Appeal number: 355/2008

IpsofactoJ.com: International Cases [2015] Part 4 Case 6 [SCIre]


SUPREME COURT OF IRELAND

Coram

O.O., O.E.O. & O.D.O.

(infants acting by their mother and

next friend C.O.)

- vs -

Minister for Justice and

Law Reform

Clarke J

Laffoy J

Charleton J

19 MARCH 2015


Judgment

Justice Charleton

  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.

  2. Background

  3. 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:

  4. 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.

  5. 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:

  6. (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.

  7. 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:

  8. 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.

  9. 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:

  10. 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.

  11. 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

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

  13. 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. [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

  14. 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.

  15. 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):

  16. (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.

  17. 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

  18. 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.

  19. Test for leave to commence judicial review

  20. 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.

  21. 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:

  22. 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.

  23. 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:

  24. 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.

  25. In contrast, in S 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.

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

  27. Availability of further information

  28. 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.

  29. In Smith 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:

  30. 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).

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

  32. 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.

  33. 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:

  34. 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.

  35. 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.

  36. 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:

  37. 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.

  38. 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.

  39. 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.

  40. Family rights

  41. 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.”

  42. 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.

  43. 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.

  44. 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:

  45. 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.

  46. 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.

  47. 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.

  48. 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).

  49. 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:

  50. 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).

  51. 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.

  52. 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.

  53. Conclusion

  54. 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.

    Justice Clarke

    1. Introduction

  55. This is an appeal against a refusal to give leave to seek judicial review in immigration proceedings. I find myself in disagreement with the judgment to be delivered by Charleton J. in this case in which he proposes to uphold the refusal of leave. The purpose of this judgment is to set out briefly my reasons for concluding that leave should be given.

  56. The background to these proceedings and the issues which arise are fully set out in the judgment of Charleton J., and I do not propose to repeat them here save where absolutely necessary. In substance, the fifth named applicant/appellant ("Esmé J.") is the mother or grandmother of the other applicants. She had sought to challenge a refusal to revoke an order providing for her deportation from Ireland but has since, in fact, been deported. Previous proceedings which raised issues concerning her deportation (but did not challenge the validity of the deportation order itself) were settled on the basis of a fresh consideration of the case. As Charleton J. notes, these somewhat unusual considerations lead to a number of preliminary questions, to which I first turn.

  57. 2. Preliminary Questions

  58. The first such question which arises is as to whether these proceedings are moot. I agree with the conclusion reached by Charleton J. that they are not. I would only add one further observation. If it were to be the case that a challenge to a deportation order (or, indeed, as here, a challenge to a refusal to revoke same) were always to be considered moot once the relevant deportation had taken place, then this could have a very significant effect on injunction proceedings brought before the High Court. If the consequence, or at least a possible consequence, of a deportation order being put into effect would be to deprive a party of any further opportunity to challenge the validity of the relevant order or a refusal to revoke same, then that factor, in itself, would have to loom very large in determining where the balance of justice lay for the purposes of any interim or interlocutory application. I appreciate that the argument put forward on behalf of the respondent ("the Minister") in this case does not necessarily imply that all such challenges would, in fact, be moot should deportation occur. That does not, however, take away from the concern which I have expressed.

  59. The next preliminary question concerns the settlement of the previous proceedings, to which Charleton J. refers in his judgment. It is clear, as Charleton J. points out, that the parties did not agree that the deportation order should be revoked. Rather, they agreed that there should be a fresh consideration of whether that order should continue in force on the basis of such issues as the members of the applicant’s family might wish to raise. It is not particularly clear to me as to what was gained by such a settlement, other than the fact that the Minister agreed to make a contribution to costs. Any party affected is always entitled to invite the Minister to consider revoking a deportation order. It does not need the settlement of proceedings to achieve this. Be that as it may the possible relevance of the settlement of those proceedings to the issues which arise in this case is a point to which I will briefly return in the context of the substantive issues which arise.

  60. The third preliminary question concerns the threshold which must be met before leave can be granted. There is no dispute over the fact that this is not one of those cases where substantial grounds need to be established, but rather one in which the ordinary test for leave to seek judicial review, as identified in G. v Director of Public Prosecutions [1994] 1 I.R. 374, is appropriate. I agree with what is said by Charleton J. on this topic in his judgment. There was some debate at the hearing before us as to whether there might be a difference between an "arguable" case and a prima facie or, indeed, a “stateable” case. I do not consider that there is. Arguable, in that context, means that there are arguments in favour of the case, which the proposed applicant wishes to put forward, which have some prospect of success. It is not, in that context, any different from a prima facie case. Given that Charleton J. makes reference to my judgment in S v Minister for Justice and Equality [2013] IESC 4, where I referred to "a sufficiently arguable case", I should state that I consider that to be a reference to a case which is sufficiently arguable to meet the test of being capable of success. The threshold is placed at a low level but it is, nonetheless, a threshold which requires some prospect of success to be established. Otherwise, there would be little point in the filtering process inherent in the leave system.

  61. The final preliminary matter dealt with by Charleton J. in the course of his judgment concerns the question of whether the full case, now sought to be relied on, was put before the Minister on the occasion when the decision to refuse to revoke, which is the subject of these proceedings, was made. As that question is, to a significant extent, intertwined with the substantive issues, I propose to leave it over until dealing with those issues, to which I now turn.

  62. 3. The Substantive Issues - Approach

  63. It must be recalled that it is necessary to approach these issues on the basis of the low threshold which needs to be established in order for leave to be granted. Essentially, the case which is sought to be made is as follows. It is accepted that Esmé J. came to Ireland and sought refugee status in circumstances where she clearly had no such entitlement. Indeed, in that context, her application was remarkably honest. It is also accepted that there has been a previous refusal to permit her to remain in the country as a result of an argument put forward that her presence was necessary to look after the infant children, who are also parties to this application.

  64. It is further accepted that the legal principles identified in Smith v Minister for Justice and Equality [2013] IESC 4 are, at least, partially applicable. Charleton J. has cited a number of passages from my judgment in that case, and I do not propose to repeat them here. In substance, this Court determined, in Smith, that it is not necessary for the Minister, on any subsequent application in the context of deportation or the like, to re-examine matters which had already been previously assessed in a similar process. It is necessary for new materials or issues to be placed before the Minister in order to require a significant re-examination and reconsideration and, in addition, circumstances may arise where it will not be necessary for the Minister to consider such new materials if they could and should have been placed before the Minister on an earlier occasion.

  65. By way of minor addition, it must, of course, be noted that in the event that new materials or issues, properly so called, are placed before the Minister and are of some weight, it may be necessary then, but only then, to revisit issues previously put forward. Those issues, while not sufficient in themselves to warrant a decision in favour of an applicant, might, cumulatively, together with truly new materials or issues, lead to a different conclusion. Against that background, it is necessary to turn to the merits of the substantive issue

  66. 4. Substantive Issues - Merits

  67. It appears to be the case that the father of the relevant infant children ceased to reside with them as a result of a breakdown in relations with their mother, the fourth named applicant/appellant. These parents had come to Ireland in 2000 accompanied by a son who, at that time, was four years old. Two further children were born in Ireland in 2001 and 2004 respectively. The couple separated in 2005. It was in that context that arrangements were made for Esmé J. to come to Ireland in February, 2006. Esmé J.'s application for asylum status was rejected in early course (she arrived in the State on the 22nd February, 2006 and, after her asylum application was rejected, a deportation order was made on the 29th July of the same year) and no challenge is, nor could any challenge have been, made to that decision. Thereafter, a decision to deport her was made, and there was some procedural confusion which arose from the fact that, it would appear, a letter setting out submissions as to why a deportation order should not be made was received late by the Minister, and more or less crossed with the decision to deport. However, it appears to be accepted that the relevant submissions were, in any event, then considered on their merits even though they had been received late, and it was decided by the Minister that the deportation should stand. There may be some legitimate debate as to whether it might be appropriate to characterise what happened as a reopening by the Minister of the original question of whether a deportation order should have been made in the first place (in the light of the timing of the receipt of the relevant submissions) or as an early decision by the Minister to refuse to revoke the deportation order already made. However, it does not seem to me that anything of any significance turns on that characterisation.

  68. The case originally made was that the presence of Esmé J. was necessary to enable the fourth named applicant/appellant, ("the mother"), as the mother of the appellant children, to continue to work and to support the first to third named applicants/appellants ("the children"). However characterised, the decision to allow the deportation order to stand involved rejecting that case.

  69. Thereafter, proceedings were brought and were settled on the basis that the Minister would consider an application under s.3(11) of the Immigration Act, 1999 (as amended) lodged on behalf of Esmé J., provided that such an application was lodged within fifteen days of the date of the proceedings being struck out. It is the result of that consideration which is challenged in these proceedings.

  70. In the submissions made to the Minister in the context of that consideration, attention was drawn to the separation of the children's parents, and it was suggested that the presence of Esmé J. had brought a stabilising influence over the children. It was suggested that the difficulties for the children which arose from that separation could be further evidenced if necessary by expert reports which, it was said, "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". The submission then went on to suggest that such a report could be produced "if you do not accept for any reason that such difficulties arise". It is in that context that the question arose as to whether the full case had been made on that occasion to the Minister. The relevant representations to the Minister contained an assertion along the lines which I have just identified, but went on to say that, if there was any doubt in the Minister's mind as to whether that assertion was correct, expert evidence could be provided.

  71. It must be recalled that, at this stage, this matter is being considered only for the purpose of establishing whether there is a stateable case. In my view, it is sufficiently arguable, for the purposes of a leave application, that a party who makes a credible assertion of a certain state of affairs and who goes on to say that, if any doubts are entertained about whether that state of affairs is in fact so, further evidence might be forthcoming, is in a different position to someone who simply does not make reference to the point at all. I would not, therefore, hold that it is unarguable that the Minister was obliged either to accept the assertion of psychological harm or, if not so minded, to request sight of the proffered expert evidence.

  72. It follows that this leave application should be approached on the basis that the Minister had to consider, to the extent that it was material, whether the departure of Esmé J., in the particular circumstances of the case, might not have a particularly significant effect on the children far above and beyond the effect which would have resulted from her earlier departure, at which time the only case made for her remaining in Ireland was that she would have a central role in minding the children. It is, thus, arguable that this was new material requiring fresh consideration. It also seems to me to be at least arguable that one of the consequences of the settlement of the earlier proceedings was that the principles identified in Smith did not apply, or at least did not apply fully, in the circumstances of this case. The underlying rationale behind Smith is that a party cannot require the Minister to repeatedly reconsider what are, in substance, the same issues, or indeed, issues which could and should have been canvassed at an earlier stage. However, in the light of the confusion which attached to the original submissions, which arrived just after the original deportation order was made, and in the light also, in particular, of the settlement of the relevant proceedings, I am satisfied that it is sufficiently arguable for the purposes of a leave application that the Minister was required, on the unusual facts of this case, to consider all of the grounds put forward in 2008.

  73. Having reviewed the documentation concerning the reasoning behind the Minister's decision under challenge, I am satisfied that it is arguable that proper consideration was not given to the additional factor of the potential psychological harm to the relevant children. It is true that the only reason why circumstances might be said to have changed was because Esmé J. had remained in Ireland for a period of time as a result of her failed asylum application. During that time, however, it was asserted that, in the particular circumstances of this case, and in the light of the break up of their parents' marriage, an especial bond had been formed between the children and Esmé J. such that her departure might be particularly traumatic for them. The Minister did not necessarily have to find that such a factor outweighed any other considerations in the case. Indeed, it may well be that the Minister was entitled to take into account what was described in the decision document as the precarious immigration position of Esmé J. during that period. But even if that is so, it is arguable that the Minister was required to weigh up, in a rational and proportionate way, the competing factors, including the assertion that there was a particular effect likely to be visited on the children by the departure of Esmé J.

  74. In those circumstances, I would be prepared to grant leave to seek judicial review of the Minister's refusal to revoke the relevant deportation order. I would, however, confine that leave to one ground being that:-

  75. The Minister failed to give adequate consideration to the effect which the departure of Esmé J. from Ireland at the relevant time might have had on the infant applicants in the particular context of the assertion that such a departure would have an effect of particular and professionally verifiable emotional trauma on those children.

  76. That does not mean that some of the other issues which were canvassed on this appeal might not arise in the context of such a judicial review. For example, the precise constitutional or convention entitlements of the parties clearly arise in the context of an assessment of the type of consideration which the Minister might be required to give. The consequences of the settlement also potentially arise. It is arguable that the terms of settlement may at least have required a re-consideration of materials, which would not otherwise have been required to be considered, in the light of the decision of this Court in Smith. But those questions are clearly subsidiary to the principal issue, which is as set out in the ground on which I would grant leave.

    Conclusions

  77. For those reasons, I would allow the appeal and grant leave to seek an order of certiorari by means of judicial review directed towards quashing the Minister's decision to refuse to revoke the deportation order of Esmé J. in this case.

  78. I would confine that leave to the ground set out in para. 52 above.


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