The Applicants were a family of Nigerian origin. Mr and Ms Asibor were Nigerian citizens, as was their youngest daughter. Ms Asibor had come to Ireland in 2003 and given birth to a daughter who was an Irish citizen. Mr Asibor had arrived three years later. Ms Asibor was granted leave to remain in the State under the IBC05 scheme, but Mr Asibor was not. A decision to deport him was made by the Minister, and the Applicants brought judicial review proceedings to quash the deportation order.
The Applicants sought to quash the Minister’s decision to deport Mr Asibor on the basis that his deportation would violate the family’s rights under Article 41 of the Constitution and Article 8 of the ECHR. They submitted that in asking whether there were any ‘insurmountable obstacles’ to the family moving with the father to Nigeria rather than asking whether such a move would be reasonable, the Minister applied the wrong test. They further argued that the Minister’s examination of the file did not accord with the guidelines set down by the Supreme Court in Oguekwe v Minister for Justice, Equality and Law in that the Minister failed to identify a sufficient reason which required the deportation and that he failed to reach a reasonable and proportionate decision. The Applicants obtained leave to apply for judicial review.
In its judgment on the substantive application, the High Court noted that the deportation of the parent of Irish citizen child will be lawful, even if the effect is that the child has to follow, once the Minister has considered all relevant factors and has identified a substantial reason for the deportation. The Court considered the decision in Oguekwe and European and British case-law and concluded that there is no material difference between the test of ‘insurmountable obstacles’ and the test of ‘reasonableness.’ The Court held that the Minister had approached his analysis of proportionality in a manner consistent with both the jurisprudence of the European Court of Human Rights and the jurisprudence of the Supreme Court and the UK House of Lords. Regard had been had to the young age of the Irish citizen children, their parallel entitlement to Nigerian citizenship, and the degree to which they might be considered to have integrated into their local communities. The Court was satisfied that the Minister took full account of the circumstances of the Asibor family insofar as those circumstances were known to him, that he acted in accordance with law when he asked whether there were any insurmountable obstacles to the family following Mr Asibor to Nigeria, and that it was reasonable for the Minister to find that there were no insurmountable obstacles to the family being able to continue family life in Nigeria. The Court was satisfied that the Minister had fully complied with the requirements set out in Oguekwe and having conducted a fact-specific analysis, had identified a substantial reason associated with the common good – the integrity of the immigration system – which required the deportation of Mr Asibor.
The Court was further satisfied that the Minister had had due regard to the various competing interests of the rights of the family and the State’s right and obligations and had weighed and balanced those interests against one another. The Court was also satisfied that the Minister had reached a reasonable conclusion, bearing in mind that the rights of the Applicants which, though of considerable importance, were not absolute and could be outweighed. For these reasons, the High Court refused judicial review.