Supreme Court dismisses appeal against deportation order, ruling no injunction granted due to lack of arguable case.

THE SUPREME COURT

[Appeal No. 166/2014]

MacMenamin J.

Laffoy J.

Charleton J.

BETWEEN:

P.O. AND S.O. (AN INFANT SUING BY HIS MOTHER AND NEXT FRIEND, P.O.)

APPELLANTS

AND

THE MINISTER FOR JUSTICE & EQUALITY, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

Judgment of Mr. Justice John MacMenamin dated the 16th day of July, 2015

1. This judgment should be read in conjunction with a ruling delivered by this Court on the 29th day of January, 2015, which sets out

much of the procedural background. An account of the background narrative can be found in the judgment of Charleton J. (which I

gratefully adopt for this purpose) also delivered today.

2. Essentially, two questions arise in this appeal. The primary question, and first in order of sequence, is as to whether the High Court

judge (McDermott J.) was correct in refusing an application for an order, by way of judicial review, quashing the respondent’s refusal

to revoke a deportation order made by him in respect of the appellants. The second issue follows closely from the first. It is as to

whether the appellants are entitled to an injunction restraining their deportation, in circumstances when there is in existence a valid

and unchallenged deportation order. Should this Court determine that McDermott J.’s judgment [2014 IEHC 141], is correct, then,

absent any other new and supervening exceptional circumstance or new and previously unavailable and unprocurable evidence, the

application for an injunction cannot succeed. There is no fair issue. The Court decided to hear both matters together.

Background Facts

3. At the outset, I would seek to focus on a number of relevant facts. The first named appellant is the mother of the second named

appellant. She arrived in this country on the 11th September, 2006. Her son was born in this country on 20th October, 2006, soon

after the mother’s arrival. S.O. has lived in this State ever since. He is not a citizen of Ireland. He is entitled to Nigerian citizenship.

An unusual feature of this case is that the appellant’s husband, and his family, remain living in Nigeria. It is not suggested that the

first named appellant and her husband are separated, divorced or estranged. Consequently, the Court here is faced with the situation

where, absent any entitlement on the father’s part to reside in Ireland, any family reunification will, in fact, only be achieved in

Nigeria. There is no suggestion that either the appellant’s own family, her husband, or any of his family, are the subject matter of any

persecution in Nigeria.

4. The second named and minor appellant, S.O., has known no other residence than Ireland. However, as the legal authorities, both in

this State, and the European Court of Human Rights, make clear, a court must, in cases of this type, examine carefully the

entitlement of adult parents to remain in the receiving State, prior to addressing what are contingent rights..

5. On the 20th September, 2006 the appellant unsuccessfully applied for asylum. Her claim was based on an allegation of persecution

by the family of a friend. The appellant contended her friend disappeared after she had converted her to Christianity. She claimed the

Nigerian police were not disposed to act on foot of this persecution. The asylum claim was rejected on credibility grounds. The

appellants did not appeal the determination to the Refugee Appeals Tribunal. Instead, they brought judicial review proceedings which

were discontinued some three years later. The apparent basis for the appellants’ decision to discontinue the judicial review was

because the proceeding would inevitably have failed by reason of the fact that the appellants had not exhausted their right of appeal

to the Refugee Appeals Tribunal.

6. The appellants were sent a “three options” letter on the 20th January, 2014. This outlined the approaches the appellants might

adopt. It indicated that, in default, deportation would be considered. When considering deportation, the Minister must consider a

range of criteria identified in s.3(6) of the 1999 Act regarding the duration and circumstances of the appellant’s stay in the State.

The appellants did not make any application for subsidiary protection. When deportation orders were signed against the appellants on

the 9th May, 2012, they were then notified. On foot of the order, they were obliged to leave the State on the 3rd June, 2012. They

subsequently sought revocation of the orders by letter of 21st September, 2012. However, those orders were affirmed by the Minister

on 25th February, 2013. That decision was challenged in these proceedings, where leave to seek an order of certiorari was granted

in the High Court.

7. However, at the substantive hearing, McDermott J. dismissed the claim. He upheld the Minister’s refusal of the revocation

application. The various claims in the judicial review are now considered.

Different Country of Origin Information

8. The appellants’ case is that the Minister’s decision should be quashed, inter alia, because the procedure breached fair procedures,

in that the respondent’s officials had placed reliance on deficient country of origin information, and because he had not placed

sufficient weight on country of origin information submitted on the appellants’ behalf. As McDermott J. pointed out, in order to

substantiate the claim that the Minister had relied on incorrect country of origin information, the appellants would have to

demonstrate that there had been some fundamental error in the use or interpretation of the available information, or that the

conclusion reached was manifestly at variance with the content and effect of the documentation.

Material Not Bearing on the Appellants’ Situation

9. A significant feature of this case was that the documentation upon which reliance was placed by the appellants was extremely

generalised. There was no suggestion that the appellants’ documentation contained material which was directly referable to their

particular situation. Rather, the documents and reports submitted on behalf of the appellants contained generalised concerns as to

the political and social situation in Nigeria. It became clear during the course of this appeal that the points of concern sought to be

raised therein could, in fact, be applied to very many citizens of Nigeria (either female or male) and that, therefore, the concerns

expressed therein were not at all specific to the appellants’ situation, or to the issue of persecution.

Proximity in Time of Country of Origin Information

10. It was further suggested that the country of origin information relied on by the respondents was more recent than that submitted

by the appellants. On this, McDermott J. observed:

“I am satisfied of the following matters. Firstly, the country of origin information relied upon by the respondents is more

recent than that submitted by the applicant. In volatile situations, the political and social climate of a country may

change exponentially in a short time. It is, therefore, of paramount importance that the information relied upon by

decision makers is relevant and up to date. In this case, the applicant relied, for the most part, upon old country of

origin information which appears either to ignore or fails to take account of reforms put into place by the Nigerian

government. While the policing situation may not be ideal, and this is true of many countries, the information indicates

that state protection is available in the form of a reformed and reforming police force underpinned by a government

inaugurated code of conduct. Secondly, it is not the case that a decision maker is required to consider only the

information furnished by an applicant or is constrained by that information. It is the duty of the decision maker to

ensure that all up to date information available is considered fairly. I am satisfied that the applicant has failed to

demonstrate that the decision maker made a fundamental mistake or error in the consideration of the materials

submitted or available. It is clear that the decision maker was not convinced by the older country of origin information

submitted and sought more recent and diverse sources of information. These sources are widely available to immigrant

and asylum lawyers, but in this case nothing beyond the material outlined above was submitted on behalf of the

applicants.”

11. In my view, the judge was correct in these observations and findings. The duty which falls on the Minister’s officials in considering

an application for revocation is to ensure that all relevant up to date information available is considered fairly. The onus is on the

appellants to demonstrate that there has been some fundamental mistake or error in the consideration of that information. Absent

such indication, it cannot be said that there has been a failure in a duty of fairness. This Court has already pointed out in Smith v.

Minister for Justice [2013] IESC 4, (Clarke J.), that it is only when new material is advanced, that a revocation application might be

properly considered. This was not the situation here. There was little new, and nothing referring to the appellants’ position. There was

no material of a character that could not have been advanced in the earlier application for leave to remain. Therefore, none of the

material was fact-specific to the appellants’ situation, or the stated apprehension of grounds for persecution.

12. The Minister’s officials did not rely on new material which, unknown to the appellants, presented an entirely different picture of

the situation in Nigeria. Had the officials done so, there might have been a deficiency in fair procedures. The position here, however,

was that the entirety of the material was generally available, and, as pointed out in the High Court judgment, was actually of more

recent origin than that submitted by the appellants’ solicitors in their very lengthy letter containing enclosures. The Minister was not

constrained simply to rely on information submitted by the appellants. Had the Minister relied on information emanating from private

sources, which altered the scope and nature of the enquiry carried out, quite different considerations would arise. But, the Minister’s

information was simply more recent, and was readily available to immigration solicitors. In my view, the learned High Court judge was

correct in concluding there had been no breach of fair procedures. I would not disturb his decision on those grounds either.

The Minister’s Decision: A Discretionary Power

13. Was there a duty on the Minister to inform the appellants of the principles, policies and guidelines relating to decision-making on

revocation applications? The learned High Court judge pointed out that the Minister’s duty was to focus clearly on the circumstances

of each case. However, he observed, the absence of guidelines or policy did not vitiate the decision. The discretion which the

Minister acted under must be understood in the context of an overall consideration of the scheme of the statute, and, in particular,

the relationship between s.3(1) and s.3(11) of the Immigration Act, 1999.

14. Section 3(1) of the Immigration Act, 1999 makes clear that, subject to the provisions relating to prohibition of refoulement

contained in the Refugee Act, 1996, the Minister “may by order” require any non-nationals specified in the order to leave the State

within such period as may be specified in the order, and to remain thereafter out of the State. This is to be seen in conjunction with

s.3(11) of the Act, which provides that the Minister may, by order, either amend or revoke an order made under s.3, including an

order made under this section.

15. It would be entirely wrong to conclude that, by reference to these provisions alone, and in operating under this regime, the

Minister is at large in exercising her discretion. Firstly, it is necessary that the Minister have regard to the materials which have been

furnished previously. She must then consider here only new facts, materials or circumstances. If there are truly new facts, materials

or circumstances which could be material to an overall assessment of the position, the officials should take an overall view as to the

circumstances, including those new matters addressed (see Smith & Ors. (Minors) v. The Minister for Justice & Equality [2013] IESC

4, Clarke J.). Furthermore, in making such decisions, the Minister is obliged to operate within the boundaries of natural and

constitutional justice, and also to decide in accordance with the international obligations which have been incorporated into domestic

law by the Oireachtas. The Minister is not entitled to act unconstitutionally. She must determine every application on its merits. This

includes operating within the boundaries of the 1999 Act itself, and, more broadly, the Constitution, the European Convention on

Human Rights, as explained by the ECtHR, and the principle of proportionality, all of which must be applied to the circumstances of the

case. As Fennelly J. in TC v. Minister for Justice [2005] 4 I.R. pointed out at paragraph 26 of his judgment:

“On its face, this provision confers a broad discretion, to be exercised in accordance with general principles of law,

interpreted in the light of the Constitution and in accordance with fair procedures.”

16. What is involved in making decisions of this type is not a policy decision, but rather involves the exercise of a margin of

appreciation relating to the facts of individual cases. As has been pointed out in a number of High Court authorities, the Minister, in

considering an application under s.3(11), the Minister has two duties. She must consider carefully and fairly the reasons put forward

for revocation. She must also verify that there has been no change in circumstances since the making of the deportation order, either

insofar as concerns the applicants, or the situation in the country of origin, which would bring into play any of the statutory

prohibitions for the return of a failed asylum seeker to the country of origin. There is no obligation to embark on a new investigation or

enquiry, or to enter into an exchange of observations or replies with an applicant. There is no suggestion that the Minister is

operating a blanket policy, which would allow for no exceptions.

17. Here, as the learned High Court judge points out, following the receipt of the “three options” letter from the first named

respondent, refusing asylum, the first named appellant failed to make any application for subsidiary protection, or for leave to remain

in the State, though their solicitors stated that that it was intended to be done. No explanation is offered as to why this was not

done.

18. Consequently, on the 17th May, 2012 the letter enclosing the deportation order dated the 9th May, 2012, together with “an

examination of the file” dated the 24th April, 2012, was furnished. This examination contained an assessment of the appellants’ case,

conducted in accordance with the provisions of the Immigration Act, 1999. The learned trial judge pointed out that this analysis

outlined the circumstances of the first named appellant and her son, and included reference to, and an assessment of, the materials

submitted. The applicants did not challenge the deportation decision by way of judicial review, nor the conclusions reached in the

examination of the file. Even though no application for humanitarian leave to remain was made, the Minister, nonetheless, received

the material offered, and considered that material under the rubric of s.3(11) of the 1999 Act. The trial judge was completely satisfied

that the material considered in the s.3(11) consideration had been previously considered, and was available in the examination of the

file prior to the making of the deportation orders.

19. Insofar as some additional materials were referenced and quoted in the consideration, the trial judge was satisfied that these

were readily available to the appellants, and did not afford any basis upon which to challenge the decision refusing to revoke the

orders. A consideration of all this material demonstrates the trial judge was justified in this conclusion.

Article 8 ECHR

20. The trial judge then turned to consider the case made under Article 8 of the European Convention on Human Rights. The

appellants’ case is that the right to private and family life is engaged here, with the consequence that affirming the deportation from

the State would be unlawful. It is said there was a failure to provide a reason or rationale as to why it was considered that private

life rights of the appellants would not be engaged by the deportation.

21. The trial judge pointed out that this matter had also been considered extensively in the examination of the file. Article 8.1 ECHR

guarantees that every person has a right to respect to their family life, their home and correspondence. Article 8.2 provides there

shall be no interference by a public authority with the essence of this right, except such as in accordance with law and is necessary

on a democratic society in the interests of national security, public safety, or the economic wellbeing of the country, for the

prevention of disaster or crime, for the protection of health or morals or for the protection of the rights or freedoms of others.

22. The judge found both aspects of Article 8.1 and 8.2 were considered, though no representations had been submitted on behalf of

the appellants at the time of examination of the file. The Minister’s officials noted that the second named appellant had entered the

education system in the State. However, the officials also noted that the first named appellant was married to a Nigerian husband,

who continued to reside in Nigeria. The appellants had no other family connections in the State. These rights were reconsidered in the

assessment of the s.3(11) decision, as were a number of character references which were noted and quoted in relation to the first

named appellant, and in particular her involvement in community, and participation in a number of educational and vocational courses.

Contact with the First Named Appellant’s Husband – Family Reunification

23. In the context of Article 8 ECHR, it is true that the second named appellant is involved in the education system in this State, and

has not lived elsewhere. To that extent the Article is engaged. However, the consideration before the Minister noted that the first

named appellant stated during her asylum interview that she was still in contact with her husband, who was living in Nigeria.

Additionally, as outlined earlier, the second named appellant is not an Irish citizen, and was, and is, entitled to Nigerian citizenship, as

both his parents are Nigerian. The assessment referred to the fact that the first named appellant’s immediate family, including her

parents and three siblings, were all still living in Nigeria. Consequently, the respondent’s determination was that a decision to deport

the appellants would not constitute an interference with the right to respect for family life under Article 8(1) of the ECHR. Similarly,

although the second named appellant is now 8 years of age, the fact cannot be ignored that both his immediate and extended family

reside in Nigeria.

24. The judge concluded that the Minister’s conclusion, that the deportation would not have the consequence of such gravity as to

amount to a failure to respect the rights to private or family life, was a reasonable one. The fact that an applicant may derive

benefits from continuing residence in the State, whether they be social or educational, did not amount to exceptional circumstances,

as would give rise to an entitlement to remain in Ireland. As a general principle, a State is entitled to control entry into its territory.

Article 8 does not entail a general obligation for a State to respect immigrants choice of the country of their residence, or to

authorise family reunions in that territory.

25. This is not a situation where the making of a deportation order would effectively rupture family life; nor is it one where the extent

of the ties in the contracting state are overwhelming on the evidence adduced. The judge concluded that it had not been shown that

there were insurmountable obstacles in the way of the family living in the country of origin. I agree with his conclusions on the law

and facts, and would not disturb them.

Article 8.2 ECHR

26. The issue of immigration control arises in this case. The appellants had no legal entitlement to remain in this State after the year

2010. Consequently, under Article 8(2) ECHR, considerations of “public order” weigh in favour of exclusion. Moreover, insofar as it

might be said that family life arose in this State, it occurred at a time when the first named appellant must have been aware that her

immigration status was such, that her status within the State would, in the words of the European Court of Human Rights, be

“precarious” (see generally Nunez v. Norway, No. 55597/09, paragraph 70). Moreover, in Butt v. Norway (47017/09), the same court

made clear that, as a general principle, the status of children would generally be identified with the conduct of their parents, failing

which, parents might exploit the situation of their children in order to secure a residence permit for themselves and for the children.

Conclusion on the Judicial Review

27. It follows from this that the learned High Court judge was correct in his decision to dismiss the claim for judicial review.

The Test for an Injunction

28. It cannot be said, therefore, that the appellants have established either arguable or fair grounds to restrain their deportation.

None of these grounds have been upheld. No additional matters are relevant. What is before the courts, therefore, is a deportation

order which, on its face, is valid. The status of that deportation order has not been challenged in these proceedings, nor has it been

challenged in any proceedings. While it is possible to envisage circumstances where this Court might exercise its inherent jurisdiction

to grant an injunction to restrain deportation, in radically changed or new circumstances, and where information had not been

previously procurable, this is not such a situation.

29. In the light of the foregoing, it is less necessary, in this case, to consider all aspects of the judgment of this Court in Okunade v.

Minister for Justice [2012] 3 IR 152. It is true the obligation of a court is to adopt a more nuanced approach than that identified in

Campus Oil v. The Minister for Industry (No. 2) [1983] I.R. 88. Family rights and privacy rights may be engaged. A court will also

have regard to the steps taken in the asylum process, and the manner in which there has been an interaction between applicants and

that process. However, the first step, as Clarke J. points out in Okunade, is that the Court should “first determine whether the

applicant has established an arguable case; if not, the application must be refused …”.

30. There is no arguable case in law. In the light of the circumstances, this is not a case where an injunction should be granted. The

Court is dealing here with a measure, that is, the deportation order, which is not only prima facie valid, but has not been challenged.

There is a clear public interest in the orderly operation of the asylum system. It is necessary that such a measure be implemented in

the public interest, absent some supervening and new event which could not have been known or ascertained earlier. Even if private

or family rights are properly engaged, in the true sense of the word, there has been no breach of those rights. It follows, therefore,

that no injunction can be granted.

Costs Order

31. Counsel on behalf of the Minister has applied for costs thrown away on a limited basis. As outlined in the earlier ruling herein, an

application for a reference to the European Court of Justice was made at the eleventh hour. In fairness to the appellants, that

application has now been withdrawn. However, the Minister is entitled to the costs of the written submissions which were

necessitated in answering the point. These costs should be payable on a costs thrown away basis.

A Concluding Observation

32. At the conclusion of this case, the Court asked counsel for the Minister to ensure that the particular circumstances of this case

were drawn to the Minister’s attention. The second named appellant has lived in this State, and no other State, for his entire life. He

is involved in the education process here. The Court was assured that the Minister would carefully review the circumstances and

would monitor the matter in accordance with her legal duty.

33. I confine myself to observing that it is the duty of the Court to uphold the law, but it is difficult to avoid the observation that real

issues of ministerial discretion may arise in this case, which involve an 8 year old child, and his mother, both of whom have now

resided in this State for well nigh on 9 years. As a matter of law, however, the duty of this Court is to identify and apply principles

necessary for the operation of the immigration process. I must uphold the judgment of the High Court, and dismiss the appeal against

the High Court orders.