S.M.A. (Nigeria) v The Minister for Justice and Equality [2020] IEHC 86 (11 February 2020)

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JUDGMENT of Mr. Justice Richard Humphreys delivered on the 11th day of February,

1. The applicant is named in the proceedings as Mr. S.M.A., and claims to be from Nigeria,

although he seems to have a couple of other aliases and at least one other asserted

nationality. He produced a Sierra Leonean identity card to the authorities, but falsely

denied this in these proceedings on affidavit, forcing the respondent to exhibit that

document. Information from a Home Office fingerprint match indicates that the applicant

applied in Abuja for a U.K. visa on 12th May, 2008 using a different name, and that that

2. The applicant claims that he arrived in the State in June 2008, but the respondent has put

forward evidence that a person who appears to be the applicant, using the name of S.M.

with a date of birth in 1991, entered the State on 1st November, 2008 and claimed

asylum on 12th December, 2008 posing as Sierra Leonean. The latest affidavit submitted

by the applicant, accepts that he made such a fraudulent claim (see para. 22).

3. The asylum claim was rejected on 26th May, 2009. The applicant appealed to the

Refugee Appeals Tribunal, which rejected the appeal on 27th August, 2009. At that point

4. On 19th October, 2019 the applicant instructed new solicitors, Trayers & Co., who applied

on his behalf for leave to remain and subsidiary protection on 23rd November, 2009.

5. On 15th October, 2015 the Refugee Applications Commissioner wrote to the applicant

saying that his fingerprints matched with an application for a visa by a Nigerian national

going by the name of Mr. S.A.O. with an alleged date of birth in 1987. The applicant

failed to account for this at the time, although he now appears to accept that he did make

6. The applicant failed to attend the subsidiary protection interview, and on 30th March,

2015 the commissioner wrote stating that his application was being refused. That was

the end of the applicant’s protection history. A letter notifying the applicant of this

7. On 14th April, 2015 a further leave to remain submission was made by Trayers & Co. On

17th July, 2015 a fresh proposal to deport was issued, seemingly because no particular

further action had been taken on foot of the proposal to deport that accompanied the

notification of refusal of protection. That proposal was returned to sender. It was

however copied at Trayers & Co. who replied on 23rd June, 2015 stating that they had

instructions to apply for leave to remain, but no further representations were in fact

8. On 6th July, 2015 the proposal was again reissued and again returned to sender. Trayers

& Co. were asked to account for the fingerprint match but do not seem to have been in a

9. On 8th February, 2017 a child appears to have been born to the applicant and a Ms.

S.E.P., an Irish woman, who the applicant knows or knew as S.M.B. (even she seems to

have aliases). The applicant’s counsel says that she gave the applicant the wrong name

and the impression I had was that this was to keep him at something of a distance. The

10. On 2nd March, 2017 Trayers & Co., who had, up to this point, been referring to the

applicant as Mr. M., sent further correspondence which for the first time referred to the

applicant as Mr. S.A. and gave an updated address. On 27th March, 2017 the

Department wrote to the applicant asking him to deal with issues of serious concern.

11. On 17th August, 2017 the applicant notified the International Protection Office of a

further change of address, to Drumcondra Road Lower (see para. 16 of the affidavit of

Alan King and para. 17 of the affidavit of the applicant). On 6th September, 2017 the

applicant changed solicitors to Burns Kelly Corrigan. That firm does not appear to have

submitted any representations on his behalf. On 7th September, 2017 the applicant was

12. On 28th May, 2018 a second child named K.Z.K. was born. This child has a different

surname because the mother is in another relationship and used a surname similar to the

father’s surname although strangely not the exact surname. The father is a Mr. Z.K.A. so

seemingly there is yet another layer of aliases coming through in the next generation as

well. Again, the applicant’s case is that the mother used the new boyfriend’s surname in

order to give the applicant the brush-off. The birth certificate has been produced

although not exhibited and names Mr. Z.K.A. as the father. The mother apparently now

has yet another child with this individual and has married him at some point in the

13. On 9th August, 2019 a further letter regarding the proposed deportation order was sent

and returned not called for. On 30th August, 2019 a deportation order was made under

s. 3(1) of the Immigration Act, 1999. That order has not at any stage been challenged.

On 27th September, 2019 the order was sent to the applicant’s last notified address in

Drumcondra Road Lower and copied to Burns Kelly Corrigan. The correspondence was

returned, predictably enough, as not called for. The applicant does not dispute that (see

para. 18 of the affidavit of Alan Kane and para. 18 of the applicant’s affidavit). Now the

applicant does say, implausibly in the light of his fairly consistent practice of not attending

to any official correspondence, that he had used a friend’s address at that location and

stayed there from time to time and that the friend did not report any correspondence to

the applicant. Prior to his arrest, the applicant was exercising some custody, although it

is accepted that the mother was exercising the bulk of the custody in relation to the

14. On 2nd January, 2020 the applicant was arrested and has been detained since then in

15. On 10th January, 2020 the applicant’s custody was formalised by an order of Judge

Gibbons, in the form of custody for four hours on a Sunday. The applicant was also

appointed joint guardian of the second child. Rody Kelly Corrigan Solicitors and Mr. Femi

Daniyan B.L. represented the applicant in those proceedings. I have been told that Judge

Gibbons was not actually given the birth certificate of the second child but was apparently

told that another person is named as the father, and he appointed the applicant as

guardian anyway on the basis he was satisfied that the applicant was the father. I am

also informed that this was because the mother eventually admitted that, after several

16. The applicant has an application pending to be heard on 20th March, 2020 for access to

17. Following his arrest, he instructed Mulhall & Co. to deal with the immigration matter and

on 14th January, 2020 an application was made by them to revoke the deportation order.

By a separate letter the applicant made a first attempt to apply under Gerardo Ruiz

Zambrano v. Office national de l’emploi, Case C-34/09 (Court of Justice of the European

Union, 8 March, 2011), to remain on the basis of parentage of an Irish citizen child. That

was received by the Department on 16th January, 2020. The revocation application

remains outstanding. However as regards the Zambrano application the Minister replied

on 16th January, 2020 stating that “this office cannot accept [the] application for

permission to remain in the State as the parent of an Irish citizen child due to the

following missing documentation” which was then listed. That was the first of three

separate refusals to accept attempted or purported applications under the Zambrano

judgment by the applicant. One thing that is clear at the present time is that, given that

the children are in the primary custody of the mother, removal of the applicant will not

result in the children ceasing to effectively exercise their rights as EU citizens.

18. The applicant then issued the present proceedings, and I granted leave on 20th January,

2020 as well as an injunction against removal from the State. I endeavoured to

accelerate the hearing given that the applicant was in custody. I will come later to the

19. Around 22nd January, 2020 a second attempted Zambrano application was made, which

was erroneously dated 14th January, 2020. That was received in the Department on 23rd

January, 2020. Unlike the first attempt, that included the form required by the

administrative scheme but on 23rd January, 2020 the Minister again refused to accept the

20. The present proceedings were initially heard on 24th January, 2020, adjourned to 27th

January and then to 29th January, 2020 for further hearing. On the latter occasion, I

continued the injunction until a further hearing date on 10th February, 2020 conditional

on a formal Zambrano application being made by close of business on Friday 31st

January, 2020. I allowed the applicant to amend his statement of grounds without

prejudice to any point that the respondent might make at the resumed substantive

hearing. In fact, the new Zambrano application was not made in time, so the injunction

lapsed and was not renewed. The third purported Zambrano application was not actually

made until 4th February, 2020 and seems to have been received on 5th February, 2020.

That was also rejected as inadmissible on 7th February, 2020 in the absence of any

documentation showing that the child was an Irish citizen. That application only seemed

to relate to the first child. On a resumed hearing date various further shortcomings in the

pleadings came to light and the matter had to be adjourned yet again to 11th February,

2020. I have now received helpful submissions from Mr. Colm O’Dwyer S.C. and Mr.

Daniyan B.L., who also addressed the court, and from Mr. Robert Barron S.C. and Ms.

Sarah K.M. Cooney B.L., who likewise also addressed the court, for the respondent.

21. There are only two substantive reliefs sought in the amended statement of grounds:

(i). “an injunction restraining the deportation of the applicant from the State until the

determination of the applicant’s application for the revocation of the deportation

order dated the 10th January, 2020 and pursuant to s. 3 (11) of the Immigration

(ii). “an injunction restraining the deportation of the applicant from the State until the

determination of the applicant’s application for residency on the basis of his

22. The applicant’s submission in relation to an injunction was to say that there was a fair

question to be tried, the balance of convenience favoured the applicant and damages are

not an adequate remedy. Reliance was placed on the decision in Okunade v. Minister for

Justice, Equality and Law Reform [2012] IESC 49, [2012] 3 IR 152. However, the

Okunade principles only apply to interlocutory injunctions, not to an injunction as a final

order of the court. That is a substantive remedy. To get an injunction as a final order,

one has to actually demonstrate an entitlement to such an injunction, as opposed to

merely showing that the balance of convenience or justice favours such an order: see

N.M. (Georgia) v. Minister for Justice and Equality [2018] IEHC 494 (Unreported, High

Court, 31st July, 2018), Nadeem v. Minister for Justice and Equality [2018] IEHC 394

(Unreported, High Court, 8th May, 2018) and B.S. (India) v. Minister for Justice and

Equality [2019] IEHC 367 (Unreported, High Court, 10th May, 2019). So the caselaw

23. The grounds raised in the amended statement of grounds raise a series of issues which

are best deconstructed on a proposition-by-proposition basis. The first point made is “the

applicant has not had the opportunity of informing the respondent and substantiating that

he is the parent of two Irish citizen children until the determination of the District Court in

January 2020”. That is manifestly not correct. Such information as the applicant had

24. The next proposition is “the applicant has now made an application for permission to

remain in the State on the basis of his parentage of Irish citizen children”. That in itself is

simply a statement of fact, not a ground for an injunction as such.

25. The next point is “the applicant sought the revocation of a deportation order made in

respect of him and has since received no acknowledgement or reply to his application”.

Again, that is a statement of fact rather than a ground for relief.

26. The next proposition advanced is “due to the urgency of his case and the consequences of

the applicant’s deportation on Irish citizen children the applicant is entitled to a decision

in early course”. Unfortunately, that is not a legally sound proposition. An enforceable

legal entitlement to a decision could not conceivably arise after such a very short lapse of

27. The next claim made is “he should not be deported prior to a decision being made on his

revocation application in the circumstances of the case”. It is well established that s.

3(11) of the 1999 Act is not suspensive. An injunction under this particular heading could

only arise if it could be said that the applicant has a likelihood of success in the

forthcoming s. 3(11) application. One cannot in fact say that there is such a likelihood of

success because the Minister is entitled to require applicants to make any Zambrano

applications through the administrative scheme that the Department has established

rather than through s. 3(11) on a stand-alone basis. Thus, a stand-alone revocation

application to the same effect cannot be said to have a probability of success such as to

28. The next proposition advanced is that “the respondent has not considered or determined

the revocation application and thus refused to accept three ‘Zambrano’ applications on

the basis that the applicant has inter alia been unable to secure documents including

passports of the children from their mother”. As phrased, that is simply a statement of

29. The final point made in the grounds is “in the premises the respondent has adopted an

overly formal approach to this application and now intends to deport the applicant without

consideration of the best interests of the children and/or the rights of the children as EU

citizens under Article 20 TFEU and/or their constitutional rights as Irish citizen children”.

This, at last, is a ground that could in principle conceivably be a legally valid basis for an

injunction. Mr. Barron, however, offers two broad answers to that complaint.

30. Firstly, the applicant has not made a valid application by providing all necessary

documentation. If he had done so, all of the various points he wished to make would be

considered. The applicant says that the requirements imposed by the Department are not

practicable and that access to some of the documents such as the first child’s passport is

outside of his control due to the fact that the mother is extremely uncooperative.

However, an examination of the Department’s latest letter of 7th February, 2020 indicates

that at least some of the material sought by the Department was in principle within the

applicant’s control. If the matters referred to were all matters outside the applicant’s

control then the applicant could surmount this particular hurdle, but that has not been

31. Secondly, even if there had been a valid pending Zambrano application, we are not as yet

in Zambrano territory given that there is no suggestion that the children, or either of

them, would be compelled to leave the territory of the EU: see Bakare v. Minister for

Justice and Equality [2016] IECA 292 (Unreported, Court of Appeal, 19th October, 2016).

At its height, the applicant’s case is that he may at some future point acquire such a

relationship with the children that they might be compelled to leave the State, but in the

absence of that being the case at the present time, the applicant does not qualify under

the established Zambrano doctrine. The high watermark of the applicant’s case was K.A.

and Others v Belgische Staat Case C-82/16 (Court of Justice of the European Union, 8th

May, 2018) which condemned the failure to examine the merits of an application where

there existed a relationship of dependency such that the Union citizen would be compelled

to leave the territory of the Union. That does not apply here. Also by distinction with

K.A., the Department of Justice and Equality is not refusing to examine a residency

application “solely” on the ground that the applicant is subject to a ban on entering on the

territory (see para. 62 of K.A.) The application is not being examined because necessary

supporting documentation has not been provided. For those reasons, the applicant has

not shown a likelihood of success in the applications such as to warrant the grant of an

32. I have no particular enthusiasm about declining an injunction here, even bearing in mind

that the applicant is largely the author of his own misfortune. In an ideal world, the

applicant might be entitled to prosecute his family law proceedings to finality, and have

time to put forward the best possible attempt to advance his Zambrano points. It only

partially alleviates my discomfort to say that there is no particular ideal solution, given

the competing problems of the applicant’s maximum period of custody imminently

running out, the deportation arrangements which are in place for the coming days, the

speculative nature of the EU law points being made which go significantly beyond existing

authority, the applicant’s history of deception and evasion which means the likely effect of

further significant adjournment of the case with a stay on deportation would be his

release and (at least temporary) disappearance, the probable futility of even considering

a reference to the CJEU given the mootness that would inevitably overtake the case, the

lengthy period that probably would be required to untangle the multiplying issues in the

family law end of things, not least the newly-emerging details, not yet on affidavit, that

another man is named on the birth certificate as father of the second child, the fact that

the Department’s decision not to accept the Zambrano applications as admissible is not

challenged on the current pleadings, the fairly continuous churn in relation to the

pleadings and the multiple versions that have been offered, the fact that yet a further

fairly major reconfiguration of the pleadings probably would be called for if all of the

various issues raised at the hearing were to be teased out to their absolutely final logical

ramifications, the applicant’s failure to seek to extend time to challenge the deportation

order, which if granted would have taken the time pressure off by stopping the clock for

the release of the applicant, and finally the fact that the Minister has not yet decided the

s. 3 (11) application, which if he had, would have provided a decision which, if

challenged, would also have to have the effect of stopping the clock, allowing a more

leisurely opportunity to consider the issues prior to the compulsory release and likely

consequential disappearance, at least temporarily, of the applicant.

33. Fenced in on all sides as the court is, the only realistic way to resolve the case is simply

to apply existing settled caselaw, which unfortunately does not favour the applicant for

the reasons explained. Accordingly, the order will be to dismiss the proceedings,

although I do so without much enthusiasm.

Result: Order to dismiss proceedings.

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