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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> A.O -v- Minister for Justice, Eqaulity and Law Reform, Ireland and the Attorney General (No.2) [2012] IEHC 79 (17 January 2012) URL: http://www.bailii.org/ie/cases/IEHC/2012/H79.html Cite as: [2012] IEHC 79 |
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Judgment Title: A.O -v- Minister for Justice, Eqaulity and Law Reform, Ireland and the Attorney General (No.2) Composition of Court: Judgment by: Hogan J. Status of Judgment: Approved |
NEUTRAL CITATION [2012] IEHC 79 THE HIGH COURT [2011 No. 972 J.R.] BETWEEN/ AO APPLICANT AND
MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL (No.2) RESPONDENTS JUDGMENT of Mr. Justice Hogan delivered on 17th January, 2012 1. This is an application brought by the applicant whereby he seeks to apply afresh for a stay on the implementation of his deportation order pending the determination of his application for leave to apply for judicial review in respect of the validity of that order. In a judgment delivered in these proceedings on 6th January, 2012, I vacated an earlier interim injunction which had been granted by me on the ground of material non-disclosure by the applicant: see AO v. Minister for Justice and Law Reform, High Court, 6th January 2012. 2. While the earlier judgment contains a fuller account of the background to this application, one may recapitulate by noting that the applicant is a Nigerian national who arrived here on a flight from Bratislava in March, 2009. The applicant was in possession of a Nigerian passport and an Austrian identity card. The passport was in the name of a Mr. X. and it contained a valid Irish entry visa. 3. Upon his arrival, the applicant originally presented himself to immigration officials as Mr. X. He later claimed asylum in Ireland under his true name. Subsequent Garda investigations established that Mr. X.'s passport had been stolen from him at a bank in Vienna. The applicant was subsequently charged with the offence of handling stolen property (i.e., the stolen passport) and he pleaded guilty to this offence before the Cloverhill District Court in May, 2009 whereupon he received a six months sentence. 4. The applicant claimed asylum on the ground that he said that he had fled Nigeria as a result of threats from third parties following his engagement to a Muslim woman whilst he was Christian. He contended that his fiancee had been murdered. The asylum process came to an end following the determination of the Refugee Appeal Tribunal on 25th November, 2009, that the applicant's account was not credible. 5. On 12th January, 2010, the Minister informed the applicant of an intention to deport him. The applicant then applied for subsidiary protection, but he was informed on 9th August, 2011, that this application had been rejected. The applicant was also informed that the Minister had made a decision to deport him. At the end of August, 2011 the applicant then made an application under s. 3(11) of the Immigration Act 1999, to revoke the deportation order on the basis that he had two Irish citizen children. Although this application was rejected by letter communicated to the applicant on 14th September, 2011, it is nevertheless appropriate to describe the circumstances pertaining to the Irish citizen children. 6. According to Mr. O.'s own account, the first child, Ms. A, was born in Belfast in August, 2004 and now resides with the applicant's former partner, Ms. B., in Dagenham, London. The applicant avers that Ms. A. has visited him here and, further, that he provides some financial assistance to Ms. B. to assist her with child rearing. It would seem probable, however, that Ms. A. will live permanently in the United Kingdom under the care of Ms. B. The applicant is, however, presently excluded from the United Kingdom following a conviction there for dishonesty. Accordingly, the position of that child can be disregarded so far as this injunction application is concerned. 7. At some stage, however, following his application for asylum, Mr. O. became romantically involved with a Ms. Y. She is an Irish national who resided in the border region and in Dublin. Ms. Y. is professionally qualified and she is currently in the process of moving to practice her profession in the United Kingdom. It has also been suggested that Ms. Y. has already moved to the United Kingdom. 8. Ms. Y. maintains that she was cruelly deceived by Mr. O. During this period he had somehow managed to lead an affluent lifestyle and she contends that he led her to believe that he was previously a male model who was now working for a UK property firm. At no stage did Mr. O. disclose that he had a criminal record or that he was currently in the asylum process. She found herself unexpectedly pregnant in April, 2010 and the relationship foundered shortly thereafter after she discovered what she claims were compromising messages from another female on his mobile telephone. In fairness to Mr. O., it should be stated that this general account is emphatically denied by him, not least the contention that the pregnancy was unplanned. 9. Ms. Y. gave birth to a baby daughter (whom I shall describe as Baby C) towards the end of December 2010, but she says that Mr. O.'s request for access in respect of the child first came some three months later. Mr. O. then issued proceedings under the Guardianship of Infants Act 1964, in late March, 2011. Ms. Y. avers that she believes that this was simply a tactical and opportunistic ploy on his part so that his paternity of the child could be used to his advantage for immigration purposes, prompted by the publicity which surrounded the decision of the Court of Justice of the European Union in Case C-34/08 Ruiz Zambrano [2011] ECR I-0000. This judgment had been delivered on 8th March, 2011. 10. The applicant's application for guardianship in respect of the child currently remain outstanding and is now scheduled to be heard by the District Court on 22nd February 2012. As things stand, there seems very little prospect that Ms. Y and Mr. O. can be reconciled, not least since Ms. Y. feels betrayed by the fundamental manner in which she says she has been deceived by Mr. O.It could not be suggested that the prospects of Ms. Y. moving to Nigeria are in any way realistic or, indeed, that she would have any inclination whatever to do so. One must accordingly assume, therefore, that if Mr. O. is deported that Baby C will have no contact whatever with her father and may well never meet him, whether during her childhood or otherwise. 11. This is accordingly the background to the present application for an interlocutory injunction. The application for an interlocutory injunction under O. 84, r. 20(8) "Where leave to apply for judicial review is granted then the Court, should it consider it just and convenient to do so, may, on such terms as it thinks fit-
(b) where the relief sought is an order of prohibition or certiorari, make an order staying the proceedings, order or decision to which the application relates until the determination of the application for judicial review or until the Court otherwise orders." Can the applicant establish a fair question to be tried? 15. It is against this background that we may now turn to consider- if only provisionally - these expanded grounds. Can the applicant rely on Zambrano principles? 17. Following a reference from the Belgian courts, the Court of Justice held as follows:-
42. In those circumstances, Article 20 TFEU precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union.... 43. A refusal to grant a right of residence to a third country national with dependent minor children in the Member State where those children are nationals and reside, and also a refusal to grant such a person a work permit, has such an effect. 44. It must be assumed that such a refusal would lead to a situation where those children, citizens of the Union, would have to leave the territory of the Union in order to accompany their parents. Similarly, if a work permit were not granted to such a person, he would risk not having sufficient resources to provide for himself and his family, which would also result in the children, citizens of the Union, having to leave the territory of the Union. In those circumstances, those citizens of the Union would, as a result, be unable to exercise the substance of the rights conferred on them by virtue of their status as citizens of the Union. 45. Accordingly, the answer to the questions referred is that Article 20 TFEU is to be interpreted as meaning that it precludes a Member State from refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen. 19. In the present case Mr. O. cannot show that the child is in any way dependent on him. Indeed, so far as is known, Baby C has not even seen him and nor has he paid any contributions to her upkeep. In any event, there is no realistic prospect whatever that the child will be obliged by State action to leave the territory of the Union, since the mother is an Irish national with a right of residence in Ireland and, furthermore, subject to minor qualifications, she has a free movement right derived from Union law to move to any of the other twenty six member states of the Union. In other words, even if Mr. O. were to be deported to Nigeria, there is no prospect at all that Baby C would be thereby obliged to leave the territory of the Union, since it seems clear that she would reside with her mother in either Ireland or the United Kingdom. 20. In these circumstances the applicant cannot lay claim to any Zambrano rights. This accords with the views taken by Herbert J. in the course of Mr. O.'s earlier interlocutory injunction application last September when he said that the facts of the present case were too remote from that of Zambrano. (I might in passing observe that it was the failure of the applicant to disclose the fact that such an application had been made (unsuccessfully) to Herbert J. that led me to vacate the interim stay originally granted by me in October, 2011.) 21. That view was confirmed by the subsequent decision of the Court of Justice in Case C-256/11, Dereci [2011] E.C.R. I-000. Here the issues referred arose from decisions of the Austrian authorities to refuse residence permits to third country nationals who had married Austrian citizens. In some of the cases, the couples had children who were Austrian nationals. On the general Zambrano issue the Court of Justice stated:-
23. It follows, therefore, that the applicant cannot raise a fair question so far as the Ruiz-Zambrano arguments are concerned. The effective remedy argument 25. It follows, therefore, that the applicant cannot establish a fair question in respect of this issue either. Access to the courts, guardianship and the rights of the child 27. But I cannot- and do not- look at this matter from the standpoint of the applicant, but rather entirely from the perspective of his daughter, Baby C: see, e.g., my own judgment in Oboh v. Minister for Justice, Equality and law Reform [2011] IEHC 102 where I held that the fact that asylum seeking parents were complicit in swearing false affidavits could not affect the granting of any relief designed to protect the interests of their innocent dependent children. 28. Article 42.1 of the Constitution envisages that it is the "right and duty" of the parents of a child to provide for its education, welfare and upbringing. Insofar as the Constitution speaks of it being the "duty" of parents, it is because that the child enjoys -presumptively, at least- the right to have both of its parents engaged in that vital and responsible task. This is because, as O'Donnell J. put it in Nottinghamshire C. C. v. B. [2011] IESC 48:-
30. Insofar as Constitution refers to the "right" of parents in this regard, it is because that in a free society parents must have the right to educate and rear their children according to their own philosophical, religious or political ideals, even if in some cases those ideals are seen by society at large as unconventional, unorthodox or even eccentric. If it were otherwise, it might have meant that the children of those who challenged the prevailing orthodoxies- orthodoxies which, as our history teaches us, can and do change, sometimes quickly and often profoundly - might have found that their children were taken into care or that they otherwise would have come to the attention of the State authorities. 31. There are, of course, definite limits to this parental freedom. It cannot be exercised in a manner which would threaten the general welfare of the child: sec, e.g., North Western Health Board v. HW [2001] 3 IR 622, In re Baby AB: Children's University Hospital Temple St. v. CD [2011] 21.L.R.M. 262. The State is the ultimate guardian of the common good. As such, it has a vital interest in ensuring that, as I put it in Baby AB ([2011] 2 I.L.R.M. 262 at 270-271) the welfare of the child is safeguarded:-
35. What is not in doubt is that one of those rights is the presumptive right of the child to the care and company of his or her parents. While it is difficult to view the present application on the part of Mr. O. for guardianship and access in respect of Baby C. without some degree of scepticism - perhaps even cynicism - this is a matter for the exclusive judgment and assessment of the District Court, which judgment and assessment in respect of guardianship and access I would not wish to pre-empt in any way. I would merely observe that the present proceedings have made the speedy resolution of these guardianship proceedings all the more necessary. Conclusions 37. The stay is prompted exclusively by concerns for the ultimate welfare of Baby C and by a desire to protect her (presumptive) constitutional right to the care and company of both parents, conscious as I am that she probably will have no contact whatever with her father in Nigeria were he to be deported back to his country of origin. A further consideration is that Mr. O. would find it difficult to advance his case in the guardianship proceedings were he not physically present before the District Court to give oral evidence if necessary. 38. In the event that the District Court rules adversely to this application, then the injunction will lapse. If, on the contrary, the District Court finds that it would be in the best interests of the child to have some degree of access to her father, then the extent of any injunctive relief can be re-assessed at that juncture. Were this to be the case, then the State's vital interest in an effective asylum and immigration system would have to be balanced against the child's right to have the care and company of her father. Beyond securing effective access to the court in the short term for guardianship purposes, it would be premature at this point to examine what the position might be thereafter in that event. 39. For the moment, however, it is sufficient to continue the stay until 24th January, 2012 when the matter will be mentioned to me again. At that juncture I will discuss with counsel the precise form of the relief to be granted pending the determination of the guardianship application in the District Court. APPROVED
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