to all three applicants issued that complaint was made relating to a want of investigation in respect of H’s asylum
application.
The Applicants’ Arguments
12. The applicant argues that if H was ever in fact an asylum applicant, then she could not be considered a person whose asylum
application the Minister had refused within the meaning of s. 3(2) (f) of the Immigration Act 1999 unless the Commissioner had
investigated her asylum application pursuant to s. 11(1) of the Refugee Act 1996, conducted an interview in relation to her
application pursuant to s. 11(2) and prepared a report and recommendation pursuant to s. 13 of the Act. In so doing, the
Commissioner ought to have taken account of her individual position and personal circumstances in accordance with Regulation 5(1)
of the Protection Regulations (S.I. No. 518 of 2006). The argument was that these mandatory requirements could not be waived by
her mother and further that the Tribunal had no jurisdiction to include a minor in an appeal where no investigation had been carried
out by the Commissioner. The want of jurisdiction could not be cured by the mother’s actions in choosing to make subsidiary
protection and leave to remain applications rather than challenging the RAT decision. The applicants rely on the decision of McCarthy
J. at the leave stage in Oloo-Omee v. The Refugee Appeals Tribunal (ex tempore, Unreported, High Court, 31st March, 2009).
13. The applicant argues that s. 11 (1) and (2) of the Refugee Act 1996 oblige the Commissioner to follow certain procedures insofar
as s. 11(1) provides that “where an application is received by the Commissioner […], it shall be the function of the Commissioner to
investigate the application for the purpose of ascertaining whether the applicant is a person in respect of whom a declaration should
be given” and s. 11(2) requires the Commissioner to direct an officer to interview the applicant and requires the said officer to
“comply with any such direction and furnish a report in writing in relation to the application concerned to the Commissioner […].”
The Respondents’ Arguments
14. It is common case that H’s claim for asylum was made after the Commissioner had investigated her mother’s claim but counsel for
the Minister argues that as leave was refused to challenge any part of the RAT decision, the applicants are precluded, pursuant to s.
5 of the Illegal Immigrants (Trafficking) Act 2000, from now impugning either the Tribunal decision or the consequent refusal by the
Minister to grant refugee status as s. 5 establishes that when leave is refused, applicants may not thereafter challenge such
decisions.
15. Without seeking to diminish in any way the Minister’s position under s.5, the respondents’ second argument is that H was in fact
an applicant when her mother filed an ASY-1 form on her behalf and that the Minister had in fact refused the H’s asylum application in
his letter of the 28th October 2008 which was addressed to the mother and her two dependent infant dependents in the following
terms:
“You and your children as named above, applied for refugee status under Section 17 of the Refugee Act 1996 (as
amended).
Your application was investigated by the Refugee Applications Commissioner (Section 11 of the Act). The Commissioner
recommended that your application be refused (Section 13 of the Act). The Refugee Appeals Tribunal agreed with this
recommendation (Section 16(2) (a) of the Act). You were notified about that recommendation. The Minister has decided
to refuse to give you refugee status.”
16. Acting on the validity of this letter, the mother applied for leave to remain and for subsidiary protection, the latter of which is only
open to a failed asylum seeker pursuant to Regulation 2(1) of the European Communities (Eligibility for Protection) Regulations 2006
(S.I. No. 518 of 2006).
17. The Minister further argued that as the Refugee Act 1996 does not set out any procedure to be followed in the case of
accompanied dependent minor applicants, there is nothing to preclude a mother from waiving the Commissioner’s investigation of her
dependent child’s case in circumstances where no individual fear of persecution is asserted on behalf of such minor dependents. The
mother was legally represented when she signed the letter consenting to the inclusion of H in her asylum claim on the 4th July 2007
expressing a clear waiver of the investigation of H’s case by the Commissioner.
18. The respondent relied on the principles outlined in Gorman v. Judge Mary Martin & Others [2005] I.E.S.C. 56 (29th July 2005).
The facts were that the applicant was convicted and sentenced in the District Court. Following his sentencing he challenged the
jurisdiction of the Court on the basis of a defective return for trial. Kearns J. (as he then was) found that, although he would have
accepted the applicant’s arguments in relation to the return for trial, the applicant had consented to his sentencing and therefore
acquiesced insofar as he never contested his innocence before his sentencing. The respondents also relied on a decision of this Court
in Jacobs v. The Minister for Justice, Equality and Law Reform (Unreported, High Court, Clark J., 9th October, 2009) where the Court
held that specific written acquiescence by a teenage daughter and her father to join in with the father’s Tribunal appeal as a
dependent applicant was lawful.
The Issue in this case
19. If, for the moment, one leaves aside the important question of whether it is possible to attack the Tribunal decision when leave
on that point was refused, then the fundamental issues for determination are as follows:-
(1) Can a single application for asylum be made on behalf of members of a family relying solely on the parent’s fear of
persecution? and
(2) If so, is it mandatory for each child’s circumstances to be individually investigated by an officer designated by the
Commissioner in accordance with s. 11(2) and for an individual s. 13 report to issue in respect of each child? and
(3) If so, must each child go through an individual appeal process before each can be considered “a person whose
application for asylum has been refused by the Minister” within the meaning of s. 3(2) (f) of the Immigration Act 1999?
20. Clearly, important issues are at stake and as Cooke J. said in his leave decision judgment, “it is desirable that the question be
definitively answered in order to clarify the position for the Tribunal in the future, as the circumstances can obviously recur.”
The Court’s Assessment
21. Issues similar to those arising in this case have been previously considered. While not referred to in argument, Smyth J. in
Emekobum (a minor) & Ors v. The Minister for Justice, Equality and Law Reform (Unreported, High Court, 18th July 2002) considered
the situation of a mother whose asylum application was considered under the Hope Hanlan procedures and was taken to relate also to
her three accompanied, dependent children. After the Minister proposed to deport the mother and children, the mother purported to
apply for asylum on behalf of the children. Before a decision was taken on those purported applications, the Minister proceeded to
make deportation orders against each of them. The applicants challenged the deportation orders on various grounds, including the
argument that the children were not persons whose applications had been refused by the Minister. Smyth J. considered the following
two questions:
“1. Does refusal of refugee status of a parent affect the children?
2. Is it necessary that minors who enter the State without entitlement have their asylum applications considered
separately and be the subject of separate decisions?”
22. Smyth J. explained the situation as follows:
“The law recognizes that minors are persons, but in several branches recognizes (as, indeed, does the Constitution) that
persons have differences of capacity. In the instant case, the minors were accompanied by their Mother. She clearly
saw no reason for making individual applications on behalf of the children and I am satisfied and find as a matter of fact
and of law without the necessity of averments in Mr. Lonergan’s affidavit concerning the usual or normal practice that
the Mother was well aware of what she was about and that her intendment as the guardian and next friend of the
children was that her welfare and that of the children was synonymous and that she wished their concerns to be
considered as if they were her own. In my judgment, the word “shall” in Section 8(1) (a) (i) of the Act of 1996 does
impose a duty to interview but it does not impose an absolute obligation to do so. To insist on such a provision,
irrespective of facts and circumstances, could lead to imposing unnecessary hardship and trauma on persons under a
disability (such as minors) which is inimical to the purposes of the legislation. Furthermore, the reference to non -
national in Section 3(1) of the Act of 1999 is sufficiently wide to cover all persons, both of full age and minors.[…]”
23. Having regard to the principle of family unity as set out in the UNHCR Handbook on Criteria and Procedures, Smyth J. continued:
I am satisfied and find as a fact that at all material times the Mother intended that her application for refugee status
would, so to speak, ‘carry the children’, whose existence and attachment to her were clear and are clear from the
documents which were considered for decision-making purposes and whose interests are pleaded in the representations
made under Section 3(6) of the Act of 1999.”
24. Smyth J. observed at the conclusion of his judgment that “for the avoidance of’ doubt in any future case in which there are
accompanied minor children, the parent or parents, as the case may be, might be requested to make an express declaration as to
whether or not they wish to have the minor children’s rights, interests or entitlements included ‘with their own application for
refugee status.”
25. A similar issue relating to the requirement to conduct an interview in circumstances where no fear of persecution was asserted
came before McMahon J. in S.Y. and R.Y. v The Refugee Appeals Tribunal & Anor [2009] I.E.H.C. 18 (13th January 2009). The
applicant in that case was a stateless person recognised as a refugee in Italy who then applied for asylum in Ireland. The
Commissioner found that the Minister was precluded under s. 17(4) of the Refugee Act 1996 from granting her a declaration of
refugee status and that her application would therefore not be admitted or processed as no purpose could be served by investigating
her claim. She challenged that decision, arguing that the Commissioner was mandated under ss. 11(1) and (2) to investigate her
application and under s. 13 to prepare a report and recommendation to the Minister. McMahon J. accepted that the applicant had not
made out any fear of persecution in Italy and he found that:
“[…] it has been established that there is no mandatory obligation on the Commissioner to conduct an interview in all
cases: See Peart J. in Nwole v. Minister for Justice, Equality and Law Reform (Unreported, High Court, 26th March, 2004)
applying the decision of Smyth J. in Emekobum & Ors v. Minister for Justice, Equality and Law Reform (Unreported, High
Court, 18th July, 2002). This latter decision of Smyth J. was also approved by Finlay Geoghegan J. when granting leave
in the former proceedings: Nwole v. Minister for Justice, Equality and Law Reform (Unreported, High Court, 31st
October, 2003). It is also worth noting that the Supreme Court, per Fennelly J., in the L.N. case also approved the
principle that there could be an umbrella application on behalf of a number of persons which would not necessitate
interviews in all cases: A.N. v. Minister for Justice, Equality and Law Reform (Unreported, Supreme Court, 18th October,
2007). The obligation which the applicant relies on in s. 11, from these authorities, indicates that the obligation in that
section does not impose an absolute duty in all cases.
If the position were otherwise an application made under s. 8 to the Commissioner by, say a United States citizen for
recognition as a refugee which was unaccompanied by a claim of persecution from his own State in any form would have
to be entertained by the Commissioner even though he clearly does not meet the basic threshold requirements set
down in the legislation. It is significant to note also that no argument is made on the legal interpretation advanced by
the first named respondent in this connection. Were there a challenge to the interpretation of the subsection, different
considerations would apply.”
26. The decision of the Supreme Court in Nwole (A.N.) referred to by McMahon J. was delivered on the 18th October 2007, just 10
days before the Minister issued his letter refusing the mother and her two children refugee status in this case and 18 months before
the decision to deport. Although the issues in A.N. were broadly similar, the facts were significantly different from those in this case.
The mother in A.N. arrived in the State with five children when she sought asylum. Unlike the mother of H, she did not at any stage
specifically seek to include her five children in her claim although they were identified and particularised as her children and referred to
in her questionnaire and the facts of her claim. Prior to the notification of the Minister’s intention to make deportation orders in that
case, no previous decisions had been expressly directed towards the children by the asylum authorities. The mother in A.N., unlike the
mother in this case whose children were born in Ireland, did not know until the deportation orders were issued to her that her asylum
application was being treated as a family application. In contrast, the mother in this case included her son O in her family claim at the
earliest opportunity and when H was born the mother specifically requested that H be added to the existing claim. H obviously could
not have been referred to in any decision prior to her birth but she was referred to specifically by her mother and her legal
representatives in every application thereafter and every notification after she was joined to the claim was expressed stated to apply
to her.
27. Two questions were certified to the Supreme Court by Peart J. in the A.N. case. The second question posed for determination was
on all fours with the issues in this case and was:
“Whether in considering an application for asylum made by or on behalf of an accompanied minor the Minister is obliged
to consider the application of an accompanied minor in his or her own right separately and distinctly from that of the
accompanying parent and whether for that purpose the Minister is obliged to
(a) Ascertain the views of the minor and more particularly the fears of the minor related to the application for a
declaration of refugee status.
(b) Ascertain the capacity of the minor to express his or her views directly and
(c) Interview the minor unless such interview would cause unnecessary hardship and trauma on the minor?”
28. The Supreme Court ultimately found it unnecessary to answer those questions directly as they held that as Ms. N did not make
asylum applications on behalf of her children, they therefore were not persons whose asylum application had been refused in
accordance with s. 3(2)(f) of the Immigration Act 1999. Whatever about the appropriateness of the mother’s actions in not bringing
her children’s asylum applications at the same time as her own, the Minister acted unlawfully in assuming that the decision taken on
the mother’s asylum application would also apply to her children, without ever asking whether the children had an independent fear of
persecution. It was in those circumstances that Finnegan J. found that the Minister was incorrect to treat the mother’s application as
also being an application on behalf of her children.
29. The very distinct difference in H’s case and that of this family is that three separate ASY-1 applications were made and three
preliminary s. 8 interviews took place with the mother providing the information for her very young babies on each occasion. It could
not be said that H was not an asylum applicant. It is also necessary to observe that the applicant A.N. was the almost adult daughter
of Mrs. N who, when she was a party to judicial review proceedings, complained that she and her siblings were not interviewed and
were give no opportunity to apply for asylum or assert their claim to fear FGM if returned to Nigeria. When the children in A.N.
commenced judicial review proceedings they, unlike the applicant here, identified individual fears of FGM. No individual claim to fear
persecution has ever been identified in this case where the applicants instead rely on procedural deficits.
30. Fennelly J. expressed the view in A.N. that “a single application could, in principle, be made on behalf of a number of persons,
particularly where they are members of one family”. If, as found in that and other decisions, a single family application can be
brought, how then is the Refugee Act 1996 and the procedures outlined to be interpreted to provide some clarity for the occasions
where infant are included in the parent’s claim?
31. One starting point may be to examine the wording of the letter written by the Minister pursuant to s. 17 of the Refugee Act (long
after the Supreme Court decision in A.N.) when formally informing the mother that her claim had failed and that he proposed to deport
her and her two children. He wrote in clear terms:
“You and your children as named above, applied for refugee status under Section 17 of the Refugee Act 1996 (as
amended).
Your application was investigated by the Refugee Applications Commissioner (Section 11 of the Act). The Commissioner
recommended that your application be refused (Section 13 of the Act). The Refugee Appeals Tribunal agreed with this
recommendation (Section 16(2) (a) of the Act). You were notified about that recommendation. The Minister has decided
to refuse to give you refugee status.”
32. It seems to the Court that as the only claim made and investigated by the Refugee Applications Commissioner was that of the
mother who included her family in her claim, the Minister’s reference to “your application” was the family application. There is no
dispute that if the mother’s claim for refugee status had succeeded, her children H and O would have benefited and would have been
granted refugee status. This would occur as a general matter of right even if they had never been enjoined to her claim. If, on the
other hand, H had a completely independent claim to refugee status which rendered her eligible for refugee status and her mother’s
claim failed, then she would have been entitled to apply for permission to her mother to reside in the State pursuant to s. 18(3) (b)(ii)
of the Refugee Act 1996. The corollary is that as H’s claim was dependent on her mother’s claim, if her mother’s claim failed, then H’s
claim would naturally fail too.
33. Strictly speaking, an infant of a parent who has made an asylum claim and who does not have an independent claim does not
have to make an asylum claim at all as in accordance with the principles of family unity outlined in the UNHCR Handbook on
Procedures and Criteria for Determining Refugee Status, such infant will automatically benefit from the successful claim of the adult on
whom that child is dependent. However it is evident that a practice has developed in the office of the Refugee Applications
Commissioner where children of asylum seekers, especially children born in the State who have no independent fear of persecution in
their own right, do in fact make claims under s. 8 of the Refugee Act 1996. For the most part, it is not the child who makes the
application but the parent who fills in an ASY-1 form on the child’s behalf. In such cases, if the child is born after the parent’s claim
has been refused, even though there is no claim to investigate, a pro-forma interview takes place with the adult on behalf of the
child. It sometimes happens that even where no independent fear of persecution is asserted, a fairly pointless s. 13 report issues
recommending that the child should not be declared a refugee as the adult’s claim has failed. The Court can only infer that there is a
view that such a process ought to be followed either to ascertain that the parent does not wish to assert any independent fear of
persecution in relation to the infant or as an administrative method of notifying the Minister of the existence of a new asylum
dependent.
34. It can readily be understood that when adult asylum applicants are accompanied by their infant children on arrival in the State,
the parents also seek asylum for their children as an asylum claim is the mechanism by which those children can legally enter and
remain in the State pending the determination of their parents’ refugee status. However, as noted above, the practice is not strictly
necessary when the child is born in the State under the principles relating to family unity set out in the UNHCR Handbook. If those
parents add their children to their claim, the children’s situation is neither prejudiced nor enhanced. Paragraph 213 of the UNHCR
Handbook states:-
“There is no special provision in the 1951 Convention regarding the refugee status of persons under age. The same
definition of a refugee applies to all individuals, regardless of their age. When it is necessary to determine the refugee
status of a minor, problems arise due to the difficulty of applying the criteria of “well-founded fear” in his case. If a
minor is accompanied by one (or both) of his parents, or another family member on whom he is dependent, who
requests refugee status, the minor’s own refugee status will be determined according to the principle of family unity”.
(Emphasis added)
35. The “principle of family unity” is set out in Chapter VI of the Handbook as follows:-
“184. If the head of a family meets the criteria of the definition, his dependants are normally granted refugee status
according to the principle of family unity. It is obvious, however, that formal refugee status should not be granted to a
dependant if this is incompatible with his personal legal status. Thus, a dependant member of a refugee family may be a
national of the country of asylum or of another country, and may enjoy that country's protection. To grant him refugee
status in such circumstances would not be called for.
185. As to which family members may benefit from the principle of family unity, the minimum requirement is the
inclusion of the spouse and minor children. In practice, other dependants, such as aged parents of refugees, are
normally considered if they are living in the same household. On the other hand, if the head of the family is not a
refugee, there is nothing to prevent any one of his dependants, if they can invoke reasons on their own account, from
applying for recognition as refugees under the 1951 Convention or the 1967 Protocol. In other words, the principle of
family unity operates in favour of dependants, and not against them.
186. The principle of the unity of the family does not only operate where all family members become refugees at the
same time. It applies equally to cases where a family unit has been temporarily disrupted through the flight of one or
more of its members. […]” (Emphasis added)
36. The Supreme Court in A.N. interpreted the underlined event as meaning that the process of adding a child to an extant asylum
application was a step available to dependent children who harbour a specific fear of persecution independent of their parents’ fears.
The Supreme Court neither considered nor discounted the possibility that a minor who fears persecution for himself can arrive at the
borders of a state accompanied by parents who themselves have no such fear and in those circumstances the claim for asylum is
made on behalf of the minor. The fact that the head of the family unit is not a refugee does not preclude the child from claiming
asylum in his own right and invoking reasons on his own account or having his parent’s claim on his behalf. It is very doubtful that
paragraph 184 of the UNHCR Handbook was intended to create a method by which parents could make a family claim based on a
particular fear of persecution to the head of the family and then, if that family claim failed, to make sequential new claims not
previously formulated on behalf of each child. Still less was the principle of family unity intended to serve as a formulation for serial,
inventive claims on behalf of each child born while their parent’s claim is being investigated.
37. The above quoted sections from the UNHCR Handbook are the sole reference to the claims of accompanied minor children but they
do not provide or suggest procedures applicable to such claims. Neither the Convention Relating to the Status of Refugees of 1951
(the Geneva Convention) nor the 1967 Protocol make any special provision for processing the applications of minor dependents of
asylum seekers. While the Refugee Act 1996 sets out a detailed procedure to be followed by the asylum authorities in the case of
adult applicants and sets out separate procedures relating to unaccompanied minor applicants, the Act is completely silent as to the
procedure to be followed where an adult makes an asylum application on behalf of accompanied, dependent minors or for infants born
subsequently. Similarly the Asylum Procedures Directive (Council Directive 2005/85/EC of 1 December 2005) makes no mention of
accompanied (as opposed to unaccompanied) minors.
38. It seems to the Court that there may well be an obvious reason for this lack of reference. A child or minor is either an
independent asylum seeker, in which case an actual claim is made which is then investigated and assessed, or that child’s status is
entirely dependent on his / her parent’s claim in which case the child makes no individual claim. If the child with a fear of persecution
independent of his or her parents is too young to present his own claim then obviously, the accompanying adult family member makes
the claim and attends for interview of the minor’s behalf. It may also be the case that a child born after an investigation has
commenced into his sibling’s individual claim could through his parents make a separate claim for investigation on an individual basis if
the facts allow. On the other hand, if the parents have no independent fear to express on behalf of the newly born child it makes no
difference to the child’s chances of success whether or not the child is named and enjoined. While there is a well established practice
of filling out ASY-1 forms and applying for asylum for infants where no claim to fear persecution exists, it has no clearly discernible
logic apart from ensuring an entitlement to remain pending the determination of the parent’s application. It in fact makes no sense to
treat a dependent child in such circumstances as a distinct asylum claimant when no independent claim has been made. However, if it
is a method of identifying which family members are included in the single claim of the parent, its continued practice is not criticised.
39. The practice of interviewing the parent or guardian of a minor applicant in the circumstances of a family claim is consistent with s.
8 of the Refugee Act 1996 but it does not follow that the Commissioner is obliged to actually interview the minor at the preliminary
stages or that a questionnaire must be filled in and a s. 11 interview held with the parent and a s. 13 report prepared on each
dependent child. Article 12 of the Asylum Procedures Directive provides that each adult applicant “shall” be given an opportunity of a
personal interview, that dependent adults “may” be given the opportunity of a personal interview and that “Member States may
determine in national legislation the cases in which a minor shall be given the opportunity of a personal interview.” That national
legislation in Ireland is found in the Refugee Act 1996. That Act provides procedures for unaccompanied minors who are asylum
claimants in their own right capable of being interviewed but neither the Act nor the Directive imposes any obligation for the interview
of all minor dependents.
40. It is therefore difficult to identify the basis of the applicant’s challenge which asserts an obligation in all circumstances on the
Commissioner to conduct an interview under s. 11(2) with the parent of each minor applicant even if no independent fear of
persecution is expressed on behalf of the minor. If one goes to basic principles and examines the object and purpose of national
legislation it is clear that the procedures outlined in the Refugee Act 1996 are designed to enable the efficient and fair processing,
investigation and determination of asylum claims. The basic obligation under s. 11 is to interview a claimant and to fully and fairly
investigate a claim. That obligation cannot be extended to each and every applicant enjoined to a family application where the only
claim to be investigated is that of the adult on whose claim the minors are wholly dependent.
41. Section 5(1) of the Interpretation Act 2005 provides that
“In construing a provision of any Act (other than a provision that relates to the imposition of a penal or other sanction)
—
(a) that is obscure and ambiguous, or
(b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of—
(i) in the case of an Act to which paragraph (a) of the definition of “Act” in section 2(1) relates, the
Oireachtas, or
(ii) in the case of an Act to which paragraph (b) of that definition relates, the parliament concerned,
the provision shall be given a construction that reflects the plain intention of the Oireachtas or parliament concerned, as
the case may be, where that intention can be ascertained from the Act as a whole.”
42. In those circumstances, to interpret ss. 11 and 13 in a way which attributes an obligation to the Commissioner to interview all
minor dependents in all circumstances and to prepare a s. 13 report directed to the minor in every case would produce an absurd
consequence.
43. Similarly when a negative recommendation of the Commissioner in a family application is appealed, the Tribunal Member is not
involved in considering the recommendation made against the dependent minor members of that family but rather against the single
claim made by the parent. Dependent children with no distinct and separate claims for asylum play no role in the appeal as their
status is entirely dependent on that of their parents and it makes no sense to argue that a dependent child in those circumstances
must be accorded the same procedures as if he / she had expressed a separate and independent fear of discrete acts of persecution.
44. The facts of this case must be recalled. The mother came here as an asylum seeker when she was pregnant with her first child O.
She was not accompanied by any dependents. The father then followed also as an asylum seeker and H was born here. The parents
never expressed any fear for their children in Nigeria nor were they ever prevented from making any individual claim on behalf of their
children if such fears existed. Although there was no reality to either of the children being interviewed or being sufficiently mature to
express a well-founded fear of persecution, the mother requested the Commissioner not to interview H and not to consider her
separately from her own application. At the preliminary s. 8 interview conducted with the mother in relation to H in July 2007, she
described H as a dependent minor and on the same day she signed a form indicating, “I understand that the decision which will be
made in relation to my asylum application will also apply to my child.” At all stages, H’s case travelled with her mother’s, as was
appropriate for an infant of three or four weeks at the date of application.
45. No criticism can be made of the Commissioner for carrying out no investigation into Baby H as no claim requiring separate
investigation was ever made. Indeed the same finding applies to her older brother O. At the appeal stage no circumstances or reasons
were suggested which would distinguish H’s claim from that of her mother or which would identify hers as an “individual claim” which
would require investigation by the Commissioner. A valid consideration was made by the Tribunal Member of the mother’s claim which
included her two dependent infants.
46. The facts of Oladimeji (J.O.) (a minor) v. The Refugee Applications Commissioner [2009] I.E.H.C. 478 are very similar to those in
this case. An asylum application was made on behalf of a child born after the Commissioner made a negative recommendation in her
mother’s case. The challenge was to the reliance by the Commissioner on the facts of the mother’s claim. Cooke J. refused to quash
the decision of the Commissioner in the child’s case, noting that if the child had been born earlier, she would have been included with
her older sisters as a dependent under her mother’s application. He held that the Commissioner was entitled to rely on the findings
made in the mother’s case and was not required to conduct some sort of pro-forma separate investigation into the child’s claim.
Cooke J. held as follows:
“10. It must be borne in mind that the function and duty of the Commissioner is to examine the application, to interview
the applicant, to carry out any enquires that might be appropriate to verify the claim made and then to report on this
to the Minister with the recommendation as to whether the applicant has or has not established the ingredients of
refugee status. In circumstances where this three month old child's claim is identical to and dependent upon the claim
made by the mother, it is difficult to envisage what further investigation or enquiry might have been carried out into the
child's claim, nor has any been illustrated or suggested on her behalf.
11. Finally, the Court will point out that while asylum applications fall to be examined and determined individually,
objectively, and in accordance with law, the asylum process is also to be carried out expeditiously, flexibly, and
reasonably. This Court is not required to suspend common sense when asked to review that process. This case is an
example of a situation in which the Court ought not to permit formalistic arguments of technical illegality to distract it
from the need to apply common sense so as to ensure that the process remains not only lawful but fair, flexible, and
expeditious.”
47. This Court goes further and holds that not only is the main argument in this case excessively technical but on close analysis it is
plainly wrong. The Court finds no technical illegality or want of jurisdiction in the treatment of H as a dependent in the family claim.
Legislation must not be interpreted in the manner suggested by the applicant to provide for manifestly illogical requirements. Neither
the Refugee Act 1996 nor the Asylum Procedures Directive imposes an obligation on the statutory authorities to investigate a claim
which has not made or, in the absence of changed circumstances, to reconsider a claim that has already been fully considered. There
is no obligation to conduct a separate s. 11 interview or to prepare a separate s. 13 report and recommendation in relation to a
dependent infant on whose behalf no independent fear of persecution is asserted. It makes no difference if such a dependent child is
born before or after the Commissioner’s recommendation on the parent’s claim as in either case, the Commissioner’s recommendation
will also apply to the dependent. Similarly, if the dependent is joined to the parent’s Tribunal appeal, the decision on appeal affects
the dependent whether the outcome is positive or negative. The Court is satisfied that this interpretation accords with the principle
of family unity and that to interpret the Refugee Act 1996 in any other way would be to go beyond any of the key conventions on
which the legislation is based.
Decision
48. H was a dependent child with no independent fear of persecution. The claim investigated in accordance with statutory obligations
and fair procedures was the family claim and H therefore was a person whose asylum application had been lawfully refused by the
Minister within the meaning of s. 3(2) (f) of the Immigration Act 1999.
49. Finally, the Court is satisfied that s. 5(3) (a) of the Illegal Immigrants (Trafficking) Act 2000 is clear in its terms:-
“The determination of the High Court of an application for leave to apply for judicial review as aforesaid or of an
application for such judicial review shall be final and no appeal shall lie from the decision of the High Court to the
Supreme Court in either case except with the leave of the High Court which leave shall only be granted where the High
Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the
public interest that an appeal should be taken to the Supreme Court.”
50. The matters supporting the applicants’ original challenge to the validity of the Refugee Appeals Tribunal were fully argued before
Cooke J. at the leave stage. All reliefs sought relating to the Tribunal decision were refused. The arguments made before this Court
were in fact a collateral attack on the Tribunal decision. However, the quite independent legal principle of whether family applications
are invalid unless separate and individual investigations are carried out on each dependent minor was an important issue for
determination and leave was granted to argue that aspect of the case. For the reasons fully stated above, the Court has held that a
joint asylum application can be made on behalf of members of a family relying solely on the parent’s fear of persecution. The obligation
on the Commissioner is to fairly and fully investigate that claim but there is no obligation or necessity for each dependent child’s
circumstances to be individually investigated by an officer designated by the Commissioner or for a s. 13 report to issue in order for
the child to be “a person whose application for asylum has been refused by the Minister” for the purposes of s. 3(2) (f) of the
Immigration Act 1999.
51. The relief sought is refused.
.