HK and Others v Minister for Justice, Equality and Law Reform

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Respondent/Defendant:Minister for Justice, Equality and Law Reform
Court/s:High Court
Citation/s:[2014] IEHC 506
Nature of Proceedings:Judicial Review
Judgment Date/s:01 Oct 2014
Judge:Barr J.
Category:Refugee Law
Keywords:Deportation, Minor, Refugee
Country of Origin:Nigeria
URL:https://www.courts.ie/acc/alfresco/51382d0d-eb76-4d09-997c-e1e401c0d88e/2014_IEHC_506_1.pdf/pdf#view=fitH
Geographic Focus:Ireland
Facts:
The first named applicant was a 40 year old mother of the second, third, fifth and sixth named applicants and the stepmother of the fourth named applicant. They were all Nigerian nationals. Her youngest child, A.K., was born in Ireland on the 2nd May, 2006. The applicants sought to quash decisions of the Minister for Justice refusing to revoke deportation orders made against them.
Before deportation orders had been made against them, the applicants had submitted leave to remain applications, in which the mother contended that one of her children had been subjected to female genital mutilation (“FGM”). She had not specified the child in question. The Minister took this into account and consulted country of origin information on the matter of FGM in Nigeria when assessing their applications.
Their then solicitors submitted a request for revocation of the deportation orders in respect of the applicants, which was based upon, inter alia, evidence of the circumcision of N.K., the fifth named applicant in the form of confirmation from Irish-based medical practitioners that there was evidence of grade 1 circumcision in respect of her.
The Minister decided to affirm the deportation orders, noting that, when deportation orders were being made, regard had been had to country of origin information in relation to FGM, despite not knowing which of the children had allegedly undergone FGM.
The applicants sought to impugn the making and affirmation of the deportation orders. They claimed that, in considering the question of revocation of the deportation orders, the Minster had failed to have regard to the specific documentation which had been presented in relation to the FGM carried out on the fifth named applicant. The Minister, on the other hand, argued that the applicants could not challenge the validity of the orders because they were out of time to do so and, by seeking revocation of them, they had acknowledged that they had been lawfully made. The Minister also pointed to the fact that the incidence of FGM had decreased in Nigeria and that the possibility of exposure to FGM had been addressed before the deportation orders were made and also been noted when deciding whether or not to revoke them.
Reasoning:
The court upheld the Minister’s objection to the applicants’ attempts to set aside the deportation orders. It noted that the orders had been communicated to them in September, 2010 and that the proceedings had issued in January, 2011. No explanation had been forthcoming as to why the orders had not been challenged within the 14 day statutory time-limit and, on that basis, they could not challenge them. Additionally, it held that the applicants were estopped by their conduct from challenging the orders. They had treated them as valid when they sought revocation of them and could not now seek to claim that they were invalid.
The court decided to quash the affirmation of the orders. It held that new and very significant documents relating to the circumcision of the fifth named applicant had been produced, which had not been before the Minister when the orders were being made. They established as a fact that the fifth named applicant had been subjected to FGM. It considered that, in the light of that, the relevance of general country of origin information on FGM was lessened considerably, particularly that showing that the numbers undergoing FGM were decreasing and that Nigeria had become a signatory to the UN Convention on the Rights of the Child.
In the circumstances, it was not sufficient to refer back to the original decision to make deportation orders, which was made in the absence of such medical evidence.
Decision
The court quashed the Minister’s decision.

Facts:
The first named applicant was a 40 year old mother of the second, third, fifth and sixth named applicants and the stepmother of the fourth named applicant. They were all Nigerian nationals. Her youngest child, A.K., was born in Ireland on the 2nd May, 2006. The applicants sought to quash decisions of the Minister for Justice refusing to revoke deportation orders made against them.

Before deportation orders had been made against them, the applicants had submitted leave to remain applications, in which the mother contended that one of her children had been subjected to female genital mutilation (“FGM”). She had not specified the child in question. The Minister took this into account and consulted country of origin information on the matter of FGM in Nigeria when assessing their applications.

Their then solicitors submitted a request for revocation of the deportation orders in respect of the applicants, which was based upon, inter alia, evidence of the circumcision of N.K., the fifth named applicant in the form of confirmation from Irish-based medical practitioners that there was evidence of grade 1 circumcision in respect of her.

The Minister decided to affirm the deportation orders, noting that, when deportation orders were being made, regard had been had to country of origin information in relation to FGM, despite not knowing which of the children had allegedly undergone FGM.

The applicants sought to impugn the making and affirmation of the deportation orders. They claimed that, in considering the question of revocation of the deportation orders, the Minster had failed to have regard to the specific documentation which had been presented in relation to the FGM carried out on the fifth named applicant. The Minister, on the other hand, argued that the applicants could not challenge the validity of the orders because they were out of time to do so and, by seeking revocation of them, they had acknowledged that they had been lawfully made. The Minister also pointed to the fact that the incidence of FGM had decreased in Nigeria and that the possibility of exposure to FGM had been addressed before the deportation orders were made and also been noted when deciding whether or not to revoke them.

Reasoning:

The court upheld the Minister’s objection to the applicants’ attempts to set aside the deportation orders. It noted that the orders had been communicated to them in September, 2010 and that the proceedings had issued in January, 2011. No explanation had been forthcoming as to why the orders had not been challenged within the 14 day statutory time-limit and, on that basis, they could not challenge them. Additionally, it held that the applicants were estopped by their conduct from challenging the orders. They had treated them as valid when they sought revocation of them and could not now seek to claim that they were invalid.

The court decided to quash the affirmation of the orders. It held that new and very significant documents relating to the circumcision of the fifth named applicant had been produced, which had not been before the Minister when the orders were being made. They established as a fact that the fifth named applicant had been subjected to FGM. It considered that, in the light of that, the relevance of general country of origin information on FGM was lessened considerably, particularly that showing that the numbers undergoing FGM were decreasing and that Nigeria had become a signatory to the UN Convention on the Rights of the Child.

In the circumstances, it was not sufficient to refer back to the original decision to make deportation orders, which was made in the absence of such medical evidence.

Decision:

The court quashed the Minister’s decision.

Principles:

Where new evidence is submitted to the Minister for Justice in support of a request for revocation of deportation orders from a family under s. 3(11) of the Immigration Act 1999, showing that a member of that family has been subject to FGM, the Minister is obliged to give consideration to the question of whether affirming the orders will breach the prohibition on refoulement and analogous obligations on him or her. He or she will not be entitled to affirm the orders simply on the basis of the fact that the analysis leading to the making of them had had regard to country of origin information showing inter alia that FGM was decreasing, bearing in mind that such evidence was not before him or her at that time and the need to assess whether or not the infliction of FGM on one family member might detract from the weight that would normally be attached to such country of origin information.

The subjects of deportation orders are estopped by their conduct from challenging the orders by way of judicial review if they seek revocation of them, thereby acknowledging their validity.

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