Judgment of Mr Justice Charleton delivered on Thursday the l6th of July 2015
1 The applicants/appellants are Nigerian nationals. The assumed names in the title are used for the applicants/appellants in this judgment. Simon O, a minor, was born on 20th October, 2006 in Ireland to Nigerian parents. He will be 9 years old in a couple of months. His mother, Prudence O, arrived in the State on 11th September, 2006 while she was heavily pregnant. She claimed to have left Nigeria due to fear of persecution and claimed to have been helped out of the country by her husband, who remains in Nigeria, travelling to Ireland with the aid of a false passport. They appeal the decision of McDermott J declining them judicial review; PO & Anor v Minister for Justice and Equality & ors [2014] IEHC 141. They claim that a refusal by the respondent Minister to revoke a deportation order under section 3(11) of the Immigration Act 1999 was unreasonable and legally flawed and that the analysis of the trial judge is wrong. They also seek an interlocutory injunction pending the determination of this appeal. Both the injunction and the substantive appeal are decided in this judgment because of the manner in which the case proceeded. This is set out below.
History of asylum applications and challenges to decisions
2. On 26th September, 2006 the applicants/appellants applied to the Refugee Applications Commissioner for a recommendation that they should be granted refugee status. This was refused. They did not appeal the refusal to the Refugee Appeals Tribunal. Instead, a judicial review application was initiated almost immediately in respect of that decision. Three years later, the case was discontinued by them. The reason for the discontinuance, this Court was told on appeal, was that the principle of an adequate appeal in place of judicial review was then generally applied by the High Court in refusing such applications. That principle was stated by Henchy J in The State (Abenglen Properties) v Corporation of Dublin [1984] IR 381 at page 405 thus:
… where Parliament has provided a self-contained administrative and quasi- judicial scheme, postulating only a limited use of the Courts, certiorari should not issue when, as in the instant case, use of the statutory procedure for the correction of error was adequate (and, indeed, more suitable) to meet the complaints on which the application for certiorari is grounded.
3. Two decisions of the High Court in 2009 in the area of asylum emphasised the applicability of that principle. Those cases specifically addressed the delay caused where a decision of the Refugee Applications Commissioner was subject to a judicial review application and when that failed an appeal was brought to be, in turn, subject to another judicial review. These decisions were AD v The Refugee Applications Commissioner [2009] IEHC 77 and OA v The Refugee Applications Commissioner & Another [2009] IEHC 296. The principle as stated by Cooke J at paragraph 19 of OA was:
In this Court’s judgment it should and will intervene in the statutory asylum process to review a report of the RAC under s.13, prior to the exhaustion of that process by decision of the Refugee Appeals Tribunal, only when it is necessary to do so, to rectify some material defect which will have continuing adverse effects on the applicant independently of the statutory appeal; or to cure some illegality which is incapable of being remedied by the statutory appeal, or, as in the Stefan case, is such as would result in a material issue or a significant piece of wrongly excluded evidence being considered only for the first time on the appeal.
4. No appeal was taken to the Refugee Applications Commissioner, the applicants/appellants having decided for an application to the High Court. As of the withdrawal of the judicial review application in early January 2010, the applicants/appellants were illegally in Ireland. In consequence, on 20th January, 2010, the respondent Minister sent to the applicants/appellants a communication which is known among practitioners as the “three options letter”. The choices set out in the letter were that the applicants/appellants would leave the State voluntarily; or that they would consent to a deportation order; or that they would apply for subsidiary protection and/or make representations to remain temporarily in the State. In effect, the options to a migrant at that stage of an asylum application process, having failed to establish grounds upon which to be declared a refugee, are to leave the State, or to seek subsidiary protection and/or apply for leave to remain the State. The applicants/appellants state in an affidavit of 26th March, 2013, that as a result of “inadvertence no applications were made for subsidiary protection or leave to remain on our behalf which was intended to be done.” Consequently there was no challenge to the clearest possible statement that absent representations or another application, this time for subsidiary protection, the applicants/appellants would be deported from the State. Subsidiary protection relates to situations where substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin/former habitual residence, would face a real risk of suffering “serious harm”, in consequence of the general situation in that country, in distinction to a well-founded fear of persecution.
5. Deportation orders are made under section 3 of the Immigration Act 1999, as amended. Under section 3(6) in determining whether to make a deportation order, the Minister is obliged to have regard to the age of the person; the duration of their residence in the State; their family and domestic circumstances; the nature of their connection with the State; their employment record and their employment prospects; their character and conduct; humanitarian considerations; any representations made by, or on behalf of, the person; the common good; and considerations of national security and public policy. In making any such decision the respondent Minister is obliged to proceed in accordance with the European Convention on Human Rights, as provided for in section 3 of the European Convention on Human Rights Act 2003. No representations were made on behalf of the applicants/appellants under section 3 of the Act of 1999 and nor was any application for subsidiary protection made. Nonetheless the file received the fullest possible analysis based on everything that had been raised before the Refugee Applications Commissioner. On the 17th May, 2012, the applicants/appellants received a letter from the respondent Minister indicating that he had decided to deport them. A deportation order dated the 9th May, 2012 was enclosed. A written analysis as to why the application to remain the State was also enclosed with the letter. The letter required the applicants/appellants to leave the State by the 3rd June, 2012. This order, on the face of it was final. Section 3(11) of the Act of 1999, however, enables the Minister to “amend or revoke [a deportation] order made under this section, including an order under this subsection”. This means that a person subject to a deportation order may make representations to the Minister that the decision to deport should be reconsidered. This option was availed of. A very long letter dated the 21st September, 2012, was furnished by solicitors on behalf of the applicants/appellants detailing reasons why they should not be returned to Nigeria. It might reasonably be commented that of the 45 pages in this letter, perhaps 5 relate in some way to the applicants/appellants. The other 40 pages relate to conditions in Nigeria and could relate to any application by any person from Nigeria living anywhere in Europe. At paragraph 2.19 of the letter a fear of persecution is claimed by the first applicant/appellant “because she converted her friend from Islam to Christianity and soon after, her friend disappeared.” A marriage outside caste is also mentioned. Integration into the community in Ireland is put forward as well and that is more a humanitarian appeal than the reiteration of an asylum claim that has failed.
6. By decision of the 25th February, 2013, the respondent Minister affirmed the deportation order and gave reasons for refusing to amend or revoke that order.
7. The applicants/appellants initiated the within judicial proceedings against that decision and were granted leave to apply for judicial review on the 22nd April, 2013, by Harding Clark J. The matter went to trial in the High Court before McDermott J and on 21st March, 2014, he refused the application. The decision of McDermott J was appealed to this Court. Under section 5 of the Illegal Immigrants (Trafficking) Act 2000, as amended, the final nature of the High Court order in most refugee type applications does not extend to a decision of the respondent Minister to refuse to amend or revoke a deportation order under section 3(11) of the Immigration Act 1999. On lodging this appeal the applicants/appellants applied by notice of motion dated the 11th July, 2014, to this Court for an injunction restraining the deportation of the applicants/appellants pending the determination of the appeal. That motion came on for hearing on 25th July 2014, but the Court put the matter back for the fuller hearing that would be available outside the crowded motion list on a Friday. The matter first come on for hearing on 20th October, 2014, and on the hearing of that application counsel for the applicants/appellants applied with no notice to the Court or to the respondent Minister for an order for reference for preliminary ruling by the Supreme Court to the Court of Justice of the European Union pursuant to Article 267 of the Treaty on the Functioning of the European Union. Since the respondent Minister was taken by surprise, the matter was put back for submissions. The Court was disturbed at the further procedural twist which the case had taken; PO & Another v Minister for Justice and Equality [2014] IESC 5, judgment of MacMenamin J of 29th January 2014. In February, 2015, the applicants/appellants withdrew that application, apparently seeing no merit in the point raised. In addition to the application for an interlocutory injunction, the respondent Minister had also requested that the substance of the case should be considered. Consequently, the matter was put in for hearing on 11th March, the Court becoming aware only in the week beforehand that the application for a reference had been withdrawn. This is the judgment on that application, both as to the appeal of the refusal of the interlocutory injunction and on the substance of the claim.
Progress of proceedings
8. On the application for an interlocutory injunction restraining deportation, the applicants/appellants claim that their case is equivalent to that of Okunade v Minister for Justice [2012] 3 IR 152. In consequence, they assert, pending the hearing of this appeal, the Supreme Court should injunct the respondents from acting on the deportation order of 9th May, 2012 as affirmed on the 25th February, 2013. The Okunade case involved a four year old child who had been born and brought up in Ireland. Similarly, the first named applicant/appellant has spent his entire life here. There are, however, differences between this case and Okunade. In that case, at paragraph 119, Clarke J referred to the “substantial lapse of time involved in this whole process” of asylum application, which led to a situation that a child of four years had no other country than Ireland. This, on his analysis, was a “function of the lack of coherent system and sufficient resources” in the analysis of claims for refugee status. In contrast, the respondent Minister urges, in the present case the lapse of time that has occurred is not due to systemic failings on the part of the State, but rather it is a result, in particular, of the applicants/appellants’ decision to issue and later to discontinue judicial review proceedings. Clarke J also held that the “significant disruption of family life is a countervailing factor which, provided it be of sufficient weight, can be enough to tip the balance in favour of the granting of a stay or an injunction”. The applicants/appellants submit that Okunade is “practically indistinguishable” from the instinct case for the purposes of applying the Okunade principles. However, the respondent Minister argues that in the present case, the disruption in the private life of the applicants/appellants is made up for by the prospect of the “re-establishment of family life” between the applicants/appellants and their husband/father and their extended family who generally reside in Nigeria. In Okunade the applicants had applied for refugee status and for subsidiary protection but had failed, essentially on credibility grounds. The Minister then sought to deport them. It was while they were seeking leave for judicial review of the refusal of subsidiary protection and of the process leading to the decision to deport them that an injunction against deportation was first refused in the High Court ([2011] IEHC 441). This decision was overturned by the Supreme Court. No injunction was granted in substitution of the order of the High Court because, by that stage, events had then moved on, the application for leave to seek judicial review having been refused by the High Court ([2012] IEHC 134), rendering the appeal in that case moot.
9. In this case, there has been no application for subsidiary protection, the judicial review application in respect of the decision of the Refugee Applications Commissioner of the 1st October 2007 was withdrawn four years ago, and a deportation order has been made following a detailed consideration of the representations of the applicants/appellants and has been affirmed on reconsideration. Perhaps the most important difference, however, is that this is not a case where the applicants/appellants are seeking leave to apply for judicial review. Instead the legal situation has moved on to the grant of leave and the full analysis of their claim by the High Court which found no substance in any of their arguments. On the analysis in the High Court, there has been no legal flaw in dealing with the application. Should this appeal succeed the most that can be achieved by the applicants/appellants, in the grant of an interlocutory injunction, is that the Court would overturn McDermott J and enable that the process of seeking the revocation of a valid existing deportation order should be renewed. The respondent Minister asked that if the substance of the case was to be dealt with, the principles in relation to the refusal or grant of an injunction should be dealt with as well.
Test for an injunction
10. As the Supreme Court pointed out in Okunade, the approach to the grant of an injunction is founded on the decision of this Court in Campus Oil v Minister for Industry (No. 2) [1983] IR 88. As this case and other asylum cases are ones involving sensitivities and rights inherent in the family and privacy, a more nuanced test is applicable. That consideration is to be applied in the light of the facts of the case, which include the various steps taken in the asylum process and the attitude of and reaction of applicants to same. This is made clear in the judgment of Clarke J at paragraph 104 of Okunade:
As to the overall test I am of the view … that in considering whether to grant a stay or an interlocutory injunction in the context of judicial review proceedings the court should apply the following considerations:-
(a) the court should first determine whether the applicant has established an arguable case; if not the application must be refused, but if so then;
(b) the court should consider where the greatest risk of injustice would lie. But in doing so the court should:-
(i) give all appropriate weight to the orderly implementation of measures which are prima facie valid;
(ii) give such weight as may be appropriate (if any) to any public interest in the orderly operation of the particular scheme in which the measure under challenge was made; and,
(iii) give appropriate weight (if any) to any additional factors arising on the facts of the individual case which would heighten the risk to the public interest of the specific measure under challenge not being implemented pending resolution of the proceedings;
but also,
(iv) give all due weight to the consequences for the applicant of being required to comply with the measure under challenge in circumstances where that measure may be found to be unlawful.
(c) in addition the court should, in those limited cases where it may be relevant, have regard to whether damages are available and would be an adequate remedy and also whether damages could be an adequate remedy arising from an undertaking as to damages; and,
(d) in addition, and subject to the issues arising on the judicial review not involving detailed investigation of fact or complex questions of law, the court can place all due weight on the strength or weakness of the applicant's case.
At paragraph 109, Clarke J. stated, further:
However, in the absence of any additional factors on either side, it seems to me that, if faced simply with an assertion on the part of the first respondent that it is desired that a deportation order be enforced unless and until it be found invalid and an assertion on the part of an applicant that the applicant in question does not wish to run the risk of being deported only to be readmitted if the relevant proceedings are sufficiently successful, the position of the first respondent would win out. It should also be taken into account that, at least in many cases, the result of a successful judicial review challenge will not necessarily lead to the applicant in question being entitled to remain indefinitely in Ireland or if already out of Ireland to be entitled to come back to Ireland for the purposes of remaining here indefinitely. In very many cases the only consequence of a successful challenge is, as has been pointed out, that issues of substance will require to be considered again or that some further process will need to be engaged in before a final decision is made. That too is a factor to which appropriate weight should be attached and which favours, in the absence of material countervailing factors, the implementation of a deportation order. Of course, where the presence of the relevant applicant in Ireland might be necessary to enable any subsequent process to be conducted or hearing to be held, that factor too would need to be taken into account, although there are many ways (such as an by appropriate undertaking) by which such attendance, if found necessary, could be facilitated.
11. In Meadows v Minister for Justice [2010] 2 IR 701, this Court affirmed the primacy of the executive in establishing policy in relation to immigration. There is no reasonable suggestion in these papers that what this appeal is concerned with is the case of refugee who has fled persecution. Rather, all the indications are that the applicants/appellants have made a choice to migrate to Ireland from Nigeria. Further, all the indications are that the various steps taken in the asylum process have become an instrument of delay and these steps have been taken by the applicants/appellants themselves.
Arguable case
12. The claim of the applicants/appellants to have an arguable case is based on a number of grounds. It is, firstly, argued that there was a breach of fair procedures because the official of the respondent Minister, making the decision not to revoke the deportation order, used deficient country of origin information and did not afford the applicants/appellants a right to be heard. Secondly, it is contended that the decision not to revoke the deportation order did not pursue a proper analysis and, further, that it deprived the applicants/appellants of a claimed right to know what the policy of the respondent Minister was in relation to cases such as theirs, namely where a Nigerian child had been born and brought up in Ireland but with no entitlement to Irish citizenship. A number of points under the European Convention on Human Rights are, thirdly, claimed to have not been considered.
13. Essentially, it is contended that the applicants/appellants’ rights to private life and family rights, as guaranteed under Article 8, were either ignored or not properly analysed and that the severity of the disruption to private life and family ties in this case must be such as to amount to the kind of exceptional circumstances which would require that they not be deported. Through the asylum application system it must be recognised that the applicants/appellants have tentatively established connections in Ireland. In the case of the infant applicant/appellant, he has known no other country than Ireland. This has come about, however in circumstances where his mother made a deliberate choice to move here from Nigeria in circumstances where there are no indications that she ever had any case to make of persecution in her home nation.
14. The various points argued are now considered. It follows that if there is no reasonably arguable case to be made from the point of view of the grant of an interlocutory injunction that the substance of the appeal against the substantive judgment of McDermott J in the High Court also fails.
Defective information and defective analysis claimed
15. The trial judge ruled against the applicants/appellants, rejecting the contention that the official of the respondent Minister analysing the application to section 3 (11) of the Immigration Act 1999 erred. At paragraph 13 of his judgment the trial judge set out the test which he would apply:
The first named applicant contends that the information supplied by her solicitors was of a higher quality than that relied upon by the respondent and should have been preferred. In order to attract relief on this basis, the applicant must demonstrate a high degree of carelessness on the part of the decision maker or a fundamental error apparent from the materials. In E.E. v. Refugee Appeals Tribunal [2010] IEHC 135, Cooke J. stated:-
In that regard, the approach of the Court to the reliance placed by the Tribunal on such information is clear. It is for the Tribunal member to weigh and assess relevant information drawn from country of origin documentation and to decide what value or weight should be accorded to various parts of it, having regard to its relevance, the authoritative quality of its source, its apparent reliability and so forth. . . . the Court should intervene to disturb a decision only where it is shown that some fundamental mistake has occurred in the use or interpretation of the available information or where the conclusion reached is manifestly at variance with the content and obvious effect of the documentation.
16. As a matter of law, a decision maker in asylum applications is required to keep reasonably abreast of information in the country of origin. But a decision maker is not constrained, as if a jury in a criminal trial that has heard evidence, from researching the matter and sourcing fresh materials of reliable origin. These applications are not to be equated with an adversarial process. Were they so treated, the fundamental duty of the decision maker to enquire into the situation of an applicant by reference to the country of origin would be curtailed unlawfully.
17. The decision of the trial judge is consistent with the proper approach to be adopted by the High Court in the judicial review of an administrative decision. In judicial review, the High Court is not acting as a tribunal of appeal but is considering, instead, whether the analysis conducted met the standard that is inherent in the legislation. This case has passed the stage where the applicants/appellants are claiming to be refugees. That claim was first made on the 26th September 2006, and was rejected by the Refugee Applications Commissioner on the 1st October 2007. A judicial review application in respect of that decision was withdrawn in 2010. Subsidiary protection was not applied for. Section 11(A) of the Refugee Act 1996 provides that where an applicant “appeals against the recommendation of the Commissioner under section 13, it shall be for him or her to show that he or she is a refugee”. Where his or her application for refugee status has been refused by the Refugee Applications Commissioner and the applicant decides to appeal that decision to the Refugee Appeals Tribunal, the applicant may request, save in certain circumstances which are outlined in section 13(6), that there be an oral hearing before the Tribunal. This option was open to the applicants but was not availed of.
18. Credibility is central to the process. Anyone can decide to migrate from Nigeria to Ireland. Only those who on enquiry are shown to be refugees have an entitlement to stay in the State. Similarly, on an application for subsidiary protection where an applicant claims a situation of general violence in their country of origin, the enquiry will tend to shift to the information available as to the situation there. Where persecution, and thus refugee status, is claimed, under s.11(B) of the Refugee Act 1996 it is for the Refugee Applications Commissioner at first instance, or the Refugee Appeals Tribunal, on appeal, to assess credibility. Guidance is given in relation to such questions as the possession of identity documents; whether the applicant has provided a reasonable explanation to substantiate his or her claim that the State is the first safe country in which he or she has arrived since departing from his or her country of origin/habitual residence; whether a full and true explanation of how the applicant travelled to and arrived in the State has been given; whether there was any reasonable explanation for delay if an application was not made on the frontiers of the State, effectively on arrival; whether an applicant has disposed of or forged identity documents; whether manifestly false evidence has been adduced; if there has been a previous withdrawal of an application; the stage at which an application was made; whether there has been cooperation; whether an applicant has left the State without permission; whether an applicant is residing where required and reporting changes of address as required; and whether on appeal the applicant has furnished information in relation to the application which he or she could have furnished during the Commissioner’s investigation of the application but did not do so. As McDermott J adverted to, where a decision is the subject of a judicial review application, it has never been a function of the High Court to substitute its own opinion of the facts for that of the administrative tribunal whose decision is under question. The High Court is not empowered to grant the relief sought before the administrative body, be it a licence, a declaration or the award of some beneficial form of status. Rather, on any judicial review application, the High Court is inquiring into whether the tribunal has acted within jurisdiction and whether its decision accords with fundamental reason and common sense, one of the elements of which may be the proportionality of that decision; see Meadows v Minister for Justice [2010] 2 IR 701.
19. The quasi-judicial function involved in refugee type applications explicitly encapsulates not only the assessment of credibility but also involves a duty by the decision maker to keep abreast with the main developments in country of origin information and, if necessary, to make such inquires as are germane to uncovering the truth. The burden is not entirely on the administrative tribunal since applicants have a solemn duty of cooperation. In that regard, therefore, the approach of the trial judge to the analysis of this issue cannot be faulted. On a full review of the documentation, the trial judge ruled that the official acting on behalf of the respondent Minister under section 3(11) of the Immigration Act 1999 had not ignored relevant information given by the applicant and, further, had sourced relevant and current information. Applying the reasoning of Cooke J in EE v Refugee Appeals Tribunal [2010] IEHC 135, McDermott J held that the analysis conducted on behalf of the respondent Minister was careful and conscientious to the degree that no fundamental mistake had occurred and where the conclusion reached was not manifestly at variance with the content and obvious effect of the documentation. At paragraph 18 of his judgment, the trial judge ruled on the matter thus:
I am satisfied of the following matters. Firstly, the country of origin information relied upon by the respondents is more recent than that submitted by the applicant. In volatile situations, the political and social climate of a country may change exponentially in a short time. It is, therefore, of paramount importance that the information relied upon by decision makers is relevant and up to date. In this case, the applicant relied, for the most part, upon old country of origin information which appears either to ignore or fails to take account of reforms put into place by the Nigerian government. While the policing situation may not be ideal, and this is true of many countries, the information indicates that state protection is available in the form of a reformed and reforming police force underpinned by a government inaugurated code of conduct. Secondly, it is not the case that a decision maker is required to consider only the information furnished by an applicant or is constrained by that information. It is the duty of the decision maker to ensure that all up to date information available is considered fairly. I am satisfied that the applicant has failed to demonstrate that the decision maker made a fundamental mistake or error in the consideration of the materials submitted or available. It is clear that the decision maker was not convinced by the older country of origin information submitted and sought more recent and diverse sources of information. These sources are widely available to immigrant and asylum lawyers, but in this case nothing beyond the material outlined above was submitted on behalf of the applicants.
20. On this appeal it has been argued that the respondent Minister relied on “magazine articles”, ignoring more robust country of origin information submitted by the solicitors for the applicants/appellants. On analysis this submission emerges merely as rhetoric. There was no change to the substance of the case and further there had been no change in the country of origin information material to the decision which could alter the essentially general claims put forward by the applicants/appellants. Nothing was of relevance beyond their personal information that could not apply to any other person who had come from any substantial part of the Nigerian population. Nothing has been advanced in argument which would given any reason to consider that this ruling was not correct.
Right to be heard
21. As a matter of law, as set out in the Refugee Act 1996, those applying for refugee status on the basis of a claim of persecution are entitled to be heard, to submit materials and to make relevant, concise argument both before the Refugee Applications Commissioner and on appeal, before the Refugee Appeals Tribunal. The latter not being availed of in this case. Thus it is clear that there is a right to be heard within the asylum process. That right is specifically guaranteed to persons seeking a declaration of refugee status under the procedures laid down in the Act of 1996 in relation to the analysis by the Refugee Applications Commissioner and, on appeal, the rehearing that must take place before the Refugee Appeals Tribunal. Section 3 of the Immigration Act 1999, as amended, as noted above, deals with deportation orders. Subject to the prohibition on refoulement, the Minister may make an order requiring a person who is not an Irish citizen to leave the State within a specified period. In asylum applications, that process of making a deportation order occurs after the initial assessment and the appeal have been determined negatively against an applicant. Before making an order of deportation, however, the person affected must be afforded a right to be heard pursuant to legislation. Detailed statutory provisions are set down in section 3, subsections (3) and (4) of the Act of 1999, as amended. These provide:
(3)(a) Subject to subsection (5), where the Minister proposes to make a deportation order, he or she shall notify the person concerned in writing of his or her proposal and of the reasons for it and, where necessary and possible, the person shall be given a copy of the notification in a language that he or she understands.
(b) A person who has been notified of a proposal under paragraph (a) may, within 15 working days of the sending of the notification, make representations in writing to the Minister and the Minister shall—
(i) before deciding the matter, take into consideration any representations duly made to him or her under this paragraph in relation to the proposal, and
(ii) notify the person in writing of his or her decision and of the reasons for it and, where necessary and possible, the person shall be given a copy of the notification in a language that the person understands.
(4) A notification of a proposal of the Minister under subsection (3) shall include—
(a) a statement that the person concerned may make representations in writing to the Minister within 15 working days of the sending to him or her of the notification,
(b) a statement that the person may leave the State before the Minister decides the matter and shall require the person to so inform the Minister in writing and to furnish the Minister with information concerning his or her arrangements for leaving,
(c) a statement that the person may consent to the making of the deportation order within 15 working days of the sending to him or her of the notification and that the Minister shall thereupon arrange for the removal of the person from the State as soon as practicable, and
(d) any other information which the Minister considers appropriate in the circumstances.
22. In determining whether to make a deportation order in relation to a person, the Minister shall have regard to humanitarian considerations, among other considerations, pursuant to section 3(6). Perhaps as a matter of logic, that should be the end of the matter. However, anyone who has had a deportation order made against them can apply for it to be revoked under section 3(11). While it can be difficult to discern the legislative purpose of this entitlement to seek an administrative review following on a full consideration leading to a deportation order, as McDermott J stated, in some countries the political situation can suddenly lurch into instability. Were a person who had not granted leave to remain suddenly to find that their country had become unsafe or had suddenly initiated a policy of persecution, as in Germany in 1933 in relation to Jewish people, homosexual people and Romany people, the application under section 3(11) would provide them with proper resort to the Minister. It is clear, however, that the legislation in granting an entitlement to seek a revocation of a deportation order does not contemplate the regurgitation of old and rejected contentions: rather, something new involving a substantial change is required.
23. In considering whether to revoke a deportation order under section 3(11) any new information furnished by or on behalf of the applicant in seeking that such an order be set aside must also be taken into account. The process of giving an opportunity to an applicant to be heard, however, is not to be mistaken for the strict procedures within a criminal trial and nor are rules of evidence applicable. A fair procedure must be adopted. That is not in any way to be equated with criminal trial or civil trial procedures. This is an enquiry and not a trial. Fairness of procedure will involve reading the representations made under section 3(3) on behalf of an applicant and, where the revocation of a deportation order is sought, considering any new representations made under section 3(11). The right to be heard must be analysed within its proper context. Where there has been an application for refugee status which has been rejected, that may be taken into account in so far as it is relevant; as where the same case that has been rejected before the Refugee Applications Commissioner or on appeal before the Refugee Appeals Tribunal that finding is reiterated. Within the scheme set out in the Refugee Act 1996 and the Immigration Act 1999, where such an application has been made for a recommendation that the Minister declare that a person has refugee status, and this is rejected, deportation tends to be the final result of that process. In the assessment of applications for refugee status the process is one of inquiry and searching for the truth.
24. An enquiry about whether a person is a refugee is not an adversarial contest. Duties are cast on both sides. On the part of the applicant for refugee status, there must be full cooperation and the revelation of any relevant material. On the part of the decision maker there must be an inquiry into country of origin information and the position of the applicant in relation thereto. If the stage of deportation is reached, that relevant background, if applicable, may be taken into account together with any fresh representations that are made. In case C-277/11 MM v Minister for Justice, Equality and Law Reform, Ireland, Attorney General a reference was made by Hogan J to the Court of Justice of the European Union as to the right to be heard in the bifurcated system operating in the State whereby an applicant for refugee status must first apply for a recommendation of refugee status and, only when that fails, may he or she apply for subsidiary protection. That case concerned the extent of the right to be heard in relation to the second part of that process; a distinct procedure whereby the person applies for subsidiary protection. The Court of Justice rejected the proposition that where, on the second stage, an official of the respondent Minister decides that subsidiary protection should be refused, a draft decision should be forwarded to the applicant so that he or she may comment thereon and make further representations. The Court used the opportunity afforded by that reference to restate what the nature of the right to be heard consists of. It does not necessarily incorporate an oral hearing; it does not require adversarial procedures; but it does need to observe two fundamental principles.
25. These principles are related both to each other and to ordinary sense. Firstly, the person affected by a decision has an entitlement to put forward their side of the case and, secondly, the administrative or quasi judicial tribunal must fairly consider such representations. The Court of Justice stated, at paragraphs 87 and 88 of the decision:
The right to be heard guarantees every person the opportunity to make known his views effectively during an administrative procedure and before the adoption of any decision liable to affect his interests adversely (see, inter alia, Case C-287/02 Spain v Commission [2005] ECR I-5093, paragraph 37 and case-law cited; Sopropé, paragraph 37; Case C-141/08 P Foshan Shunde Yongjian Housewares & Hardware v Council [2009] ECR I-9147, paragraph 83; and Case C-27/09 P France v People’s Mojahedin Organization of Iran [2011] ECR I-13427, paragraphs 64 and 65).
That right also requires the authorities to pay due attention to the observations thus submitted by the person concerned, examining carefully and impartially all the relevant aspects of the individual case and giving a detailed statement of reasons for their decision (see Case C-269/90 Technische Universität München [1991] ECR I-5469, paragraph 14, and Sopropé, paragraph 50); the obligation to state reasons for a decision which are sufficiently specific and concrete to allow the person to understand why his application is being rejected is thus a corollary of the principle of respect for the rights of the defence.
26. The form of any procedures in relation to applications for refugee status or subsidiary protection or in relation to deportation orders is not laid down by European legislation. Instead, as the Court indicated at paragraph 94 of its judgment “it will be for the referring court to determine whether the procedure followed in the examination … was compatible with the requirements of EU law … [on the] … right to be heard …” On this appeal, it is to be noted that that is what happened in relation to that case when the matter came back before Hogan J, MM v Minster for Justice Equality and Law Reform, Ireland and the Attorney General [2013] 1 IR 370.
27. Simple reiteration of prior material that does not establish a legitimate fear of persecution or of violence of a random kind in the absence of appropriate structural protection is not enough for an application to succeed under section 3(11) of the Act of 1999. In this case, the trial judge McDermott J held that there had been no failure to offer the applicants/appellants a proper hearing. In order to initiate a reassessment of an existing deportation order under section 3(11) of the Act of 1999, it cannot be sufficient simply to rely on the representations already made under section 3(3). In that regard the analysis of the trial judge at paragraphs 19-22 of his judgment is manifestly correct:
The nature of an application under s. 3(11) is that new or additional evidence is advanced in order to obtain a review of a deportation order. The applicants did not advance much that was new in the s. 3(11) application, or that could not have been advanced in an application for leave to remain had the first named applicant thought it appropriate to do so. The Supreme Court in Smith & Smith v. Minister for Justice and Equality [2013] IESC 4, held that it is only when additional material is advanced that a s. 3(11) application could receive a favourable review. Any judicial review seeking to challenge a refusal to revoke must be directed towards the lawfulness of the decision making process concerning that additional material.
It is claimed that the procedures adopted by the first named respondent were unfair in that the applicants ought to have been made aware of the respondents intention to rely on information other than that submitted by the applicant before making a decision. While there is no general obligation to inform an applicant of the documentation used and sourced, it has been recognised that situations may arise where such disclosure would be just and appropriate. In Ahmed v. Minister for Justice, Equality and Law Reform (Unreported, High Court, 24th March, 2011), Birmingham J. stated:-
In my view there is no general obligation on the decision maker to return to an applicant and inform him or her what documentation has been sourced. The applicant is aware of the task facing the decision maker and must expect that he or she will prepare themselves by making sure they are fully up to date. However, I would emphasise that while that may be the general position, one can certainly envisage that there may be particular cases where a document sourced late in the procedure has the capacity to alter radically the entire basis of the application; which would require that contact be made with the applicant. Again one could imagine that if it were the situation that a decision maker had access to a stream of information which was not publicly available but was in conflict with publicly available material then different considerations might arise.
Cross J. gave further guidance in Zola Nanizaya v. The Minister for Justice and Equality [2012] IEHC 126:-
The principle of audi alteram partem would apply if the Minister got into his possession private documents or indeed entirely new documents, which radically altered the situation claimed in relation to indiscriminate violence etc, as submitted by the applicant. The document actually referred to by the Minister in his decision is not “new facts, information or documentation not previously examined” but rather is an updating of previous documentation furnished by the applicant
I am satisfied that the new documentation relied upon by the first named respondent in these proceedings is freely available to the public and did not come from private sources. Furthermore, the information sought did not alter the scope and nature of the inquiry made by the decision maker. A challenge was raised against the efficacy of the police force in Nigeria, and the decision maker, in examining the issue and the nature of any reforms undertaken by the authorities in Nigeria, accessed further information relevant to that matter. The information is not new and I am satisfied that the information obtained is an updating of previous documentation furnished by the applicant and was readily available to the applicant from well known sources to those practising immigration and asylum law. I am satisfied that there was no obligation to inform the applicant of the additional country of origin information accessed by the first named respondent or to provide a copy of that information to the applicants before making the decision. I am not satisfied that the applicants are entitled to any relief on this basis.
28. Section 3(11) confers a broad discretion on the respondent Minister, though one to be operated in accordance with the right to be heard, should an application for the revocation of a deportation order be made. The applicants/appellants argue that this is not lawful. It is claimed on this appeal that there should have been guidelines and that these should (a) have been operated by the respondent Minister and (b) disclosed to all who make any application as foreign nationals for any kind of leave to remain in Ireland. These, the applicants/appellants argue, include: when a child would be considered young enough to be returned to the country of origin of a parent; and when a family would be considered to have established ties within Ireland sufficient to require consideration under Article 8 of the European Convention on Human Rights. There are no such guidelines. The trial judge characterised the obligation cast upon the respondent Minister under section 3(11) of the Act of 1999, in considering whether to revoke a deportation order, as being discretionary. In that regard, it is clear that McDermott J’s analysis meets with the principles previously enunciated by this Court in TC v Minister for Justice [2005] 4 IR 109 at paragraph 26. There Fennelly J stated:
On its face, this provision confers a broad discretion, to be exercised in accordance with general principles of law, interpreted in the light of the Constitution and in accordance with fair procedures.
29. The existence of guidelines may assist. On the other hand, guidelines may also trammel a discretion where too rigidly formulated. In other circumstances the availability of guidelines, such as those in relation to children who are Irish citizens but whose parents are non-nationals, may indicate the broad approach to be taken in individual cases. No cogent argument has been made on this appeal that in failing to provide guidelines in relation to children who are not citizens and who do not have parents who are citizens, that there has been, as the argument was put, such a deficit in information as to amount to a denial of the right to be heard. In support of the argument, counsel on behalf of the applicants/appellants cited R (Lumba) v Home Secretary [2012] 1 AC 245. In that case a policy of deporting foreign nationals who had been convicted of crime was operated by the Home Office. There, however, the existence and the terms of that policy were kept secret from the claimants. It was condemned as a “blanket policy” which was in fact inconsistent with the published policy. It is hard to make any argument derived from that case applicable here. The exercise of the power under section 3(11) of the Act of 1999 is, as the trial judge characterised it, a matter of discretion. The exercise of such decisions must proceed on the basis of allowing representations to be made by those seeking revocation of a deportation order under the section. In the absence of such representations it is impossible to see how the section might otherwise be engaged. The trial judge could not identify any blanket policy by the respondent Minister either in favour of deportation in circumstances similar to that of the applicants/appellants or against it. The discretion was there to be exercised in accordance with what the High Court had previously stated to be the appropriate approach. The trial judge properly set out that approach at paragraph 24 of his judgment as follows:
Furthermore, the issue concerning the absence of guidelines, principles and policies has already been considered in Sivsivadze v. Minister for Justice and Equality [2012] IEHC 244 in which a challenge to the validity of s. 3(11) having regard to the provisions of the Constitution, was rejected. Kearns P. stated:-
It is thus contended on behalf of the applicant that no guidelines, principles or policies have been written into the section and that the Minister is thus “at large” when exercising what should properly be seen as a law making function in relation to decisions under section 3(11). But is the power one to make subsidiary laws or form polices, or is it a discretionary power exercisable by reference to the facts of individual cases? … The exercise of this power does not strike me as the making of a “policy” decision but rather involves the exercise of a margin of appreciation related to the facts of individual cases. That discretion was clearly left by the Oireachtas to the Minister (p. 39)
The learned President relied upon T.C ., cited above and a number of well established Supreme Court and High Court authorities. For example, in M.A. v. Minister for Justice, Equality and Law Reform (Unreported, High Court, 17th December, 2009) Cooke J. summarised the effect of previous High Court case law as follows:-
When an application to revoke is made to the Minister under s. 3(11) of the Act, the Minister has in effect two duties. He is required to consider carefully and fairly the reasons that are put forward for revocation; and he must also verify that since the deportation was made no change of circumstances has occurred, either so far as concerns the applicant or the situation in the country of origin, which would bring into play any of the statutory prohibitions in the return of a failed asylum seeker to the country of origin…otherwise…in dealing with an application to revoke, the Minister is not obliged to embark on any new investigation or inquiry; nor is he obliged to enter into any exchange of observations and replies or into any debate with the applicant or the applicant’s legal representatives or even perhaps to supply any extensive narrative statement of his reasons for refusal. Once it is clear to the court that the Minister has properly discharged those two functions, a decision to refuse to revoke a valid order of deportation will not be interfered with.
It is clear that a decision maker must focus carefully on the circumstances of each particular case. The absence of guidelines or policy does not vitiate the decision the nature of which must be understood in the context of an overall consideration of the statutory scheme, the relationship between s. 3(1) and (11), and previous decisions taken in the asylum process.
30. This is correct. It follows therefore that, firstly, it is not necessary for a decision maker to initiate any new investigation or enquiry where the substance of an application to revoke a deportation order is that which has already been made and has been rejected in the context of a representation that a person should not be deported. Section 3(11) confers a broad discretion on the respondent Minister. Essentially, it is part of the statutory scheme to enable those whose country of origin situation has changed to make a plea, from the time of a refugee application or a plea against deportation, that, as a matter of discretion, the Minister should revoke a deportation order. In genuinely exceptional circumstances, it may be as well that a change in personal circumstances might also be part of such a reconsideration.
Convention rights
31. The manner in which the European Convention on Human Rights is to be analysed through judicial decisions has been laid down by this Court in McD v L [2008] 1 IR 417. Under the European Convention on Human Rights Act 2003, the rights laid down in the Convention must be respected by those engaged in administrative decision making. The obligation is set out in the following way in section 3:
(1) Subject to any statutory provision (other than this Act) or rule of law, every organ of the State shall perform its functions in a manner compatible with the State's obligations under the Convention provisions.
(2) A person who has suffered injury, loss or damage as a result of a contravention of subsection (1), may, if no other remedy in damages is available, institute proceedings to recover damages in respect of the contravention in the High Court (or, subject to subsection (3), in the Circuit Court) and the Court may award to the person such damages (if any) as it considers appropriate.
(3) The damages recoverable under this section in the Circuit Court shall not exceed the amount standing prescribed, for the time being by law, as the limit of that Court's jurisdiction in tort.
(4) Nothing in this section shall be construed as creating a criminal offence.
(5) (a) Proceedings under this section shall not be brought in respect of any contravention of subsection (1) which arose more than 1 year before the commencement of the proceedings.
(b) The period referred to in paragraph (a) may be extended by order made by the Court if it considers it appropriate to do so in the interests of justice.
32. The contention made on this appeal is that the official of the respondent Minister deciding on the application under section 3(11) of the Act of 1999 ignored the applicants/appellants’ rights under Article 8 of the Convention to private and family life. It is contended that these rights are such that affirming, under section 3(11), the decision to deport the applicants/appellants from the State would be unlawful.
33. Article 8 of the European Convention on Human Rights provides:
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Certain fundamental principles as to the operation of the Convention may be discerned and it is appropriate to concisely outline these.
34. The first principle is that every State is entitled to control entry with its territory. It has been affirmed on many occasions by the European Court of Human Rights that the control of immigration policy through legislation can be necessary in a democratic society under Article 8.2. Under the Convention, and under national law, there is no general entitlement of non-nationals to choose to come to and live in any contracting state without the permission of the appropriate authorities. In Nunez v Norway (No. 55597/09), a judgment of the 28th September, 2011, that principle was again affirmed. At paragraph 70 the Court stated:
The Court further reiterates that Article 8 does not entail a general obligation for a State to respect immigrants’ choice of the country of their residence and to authorise family reunion in its territory. Nevertheless, in a case which concerns family life as well as immigration, the extent of a State’s obligations to admit to its territory relatives of persons residing there will vary according to the particular circumstances of the persons involved and the general interest (see Gül, cited above, § 38; and Rodrigues da Silva and Hoogkamer, cited above, § 39). Factors to be taken into account in this context are the extent to which family life is effectively ruptured, the extent of the ties in the Contracting State, whether there are insurmountable obstacles in the way of the family living in the country of origin of one or more of them and whether there are factors of immigration control (for example, a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion (see Rodrigues da Silva and Hoogkamer, cited above, ibid.; Ajayi and Others v. the United Kingdom (dec.), no. 27663/95, 22 June 1999; Solomon v. the Netherlands (dec.), no. 44328/98, 5 September 2000). Another important consideration is whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host State would from the outset be precarious (see Jerry Olajide Sarumi v. the United Kingdom (dec.), no. 43279/98, 26 January 1999; Andrey Sheabashov c. la Lettonie (dec.), no. 50065/99, 22 May 1999). Where this is the case the removal of the non-national family member would be incompatible with Article 8 only in exceptional circumstances (see Abdulaziz, Cabales and Balkandali, cited above, § 68; Mitchell v. the United Kingdom (dec.), no. 40447/98, 24 November 1998, and Ajayi and Others, cited above; Rodrigues da Silva and Hoogkamer, cited above, ibid.).
35. The second principle is that those who create uncertainty as to their status within the country to which they migrate, by claiming asylum rights that are unfounded, cannot rely on mere presence to invoke Article 8 rights. That is part of the entitlement of Ireland to control entry into the State and is applicable in the analysis conducted of this case under section 3(11) of the Act of 1999. There was no basis upon which the applicants/appellants could be considered to be refugees. When they failed in that process, their judicial review application was discontinued by them. They did not apply for subsidiary protection and nor did they seek leave to remain in the State under section 3 of the Act of 1999. Their situation was always precarious. Any right to remain was at the discretion of the respondent Minister on the exercise of humanitarian, as opposed to legal, concerns and upon conducting an appropriate analysis in accordance with the State’s international obligations in relation to refoulement as declared in section 5 of the Refugee Act 1996 and pursuant to the provisions of the Act of 1999. The choices made on behalf of the first named applicant/appellant by his mother and next friend, and the second named applicant/appellant were a choice exercised on behalf of them both. In Butt v Norway (No. 47017/09), judgment of March 4th, 2013, of the European Court of Human Rights reiterated that a State party to the Convention is entitled to control the entry of non-citizens into its territory and their residence there, and accepted that immigration policy considerations would be undermined unless children were generally identified with the conduct of their parents. As the Court put it at paragraph 79:
In this regard the Court has noted the general approach of the Borgarting High Court that strong immigration policy considerations would in principle militate in favour of identifying children with the conduct of their parents, failing which there would be a great risk that parents exploited the situation of their children in order to secure a residence permit for themselves and for the children (see paragraph 34 above). The Court, seeing no reason for disagreeing with this general approach, observes that during a police interview on 15 November 1996 the applicants’ mother conceded that she had previously given incorrect information to the police and other institutions about her own and her children’s stay in Pakistan during this period. Thus, it seems that her children’s family life was created in Norway at a time when she was aware that their immigration status in the country was such that the persistence of that family life would, since their return in 1996, be precarious (see Nunez, cited above, §§ 71-76). That was also the case of their private life in the country. From the above considerations, it follows that the removal of the applicants would be incompatible with Article 8 only in exceptional circumstances.
36. The third principle is that in considering the interaction of the two parts of Article 8, a wide margin of appreciation in the analysis of the balance of a situation is afforded to decision makers. The often-claimed separate rights of children are, save for extraordinary circumstances, dependant upon the approach of the parent who claims on their behalf and on their own behalf through that child. That emerges clearly from the decision of Feeney J in Agbonlahor v Minister for Justice, Equality and Law Reform [2007] 4 IR 309. That was a case of a child immigrant who had been thought to suffer from attention deficit disorder but could in fact be found to be on the autistic spectrum. The claim was made that respect for family life entailed an entitlement to remain in Ireland, as opposed to returning to Nigeria where levels of care and treatment were said to be markedly inferior. At page 316 of the report, Feeney J stated:
Article 8 does not protect private or family life as such. In fact it guarantees a “respect for these rights”. In view of the diversity of circumstances and practices in the contracting States, the notion of “respect” (and its requirements) are not clear-cut; they vary considerably from case to case. (See Abdulaziz and Others v. United Kingdom [1985] 7 EHRR 471 at para. 67. The main issue which has concerned the European Court in relation to the concept and scope of “respect” is whether such obligation is purely a negative one or whether it also has a positive component. The court has stressed on many occasions that the object of Article 8 is essentially that of protecting the individual against arbitrary interference by public authorities and that such is a primarily negative undertaking but that nevertheless it has on occasions indicated that there may in addition be positive obligations upon States that are inherent in effective respect for Article 8 rights. There have been occasional challenges to deportations on the ground of interference with Article 8 rights. Those challenges have almost always been based on interference with “family life” rather than “private life”. In Abdulaziz & others v. United Kingdom the court held, at p. 497, that whilst there might be positive obligations to respect the family that a State “had a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention with due regard to the needs and resource of the community and of individuals…”.
37. That statement was made on the basis of the relevant decisions of the European Court of Human Rights. Feeney J approved the principles stated by Lord Bingham in the House of Lords in that Court’s decision in R (Razgar) v Home Secretary [2004] 2 AC 368. There, five useful questions within that wide measure of appreciation were set out at page 389 thus:
(1) will the proposed removal be of an interference by a public authority with the exercise of the applicant’s right to respect for his private or (as the case may be) family life?
(2) if so, will such interference have consequences of such gravity as potentially to engage the operation of Article 8?
(3) if so, is such interference in accordance with the law?
(4) if so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well being 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?
(5) if so, is such interference proportionate to the legitimate public end sought to be achieved?
38. These questions were, in fact, part of the analysis of the respondent Minister in considering this application. Nor should the first part of Article 8 of the Convention be analysed as if it stood alone in the absence of the second part. There is an entitlement by States to decide who is to enter national territory or who is to be allowed to remain. This entitlement is part of being a nation and it accords with the Convention in recognising that restrictions which are “in accordance with the law” and are “necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country” can be placed on migration. Such restrictions cannot apply to nationals of other European Union member states as a matter of European law; but even this is subject to legitimate rights of expulsion for crime or other serious reason.
39. The fourth principle is that particular, and quite extreme, circumstances will be required before the prohibition against torture and inhuman and degrading treatment as guaranteed by Article 3 of the Convention can be invoked. Here the very general and very long letter in support of revocation of the deportation order under section 3(11) of the Act of 1999, touched on many aspects of Nigerian society applicable to every person from that country. Included in those wide ranging arguments on this appeal were, in addition to claims about education and health care in Nigeria, particular criticisms of the Nigerian police force. The applicants/appellants could perhaps be arrested; though this threat remained unspecific and the reasons for it baffling. This is not a case where Article 3 of the Convention, concerning the prohibition of torture or inhuman or degrading treatment or punishment, would be engaged. Nor is it a case where a child would be left without a primary carer. No rights to medical assistance or to education are asserted here. Pleading such rights, in any event, does not, save in exceptional cases, engage Article 8.1 in such a way as to overbalance the entitlements of the State to form an immigration policy under Article 8.2 of the Convention; Agbonlahor v Minister for Justice, Equality and Law Reform [2007] 4 IR 309 and CN v United Kingdom [2005] 2 AC 296. In Nnyanzi v United Kingdom (No. 21878/06), judgment of 8th July, 2008, the European Court of Human Rights broadly indicated the relevant principles to be taken into account when considering a deportation order or, it follows, the revision of a deportation order. These principles are stated at paragraphs 72-75 of the judgment as follows:
The Convention does not guarantee the right of an alien to enter or to reside in a particular country. However, the removal of a person from a country where close members of his family are living may amount to an infringement of the right to respect for family life as guaranteed in Article 8 § 1 of the Convention (see Moustaquim v. Belgium, judgment of 18 February 1991, Series A no. 193, p. 18, § 36). The Court has also recognised that, regardless of the existence or otherwise of “family life”, and depending on the circumstances of a particular case, such removal may also give rise to an infringement of an applicant’s right to respect for his private life (see Üner v. the Netherlands [GC], no. 46410/99, ECHR 2006-, § 59).
The Court also reiterates its finding in Bensaid v. the United Kingdom (no. 44599/98, judgment of 6 February 2001 at § 46) that “not every act or measure which adversely affects moral or physical integrity will interfere with the right to respect to private life guaranteed by Article 8.
However, the Court’s case-law does not exclude that treatment which does not reach the severity of Article 3 treatment may nonetheless breach Article 8 in its private-life aspect where there are sufficiently adverse effects on physical and moral integrity (see Costello-Roberts v. the United Kingdom, judgment of 25 March 1993, Series A no. 247-C, pp. 60-61, § 36).
Any interference with Article 8 rights will infringe the Convention if it does not meet the requirements of paragraph 2 of Article 8. It is therefore necessary to determine whether the interference was “in accordance with the law”, motivated by one or more of the legitimate aims set out in that paragraph, and “necessary in a democratic society.
40. While it is not a principle of law, as such, it is to be noted, fifthly, that the European Court of Human Rights has considered that children of the general age of six or under are adaptable to new beginnings; Üner v The Netherlands (No.46410/99), judgment of 18th October, 2006. Many might comment that this accords with our national experience in Ireland when so many families with young children have been forced, due to the economic crash from 2008, to seek a life outside Ireland together with their parents. In a prior generation, many fathers emigrated and supported their families from outside these shores.
41. There is no evidence that the official of the respondent Minister in dealing with this case came to a conclusion which was adverse to any of these principles or observations. The trial judge’s analysis of these factors is set out at paragraphs 28 and 29 of his judgment as follows:
Both aspects of Article 8(1) were considered, though no representations had been submitted on the behalf of the applicants at that time. It was noted that the second named applicant had entered the education system in the state. The first named applicant was married to a Nigerian husband who continued to reside in Nigeria. They had no other family connections in the state. In the consideration of [the] file prior to the s. 3(11) decision, these rights were reconsidered. A number of character references were noted and quoted in respect of the first named applicant. Her involvement in the community and participation in a number of educational and vocational courses were considered. Educational reports were received in respect of the second named applicant and his mother’s involvement with the local national pre-school. It was concluded that a decision to deport the applicants did not constitute a breach of their right to respect for private or family life under Article 8. The consideration notes that the first named applicant stated during her asylum interview that she was still in contact with her husband who was living in Nigeria. Though the second named applicant was not an Irish citizen, he was entitled to Nigerian citizenship as both his parents were Nigerian. The first named applicant’s immediate family, including her parents and three siblings, were currently living in Nigeria […] While the second named applicant has commenced school, he is still very young and his immediate and extended family reside in Nigeria. The determination, in those circumstances, that the deportation would not have consequences of such gravity as to amount to a failure to respect the right to private or family life was entirely reasonable. The benefits which the applicants may derive from continuing residence in the state, and in particular, the social and educational benefit to the second named applicant, do not amount to such exceptional circumstances as would entitle them to remain in Ireland.
41. No argument has been advanced which could lead to the conclusion that this analysis is incorrect. Specifically, the relevant principles herein identified were fully appreciated by the trial judge and were correctly applied. It follows from the rejection of the substantive case that no arguable case sufficient for the grant of an interlocutory injunction has been made out.
Application of injunction principles
42. Over the two hearings in this case, the Court has been asked, in addition to ruling on whether there is any substance to the case correctly analysed by McDermott J, to indicate what would have been the decision had the Court merely been dealing with an application for an interlocutory injunction. That request was reasonable since the substance of the entire case was by the agreement of the parties to be considered. The principles in that regard have already been stated. On the injunction application, it is to be noted that in this case the deportation order of the 9th May, 2012, has not been the subject order of any judicial review application before the High Court. That deportation order, therefore, remains valid. In addition, the challenge to the decision not to revoke the deportation order pursuant to section 3(11) of the Act of 1999, has been dismissed after a full hearing in the High Court. Therefore, on the injunction application, the observations of McCracken J in this Court in LC v Minister for Justice Equality and Law Reform [2007] 2 IR 133 at page 155, become equally applicable:
In this case the “decision being appealed from” is a decision of the respondent made under s. 3(11) not to revoke a deportation order against the applicant. There is no appeal and can be no appeal from the decision of the High Court Judge refusing relief in relation to the deportation order itself. It has been held by the High Court that the deportation order is valid, and that finding cannot be challenged before this court. If the court were to grant an injunction such as is being sought by the applicant, the effect would be to thwart the operation of the perfectly valid deportation order and would, at least to some degree, prevent the operation of a perfectly valid and unappealable High Court order.
There might indeed be circumstances, although it is hard to envisage them, where the Supreme Court might exercise its inherent jurisdiction to grant an injunction which could have this effect, for example it might conceivably be exercised when a previously unknown fact comes to light, being a fact which was unknown at the time of making of the deportation order, and which is one of such gravity as might stay implementation of the deportation order. No such case has been made out before us.
43. No new facts have come to light which might be regarded as altering either the circumstances of the applicants/appellants since the date of the deportation order of the 9th May, 2012 and nor has any additional country of origin information cast doubt on the validity of that decision. In those circumstances, this case comes within paragraph 104(a) of the judgment of Clarke J in Okunade v Minister for Justice [2012] 3 IR 152: no arguable case has been made out for the grant of an injunction pending the hearing of this appeal. In consequence, had this been an injunction hearing only, on the grounds stated herein, no reasonably arguable case for injuncting the deportation of the applicants/appellants would have been shown.
Application for a reference and costs thrown away
44. In addition, the applicants/appellants requested, and then withdrew after argument on the appeal, a reference to the Court of Justice of the European Union for a preliminary ruling, or for reply by reasoned order by way of Article 99 of the Rules of the European Court of Justice, or clarification under Article 101 of the Rules of the European Court of Justice, pursuant to Article 267 of the Treaty on the Functioning of the European Union. The withdrawal of that point nonetheless necessitated the need to plead to it in the sense of providing written submissions on behalf of the respondent Minister. Costs thrown away are sought by the respondent Minister. The matter can be dealt with concisely. This request, as noted above, was made during the hearing of this appeal and without warning either to the Court or to the respondents. The point raised is that, in contrast to Article 8 of the Convention, pursuant to Article 7 of the Charter of Fundamental Rights of the European Union an absolute and unqualified right is given to respect for family life and that this is not qualified by any entitlement of Member States to interfere with that right for reasons of security or to protect the freedoms of others. The argument being that once a right to family life arises, the immigration policy of the State for migrants becomes irrelevant and certainly cannot override that right. Article 8 of the Convention is quoted above. Here the argument is made that Article 8.1 has no equivalent to Article 8.2 when Article 7 of the Charter is construed. As a text, Article 7 of the Charter simply guarantees to everyone “the right to respect for his or her private and family life, home and communications.”
45. It is important to point out in terms of the correct order as to costs, first of all, that no claim under Article 7 of the Charter was ever made in these proceedings up to the point where it was orally raised on this appeal. It is not a ground relied upon in the statement to ground the application for judicial review, nor is it in the originating notice of motion and nor is it one of the grounds of appeal. There is, secondly, no application to enlarge the grounds, and such an application might be granted only in the most extraordinary circumstances at this stage of the proceedings. Article 51 of the Charter makes it clear that it is addressed “to the institutions and bodies of the Union” but only “when they are implementing Union law.” Furthermore, the text of Article 51.2 baldly states that it “does not establish any new power or task for the community or the Union, or modify powers and tasks defined by the Treaties.” Deportation is a function that is subject to the European Convention on Human Rights in decisions on that process and in its implementation; Lofinmakin v Minister for Justice, Equality and Law Reform [2011] IEHC 38 and see Smith v Minister for Justice, Equality and Law Reform [2012] IEHC 113 at paragraph 24 and case C-256/2011 Dereci and Others v Bundesministerium für Inneres.
46. While strong advocacy is to be admired, floating points that dissolve on first consideration is a misuse of court time and of the costs necessary in answering it. This point, however, was clearly not made in bad faith. It was, it must be noted, a completely unnecessary diversion from the core issues in the case. The application for a reference was of such lack of merit that the necessary response, as a matter of simple fairness, is that such costs as have been expended by the respondent Minister were thrown away by the applicants/appellants and should be ordered to be paid by their solicitors. In the event, in an admirably restrained submission the respondent Minister has properly only sought the costs of the written submissions necessary to answer this point. These will be ordered as against the applicants/appellants’ solicitors.
Result
47. In the result, there is no basis, the High Court having decided this issue, whereby injunctive relief might be granted pending the hearing of an appeal to the Supreme Court. The situation of a non-citizen child with non-citizen parents who has lived all of his life in Ireland and become habituated to Irish ways over nearly 9 years can translate into adaptation to another country. In this case, no legal rights are involved. Humanitarian considerations may, in some extreme cases, suggest that while it is right for the State to control its borders, particular discretion is required by the implementing authorities where such children are involved. As a matter of humanity, but not as a matter of law, it is for the respondent Minister to ask herself how she feels it appropriate to consider this matter in the exercise of her discretion. In terms of law, on the substantive analysis of the case, it must clearly be stated that the Minister was clearly entitled to affirm the deportation order.
48. The appeal is therefore dismissed.
