Deportation injunction refused where applicant failed to substantiate residence claim and misused asylum process.

Neutral Citation Number: [2010] IEHC 406

THE HIGH COURT

JUDICIAL REVIEW

2010 538 JR

BETWEEN

ADEKUNBI ADEDOJA AND SARAFINA AJIBOYCE

APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

JUDGMENT of Mr. Justice Cooke delivered on the 10th day of November, 2010

1. There are two matters before the Court in this case in advance of the hearing of the application for leave to apply for judicial

review of the third and latest deportation order made by the respondent against the first named applicant and dated 21st September,

2010.

2. The first is an application for an interlocutory injunction pending the hearing of that leave application to restrain the execution of

the deportation order. The second is a motion to amend the Statement of Grounds in order to adapt the proceeding to the fact that

the previous deportation order originally challenged has since been revoked and replaced by the order of 21st September, 2010. In

the absence of objection on the part of the respondent and so that the injunction application can be considered by reference to the

actual context as it now stands, the Court has allowed the amendments to the Statement of Grounds sought in the notice of motion

dated 12th October, 2010.

3. The proposed challenge to the deportation order is slightly unusual in that it is not, as is frequently the case, directed at the

adequacy of the respondent’s assessment in balancing the humanitarian considerations put forward, or the evaluation of the risk of

persecution if deported. It is based on the proposition that the first named applicant is and has been lawfully resident in the State

since some unspecified date in 2006, when she arrived from Nigeria, aged, (depending upon the actual date of arrival,) either sixteen

or seventeen years of age, to join her mother and her mother’s then husband.

4. The mother’s then husband was a UK national, and on that basis, she (the second named applicant,) had been granted residence

as the spouse of a UK national and Union citizen. It is said that the marriage in question broke down in 2007 and ended in a divorce

obtained by the husband in Nigeria in May 2008. However, the second named applicant apparently disputes the validity of this divorce

and says she knew nothing about it. No explanation is given as to how a UK national might unilaterally have obtained a divorce in

Nigeria without notifying the respondent spouse in the proceedings, when both appear to have been domiciled and resident outside

that country. That the marriage had broken down, however, seems perfectly clear because the second named applicant gave birth to

another child in Ireland in 2007, the father of whom is identified as a man of Nigerian nationality with an address in Lagos. Although

joined as a party to her daughter’s challenge to the deportation order, the second named applicant has chosen not to contribute to

the enlightenment of the Court on these matters by swearing an affidavit.

5. The case made as to the invalidity of the deportation order is that, notwithstanding any divorce of her mother from her EU citizen

stepfather, the first named applicant was entitled to reside in the State as a “qualifying family member” for the purposes of the

European Communities (Free Movement of Persons) Regulations 2006, (the “Regulations”) on the basis that she is the daughter and,

therefore, the descendant of a spouse of an EU citizen. (The Regulations transpose into national law the provisions of Directive

2004/38/EC of the European Parliament and of the Council of 29 April 2004 – the “Directive”.)

6. At least until very recently, it has been accepted by the respondent that the second named applicant remains entitled to residence

in her own right following the divorce, because of the length of her pre-divorce residence in the State as spouse of an EU citizen. It is

said on behalf of the respondent, however, that doubts are now arising as to the bona fides of that marriage having regard to the

fact that when the residence permit was granted for five years in February 2008, the breakdown of the marriage and the new

relationship were not disclosed to the respondent.

7. Although the challenge to the order is based on the assertion of an entitlement to reside as a qualifying family member under the

Regulations and that the Minister has wrongly rejected that claim, both in a letter of 1st July, 2009 and in a paragraph on page 9 of

the eleven-page Examination of File memorandum enclosed with the deportation order, the applicant is forced to concede that she

has never, in fact, submitted a formal application for a residence card by completing the EU No. 1 Form required for that purpose. This

is in spite of the fact that on 6th August, 2009, an EU No. 1 Form had been sent to the applicants’ solicitors, inviting the first named

applicant to make the application if she wished to remain in the State on the basis of being a family member of a spouse of an EU

national. It is not disputed that the form in question has never actually been lodged.

8. Instead, it is argued that the right to reside derives directly from the Regulations in the Directive and that a residence card is

merely declaratory or evidential of the underlying right; and that a failure to comply with the obligation to apply for the card can only

be penalised by a proportionate and non-discriminatory sanction and not, therefore, by deportation. It is submitted that the

information the respondent required is to be found in the correspondence and that the respondent ought not, therefore, to have

made a deportation order until he had at least satisfied himself that the first named applicant could not possibly be the beneficiary of

a right of residence as a qualifying family member.

10. In order to injunct the implementation of a statutory order which is, on its face, valid until the contrary is established, the

applicant must first demonstrate the existence of fair issue to be tried as to the entitlement to the relief to be sought when the

pending application is determined. In the present case, the injunction is sought until the hearing of the application for leave so that

the fair issue to be tried is whether there would be shown a substantial ground as to the invalidity of the deportation order at that

point.

12. In the judgment of the Court, the validity of the decision under s. 3 of the Act of 1999 to deport a person from the State and the

reasons given for it, falls to be assessed by reference to the information put or available to the respondent at the time when the

decision is made. The decision cannot be annulled by reference to facts or information which were unknown to the respondent and

which are introduced only after that event.

13. Although no formal application for a residence card has been made, the respondent was clearly aware that the two applicants

were apparently asserting some reliance on the family connection with the former husband of the second named applicant. As already

mentioned, the file note contains, at paragraph 9, the following passage: “Sarafina Ajiboye, the applicant’s mother, was granted

leave to remain in the State under EU Treaty Rights on 1 July 1999, on the basis of her marriage to British national Victor Ajiboye. An

application was made for Adekunbi Emiola Adedoja to be granted permission to remain in line with the permission of her mother.

However, this applicaton was rejected and the applicant’s mother was informed that Adekunbi Emiola Adedoja was neither a

permitted or qualifying family member of an EU national. A further invitation was issued to the applicant inviting her to make an

application for EU Treaty Rights on an enclosed EU1 form. No application was received.”

14. It is not open to dispute that this was a correct statement as to what had transpired until that point. No formal application had

been made nor had any challenge by way of judicial review been brought against a rejection in the letter of 1st July, 2009. It must be

remembered that although the first named applicant claims to have arrived in the State on some date prior to September 2006, - a

variety of dates in February and April of that year are mentioned, - no mention of any assertion of rights as a qualifying family

member appears to have been made in any correspondence prior to April 2009. Even the letter of 2nd April, 2009, from Colgan &

Company, merely asks that the daughter “be granted permission to remain in the State in line with their mother’s permission”. This

‘permission to remain’ phrase is redolent of the humanitarian considerations of s. 3, sub-section 6 of the 1999 Act, rather than of any

assertion of the first named applicant’s personal right as a family member.

15. In the judgment of the Court, there is no stateable case to the effect that the reasons given for deporting the first named

applicant were unlawful because the respondent had wrongly rejected a claim to entitlement to reside as a qualifying family member.

No application to that effect had been made. The information and proofs required to establish that entitlement had not, in fact, been

lodged (see Schedule 2 to the Regulations). The first named applicant had not, in fact, sought lawfully to enter the European

Community, (as it then was,) to join her mother and her then EU husband. She entered the State illegally, without the visa required

both under Irish law and by the Directive. She has not, in fact, furnished the respondent with many of the proofs of identity, date of

arrival or immigration record number which would substantiate her entitlement to a residence card.

16. Counsel for the respondent does not deny that the first named applicant might be correct in the suggested interpretation of the

term ‘qualifying family member’ in the Regulations and, as such, be able to substantiate an entitlement to a right of residence based

on her being the daughter of a spouse, or former spouse, of an EU citizen formerly resident here. Counsel says that the respondent

has never been in receipt of the necessary application and proofs for that purpose and cannot make a decision on the issue.

17. It is conceded that if a formal and fully documented application was even now submitted, the first named applicant may be

entitled to the rights she claims and would be entitled to remain in the country until such an application had been determined, in

accordance with paragraph 3 of Regulation 7.

18. In the judgment of the Court, that approach is correct. There is no arguable case in these circumstances that the deportation

order was invalid, having regard to the absence of any formal substantiated application under the Regulations. If and when such an

application is lodged, the first named applicant will be entitled to apply under s. 3, sub-section 11 of the 1999 Act, to have the

existing order revoked on the basis that a new fact or event has arisen which makes implementation of the existing order incompatible

with the Directive and the Regulations. Furthermore, Regulation 7(3) provides that a person the subject of an application under

paragraph (1)a of that regulation is entitled to remain in the State pending a decision on the application. But for that purpose the

application with the particulars required by Schedule 2 must be lodged. As matters stand, however, there is no basis for the grant of

an interlocutory injunction. In effect, the present application, (and possibly the judicial review proceeding) is misconceived, or at

least premature. If the first named applicant is entitled to a residence card on the basis she claims, she has no need to seek to leave

to remain on humanitarian grounds under s. 3 of the 1999 Act. By entering the State unlawfully and by making a bogus application for

asylum as a stratagem to avoid deportation, she has placed herself in the position of a failed asylum seeker and thus created for

herself the problem posed by the deportation order.

19. In circumstances where the first named applicant claimed to have an entitlement to reside under the Regulations but has failed to

take the formal steps necessary to exercise that entitlement but instead has misused the asylum process, it would be a wholly

improper application of the Court’s equitable jurisdiction to impose a restraint by injunction on the respondent who has done nothing

wrong.

22. The injunction is refused.