Court of Appeal allows deportation appeal against Article 8 ECHR claim, finding no grave impact on private life.

THE COURT OF APPEAL

Neutral Citation Number: [2015] IECA 192

The President

Finlay Geoghegan J.

Peart J.

Appeal No: 2015/55

Between

C.I.

T.I. (A minor suing by his mother and next friend C.I.)

T.T.I. (A minor suing by her mother and next friend C.I)

T.T.I. (A minor suing by her mother and next friend C.I.)

Applicants/Respondents

and

The Minister for Justice, Equality and Law Reform, Attorney General and Ireland

Respondents/Appellants

The Human Rights Commission

Notice Party

Judgment of the Court delivered by Ms. Justice Finlay Geoghegan on the 30th day of July 2015

1. The Appellants appeal against the judgment of the High Court (MacEochaidh J.) of the 31st July, 2014 and order of the 6th

November, 2014, pursuant thereto granting orders of certiorari quashing the Minister’s decision to make a deportation order in respect

of the fourth named applicant and affirming deportation orders in respect of the first, second and third named applicants for the

reasons as set out in the judgment.

2. By order of the 16th December, 2014, the High Court granted leave pursuant to s. 5(3) of the Illegal Immigrants (Trafficking) Act,

2000, certifying that the decision made on the 31st July, 2014, involves a point of law of exceptional public importance and that it is

desirable in the public interest that an appeal be taken. Whilst the order of the High Court identifies the point of law, the appeal to

this Court is against the entire of the decision and the point so identified informs the issues to be considered on the appeal.

Background Facts

3. The applicants are citizens of Nigeria. The first named applicant is the mother of the second, third and fourth named applicants.

She first made an application for asylum on the 17th February, 2005, (having arrived in the State) and included in her claim the

second and third named applicants who were born in 2002 and 2004 respectively. Her application for asylum was rejected both by the

Commissioner and the Tribunal and on the 28th September, 2005, the Minister refused them declarations of refugee status.

Deportation orders were subsequently made against them on the 4th May, 2006 and notified by letter dated the 19th May, 2006.

4. There were earlier High Court proceedings challenging the decision to make deportation orders which were abandoned. The first,

second and third named applicants then requested revocation of the deportation orders on a number of occasions between May 2006

and March 2009. Those requests were unsuccessful and the deportation orders were affirmed on the 2nd September, 2009.

5. In the meantime the fourth named applicant was born in the State on the 25th January, 2006. Application was made unsuccessfully

on her behalf for a declaration of refugee status. An application for leave to remain in the State was then made pursuant to s. 3 of

the Immigration Act 1999. That was unsuccessful and the Minister made a deportation order in respect of the fourth named applicant

on the 2nd September, 2009. Motions seeking leave to issue judicial review proceedings to challenge the two decisions of the 2nd

September, 2014, were issued on the 26th September, 2009 and a ‘telescoped’ application was heard by the High Court in conjunction

with another similar application in respect of which there is no appeal.

6. The focus of the High Court judgment which is under appeal was the consideration given in the examination of the file leading to

the Minister’s decision in relation to right to respect for private life pursuant to Article 8(1) of the European Convention on Human

Rights (ECHR).

7. In respect of the mother and two elder children, this was in the following terms at para. 7:-

“Consideration under Article 8 of the European Convention of Human Rights (ECHR)

If the Minister affirms the deportation orders made in respect of [CI] and her children, [TI] and [TTI], this decision may

engage their rights to respect for private and family life under Article 8(1) of the ECHR.

Private life

It is accepted that a decision by the Minister to affirm the deportation orders made in respect of [CI] and her children

[TI] and [TTI] may constitute an interference with their right to respect for their private life within the meaning of Article

8(1) of the ECHR. This relates to their work, educational and other social ties that they have formed in the State as well

as any matters relating to their personal development since their arrival in the State. [CI] submitted that she has worked

as a volunteer for the Irish Wheelchair Association and for the Volunteer Centre and has also done work experience in St.

Joseph’s Hospital in Ardee. She also submitted that she has completed education and safety courses with a view to

making a valuable contribution to Ireland. Furthermore, [CI] submitted that she is a member of a church in the State and

has integrated well into Irish society. It is submitted that [TI] and [TTI] are both attending school in the State and are

making good progress.

However, it is not accepted that such interference will have consequences of such gravity as potentially to engage the

operation of Article 8. As a result, the decision to affirm the deportation orders made in respect of [CI]and her children

[TI] and [TTI]does not constitute a breach of the right of ‘respect’ for their private life under Article 8 of the ECHR.”

The separate consideration of the fourth named applicant stated:-

“If the Minister signs a Deportation Order in respect of [TTI], this decision may engage her rights to respect for private

and family life under Article 8(1) of the ECHR.

Private life

It is accepted that a decision by the Minister to deport Ms. T I may constitute an interference with her right to respect

for her private life within the meaning of Article 8(1) of the ECHR. This relates to her educational and other social ties

that she has formed in the State as well as any matters relating to her personal development since her arrival in the

State. It is noted that the applicant is attending play school in the State on a regular part-time basis since the 25th

August, 2008.

However, it is not accepted that such interference will have consequences of such gravity as potentially to engage the

operation of Article 8. As a result, the decision to deport Ms. I does not constitute a breach of the right of ‘respect’ for

Ms. I’s private life under Article 8 of the ECHR.”

High Court Judgment

8. In the High Court the principal issue was whether or not the Minister erred in law (through the author of the ‘examination of file’) in

failing to accept that the applicants’ Article 8 rights in relation to private life were engaged on the facts set out.

9. It was not in dispute that the approach taken by the author of the examination of file was following that recommended by Lord

Bingham of Cornhill in his majority opinion in Regina v. Secretary of State for the Home Department ex parte Razgar [2004] UKHL 27.

In that opinion Lord Bingham at para. 17 identified five questions likely to have to be answered by an adjudicator where Article 8 is

relied upon to contest a proposed decision to deport. These are:-

“(1) Will the proposed removal be an interference by a public authority with the exercise of the applicant’s right to

respect for his private or (as the case may be) family life?

(2) If so, will such interference have consequences of such gravity as potentially to engage the operation of Article 8?

(3) If so, is such interference in accordance with the law?

(4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the

economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for

the protection of the rights and freedoms of others?

(5) If so, is such interference proportionate to the legitimate public end sought to be achieved?”

10. The issue in the High Court was whether or not on the facts identified, the author of the examination of file had erred in

determining that the potential interference by deportation would not have “consequences of such gravity as potentially to engage the

operation of Article 8”. The parties made opposing submissions as recorded in the judgment of the trial judge, many of which were

repeated for this Court.

11. The trial judge was critical of the approach of the author of the examination of file and concluded that there was an error of law.

It is necessary to set out in full his analysis and reasoning:-

“25. As can be seen, its opening paragraph accepts that the deportation orders ’may engage [the applicant's] rights to

respect for private and family life under Article 8(1) of the ECHR’. It is a peculiar feature of the decision that its author

commences the Article 8(1) analysis at Question 2 of the Razgar questions, rather than at Question 1. I am aware that

the series of questions or hierarchy of questions, recommended by Lord Bingham is only that - a recommendation. But it is

apparent to me that the decision maker is attempting to follow the Razgar questions and the language in the decision is

taken directly from the judgment of the House of Lords in Razgar. Where a Razgar-type analysis starts at Question 2 and

accepts that rights are or might be engaged, one then anticipates that the decision maker will then ask if the interference

is in accordance with law, and then whether a measure is necessary in a democratic society and, if so, whether it

complies with the principles of proportionality. That is not what happens in this first decision under analysis. The decision

maker, having indicated engagement of Article 8 rights then goes back one step to the first of the Razgar questions,

which, it is to be recalled, asks whether the proposed removal will be an interference by a public authority with the

exercise of the applicant's right to respect for his private or family life? In the hands of the author of this decision, that

question seems to be answered by conceding that the deportation order, if confirmed, ‘may constitute an interference’

with rights under Article (8)(1) of the Convention.

26. Pausing there for a moment, it seems inappropriate for a decision maker, in handling Question 1, to equivocate in the

answer. Either the proposed removal will interfere or will not interfere with private and family rights. If one has any sort of

private life - and the concept is broadly understood in Convention terms - then it is impossible to imagine how removal

from the State will not interfere with that private life. I can imagine circumstances where one has been in the State for

such a short period that it might be said that no private life worthy of protection exists in Ireland. Similarly, if one had no

family in Ireland, then removal from the State could not interfere with family rights. However, if one had family in Ireland

and removal had the effect of separating the family, it would be impossible for there not to be an interference. Similarly

where it is accepted that a person has a private life in the State, removal from the State will always interfere with that.

Decision makers should not shy away from these rather simple questions. It may be that decision makers are fearful that if

they answer positively the first of the Razgar questions that the remaining questions somehow fall like a house of cards.

This, of course, is not so.

27. The second of the Razgar questions, it is recalled, asks ‘[if there is an interference] will such interference have

consequences of such gravity as to potentially engage the operation of Article 8?’ The author of the decision under

analysis, having identified the aspects of private life with which there might be an interference, answers Razgar 2 as

follows: "it is not accepted that such interference will have consequences of such gravity as potentially to engage the

operation of Article 8".

28. No reason is given as to why interference will not have consequences of such gravity as to engage the operation of

Article 8. Indeed the consequences of the removal are not identified. Lord Bingham, in Razgar, explained the basis of the

second of his questions by reference to the case law on the Convention which requires that conduct must attain a

minimum level of severity to engage the operation of the Convention and cites the decision of the Court in Strasbourg in

Costello Roberts v. the United Kingdom [1993] 19 EHRR 112. Though the decision maker identifies the area of private life

with which there will be interference, no attempt whatsoever is made to identify the consequences of the interference.

The obvious consequence is that the identified private life will cease.

29. It simply not enough for a decision maker to say, without anything else, that deportation will not have consequence

of such gravity as to engage the operation of Article 8. It is difficult to discern why the removal of the children from their

school would not constitute a grave consequence sufficient to engage Article 8. The consequences of the removal of the

children from an environment which they know is a matter which should be addressed by the decision maker - but only for

the purpose of identifying whether rights under Article 8 are engaged. The obvious consequence of removal from the

State is that the life of the deportee in Ireland will be terminated. How could this not be an interference with private life

of the most extreme type?

30. The mere engagement of a right under Article 8 does not mean the State's proposed action will breach that right, nor

does it mean that the State's proposed action will not be protected by the rule of necessity established in Article 8(2) of

the Convention or by the principles of proportionality which may protect a decision, however negative the consequences

might be for its addressee.”

12. Having considered the approach to the potential interference with the right to respect of family life (in relation to which he upheld

the Minister’s decision), the trial judge concluded at para. 33 “I condemn that part of [the Minister’s] decision with respect to their

private life rights under Article 8 of the Convention”. The trial judge further indicated that he reached the same conclusion for the

same reasons in respect of the decision relating to the fourth named applicant.

13. The trial judge in considering similar issues in the second case before him (but not before us ) expanded upon what he perceived

to be the proper meaning of ‘consequences of such gravity’ when considering the gravity of the consequences of potential

interference in Razgar question 2. He added at para. 39:-

“I have previously approved of the proper meaning of the phrase ‘consequences of such gravity’ in Razgar Question 2 in

my decision in AMS v. The Minister for Justice and Equality [2014] IEHC 57. Effectively, the question asks whether the

interference can described as merely technical or inconsequential. If the interference is of this order, the rights to respect

for private and family life under Article 8(1) will not be engaged by the proposed removal of the persons from the State.

Where it is accepted that a proposed deportee has a private life, it seems to me that the answers to Questions 1 and 2

can never be anything but affirmative. The removal of the applicant from Ireland will comprehensively end the private life

experienced by the applicant in Ireland. This could never be anything other than an interference with that private life. In

most cases this will be an interference which is greater than inconsequential and something other than merely technical.

In other words deportation will always engage the right to respect for private life once it is established that private life as

understood in Convention terms was experienced in the state.”

14. The trial judge also considered the proper approach to questions 3, 4 and 5 as identified by Lord Bingham in Razgar and concluded

at para. 44 that Lord Bingham was indicating “that, save in the most unusual of cases, an adjudicator or a decision maker will

ultimately spend much of the analysis on the issue of proportionality”. He then stated:-

“45. Decision makers are not required to find that a deportation measure offends proportionality because it

comprehensively interferes with established private life in Ireland. Given that it is lawful for the State to regulate the

presence of non-nationals on its territory and that immigration control does not per se offend rights protected by the

Convention, something other than the natural consequence of deportation involving, as it does, the cessation or

termination of private life in the deporting state, will be required if the proportionality analysis is to yield a positive result

for an applicant.”

Appeal

15. The primary contention made on behalf of the Minister is that the trial judge was in error in deciding that in relation to a person,

who has never been lawfully living in the State but has established a private life in the sense of establishing social ties with other

persons in the State deportation will always constitute an engagement of Article 8 by reason of what is stated to be the obvious

consequence that the immigrants private life in the State in the sense of personal ties created in the State will cease. The primary

submission on behalf of the Minister is that the case law of the European Court of Human Rights (ECtHR) establishes that the Minister

is entitled to operate a lawful system of immigration control and that other than in exceptional circumstances a proposed deportation

of persons who have never been lawfully living in the State does not engage the obligations of the State in relation to respect for the

right to private life pursuant to Article 8 of the Convention.

16. On behalf of the applicants it is submitted that the trial judge was correct. They submit that a proposal to deport an immigrant

who has been living in the State, albeit unlawfully, for a number of years and has established a private life in the State consisting of

relationships and ties in an educational, work or social context, has the consequence of ending that private life and hence is of

sufficient gravity to engage Article 8. The applicants do not dispute that the Minister may be entitled to decide in accordance with

Article 8(2) of the Convention to make an order for deportation, but submit that any such lawful decision must be taken in

accordance with the requirements of Article 8(2) and in particular by applying the established proportionality principles.

17. As appears the net issue is whether or not the trial judge was correct in determining that on the facts before the Minister he was

in error in deciding that Article 8 was not engaged in relation to the alleged right to respect for the private life of the applicants in the

making of a deportation order by reason of the absence of consequences of sufficient gravity for the applicants.

Dos Santos Appeal

18. This appeal was heard at the same time as an appeal from a judgment of the High Court (McDermott J.) in Odenis Rodrigues Dos

Santos and Ors. v. Minister for Justice and Ors. [2014] IEHC 559 delivered on the 19th November, 2014 (“Dos Santos”) and orders

made pursuant thereto dismissing applications for orders of certiorari of decisions made by the Minister to deport the mother and five

children who were members of a Brazilian family. None of those applicants had permission to live in Ireland. None had claimed asylum.

A deportation order was also made in relation to the father but pursuant to a separate examination of file.

19. The Dos Santos appeal raises a number of additional issues and a separate judgment is being delivered. It is relevant to this

judgment to note that the Minister in his decisions in relation to the Santos family also adopted an examination of file in relation to

Article 8 family and private life rights which contained an approach similar to that in the decisions the subject of this appeal. In Dos

Santos, the author of the examination on file referred expressly to the five questions in Razgar. She took a similar approach stating

(albeit using different words) that the proposed deportation “has the potential to be an interference with their right to respect for

private life within the meaning of Article 8(1) of the ECHR". The author then went on to consider the facts presented and indicated

that it was not accepted that any such “potential interference would have consequences of such gravity as potentially to engage the

operation of Article 8”. The trial judge in the Dos Santos proceedings drew attention to the fact that there was no evidence of any

specific adverse consequences advanced by the applicants concerning the potential effect of deportation on any of the children. He

concluded that in substance, the examination of file determined that “the applicant had failed to establish that the consequences of

deportation for the children reached the level of seriousness sufficient to amount to a breach of Article 8”. The trial judge considered

the evidence which had been submitted to the Minister and at para. 67 concluded:-

“67. The court is satisfied that the conclusion reached that the alleged interference with the right to private life under

Article 8 did not have consequences of such gravity to potentially engage its operation and that, consequently, the

decision to deport the applicants did not constitute a breach of the right to respect for private life under Article 8, was,

on the facts and circumstances considered in the examinations of file, reasonable.”

The High Court judgment delivered in Dos Santos, whilst delivered later, does not refer to the judgment in this appeal. It appears that

the hearing in Dos Santos took place prior to the delivery of the judgment herein. The trial judges undoubtedly took different views of

what is required when considering the gravity of the consequences of a proposed deportation for persons who have never been

lawfully living in Ireland in the sense of being permitted to live in Ireland other than while an asylum claim was being processed.

Legal Framework

20. The legal framework appropriate to consideration of the issues in the appeal is of importance. Article 8 of ECHR is not part of the

domestic law of the Sate. However, the Minister and her officials are obliged to perform their functions in a manner compatible with

the State’s obligations under the Convention pursuant to s. 3(1) of the European Convention on Human Rights Act 2003. Further, s.4

of the Act of 2003, requires this Court in interpreting and applying the Convention to take due account of the principles laid down in

the judgments of the European Court of Human Rights (ECtHR). Hence those judgments are of importance in deciding the extent of

the State’s (and Minister’s) obligations under the Convention.

21. Article 8 of the Convention provides:-

“(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance

with the law and is necessary in a democratic society in the interests of national security, public safety or the economic

well being of the country, for the prevention of disorder or crime, the protection of health or morals, or for the protection

of the rights and freedoms of others.”

22. In this appeal, the focus is on the obligations of the Minister pursuant to s.3 of the 2003 Act. In relation to Article 8 of the

Convention, the judgments of the ECtHR make clear that where Article 8 is relied upon to oppose a proposed decision of a State to

expel or deport a person, two separate issues may arise for consideration:

1. Does the proposed expulsion ‘engage’ Article 8 rights or as sometimes put are the facts such that the proposal falls

within the scope of Article 8; and

2. If so, is the proposed expulsion permitted or prohibited by Article 8 having regard to Article 8(2).

The ECtHR in its judgment in Bensaid v. United Kingdom (2001) 33 EHRR 10 follows this approach. On the facts therein, the ECtHR

decided that Article 8 was not engaged. It is also true to observe that in other decisions, such as Nnyanzi v. United Kingdom (2008)

47 EHRR 18 the ECtHR moved directly to the second issue and Article 8(2) on simply an assumption that Article 8 was engaged

without first deciding whether or not it was engaged. This approach gives rise to some of the difficulties in these appeals.

23. The more detailed questions (1) and (2) identified by Lord Bingham in Razgar followed in the examinations of file leading to the

decisions taken herein are directed to resolution of the first issue identified above i.e. the engagement of Article 8 and the remaining

three questions relate to compatibility of the proposed decision with Article 8(2).

24. The case law of the ECtHR insofar as it concerns the right to respect for private life in Article 8, and the entitlement of States to

control their borders and deport illegal immigrants, presents, if I may say so, two difficulties in deciding whether or not the approach

of the trial judge herein is correct or whether the approach of McDermott J. in Santos is to be preferred or whether there is a further

approach which should be considered. The first difficulty relates to the definition of ‘private life’ or ‘the right to respect for private

life’. As the ECtHR has said on many occasions ‘private life’ for the purposes of Article 8 “is a broad term not susceptible to exhaustive

definition”. It has been determined to cover “the physical and psychological integrity of a person” (Pretty v. United Kingdom (2002)

35 EHRR 1). In Bensaid at para. 47 the ECtHR stated:-

“47. ‘Private life is a broad term not susceptible to exhaustive definition. The Court has already held that elements such

as gender identification, name and sexual orientation and sexual life are important elements of the personal sphere

protected by Article 8. Mental health must also be regarded as a crucial part of private life associated with the aspect of

moral integrity. Article 8 protects a right to identity and personal development, and the right to establish and develop

relationships with other human beings and the outside world. The preservation of mental stability is in that context an

indispensable precondition to effective enjoyment of the right to respect for private life.”

25. As appears many of the rights identified above (and often similarly repeated) are firstly elements of the personal identity of an

individual or of the physical and psychological or moral integrity of the person. Matters within a personal sphere of the individual. The

second aspect of the rights identified is the right of the individual to establish and develop relationships with other human beings.

Within this formulation, is a concept of a right to private life beyond the identity of the individual within his/her personal sphere and

appears to be directed to the right of the individual to engage in relationships and personal development. Both aspects are, however,

focused on the individual and the right of the individual albeit including a right to develop relationships with others.

26. However, it does not appear that such definition is exhaustive. In a number of cases relating to settled migrants (in the sense of

immigrants who have been lawfully present in the host State), the ECtHR appears to have gone further in its approach to what

constitutes private life (and the right to private life) for the purpose of Article 8. In Balogun v. United Kingdom (2013) 56 EHRR 3, the

ECtHR, in the context of settled migrants, stated:-

“43. The Court recalls that, as Article 8 protects the right to establish and develop relationships with other human beings

and the outside world and can sometimes embrace aspects of an individual’s social identity, it must be accepted that the

totality of social ties between settled migrants such as the applicant and the community in which they are living

constitutes part of the concept of ‘private life’ within the meaning of Article 8. Indeed it will be a rare case where a

settled migrant will be unable to demonstrate that his or her deportation would interfere with his or her private life as

guaranteed by Article 8 (see Miah v. the United Kingdom (dec.), no. 53080/07, 27 April 2010 at [17]). Not all settled

migrants will have equally strong family or social ties in the Contracting State where they reside but the comparative

strength or weakness of those ties is, in the majority of cases, more appropriately considered in assessing the

proportionality of the applicant’s deportation under Article 8(2).”

27. Whilst it must be recognised that the ECtHR has distinguished in its judgments between settled migrants and those who had never

lawfully lived in the host State, nevertheless in relation to what comes within the right to private life, it appears that the ECtHR

considers it goes beyond the right of a person to develop relationships and may include the right to the totality of the actual social

ties established between the migrant and the community in which they are living.

28. If the applicants were settled migrants then it would appear that in accordance with the principles stated by the ECtHR in Balogun

cited above, the interference which must be considered in assessing the gravity of the proposed deportation (Razgar Question (2)) is

the interference with the immigrant’s right to an actual established private life being the social and educational ties of the applicants

with the community in which they are living. It appears to follow from Balogun that Art 8 encompasses a right to the actual private

life established.

29. The ECtHR, however, has not directly addressed the question as to whether or not, in relation to a person who has never been a

lawful migrant, but whilst living unlawfully (or without a legal right to be present) establishes social ties with members of a community,

such social ties constitute part of the concept of a private life protected by Article 8. There is no positive assessment by the ECtHR

similar to that in Balogun in relation to social ties established by unlawful migrants or persons claiming asylum.

30. Whilst the ECtHR has on many occasions repeated that the Convention does not guarantee the right of an alien to enter or to

reside in a particular country, nor oblige a State to respect the choice of residence of aliens, nevertheless it does not appear to have

ruled out the possibility that an unlawful migrant may, during a stay develop social ties which could be considered as constituting

private life to which they have a right within the meaning of Article 8(1) of the Convention. In Nnyanzi v. United Kingdom (2008) 47

EHRR 18, it had the opportunity to do so and did not. The applicant had been in the United Kingdom pursuing an asylum claim for

almost ten years. She had never been a lawful migrant. She was the daughter of a government Minister in Uganda. She contended

inter alia, that her expulsion to Uganda violated her right to respect for her private life pursuant to Article 8. That contention was

based upon an established private life in the United Kingdom which involved close ties with her church, her part qualification as an

accountant and the relationship with a male friend which she hoped would develop. She also relied upon delays by the State in the

asylum process. Finally she contended that her expulsion would be traumatic and exacerbate an asthmatic condition. The ECtHR

assessment of that part of her claim was succinct in paragraphs 72-78: -

1. Relevant principles

“72. The Convention does not guarantee the right of an alien to enter or to reside in a particular country. However, the

removal of a person from a country where close members of his family are living may amount to an infringement of the

right to respect for family life as guaranteed in Article 8(1) of the Convention (see Moustaquim v. Belgium, judgment of

18 February 1991, Series A, No. 193, p. 18, 36). The Court has also recognised that, regardless of the existence or

otherwise of “family life”, and depending on the circumstances of a particular case, such removal may also give rise to an

infringement of an applicant’s right to respect for his private life (see Üner v. the Netherlands [GC], no. 46410/99, ECHR

2006-, 59).

73. The Court also reiterates its finding in Bensaid v. the United Kingdom (no. 44599/98, judgment of 6 February 2001 at

46) that ‘not every act or measure which adversely affects moral or physical integrity will interfere with the right to

respect to private life guaranteed by Article 8’.

74. However, the Court’s case-law does not exclude that treatment which does not reach the severity of Article 3

treatment may nonetheless breach Article 8 in its private-life aspect where there are sufficiently adverse effects on

physical and moral integrity (see Costello-Roberts v. United Kingdom, judgment of 25 March 1993, Series A no. 247-C, pp.

60-61, 36).

75. Any interference with Article 8 rights will infringe the Convention if it does not meet the requirements of paragraph 2

of Article 8. It is therefore necessary to determine whether the interference was ‘in accordance with the law’, motivated

by one or more of the legitimate aims set out in that paragraph, and ‘necessary in a democratic society’.

2. Application of the above principles to the present case

76. The Court does not consider it necessary to determine whether the applicant’s accountancy studies, involvement with

her church and friendship of unspecified duration with a man during her stay of almost ten years in the United Kingdom

constitute private life within the meaning of Article 8(1) of the Convention. Even assuming this to be the case, it finds

that her proposed removal to Uganda is ‘in accordance with the law’ and is motivated by a legitimate aim, namely the

maintenance and enforcement of immigration control. As to the necessity of the interference, the Court finds that any

private life that the applicant has established during her stay in the United Kingdom when balanced against the legitimate

public interest in effective immigration control would not render her removal a disproportionate interference. In this

regard, the Court notes that, unlike the applicant in the case of Üner (cited above), the present applicant is not a settled

migrant and has never been granted a right to remain in the respondent State. Her stay in the United Kingdom, pending

the determination of her several asylum and human rights claims, has at all times been precarious and her removal, on

rejection of those claims, is not rendered disproportionate by any alleged delay on the part of the authorities in assessing

them.

77. Nor does the Court find there to be sufficient evidence that the applicant’s removal with her asthma condition, which

she asserts is exacerbated by stress, would have such adverse effects on her physical and moral integrity as to breach

her rights under Article 8 of the Convention.

78. Accordingly, the applicant’s removal to Uganda would not give rise to a violation of Article 8 of the Convention.”

31. The above analysis is of assistance in deciding this appeal. Firstly, at paragraph 72 it supports the approach taken by the Minister

in considering deportation ‘may’ give rise to an infringement or as put on behalf of the Minister ‘may engage’ their right to respect for

private life under Article 8(1). Secondly, paras. 73 and 74 make clear the necessity of addressing the ‘gravity’ or ‘sufficiently adverse

effects’ question ie. Razgar (2).

32. Thirdly and perhaps most importantly, in a case where the private life primarily relied upon was established social ties and

connections in the host State the ECtHR identified, at least at the level of principle, that what has to be considered is the gravity of

adverse impacts on the “physical and moral integrity’ of the individual (para74). Hence, whilst the inevitable consequence of expulsion

may be the severing of the social ties which may be considered to form part of the private life it appears that what requires to be

examined by the decision maker is not just the obvious impact on the private life in the sense of the social ties but rather the gravity

of the impact of severing the social ties on the proposed deportee or on his/her physical and moral integrity.

33. The Minister in adopting the examination of file adopted a position whereby the proposed deportation potentially constituted an

interference with the right to private life within the meaning of Article 8. I do not agree with the trial judge that the examination of

file demonstrates that it was accepted that the applicants did have a private life in Ireland protected by Article 8. The current case

law of the ECtHR as reflected by the principles stated in Nnyanzi appears to support an approach of first identifying a potential

interference in the right to respect for private life within the meaning of Article 8 and then considering as a second question whether

the proposed deportation would have consequences of such gravity for the individual as to engage the operation of Article 8(1). In so

far as the first question above differs slightly from the first question suggested in Razgar, s.4 of the Act of 2003 requires that the

principles of the judgments of the ECtHR be followed. There does not appear to be any difference in approach between the ECtHR and

Lord Bingham in Razgar in relation to the second question which is central to this appeal.

34. The trial judge, in my judgment, primarily fell into error in deciding that the relevant consequence of deportation to be examined

(for the purpose of determining whether the interference by deportation would have consequences of such gravity as to engage the

operation of Article 8) was the bringing to an end of the private life in the sense of existing social and educational ties in Ireland. It

appears to me, rather, what the case law of the ECtHR requires is for the adjudicator (and on review the court) to consider the

gravity of the consequences of deportation (including severing social and educational ties or relationships) for the individual and in

particular how it affects his or her moral or physical integrity. It is the individual’s right to respect for his or her private life which is

guaranteed by Article 8. The prohibition against interference by a public authority is with the exercise of this right. Where the

relevant aspect of the right to private life is the right of the individual to establish and develop relationships with other human beings

and insofar as it concerns education, the right to personal development, then it appears to me that what an adjudicator must

consider is the gravity of the consequences for the individual of deportation including the inevitable rupture of relationships and social

ties formed whilst in the State.

35. This, it appears to me, follows from the approach taken by the ECtHR in Bensaid following the earlier decision in Costello-Roberts

(referred to by Lord Bingham in Razgar). I recognise that those judgments related to facts where the asserted right was to mental

and physical integrity. However, as I have pointed out, it was repeated as a relevant principle in Nnyanzi which related principally to

established social ties. Mr. Bensaid was a schizophrenic suffering from a psychotic illness. He was in receipt of treatment in the UK

and his condition was being successfully managed. The United Kingdom sought to return him to Algeria, Mr. Bensaid objected and

sought to rely upon evidence of a high risk of relapse if returned as only lesser treatment was stated to be available in Algeria. He

was unsuccessful on appeal in the United Kingdom and then appealed to Strasburg in reliance inter alia, on Articles 3 and 8 of the

Convention. The ECtHR rejected his claim based upon Article 3 and his Article 8 claim, in which it was contended that his removal from

the UK would have a severely damaging effect on his private life in the sense of his moral and physical integrity. It was contended

that without the UK treatment which permitted him to have some level of social functioning he would be unable to interact in the

community and establish or develop relationships with others. In the first part of its assessment relating to the potential engagement

of Article 8, the ECtHR stated:

“46. Not every act or measure which adversely affects moral or physical integrity will interfere with the right to respect to

private life guaranteed by Article 8. However, the Court's case-law does not exclude that treatment which does not reach

the severity of Article 3 treatment may nonetheless breach Article 8 in its private-life aspect where there are sufficiently

adverse effects on physical and moral integrity (see Costello-Roberts v. the United Kingdom, judgment of 25 March 1993,

Series A no. 247-C, pp. 60-61, 36).

47. ‘Private life’ is a broad term not susceptible to exhaustive definition. The Court has already held that elements such as

gender identification, name and sexual orientation and sexual life are important elements of the personal sphere protected

by Article 8. . . . Mental health must also be regarded as a crucial part of private life associated with the aspect of moral

integrity. Article 8 protects a right to identity and personal development, and the right to establish and develop

relationships with other human beings and the outside world. . . . The preservation of mental stability is in that context an

indispensable precondition to effective enjoyment of the right to respect for private life.

48. Turning to the present case, the Court recalls that it has found above that the risk of damage to the applicant's

health from return to his country of origin was based on largely hypothetical factors and that it was not substantiated

that he would suffer inhuman and degrading treatment. Nor in the circumstances has it been established that his moral

integrity would be substantially affected to a degree falling within the scope of Article 8 of the Convention.”

36. In that judgment the ECtHR did continue at para. 48 to consider the position under Article 8(2) “even assuming that the

dislocation caused to the applicant by removal from the United Kingdom . . .was to be considered by itself as affecting his private life

in the context of the relationships and support framework . . .” and indicated that the deportation complied with the requirements of

Article 8(2). However for the issues under consideration in this appeal, it is the first part of the ECtHR’s assessment which is of

importance. It makes clear that in this aspect of a private life there must be sufficiently adverse effects on the physical or moral

integrity of the person to engage Article 8.

37. It appears that Lord Bingham in suggesting question (2) and speaking of minimum level of severity also had in mind the

assessment of adverse impacts on the individual and in particular his physical and moral integrity. In his opinion in Razgar, he added

the following further explanation of what he had in mind in relation to question (2):-

“Question (2) reflects the consistent case law of the Strasbourg court, holding that conduct must attain a minimum level

of severity to engage the operation of the Convention: see, for example, Costello-Roberts v. United Kingdom (1995) 19

EHRR 112. If the reviewing court is satisfied that the answer to this question clearly would or should be negative, there

can again be no ground for challenging the certificate.”

38. A consideration of the judgment of the ECtHR in Costello-Roberts and what was stated at para. 36 emphasises that what the

Court has in mind is the necessity for the conduct complained of to have adverse effects for the individual. In that judgment at para.

36 set out below, it concluded that the treatment being complained of was not within “the scope of the prohibition contained in

Article 8” ie. Article 8 was not engaged because it did not entail adverse effects for “his [the applicant’s] physical or moral integrity”.

At para. 36 of that judgment the ECtHR stated:-

“36. The Court agrees with the Government that the notion of ‘private life’ is a broad one, which, as it held in its recent

judgment in the case of Niemietz v. Germany (16 December 1992, Series A no. 251-B, p. 11, para. 29), is not susceptible

to exhaustive definition. Measures taken in the field of education may, in certain circumstances, affect the right to

respect for private life . . . but not every act or measure which may be said to affect adversely the physical or moral

integrity of a person necessarily gives rise to such an interference.

...

The Court does not exclude the possibility that there might be circumstances in which Article 8 (art. 8) could be regarded

as affording in relation to disciplinary measures a protection which goes beyond that given by Article 3 (art. 3). Having

regard, however, to the purpose and aim of the Convention taken as a whole, and bearing in mind that the sending of a

child to school necessarily involves some degree of interference with his or her private life, the Court considers that the

treatment complained of by the applicant did not entail adverse effects for his physical or moral integrity [emphasis

added] sufficient to bring it within the scope of the prohibition contained in Article 8 (art. 8). While not wishing to be

taken to approve in any way the retention of corporal punishment as part of the disciplinary regime of a school, the Court

therefore concludes that in the circumstances of this case there has also been no violation of that Article (art. 8).”

39. The above also requires me to disagree with a further relevant conclusion reached by the trial judge. As set out above the trial

judge, following his own decision in A.M.S. v. Minister for Justice and Equality [2012] IEHC 72, in turn following the judgment of Sedley

L.J. in the Court of Appeal in England in V.W. (Uganda) v. Secretary of State for the Home Department [2009] EWCA Civ 5, decided

that the phrase ‘consequences of such gravity’ in Razgar question (2) is whether or not “the interference can be described as merely

technical or inconsequential”. I cannot agree with the trial judge that the ECtHR in the principles set out in Nnyanzi following its

previous judgments in Bensaid and Costello-Roberts as requiring “sufficiently adverse effects on physical and moral integrity” of the

immigrant is to be considered as only having in mind something which is simply more than a technical or inconsequential interference.

It appears to me it would be inconsistent with the principles set out in the context of the facts in Bensaid and indeed Costello-

Roberts to take such an approach. What will or will not constitute “sufficiently adverse effects” or have “consequences of such

gravity” as to engage Article 8, will depend upon the individual facts and circumstances. It also appears that it may depend upon the

circumstances in which the alleged interference occurs. I say this because in Costello-Roberts the ECtHR appears to have taken into

account the fact that sending a child to a school necessarily involves some degree of interference with his or her private life (see

para. 36). In a similar way it appears to me that if an individual decides to travel to a new State and claim asylum the permissible and

inevitable application to him of immigration laws, if he fails, will necessarily involve some degree of interference with any private life

established in the host State in which he is permitted to remain pending a decision on his asylum claim.

40. This analysis also informs my conclusion that in considering the gravity of the consequences of deportation on the right to

respect for private life of an individual who has never been permitted to reside in the host State (other than pending a decision on an

asylum claim), it is permissible to take into account that it is a private life consisting of relationships including educational and social

ties formed at a time when the right of the individual to remain in the State is precarious.

41. It is important to add the following. The Minister submitted that the Court should determine on this appeal that persons such as

the applicants herein, who were never lawfully present in the State (other than being permitted to enter and/or remain to pursue an

asylum claim) are not capable of establishing within Ireland a private life in the sense of educational or other social or community ties

potentially capable of protection pursuant to Article 8. It does not seem to me that we should do so. Firstly, as I hope demonstrated,

the ECtHR has not directly addressed this question and the decision in NNYANZI appears, at minimum, to deliberately leave it open.

Secondly, the Minister in adopting the examination of file adopted a position, correctly in my view, having regard to s.3 of the Act of

2003 that the proposed deportation potentially constituted an interference with the right to private life within the meaning of Article

8. This approach is consistent with the current case law of the ECtHR. Nevertheless, it also appears correct to observe that in

accordance with the judgments of the ECtHR, and in particular Nnyanzi and Bensaid, that it would require wholly exceptional

circumstances to engage the operation of Article 8 in relation to a proposal to deport persons who have never had permission to

reside in the State (other than being permitted to remain pending determination of an asylum application). This appears to follow from

the fact that any consideration of the gravity of the consequences of expulsion must be in the context of the long standing principles

stated by the ECtHR, that Article 8 does not entail a general obligation for a State to respect the immigrant’s choice of the country of

their residence. This approach is emphasised by the facts of Bensaid and the conclusion reached by the ECtHR on its facts that

Article 8 was not even engaged by his proposed removal. It appears to me that in relation to interference with a right to respect for

private life it follows that in order to engage Article 8 the gravity of the consequences for an illegal immigrant or for his physical or

moral integrity must be above the normal consequences of the impact on an individual and his physical and moral integrity of

enforcement of immigration law, including deportation.

Conclusion

42. In my judgment the trial judge was in error in condemning that part of the Minister’s decision which related to the State’s respect

for the applicants’ private life pursuant to Article 8 of ECHR for the reasons set out.

43. The approach taken in the examination of file was consistent with the current case law of the ECtHR.

44. The mother and first two children arrived in Ireland and immediately claimed asylum. They were not then unlawfully present in

Ireland by reason of s. 9 of the Refugee Act 1996 for so long as their asylum claim was pending. Nevertheless they did not have a

right to live in Ireland, unless successful in their asylum application and their continued presence in Ireland was always precarious. In

relation to the fourth named applicant, whilst born in Ireland, she is not an Irish citizen and does not have a right to live in or be

brought up in Ireland. She is a young child (approximately 6 years at time of Minister’s decision). She is a member of the family unit

and her welfare is dependant on her mother with whom she lives. Her continued presence in Ireland is also in that sense precarious.

All of the social, educational and other ties established in the State were at a time when the mother knew their continued existence

in Ireland was precarious and objectively the continued existence of the children in Ireland was also precarious. There was no

evidence put before the Minister by the facts presented and referred to in the examination of file to indicate that the bringing to an

end of the particular private life they had created in Ireland would have any significant impact on the right of the applicants, mother

or children, to personal development including to education or their right to establish and develop relationships with other human

beings on their return to Nigeria. There was no evidence of any grave impact on the physical or moral integrity of the mother or

children by reason of the cessation of the relevant activities and social relationships in Ireland.

45. Hence the conclusion reached, on the facts before the Minister, that the interference in the right to private life by deportation of

all applicants will not have consequences of such gravity as potentially to engage the operation of Article 8 was reasonable.

46. The above approach was also consistent with the view taken by Feeney J. in Agbonlahor v. Minister for Justice [2007] 4 I.R. 309,

in 2007 IEHC 166. That judgment concerned a challenge by way of judicial review to a deportation order made in respect of her

mother and two children to Nigeria. One of the children had been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) while

in Ireland. Information was placed before the Minister in relation to the absence in Nigeria of educational and medical facilities to

ensure the full development of the child. Feeney J. had been referred to the questions suggested by Lord Bingham in Razgar and

addressed the second question and concluded that the case before him was not one where the proposed removal would be an

interference having consequences of such gravity for the child as to potentially engage the operation of Article 8.

47. Accordingly, I would allow the appeal, vacate the orders of certiorari granted by the High Court and hear the parties as to any

further orders in respect of the applicants’ claims before the High Court as I note that there were other issues not the subject of the

judgment of the 31st July, 2014.

Addendum

Since reaching the above conclusions and preparing a draft judgment my attention was drawn to the judgments delivered by the

Supreme Court (MacMenamin J. Laffoy J. and Charleton J.) on 16th July 2015 in P.O & anor -v- Minister for Justice and Equality & ors

[2015] IESC 64. The judgments of MacMenamin J. and Charleton J consider an assessment by the Minister of a right to private life

pursuant to Article 8 ECHR. Since it appears to me that the views I had independently formed are not inconsistent with those of the

Supreme Court in the recently delivered judgments it did not seem necessary to reconvene the parties.