Facts:
The applicants were citizens of Nigeria. The first applicant was the mother of the second, third and fourth named applicants. She applied unsuccessfully for asylum in Ireland in 2005, including the second and third applicants in her claim. Deportation orders were subsequently made against them by the Minister for Justice. The fourth applicant was born in the State. Application for asylum was also made unsuccessfully on her behalf and culminated in the making of a deportation order against her too. The first applicant applied for revocation of the deportation orders made in respect of her and the second and third applicants. The orders were affirmed, the Minister taking the view that whilst deportation might potentially interfere with their right to respect for their private life under article 8 of the European Convention on Human Rights (ECHR), it would not have consequences of such gravity as to engage the operation of that article. He took the same view when making a deportation order against the fourth applicant.
The applicants challenged by way of judicial review the Minister’s decisions to affirm the deportation orders against the first, second and third applicants and to make a deportation order against the fourth applicant. The High Court quashed the decisions, holding that the Minister’s assessment of the impact of deportation on the applicants’ article 8 ECHR rights was defective. The Minister and the other appellants appealed to the Court of Appeal, which allowed the appeal.
Reasoning:
The net issue on the appeal was whether or not the High Court was correct in determining that the Minister had erred in deciding that making / affirming the deportation orders against the applicants would not engage their right to respect for their private life under article 8 ECHR because of the lack of consequences of sufficient gravity for them.
The Court of Appeal noted that although article 8 ECHR was not part of the domestic law of the State, the Minister and her officials were required by s. 3(1) of the ECHR Act 2003 to perform their functions in a manner compatible with the State’s obligations under the ECHR, and that s. 4 of the Act of 2003 required the court, in interpreting and applying the ECHR, to take due account of the principles laid down in the judgments of the European Court of Human Rights (ECtHR). Accordingly, it noted that those judgments were important in deciding the extent of the State’s obligations under the ECHR.
The judgments of the ECtHR supported an approach of, first, identifying a potential interference with a right to respect for private life within the meaning of article 8 ECHR, and then considering, secondly, whether the proposed deportation would have consequences of such gravity for the individual as to engage the operation of article 8.1 ECHR.
The Court of Appeal held that the Minister had correctly approached consideration of the applicants’ claims by adopting the position that the proposed deportation potentially constituted an interference with the right to private life within the meaning of Article 8. It did not accept the High Court’s view that the Minister had accepted that the applicants had established a private life in the State which was protected by article 8 ECHR.
Turning to the second part of the test, the Court of Appeal held that the High Court had erred in deciding that the relevant consequence of deportation to be examined for the purpose of determining whether the interference by deportation would have consequences of such gravity as to engage the operation of article 8 ECHR, was the ending of the applicants’ private life in the State, in the sense of their existing social and educational ties. It held that the caselaw of the ECtHR required the Minister and, on review, the court, to consider the gravity for an individual of the consequences of deportation, including the ending of his or her social and educational ties or relationships and, in particular, how it affected his or her moral or physical integrity. Something more than a technical or inconsequential interference was required. This would depend on the individual facts and circumstances of a given case.
The Court of Appeal concluded that, in considering the gravity of the consequences of deportation on the right to respect for private life of an individual who had never been permitted to reside in the host State, save pending a decision on an asylum claim, it was permissible to take into account that it was a private life consisting of relationships, including educational and social ties, which had been formed at a time when the right of the individual to remain in the State was precarious. It held that, in accordance with the judgments of the ECtHR, it would require wholly exceptional circumstances to engage the operation of article 8 ECHR in relation to a proposal to deport, which followed from the fact that any consideration of the gravity of the consequences of deportation had to be in the context of the long-standing principles stated by the ECtHR, namely that article 8 ECHR did not place a general obligation on a Contracting State of respecting a non-national’s choice of residence on its territory. In order to engage article 8 ECHR, the gravity of the consequences for an illegal immigrant or for his or her physical or moral integrity had to be above the normal consequences of the impact of enforcement of immigration law, including deportation.
Decision:
The Court of Appeal allowed the appellants’ appeal.
