Supreme Court dismisses appeal where deportation order properly reconsidered despite family rights claims.

An Chúirt Uachtarach

The Supreme Court

Record number: 2008/992JR

Appeal number: 355/2008

Clarke J

Laffoy J

Charleton J

Between/

O.O (AN INFANT ACTING BY HIS MOTHER AND NEXT FRIEND C.O.) AND O.E.O. (AN INFANT ACTING BY HER MOTHER AND NEXT

FRIEND C.O.) AND O.D.O. (AN INFANT ACTING BY HER MOTHER AND NEXT FRIEND C.O.) AND C.O. AND ESMÉ J (so named for

the purposes of this appeal).

Applicants/Appellants

and

THE MINISTER FOR JUSTICE AND LAW REFORM

Respondent

Judgment of Mr Justice Charleton delivered on the 19th of March 2015

1. This is an appeal by all of the appellants of the decision of Hedigan J refusing leave to the appellants to commence judicial review

proceedings on the grounds that a deportation order, issued against the fifth named appellant under s. 3 of the Immigration Act 1999,

was not properly reconsidered by the respondent Minister when an application in that regard, was made to him to revoke that order

under subsection (11) of that section; [2008] IEHC 325. For the purposes of case identification, one of the applicants will be given an

assumed name. That name is substituted in all quotes for the correct name. Esmé J is the grandmother of the infant appellants and is

the mother of the fourth-named appellant, who is her daughter, and the other appellants are that appellant’s children. Two of the

infant appellants are citizens of Ireland. The remaining appellants are Nigerian citizens. At this stage, Esmé J has been deported and,

in fact, has been out of Ireland for six years. Nonetheless, it is argued that the deportation order has practical consequences for her,

particularly having regard to seeking leave to enter the State under s. 4 of the Immigration Act 2004. Two of the children are Irish

citizens. One of the infant appellants, not an Irish citizen, had reached his majority by the time this appeal was argued. The rights of

the children to the company of their grandmother is asserted under Article 41 of Bunreacht na hÉireann and under article 8 of the

European Convention on Human Rights, and it is argued that no proper regard was had by the respondent Minister to those rights.

Background

2. The background circumstances can be concisely stated. Esmé’s daughter came to Ireland from Nigeria at a time when children born

on this island were Irish citizens by virtue of that fact alone. Hence, two of her children are Irish citizens. There is no issue raised as

to the entitlement of Esmé’s daughter, as mother of these Irish citizens, to remain in the State or as to the other child who is not a

citizen. Instead it is the deportation of Esmé and the effect of the deprivation of her society on the family that is central to this

appeal. Esmé’s daughter had a husband who is the father of the infant appellants named in the title of the proceedings. In the

ordinary course of human affairs, that marriage encountered difficulties. Her husband left her. That happened several months before

Esmé ever came to Ireland. The consequence of the departure of her husband for Esmé’s daughter was that she was left a single

mother struggling with the demands of a young family. She asked her mother Esmé to come to Ireland from Nigeria to help her with

the children. Esmé arrived in Dublin in February 2006. She had not applied for a visa beforehand. Instead, on arrival, she applied for

asylum in Ireland on the grounds of persecution. Her application to the Refugee Applications Commissioner was frank in stating that

she had no grounds to fear persecution as such but that, instead, the focus of her desire to stay in Ireland was the need to look

after her daughter and her grandchildren. Matters moved swiftly. There was a negative appraisal. This was appealed by her to the

Refugee Appeals Tribunal. That appeal was rejected in April 2006. On the 27th of that same month, a letter was issued to her

indicating that the respondent Minister was proposing to deport her. In accordance with the usual statutory plan under section 3 of

the Immigration Act 1999, she was given fifteen working days to make representations as to why she ought to be given temporary

leave to remain in the State. Just outside of the time limit, representations were received by the Minister from Esmé’s solicitor on the

1st of June of that year. However, since the file was not considered by the Repatriation Unit until that date, the letter seems to have

arrived in time, or to have been treated as such. The parts of that letter relevant to the argument advanced on appeal are now

quoted:

Family and domestic circumstances in Ireland:- the Applicant (Esmé) lives with her daughter [C.O.] … aged 31. (note

mistake in decision of R.A.T. which says she is 21) and [her] three children, the youngest two of whom were born in

Ireland. The children are as follows:-Boy 10, Girl 5 and a Boy 1. [C.O.] has residency in Ireland since 2001 and is eligible

for citizenship. [C.O.] now works 8 hours every day for 5 days a week. She does overtime on Saturday. Esmé minds her

three children for while she is working.… [C.O.] is the only child that Esmé ever gave birth to. Esmé and her husband…

were separated from the time [C.O.] was three years old and Esmé raised [her] alone. Esmé only had one sibling, a sister

who died last year. Accordingly Esmé has no family in Nigeria. She had been living in sub-standard rented accommodation

before coming to Ireland which she surrendered and she has nowhere to return to.… The applicant has sufficient

detachment, economically and socially, from his (sic) country of origin to warrant permission to remain. Esmé is a

grandmother to two Irish born children. The State recognizes the role to be played by grandparents in the upbringing of

children and have made legal provision for access by grandparents to children. In Irish law (if the need arose) Esmé could

obtain an order for access to her grandchildren, this recognises the rights of her Irish grandchildren to socialise with her.

3. Despite the fact that a deportation order appears to have been signed a few days before this letter arrived, all the parties to this

appeal are now agreed that the matter was reconsidered, and the decision to deport Esmé was not ever overturned. A challenge to

the actual deportation was, however, made. In September of that year, a plenary summons was issued seeking injunctive relief

against the deportation. Nineteen months later, on the 11th April, 2008, that action was settled by consent of the parties. Whether

the terms of settlement were later breached has become an issue. That, however, formed no part of the decision of Hedigan J, and

was not argued before him. For the sake of completeness, the terms as reduced to writing were:

1. The proceedings herein (High Court Record No. 2006/4259P) to be struck out on consent.

2. The Minister will consider an application under section 3(11) of Immigration Act 1999 (as amended) lodged on

behalf of Ms. Esmé … provided that said application is lodged within fifteen days of the date of this matter being

struck out. Said application will be addressed to [D. B.] JR Repatriation Unit…

3. The First Named Defendant will contribute €5000 (five thousand euros) plus VAT towards the Plaintiff’s’ costs.

4. Possibly the reference to that named official was to ensure prompt attention as opposed to a choice of the official as the analysing

officer. The benefit of such a settlement to Esmé and to the wider family in Ireland is questionable. Anyone can, at any time, lodge an

application under section 3(11) of the Act of 1999; and this can be repeated without statutory limit. This application was, however,

addressed to a named official. There was a reconsideration. Shortly thereafter, on the 25th of the same month, representations were

received from Esmé’s solicitors together with accompanying testimonials. A further letter from the same source came to the

Repatriation Unit on the 1st of May and it enclosed that earlier letter as well. This later representation was a corrected version of the

previous lengthy letter. The letter submitted that the family whose rights had to be considered constituted the mother, the three

children and Esmé as grandmother for the purposes of Article 41 of the Constitution and Article 8 of the European Convention on

Human Rights. It was submitted that it would be hard for the family to move to Nigeria with a view to staying together and that

educational, health and social services in that country were minimal compared to those available in Ireland, to the consequent

disadvantage of the children. Fear was expressed on behalf of the children’s mother that her daughter might be subjected to female

genital mutilation should the family go back to Nigeria. The traumatic separation within the family between father and mother was

referenced, and it was said that it was especially important that Esmé, as grandmother, would stay with a view to stabilising the

family. The letter continued:

The family situation and the difficulties which arose in view of the separation can be further evidenced if necessary by

the provision of a report from an appropriate expert which would illustrate the emotional trauma and disadvantage that

the children are put to in view of the absence of their father during the formative years. If you do not accept for any

reason that such difficulties arise in the instant case we would be in a position to arrange for such reports to be

produced. The absence of same at this juncture is only due to the limited financial means of [C.O.] to provide same

immediately. We would submit, however, that the difficulties faced by a single parent family are sufficiently in the public

domain that there should be no need [to] provide individual evidence in that regard… [I]n the event of the deportation of

Esmé… [the family would] have no choice but to remain in this State without the help and assistance of their grandmother

in rearing them. The educational, developmental and welfare opportunities in the State for the family are incomparable

compared to what would be available to them in Nigeria and this should be taken into account. We would respectfully

submit that any benefit to the State in deporting Esmé… would be outweighed by the other benefits of allowing her to

remain and that in all the circumstances her deportation at this juncture would be disproportionate to the ends sought to

be sought to be achieved by such deportation… If you require any further information in relation to any other aspect of

our client’s family please let us know.

5. The analysis conducted by an official with a view to considering whether the deportation order ought to be revoked, was entitled

‘Examination of file under section 3(11) of the Immigration Act 1999. That official had ‘Family Life’ marked as “A key consideration in

this case.” Since proportionality, torture and the other points mentioned in the representation were similarly put in issue, these were

also considered. In the key consideration of family life, the facts were correctly stated. The analysis then continued:

Esmé’s daughter [C.O.] was initially granted residency in the State on the basis of her parentage of her Irish citizen child

on 28/11/2001 for a period of 12 months, this has been updated and her current right to remain is valid until 2009. Is

been submitted by Esmé that she takes care of her grandchildren while her daughter is at work. It has also been

submitted that the applicant’s daughter is currently in hospital and was it not for the applicant, there would be no-one to

look after the children. In this regard, it is accepted that if the Minister decides to deport Esmé, this would constitute an

interference with her family life within the meaning of Article 8(1) of the ECHR. However, [C.O.] was aware when the

applicant began caring for her children that her mother’s immigration position in the State was precarious and that her

mother had no legal status in the State.…

It is noted that as part of Esmé’s asylum application, the interviewer asked the applicant about each of the convention

grounds individually, and to each of the five questions, [she] replied that she did not have any problems with anyone in

Nigeria. She also stated “I came so as to take care of my daughter as she is sick and also her children. And then she will

take care of me. I’m begging you in the name of God as I am not feeling okay, as I am sick”. This would suggest that the

applicant knowingly circumvented the immigration laws of the State by using the asylum process to come to Ireland and

claiming asylum when she had no reason for requiring the protection of the State. Furthermore, I find that there is nothing

to suggest that insurmountable obstacles arise that would hinder Esmé… and her family from being able to establish a

family life in Nigeria, and it is submitted that the decision to deport [her] is proportionate to the legitimate aim of the

State.

6. The application was therefore rejected. No case had been made in the application, or after it by correspondence, that the

settlement provisions gave Esmé or her family members any rights beyond those under section 3(11) of the Act of 1999 which any

person subject to a deportation order and seeking a reconsideration thereof might have. In December 2008, a stay was sought in this

Court against the deportation. That was refused. Esmé was in fact deported in February 2009 back to her country of origin.

High Court

7. In the High Court, following an analysis of all of the circumstances, Hedigan J concluded as follows at p. 10:

I accept that Mrs E.J. is a much-loved member of the applicants’ family and I am sympathetic to their desire for her to

remain in their company. I would note, however, that the papers show that there was no credible basis for her asylum

application and no application was made to bring her to the State on the basis of a work permit. There is very little doubt

in my mind but that E.J. came to Ireland to take care of her grandchildren, and not as a result of any fear of persecution.

I acknowledge that E.J. was honest and did not seek to deceive the authorities but such candour is to be expected as a

matter of course from all persons who seek the protection of the State. In the circumstances, I concur with the following

statement of Birmingham J. in G.O. & Others [2008] IEHC 190:-

‘I cannot accept that it is open to individuals to arrive in the State on what is essentially a false basis, as indicated

by the rejection of their claim to asylum status, and then proceed to so organise their family affairs as to frustrate

the operation of the immigration system.’

In conclusion, I am not satisfied that substantial grounds have been established and accordingly, I must refuse leave and

the interim injunction must be discharged.

Moot appeals

8. While there may be exceptional circumstances where parties have a material interest in a point of law of exceptional public

importance, or where a point of law affects several other cases, in the overwhelming majority of cases, courts do not grant advisory

judgments. The written submissions in this case were especially focussed on the Minister’s side on the presumption against issuing

judgments on moot points. Such was said to arise in this case by virtue of the fact that the appellant Esmé has already been

deported. This was an appeal, however, where the parties have a continuing interest by reason of the status of Esmé as a person

who continues to be subject to a deportation order. That order has an enduring effect on her eligibility to return to Ireland. It would

be wrong simply due to the fact that a deportation has occurred to rule that any application as to the legality of the process leading

to that ostensibly final stage of the asylum system was rendered moot thereby. A person may sometimes benefit should a deportation

be declared wrong in law. Further, a deportation order has a continuing effect on the freedom of travel of a foreign citizen who may

wish to re-enter Ireland.

9. A deportation may be of importance in determining the chances of a person should they seek to come to the State. If, for

instance, a deportation were made for reasons of “national security” under s.3(6)(k) of the Act of 1999, whatever the threat that the

deportee represented as far as the facts “appear or are know to the Minister” would surely have continued importance. This situation

was less serious, but important nonetheless. Here, the deportation was clearly made in pursuit of the State’s immigration policy. Unlike

such a decision, or the making of an exclusion order under s.4 of the Act of 1999, that order did not make Esmé an unwelcome person

should she seek to return. Under s.4 of the Immigration Act 2004, however, permission to land in the State by a non-national is

dependant on their status. Specifically, leave to land may be refused under s.4(3) where such a person, inter alia, cannot support his

or her self, does not have an employment permit, has a criminal conviction that might have been punished by at least one years’

imprisonment, does not hold a visa, has no passport or national identity document, intends to travel on to the neighbouring kingdom

but does not qualify for admission there, being a seaman has remained on after the departure of their vessel, is a threat to public

security or his or her entry would be contrary to public policy, intends to enter for an undeclared purpose or, under subparagraph (f):

that the non-national is the subject of –

(i) a deportation order (within the meaning of the Act of 1999),

(ii) an exclusion order (within the meaning of that Act), or

(iii) a determination by the Minister that it is conducive to the public good that he or she remain outside the State

10. It is thus clear that deportation from the State makes a non-national subject to a continuing disability should that person wish to

return. Here, there would ostensibly be a legitimate reason for Esmé to return, in order to see her family over a holiday stay. But, she

is a deported person. The deportation order has a plain effect on her choices in terms of travel to Ireland. In the result, the appeal is

not moot.

The settlement

11. It was argued on this appeal on behalf of Esmé that the settlement gave an entitlement to a fresh consideration of the

deportation of the applicant as if no representation had previously been made on her behalf.. It was never part of the terms of

settlement that the deportation order should be revoked or would be treated as if it had been revoked. Instead, what the settlement

effected was the consideration of an application to revoke an existing deportation order that was left in place in consequence of the

litigation. There is nothing to indicate that the settlement constituted some kind of sleight of hand on behalf of the respondent

Minister. Most importantly, representations were made and these were, as the settlement terms indicate, considered in accordance

with what was, in reality, the Minister’s extant obligation in any event.

Test for leave to commence judicial review

12. As is the case with challenges under the Planning and Development Act 2000, as amended, application for judicial review of

decisions made by the Refugee Applications Commissioner, the Refugee Appeals Tribunal and the respondent Minister are generally

subject to a more stringent test than normal before leave to commence judicial review may be granted. Under s.5(2) of the Illegal

Immigrants (Trafficking) Act 2000, as amended, leave to apply for judicial review must be sought “within the period of 14 days

commencing on the date on which the person was notified of the decision, determination, recommendation, refusal or making of the

Order concerned”, subject to extension “for good and sufficient reason”; has to be made on notice to the respondent Minister; shall

“not be granted unless the High Court is satisfied that there are substantial grounds for contending that the decision, determination,

recommendation, refusal order is invalid or ought to be quashed”; and such appeals “shall be final” subject to a certificate that

decision involves a point of law of exceptional public importance and that it is desirable in the public interest that on appeal should be

taken to the Supreme Court. Whereas some of the subsections of s.3 of the Act of 1999 are included within this restriction, an

application to the Minister to revoke or reconsider a deportation order under section 3(11) is not. Hence, the test to be applied is the

general test at common law for allowing leave to commence judicial review proceedings. This application was, in fact, heard on notice

to the Minister by order of Gilligan J. The High Court had made an order restraining the deportation of Esmé on an ex parte application

on 27th October 2008. The application for leave was also directed by Gilligan J to be made on leave to the Minister.

13. The relevant test which is to be applied is that set out in Order 84 rule 20 of the Rules of the Superior Courts, which prohibits an

application for judicial review “unless the leave of the Court has been obtained” in the manner in which the sub-rule provides. In G v

Director of Public Prosecutions [1994] 1 IR 374, the appropriate test was considered by the Supreme Court in an unopposed

application where leave had been refused in the High Court. Finlay CJ, with whom the other two judges agreed, set down the test in

the following terms at pp. 377-378:

An applicant must satisfy the court in prima facie manner by the facts set out in his affidavit and submissions made in

support of his application of the following matters:-

(a) That he has a sufficient interest in the matter to which the application relates to comply with rule 20(4).

(b) That the facts averred in the affidavit would be sufficient, if proved, to support a stateable ground for the form

of relief sought by way of judicial review.

(c) That on these facts an arguable case in law can be made that the applicant is entitled to the relief which he

seeks.

(d) That the application has been made promptly and… within the … [relevant] time limits…

(e) That the only effective remedy, on the facts established by the applicant, which the applicant could obtain

would be in order by way of judicial review or, if there be an alternative remedy, that the application by way of

judicial review is, in all the facts of the case, a more appropriate method of procedure.

14. While in Gordon v Director of Public Prosecutions [2002] 2 IR 369 this has been described as a “low threshold”, per Fennelly J at

p. 372. What an arguable case might mean was also amplified by Denham J in the G decision, with whom Blayney J agreed. At p.382,

she stated:

This preliminary process of leave to apply for judicial review is similar to the prior procedure of seeking conditional orders

of the prerogative writs. The aim is similar – to effect a screening process of litigation against public authorities and

officers. It is to prevent an abuse of the process, trivial or unstatable cases proceeding, and thus impeding public

authorities unnecessarily. … It is a preliminary filtering process for which the applicant is required to establish a prima

facie case. Ultimately on the actual application for judicial review the applicant has an altogether heavier burden of proof

to discharge.

15. In contrast, in S and Others v Minister for Justice and Equality [2013] IESC 4, Clarke J referred at para. 5.1 to “a sufficiently

arguable case… for the grant of leave to seek judicial review in the light of the existing jurisprudence.” Any issue in law can be

argued: but that is not the test. A point of law is only arguable within the meaning of the relevant decisions if it could, by the

standards of a rational preliminary analysis, ultimately have a prospect of success. It is required for an applicant for leave to

commence judicial review proceedings to demonstrate that an argument can be made which indicates that the argument is not

empty. There would be no filtering process were mere arguability to be the test without, at the same time, taking into account that

trivial or unstatable cases are to be excluded: the standard of the legal point must be such that, in the absence of argument to the

contrary, the thrust of the argument indicates that reasonable prospects of success have been demonstrated. It is still required to be

shown that a prima facie legal argument has been established. In terms of evidence, the requirement for a prima facie case is

regarded as that which “if not balanced or outweighed by other evidence, will suffice to establish a particular contention”; Halsbury’s

Laws of England (5th edition) volume 11, paragraph 767. In terms of law, the test is no different: it is a point of law which if not

balanced or outweighed by other principles will suffice to establish the contention. This is the filter, which the leave application is

designed to be, in order to ensure that there is sufficient reason to disrupt administrative decisions and to litigate them.

16. There is nothing to suggest that Hedigan J did not properly apply that test in refusing leave in this case.

Availability of further information

17. The general rule applied by the courts in the conduct of litigation is that parties should make the entire case that is available to

them based on the facts which they assert entitle them to a remedy. Similarly, where a fair analysis has been applied to an issue

through the application of constitutionally acceptable procedures, and where an appropriate and adequate level of appeal has been

provided, parties to litigation cannot expect to achieve a different result by repeating the same facts or arguments, perhaps in

different ways, to separate decision makers. In administrative law, a body or person charged with making a decision is entitled to rely

upon a previous fair and appropriately structured analysis of the essential circumstances of an applicant for relief. That analysis, on

reconsideration, may lead to a different decision, depending upon whether an application to a different person or body is subject to a

different test or whether that analysis, on reconsideration, may fairly yield a different result. Re-analysis may only become necessary

where there has been a change of circumstances or new facts have come to light which were not readily obtainable on the earlier

application.

18. In Smith and Others v Minister for Justice and Equality [2013] IESC 4, the issue was the degree to which the deportation of the

father of a family would interfere with his entitlement and the rights of his wife and children to maintain family relationships. That case

concerned a second application under s. 3(11) of the Act of 1999 to revoke an extant deportation order. That applicant had been

found guilty of serious criminal offences in another jurisdiction and had also significantly breached the rules attendant on the

immigration system in Ireland. Following the making of a deportation order, applications were made to the Minister to reconsider or

revoke that order. Leave was sought in the High Court to commence judicial review proceedings against the refusal of the Minister to

lift the deportation order; and was refused. In the High Court, Cooke J had applied, at para. 14, this test in assessing the conduct of

the Minister when considering an application for the revocation of a deportation order:

Is well settled that the Minister is not obliged to entertain an application for revocation under s. 3(11) unless it is based

upon some new fact or information or some change of circumstance which has come about since the deportation order

was made and which, it establish, would render the implementation of the deportation order unlawful. (See CRA v Minister

for Justice [2007] 3 IR 603 at [78] to [87] and Irfan v Minister for Justice [2010] IEHC 422 at paras 7 and 8 and the

cases there cited).

19. That test was upheld by the Supreme Court on appeal and Clarke J further commented at pargraph 5.3 of Smith:

There are very sound reasons of policy why that test is appropriate. As this Court pointed out in Okunade v Minister for

Justice [2012] IESC 49, one of the problems which currently besets the Irish immigration system is the lengthy period of

time which it frequently takes before there is a final resolution of all the issues arising in relation to the attempts by many

individuals to establish a lawful basis for remaining in the State. Some of the reasons for such delays in the system are

addressed in Okunade. However, as pointed out in my judgement in that case, there are very good reasons why, provided

the process is not expedited to the extent that it becomes unfair, persons who are found to be entitled to remain in

Ireland should be told so in as short a time as is possible and why persons who are found not to be entitled to remain in

Ireland should be given a final decision to that effect in a similar time frame, so that the undoubted complications which

arise from persons spending a long period of time in the country before such final decision is made do not arise.

20. There is no doubt that in this case, the appellant Esmé and her extended family were clearly informed as to their status and in

circumstances where no delay could be attributed to the process; the only delay which has arisen is attributable to their litigation. As

Clarke J commented at paragraph 5.4, the control of migration will only be workable where persons contesting the status are not

entitled to make the same application repeatedly:

While there are many aspects of the system which contribute to the delay … there can be little doubt but that permitting

persons to make repeated applications for revocation of deportation orders in the absence of significant new materials or

circumstances would contribute to such delays and have an adverse effect on the orderly implementation of the …

system. It seems to me to follow that it is only where a relevant applicant can point to some significant feature, not

present when the original deportation order was made, that there can be any obligation on the Minister to give detailed

reconsideration to the question of deportation.

21. Later, at paragraph 5.5, the requirement for some new information was referred to by Clarke J as “some special or unusual

factors”. This kind of assessment requires a balanced approach by decision makers. Where the same facts are reiterated, a different

decision cannot be expected. Where, however, there is a genuine change of circumstances or where new facts have come to light it

may be that there can be an accumulative effect on the proper balance to the stuck in making the decision.

22. In this case, the correspondence from the solicitors for Esmé effectively invited the decision maker to engage in correspondence

whereby further information might be forthcoming. Should there be information, then the obligation is on the applicant seeking that

the deportation order be overturned to put whatever relevant material exists before the Minister. There is no obligation on the

Minister to engage in correspondence. The onus at this point in the process is on the person seeking to overturn the order to make

their best case there and then. Of necessity, a person having made an application for asylum based on persecution will already have

had a preliminary interview, a formal assessment and an appeal hearing. It will be an imperative to demonstrate the kind of changed

circumstances that would require a further detailed reconsideration. Nor is it possible for an applicant to either hold back information

or to hint that further materials or further submissions might be made to seek, in that regard, some kind of preliminary view of the

decision maker. As Clarke J put the matter in Smith at paragraph 5.6:

The mere fact that what is said to be a new consideration was not before the Minister when an earlier decision was made

does not of itself render it the sort of consideration which requires the Minister to actively reconsider. If what is asserted

to be a significant and material new consideration was actually available to the applicant at the time of the previous

application, but was not advanced or brought to the Minister’s attention, then, in the absence of special circumstances,

it is difficult to see how the existence of such a consideration can properly be advanced as a new consideration requiring

an active reassessment by the Minister of the substantive merits of the case. For a new circumstance to require such a

reassessment it must either have arisen after the earlier decision of the Minister or there must be a compelling explanation

as to why, notwithstanding its existence at the relevant time, it was not then advanced.

23. This application for leave to commence judicial review proceedings was commenced on the 27th August, 2008. It was only then

that a medical report from the psychiatrist dated the 17th October, 2008, was put into the process; and then for the purposes of

making the argument as to family rights in this litigation. It appears to have been handed in when the application for leave was made

on 21st October 2008. It might be commented, that this psychiatric report says little more, if anything, than what would be expected

in these difficult circumstances. The analysis by the respondent Minister was one that approached and dealt with proportionally and

rationally the essential submission that was made. It is not in accordance with the established case law that something could be held

back, here, a psychiatric report, and then furnished later in support of a plea of lack of appropriate analysis. In any event, the later

report did no more than report on a factual situation that was there in the papers. From the earliest interview by the Refugee

Applications Commissioner, to the representation made against deportation, to the plea that the deportation be reconsidered,

essentially the same case was made. The real issue was whether, in all the circumstances both legal and factual, of the case, a

decision had been arrived at which was not within the competence of the State.

24. There is an inescapable reality to this case. It is that a visa to enter the State was not applied for. Instead, the asylum system,

which is specifically designed to uphold Ireland’s international obligation to receive those who have been persecuted or who are at risk

of persecution, was used to spin out a stay within the State which was not otherwise lawful. From the earliest time, upon interview

by the officer of the Refugee Applications Commissioner, the case was made, understandably from a human point of view, that Esmé

wished to stay in order to see, and interact with, her grandchildren and to offer practical support to her daughter. Over the two sets

of representations made following the deportation order, the asylum application having failed, that essential case did not change. In

terms of amplification, this was tangentially in reference to the state of social services in Nigeria, and did not target as the most

serious point the relevant issue as to family rights. Nonetheless, that point was identified and dealt with as a key point by the

relevant official of the Minister and concurred with by the Minister.

Family rights

25. Under Article 41 of the Constitution, the State recognises the family “as the natural primary and fundamental unit group of

Society” and further declares that it is “a moral institution possessing inalienable and imprescriptible rights, antecedent and superior

to all positive law.” There follows a constitutional guarantee to protect the family “in its constitution and authority”; integral to which

is that it is the “necessary basis of social order” and it is “indispensible for the welfare of the Nation and the State.” It is further

recognised that “by her life within the home, woman gives to the State a support without which the common good cannot be

achieved.” Therefore, the State pledges to “endeavour to ensure that mothers shall not be obliged by economic necessity” to work

where such labours would lead to “the neglect of their duties in the home.” Under Article 42 “the primary and natural educator of”

children is the family. There is, therefore, a guarantee to respect “the inalienable right and duty of parents to provide, according to

their means, for the religious and moral, intellectual, physical and social education of their children.”

26. Since the decision of Costello J in Pok Sun Shum v Ireland [1986] ILRM 593, it has been recognised that even in the case of a

foreign national who is married to an Irish spouse, rights of the family based on marriage may need to yield to the entitlement of the

State to legitimately provide for a rational and considered immigration policy. Where immigration policy conflicts with family rights,

considerations of the degree to which a non-national has resided with, and integrated with, the family of which they are a member,

and in what legal and factual circumstances, and over what length of time, may validly result in a decision to effectively split up a

family. This may result in what may be claimed to be a breach of constitutional guarantees, or the consequence may be to effectively

require infants who are Irish citizens to reside and be educated outside their motherland; Fajujou v The Minister for Justice [1990] 2

IR 151, AO and DL v Minister for Justice Equality and Law Reform [2003] 1 IR 1. It is clear that the rights of the family are not

absolute, but are “subject to the law and the Constitution to matters such as public order, the common good and proportionality”; AO

and DL v Minister for Justice Equality and Law Reform [2003] 1 IR 1 per Denham J at p. 60. Such cases as have reached this Court,

however, have concerned the rights of children and the rights of parents. The non-exhaustive list of factors set out by Denham J in

Oguekwe v Minister for Justice, Equality and Law Reform [2008] 3 IR 795 at paragraph 85 are applicable to what the Minister needs

to consider in the context of the deportation of the non-national parent of an Irish child. In terms of the approach of the Oireachtas,

section 18(1) of the Refugee Act 1996, as amended, grants an entitlement to a refugee’s family to enter and reside in the State. In

the current matter, no refugee rights are sought, and even if they were, s.18(3)(b) defines a family member as a spouse, the parents

of a child under 18 years of age, or a child of the refugee, who is under eighteen, in the case where the refugee is the applicant. A

dependant may also be admitted. Under s. 18(4)(b) that can include “any grandparent, parent, brother, sister, child, grandchild, ward

or guardian” of a refugee but only where that person “is dependant” or is suffering from “a mental or physical disability to such extent

that it is not reasonable for him or her to maintain himself or herself fully.” It is clear that as one moves away from the nuclear family,

to grandparents, to grandchildren, to uncles and aunts and thence to cousins of varying degrees, as a matter of moral imperative, the

constitutional guarantee is either inapplicable or substantially recedes. The woman tending to her children within the home is the

mother that is referred to in Article 41.2: the rights of grandmothers are not thereby constitutionally protected. The right to educate

the child are guaranteed in the text to parents, but are not guaranteed to grandparents. While there is undoubtedly a natural

affection and a desire to nurture, while passing on the wisdom of age and experience, between grandparents and their grandchildren,

such guarantees as are given in the Constitution are to the mother and father and to their children.

27. In any event, any submission as to the rights of children to the company, assistance and nurture of a grandparent cannot be

divorced from the legal and factual setting in which it is made. Here, on the one hand, it is apparent that while Esmé was here, she

was important to her daughter and to her family. As a foreign national, on the other hand, she entered Ireland on foot of an

untenable argument that she was seeking asylum. She neither sought nor was granted a visa. Her position as a visitor lacked any long

term viability, save such as might be wrung from using the asylum system and court challenges for the purpose of delay. From the

point of exhaustion of the asylum process, a valid deportation order existed which was not withdrawn through the settlement of her

first High Court action. Her entitlement to urge humanitarian considerations under section 3(6) of the Immigration Act 1999 was used

to the full. It was only used, however, after a legal challenge ended in settlement. In terms of what it was, it was only that – a

humanitarian representation. It is now untenably argued that this set of circumstances has morphed into a constitutional right. The

argument was not explicitly made by the solicitors for Esmé in the various sets of submissions to the respondent Minister that she

was, in effect, a constitutionally guaranteed guardian of her grandchildren. In reality, in so far as integration over time may found any

argument, there was, as Hedigan J found, an abuse of the asylum system, and further, any delay was as against a foundation of

uncertainty, at the least, as to entitlement and it is also clear that the asylum system clarified the position efficiently. Indeed, on the

written submissions in this appeal and in oral argument, the focus was more on the less explicit rights in article 8 of the European

Convention on Human Rights than the rights in Article 41 of the Constitution.

28. The claim made in that regard is that the Minister, through administrative officials, failed to apply and uphold the Convention.

That claim is untenable. Pursuant to s.3 of the European Convention on Human Rights Act 2003, administrative officials must perform

their duties in a manner which respects the rights laid down in the Convention. Article 8 of the European Convention on Human Rights

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 wellbeing 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.

29. Control of the borders of the High Contracting Parties to the Convention is a legitimate aim of states. Nations have the right to

determine who enters within their territory and for what purpose. This is a necessary component of national security. Such a policy is

both an inherent part of the entitlements of states and is acknowledged within the text of article 8. Often, points as to family rights

are argued as if the obligations under the Convention consisted of two conflicting legal norms when, as a matter of law, each part of

the text must be read in the light of the other. Both under the Convention, and in national law, there is no general entitlement of

non-nationals to establish a domicile absent appropriate national permission; Nunez v Norway (App. No. 55597/09), a judgment of the

28th September, 2011. There is, however, a right to protection from persecution under the asylum system and to be protected from

being returned to persecution or to a country where there is a serious threat of random violence under the subsidiary protection

system.

30. The argued-for right to remain in Ireland does not have the status of any entitlement recognised under the convention or

otherwise established by law. Instead, absent a failure by the State to have an immigration policy, which amounts to a legal

contradiction of the nature of nation states, legal, and not convention, rights supplant the absence of any entitlement of non-

nationals to enter or remain within a country that is not their own. Here, there are no rights identified on behalf of Esmé of asylum,

rights against refoulement or rights to be protected against a state of general chaos that threatens life and health in the country of

origin. If any right was sought in this application under section 3(11) of the Act of 1999, it was what is commonly referred to as

humanitarian leave to remain within the State, as provided for in section 3 of the Act of 1999. That discretion is based on the legal

criteria therein set out and gives the respondent Minister appropriate discretion. There is no convention right to enter in and to reside

in another country; Nnyanzi v United Kingdom (No. 21878/06) (judgment of April 8th, 2008). The approach of the officials of the

respondent Minister does not depart from the analysis in that case.

31. Further, as a matter of an appropriate application of convention rights, the precarious status, known to all of the appellants in

this case, of Esmé, emerges as the central factor; since it was during the existence of the rejection of an application for asylum, and

the existence of a valid deportation order that had never been overturned, that the integration of Esmé as grandmother from abroad

took place into this family; see Butt v Norway (No. 47017/09) (judgment of March 4th, 2013).

32. Heretofore there have been two decisions in the High Court, that were identified on this appeal, which dealt with what were

pleaded to be rights to remain by grandparents where one or more of their grandchildren were Irish but where the parents were non-

nationals given leave to remain in the State; most often because the relevant Minister recognised that the deportation of a parent or

parents would result in those children being effectively required to accompany them. In O’Leary v Minister for Justice and Equality

[2012] IEHC 80, Cooke J was of the view, at paragraph 40, that while there was “no absolute right on the part of an Irish citizen to

have a non national family member reside in the State” that nonetheless Irish citizens were entitled to rely upon Article 41 when

“seeking the State’s intervention by the grant of permission which will enable them to discharge a moral obligation to non national

family members, including in particular grandparents who have need of their support and care.” Without commenting on the

correctness of that analysis, in GO (a minor) v Minister for Justice [2010] 2 IR 19, the first applicant was grandmother to two of the

remaining six applicants for judicial review over the refusal of the Minister to revoke a deportation order under section 3(11) of the

Act of 1999. Birmingham J held that despite that grandmother being a primary carer, the entitlement of the State was not constricted

by this factor in considering a deportation. At paragraph 37, after an analysis of the relevant case law from Ireland and from the

European Court of Human Rights, he stated:

It is clear, therefore, that contracting states enjoy a particularly wide margin of appreciation under article 8(2) in the

context of the implementation of states’ immigration policies. It is my view, therefore, that the proposed deportation of

the [grandmother], though interfering with her article 8(1) rights, would not give rise to consequences that are

sufficiently grave or severe as to oblige the respondent to revoke the deportation order, and therefore falls within the

limitations that can be placed on the right to family life under article 8(2).

33. In that case, in addition, Birmingham J commented at paragraph 53 that it was not “open to individuals to arrive in the State on

what is essentially a false basis” and then to proceed to order their “family affairs as to frustrate the operation of the immigration

system.” No argument has been advanced which could lead to the conclusion that this analysis is incorrect in relation to the facts of

the case under appeal.

34. To give leave in this case would be to indicate that there is doubt to be cast upon the level of appreciation that is given to

national authorities in considering article 8 cases, particularly where the circumstances of the plea in respect of the person to be

deported clearly indicates a mis-use of the asylum system and delay consequent upon litigating a refusal to overturn a valid

deportation order.

Conclusion

35. Esmé, as grandmother of the minor appellants and mother of her daughter the remaining appellant, has already been deported

from the State since early 2009, now six years ago. In prior legal proceedings, that deportation order was not overturned. Instead, a

settlement was entered into by the parties that an application to revoke the order be reconsidered by the respondent Minister. That

was done following representations on behalf of Esmé and of her family in Ireland. Had the consideration of revoking the deportation

order not been properly pursued by the Minister, there would have been an ongoing effect on the ability of Esmé to re-enter Ireland,

since the existence of a deportation order may result in refusal of leave to land. Thus, the case is not moot despite the absence of

Esmé from these shores these shores over an extended period. The reanalysis of the issue of deportation was properly done. Esmé

was never a refugee: she only sought to use the asylum system to remain in Ireland to help her daughter with her children. The only

delay that might possibly be taken into account in terms of the nature of the balance between the entitlement of the State and the

assertion of family rights was entirely created through the exploitation of the asylum process and consequent litigation. There is no

point to be made that a psychiatric report, ostensibly relevant to the issues, only emerged later and for the purpose of this litigation.

The obligation on a person seeking to overturn a deportation order by representation to the Minister is to make their best case then;

and not to seek to make a better case only when leave to commence a judicial review application is sought.