OI and Another v Refugee Appeals Tribunal and Others

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Respondent/Defendant:Refugee Appeals Tribunal, Minister for Justice, Equality and Law Reform, Ireland and the Attorney General
Court/s:High Court
Citation/s:[2015] IEHC 408
Nature of Proceedings:Judicial Review
Judgment Date/s:17 Jun 2015
Judge:MacEochaidh J.
Category:Deportation
Keywords:Deportation, Minor
Country of Origin:Nigeria
URL:https://www.courts.ie/acc/alfresco/36757c1c-10b1-4cf6-97e7-a1a9d34d462d/2015_IEHC_408_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts:
The applicants were a Nigerian mother and her young daughter who claimed asylum on the ground of a fear of persecution by the militant group MEND (“Movement for the Emancipation of the Niger Delta”). The mother claimed that her former boyfriend (who was allegedly involved with the group) had been killed by them, and that they now pursued her as they believed she knew the group’s secrets. She claimed that she did not seek police protection as they were working with MEND, and that she did not move elsewhere in Nigeria as the group was everywhere. She claimed that she feared the group would use her daughter as a human sacrifice as they knew she was pregnant before she left Nigeria.

Having investigated their application, the Refugee Applications Commissioner made a negative recommendation on it, which she unsuccessfully appealed to the Refugee Appeals Tribunal. Thereafter their applications for subsidiary protection and leave to remain were also refused by the Minister for Justice, and deportation orders were issued against them. They challenged the validity of the deportation orders in the proceedings.

They impugned the Minister’s assessment of their article 8 of  the European Convention on Human Rights (ECHR) in the analysis underpinning the deportation orders, relying upon the decisions of the High Court in AMS v Minister for Justice [2014] IEHC 57 and CI v Minister for Justice [2014] IEHC 447 to argue that the Minister was not entitled to deny the existence of a private life on their part and to obviate the need to consider all of the  questions posed in R. (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368. The respondents relied upon Lofinmakin v Minister for Justice [2011] IEHC 38, contending that the applicants’ claims in the statement of grounds that the deportation decisions were unreasonable and/or disproportionate was impermissibly vague and failed to identify the basic legal arguments being relied upon. With regard to the rationality of the decision to make the orders, they said that the Minister had considered all of the specific personal and background facts.

The court quashed the deportation orders.

Reasoning:
The court held that the pleading in respect of irrationality and disproportionality was not sufficiently imprecise to warrant dismissal. It considered that, although the High Court had stated in Lofinmakin that a bare plea of irrationality was imprecise, it had not refused leave based on poor pleading but instead dealt with the substance of the imprecise pleas. It also stated that a respondent in asylum and immigration cases should not delay a pleading point which was believed to be of such strength as to warrant the dismissal of an applicant’s case. If litigation could be dealt with on the basis of procedural irregularity, then such points should be pursued expeditiously.

The court held that the manner in which the applicants’ private life had been dealt with by the Minister was irrational. A lawful approach based on the acceptance of the existence of private life required the Minister to ask whether or not deportation would interfere with the applicants’ private lives and then to ask whether the interference was serious enough to engage article 8 ECHR. If so, then the other considerations in article 8(2) ECHR had to be assessed. It also rejected the Minister’s argument that ECHR caselaw decided that non-settled migrants did not have private life rights requiring respect under article 8 ECHR.

The applicants also argued was that the rule contained in Article 3(1) of the UN Convention on the Rights of the Child (UNCRC), namely that in decisions concerning children, their best interests were to be a primary consideration, applied to a decision-making process which considered whether a child should be deported. The court concluded that no provision of the Immigration Act 1999 required the Minister to consider the best interests of the child as a primary consideration when making a deportation order. The terms of the Act and the terms of Article 3(1) of the UNCRC in that regard were in contradiction to each other and, therefore, the rule in the Convention to serve the best interests of the child failed to find expression within the State by operation of the principles of public international law. Consequently, the child did not have a legitimate expectation that the Minister would respect the rule in Article 3(1) of the UNCRC when deciding on its deportation.

Decision:
The court therefore quashed the deportation orders.

Principles:

Vagueness in pleadings will not necessarily debar an applicant from making arguments based on them where the arguments they seek to make have been elaborated on in writing in sufficient time before a hearing so as to enable the other side to become conversant with the challenge intended to be made.

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