JS and Others v Minister for Justice and Equality and the Attorney General

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Respondent/Defendant:Minister for Justice and Equality and the Attorney General
Court/s:High Court
Citation/s:[2014] IEHC 195
Nature of Proceedings:Judicial Review
Judgment Date/s:28 Mar 2014
Judge:McDermott J.
Category:Deportation
Keywords:Charter of Fundamental Rights of the European Union, Citizenship, Deportation, Deportation Order, European Convention on Human Rights (ECHR), Family Life (Right to)
Country of Origin:Nigeria
URL:https://www.courts.ie/acc/alfresco/abd9353b-9eca-4e2e-b525-78ab8527c1f5/2014_IEHC_195_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts:
The second applicant, M.A., was a Nigerian national who entered Ireland lawfully on the 17th December, 2002, having been given permission to do so. He failed to comply with the conditions of his permission to work and claimed social welfare. He also committed a series of criminal offences. His application for renewal of his permission was refused in 2004.

In 2004, he met the first applicant, J.S., and formed a relationship, which resulted in the birth of three children, who were Irish and European Union citizens. He was convicted of numerous offences between 2000 and 2008, including theft, dishonesty and drugs offences. He spent time in prison on foot of many of the convictions.

A deportation order was made in respect of him by the Minister for Justice in 2009, following consideration of representations made pursuant to s. 3 of the Immigration Act 1999. He applied to the Minister for revocation of the order in May, 2009 and the order was affirmed in January, 2010. In April, 2011, a second revocation application was made, relying on the decision of the Court of Justice of the European Union in C-34/09 Zambrano, the first and second applicants’ respective medical conditions, and the welfare of their children. That application was refused and the deportation order was affirmed in March, 2012. The applicants challenged that decision by way of judicial review. They never challenged the deportation order or the refusal of the first revocation application.

Leave was granted by the High Court (Cooke J.) to challenge the refusal of the second revocation application on the following grounds:-

  1. The Minister erred in law in applying the principles of the Zambrano case to the personal and family circumstances of the applicants;
  2. The Minister erred in law in construing and applying to the personal and family circumstances of the applicants the protections afforded to them by Articles 40.3, 41 and 42 of the Constitution and articles 3 and 8 ECHR;
  3. The conclusions reached and the reasons given for them in refusing to revoke the deportation order were unreasonable and disproportionate to the permanent impact of the order on the personal and family circumstances of the applicants.

The court upheld the validity of the decision.

Reasoning:
At the post-leave stage, the court began its assessment of the first ground by reviewing the decision of the CJEU in Zambrano and subsequent decisions, including C-256/11 Dereci, C-356, 357/11 O, S and L, C-40/11 Iida, C-87/12 Ymeraga. It noted that, in the light of those cases, the applicants had accepted that the derivation of a right of residence for a third country national from the rights of EU citizen children who had not exercised a right of free movement would be the exception rather than the rule. It noted that the applicants submitted that J.S.’s ill health gave rise to the basis for an exception to be applied to them, she being unlikely to bring the couple’s children to Nigeria on that account. However, it held that the children would not be obliged for any reason to leave the State or the territory of the European Union. The health issue in those circumstances fell to be determined in accordance with the provisions of Article 40.3 of the Constitution and articles 3 and 8 ECHR. It concluded that the Minister had not erred in law in refusing to accord them so-called Zambrano rights in the circumstances.

The applicants contended that Article 7 (right to respect for private and family life) and Article 24 (best interests of children a primary consideration in actions concerning children) of the Charter of Fundamental Rights were not properly considered in refusing the application, bearing in mind that the children were EU citizens.

The court rejected this. It noted that Article 51 of the Charter provided that its provisions were addressed to the institutions, bodies, office and agencies of the Union with due regard for subsidiarity and “to the Member States only when they are implementing Union law”. It further noted that Article 52(3) also provided that insofar as rights in the Charter corresponded to rights guaranteed by the ECHR, the meaning and scope of those rights shall be the same as those laid down by the ECHR. It held that the provisions of s. 3(1) and 3(11) of the Act of 1999 were part of domestic legislation concerned with the implementation of immigration policy, and that Article 7 of the Charter had no application to the applicants. It noted that the citizen applicants had not been denied the substantive enjoyment of their EU citizen rights. It also held that the right to family life fell to be considered under article 8 ECHR, and involved the same considerations as those applicable under Article 7 of the Charter. It was therefore satisfied that the principles of EU law were properly considered and applied to the personal and family circumstances of the applicants.

The court then went on to consider the second and third grounds, noting that they related primarily to the additional evidence in the application concerning allegedly new facts and circumstances based on the medical evidence furnished at that time. In particular, it had been alleged that MA would die due to his illness if deported.

The court upheld as reasonable and rational the Minister’s finding in refusing the revocation application that there were no exceptional circumstances as would warrant not deporting MA. The reports before the Minister did not indicate a threat to his life or anything remotely close to the exceptional circumstances required to establish that deporting him would breach article 3 ECHR. Indeed, they indicated that he would be able to avail of treatment in Nigeria for both of the conditions from which he suffered.

The court also upheld as reasonable and rational the conclusion that deporting M.A. in pursuance of immigration controls did not constitute a breach of his right to respect for his private life under article 8 ECHR. It noted that further information had also been submitted from his solicitor to the effect that he had committed a further six theft offences between August and September, 2009 and that he had demonstrated that he had a propensity to re-offend which gave rise to a compelling public interest in his deportation.

Turning to the question of family life, the court rejected the applicants’ contention that the introduction of new evidence of M.A.’s medical condition should have resulted in an overall reassessment of their rights under Article 40.3 of the Constitution and article 8 ECHR. It held that no new facts had arisen since the previous consideration relevant to their family life. It held that any failure to consider aspects of their family life rights afresh was not unlawful, having regard to the extensive consideration of their family rights in previous decisions and the absence of any additional evidence relevant to the consideration and balancing of those rights with the rights and interest of the State and the proportionality of the decision.

Decision:

In the light of the above, the court upheld the legality of the Minister’s refusal of the second revocation application.

Principles:

A non-national in respect of whom a deportation order is made will not obtain a derivative right to remain in the State on the basis of the Treaty on the Functioning of the European Union and the decision of the Court of Justice of the European Union in  C-34/09 Zambrano by virtue of being the parent of Irish and, hence, EU citizen children, if his deportation will not oblige them to leave the State or the territory of the European Union.

Having regard to Article 51 of the Charter of Fundamental Rights, Article 7 (right to respect for private and family life) and Article 24 (best interests of children a primary consideration in actions concerning children), will not impinge on the power of the State to deport a non-national parent of Irish citizen children because that power is not part of the implementation of Union law.

Deportation of a non-national who has a medical condition will not breach article 3 ECHR in the absence of exceptional circumstances, such as a threat to life, and particularly where treatment for the condition is available in his or her country of origin.

The extent of the obligation on the Minister for Justice to consider aspects of a proposed deportee’s family life in the course of an application for revocation of the deportation order existing in respect of him or her will vary depending on the extent to which such matters have been considered in making the deportation order and in determining any previous application for revocation.

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