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PO and Another v Minister for Justice and Equality and Others

Respondent/Defendant: Minister for Justice and Equality, Ireland and Attorney General
Citation/s: [2015] IESC 64
Nature of Proceedings: Appeal
Judicial Review
Court/s: Supreme Court
Judgment Date/s: 16 July 2015
Judge: MacMenamin, Laffoy and Charleton JJ.
Category:Deportation
Keywords:Child; Country of Origin Information; Deportation Order; Minor; Family; Revocation
Country of Origin: Nigeria
URL: http://courts.ie/Judgments.nsf/0/95BC8300D8C6B4E580257E88005D604E
Geographical Focus:Ireland

Facts:
The appellants were a mother and her nine year old son. Both of them were Nigerian nationals, although the son had been born in Ireland. They both applied unsuccessfully for refugee status, after which proposals to make deportation orders issued to them. They did not make representations for leave to remain and the Minister for Justice decided to make deportation orders against them. Their legal representatives then made lengthy submissions seeking revocation of the said orders. Around ten per cent of the submissions related to the appellants, the remainder to conditions in Nigeria. They reiterated the assertions contained in the appellants’ unsuccessful asylum application and referred to their integration into their community in the State. The Minister for Justice affirmed the order.

The appellants then unsuccessfully sought judicial review of that decision before the High Court (McDermott J.) and appealed his decision to the Supreme Court. They also sought an interlocutory injunction pending the determination of the appeal. Both the injunction and the substantive appeal were decided by the Supreme Court simultaneously because of the manner in which the case proceeded.

When the appellants sought an injunction, the matter was adjourned to a future date for hearing. On that date, they then applied without having given any notice for the Supreme Court to make a preliminary reference to the Court of Justice of the European Union (CJEU) pursuant to Article 267 TFEU, but they subsequently withdrew it. The court acceded to the Minister’s application to hear both the injunction and the substantive appeal together.

Insofar as the injunction application was concerned, the appellants made three arguments: first, that the Minister had breached fair procedures in the manner in which he assessed country of origin information by preferring information sourced by him over that submitted by the appellants; secondly, that his analysis was defective and he had not disclosed his policy on the position of Nigerian children who had been born and raised in Ireland; and, thirdly, that he had erred in his assessment of the European Convention on Human Rights (ECHR) and, in particular, the appellants rights under article 8 thereof.

The Supreme Court rejected the arguments and dismissed the appeal.

Reasoning:
First, it upheld the High Court’s finding that the Minister was entitled to source country of origin information when assessing the revocation request. Insofar as fair procedures were concerned, it held that, in the circumstances of the case, there was no need to put the information in question to the appellants for comment before making the decision. It was publicly available and did not alter the scope and nature of the inquiry being carried out by the Minister, relating to the efficacy of the police in Nigeria. The Minister was entitled to prefer the information sourced by him, the information relied upon by the appellants being old and failing to take account of recent reforms in Nigeria with regard inter alia to the police. There had not been any change to the substance of the appellants’ case and there had been no material change to the country information in relation to any of the contentions made by them. There was no fundamental error in his analysis as would have led to its being overturned.

Secondly, the court rejected the appellants’ claim that the Minister should have had guidelines and disclosed them to any non Irish-national seeking leave to remain in Ireland. They contended that they should 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 ECHR. The court noted that there were no such guidelines. It considered that the High Court had correctly characterised the Minister’s obligation in deciding whether or not to revoke a deportation order as being discretionary and to be exercised in accordance with general principles of law, and that his analysis accorded with the principles set down by the Supreme Court in TC v Minister for Justice [2005] 4 IR 109. The lack of guidelines did not compromise the right of the appellants to be heard in relation to their revocation request. The Minister had to focus on the circumstances of each individual case in the light of the representations made. The absence of guidelines or policy did not vitiate  his decision, the nature of which had to be understood in the context of an overall consideration of the statutory scheme, the relationship between s. 3(1) and (11) of the Act of 1999, and previous decisions taken in the asylum process. There was no obligation on the Minister to initiate any new investigation or enquiry where the substance of an application to revoke a deportation order had already been made and rejected in the context of representations that a person should not be deported. In genuinely exceptional circumstances, a change in personal circumstances might also enable a reconsideration to be made of a decision to make a deportation order in respect of a person.

Thirdly, the court rejected the contention that the Minister had disregarded their article 8 ECHR rights for a number of reasons:

  1. the State was entitled to control entry to its territory and non-nationals could not assert a choice of residence on its territory absent national permission;
  2. non-nationals who created uncertainty as to their status within a Contracting State, by claiming asylum rights that were unfounded, could not rely on mere presence to invoke rights under article 8 ECHR;
  3. in considering the interaction of the two paragraphs of article 8 ECHR, a wide margin of appreciation was afforded to decision-makers in deciding whether or not to deport non Irishnationals. It held that the oft-claimed separate rights of children were, save for extraordinary circumstances, dependent upon the approach of the parent who made claims on those children’s behalf;
  4. particular, and quite extreme, circumstances were required before rights protection under article 3 ECHR could be invoked. The request for revocation touched on many aspects of Nigerian society applicable to every person from that country, including claims about education and health care, and criticisms of the Nigerian police force, though any threat from that quarter was unspecified. Article 3 ECHR was not engaged, nor was it alleged that the child would be left without a primary carer, nor were any rights to medical assistance or education asserted. In any event, pleading such rights did not, save in exceptional cases, engage article 8.1 ECHR in such a way as to outweigh the entitlements of the State to form an immigration policy under article 8.2 ECHR; and
  5. under ECHR jurisprudence, children under the age of six were considered of an adaptable age. It held that the child in the instant case could do so too: apart from his mother, both his immediate and extended family lived in Nigeria. Deportation therefore would not rupture family life and there were no insurmountable obstacles to the appellants living in Nigeria.

Accordingly, no arguable case for an injunction was made out and, had the court been deciding whether or not to grant an injunction as opposed to hearing the substantive appeal, it followed that no injunction would have been granted. The deportation order was valid and unchallenged. It was necessary that it be enforced in the public interest.

The court ordered the appellants’ solicitors to pay the costs of the Minister’s submissions associated with their abandoned attempt to have the Supreme Court refer a question to the CJEU.

Decision:
The Supreme Court dismissed the appellants’ appeal.

Principles:

The Minister for Justice is entitled to source country of origin information when assessing a request to revoke a deportation order and does not necessarily have to bring it to the applicant’s attention, e.g. where it is in the public domain.

The Minister does not need to prepare guidelines for dealing with revocation requests from non-nationals born in Ireland. Each case should be assessed on its own merits.

Non Irish nationals who create uncertainty as to their status within a Contracting State, by claiming asylum rights that are unfounded, cannot rely on mere presence to invoke rights under article 8 ECHR. When considering the interaction of the two paragraphs of article 8 ECHR, a wide margin of appreciation is afforded to decision-makers in deciding whether or not to deport non Irish-nationals. The rights of children are, save for extraordinary circumstances, dependent upon the approach of the parent who made claims on those children’s behalf.


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Key European case law

A Member State is obliged to examine an asylum application if transfer would expose the applicant to a serious risk of a violation of fundamental rights

Court of Justice of the EU ruling on the transfer of asylum seekers under the EU Dublin Regulation Cases C-411/10 and C-493/10 M.E.


McCarthy: Rights of EU citizens to regularise the residence of their non-EU spouse

Court of Justice of the EU judgment in the case of McCarthy v Secretary of State for the Home Department (in UK).


Zambrano: Rights of non-EU parents of a child with European citizenship to live in the EU

Court of Justice of the EU judgment in the case of Zambrano v Office national de l’emploi (in Belgium).

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