Facts:
The appellants comprised a Nigerian lady named Esmé, her daughter, and her daughter’s three children, two of whom were minors and Irish citizens. Esmé’s daughter had arrived in the State from Nigeria and had given birth to two children, who were Irish citizens by operation of law. She was estranged from her husband and Esmé came from Nigeria to help her with her children. She did not seek a visa but arrived in the State and claimed asylum, although she admitted she had no fear of persecution. Her application was unsuccessful and she applied for leave to remain. A proposal to make a deportation order in respect of her having issued to her. She laid emphasis in her application on the domestic circumstances of her extended family in Ireland and her involvement with them. She claimed to have no family to return to in Nigeria.
A deportation order was nonetheless made against her and her legal representatives then requested that it be revoked, relying again on her family circumstances in Ireland. They also indicated that further information could, if required, be submitted by them to vouch for the alleged effects of the estrangement between the father and mother on the children. The order was affirmed and she was deported. The appellants then launched judicial review proceedings seeking to quash it. It was contended that no regard had been had by the Minister to the right of the minor citizens to the company and care of their grandmother under Article 41 of the Constitution and article 8 European Convention of Human Rights (ECHR).
As part of the leave application, a psychiatrist’s report was submitted to support those arguments. Leave was refused by the High Court (Hedigan J.) and the appellants appealed his decision to the Supreme Court. By the time of the appeal, Esmé had been out of the State for six years and a preliminary question arose as to whether the appeal was moot.
The Supreme Court (Charleton J., Laffoy J. concurring; Clarke J. dissenting) dismissed the appeal against the refusal of leave.
Reasoning:
The Supreme Court accepted that the deportation order had continuing effects on Esmé’s ability to visit her family in the State and that, accordingly, the appeal was not moot. It held, however, that the revocation request had been properly refused and declined to reverse the decision of the High Court.
It considered, first, the availability of what it termed “further information” from the appellants’ legal representatives. It referred to the general rule that parties should make the entire case available to them based on the facts which they claimed entitled them to a remedy and that they could not expect to achieve a different result by repeating the same facts or arguments, whether in different ways or not, to separate decision makers. Re-analysis was only necessary where there had been a change of circumstances or new facts had come to light which were not readily obtainable on the earlier application. It noted that the correspondence from the solicitors for Esmé had effectively invited the Minister to engage in correspondence whereby further information might be forthcoming.
However, the obligation was on them to put it before the Minister. There is no obligation on the Minister to engage in correspondence with them. Insofar as the psychiatrist’s report was concerned, it held that it was not in accordance with existing caselaw to have held it back and relied upon it at the leave application. In any event, it did not further than repeat what was already in the papers before the court. The essential case made by Esmé throughout the asylum process and in her interactions with the Minister in relation to the question of her deportation remained the same.
Turning to the question of family rights, the Supreme Court noted that grandmothers were not entitled to protection under Article 41 of the Constitution. In any event, the claim made on Esmé’s behalf could not be divorced from the context in which it was made. Whilst it was apparent that Esmé was important to her extended family in the State she had, as a foreign national, entered Ireland on foot of an untenable argument that she was seeking asylum, and had neither sought nor been granted a visa. Her position as a visitor lacked any long term viability, save that which might be obtained from the asylum system and delay caused by court challenges. A valid deportation order was extant against her following the making of humanitarian representations under s. 3(6) of the Immigration Act 1999. A humanitarian representation as to why she should be allowed to remain did not constitute a constitutional right.
Her position was no better under the ECHR and it was untenable to claim that the Minister had breached it. Under the ECHR, the State had the sovereign entitlement to control its borders, which was a facet of national security. Articles 8.1 and 8.2 were not conflicting norms but were to be read together. Under the ECHR, the Contracting States had a wide margin of appreciation when deporting non-nationals. Such persons were not entitled to assert a choice of residence absent national permission and the precariousness of their status was relevant when considering whether their removal would breach article 8 ECHR. Esmé had not substantiated any right to remain in the State which was recognised by the ECHR or other law, whether on the basis of protection or otherwise. It was not open to non-nationals to arrive in the State on a false basis and then to arrange their affairs so as to frustrate the operation of the immigration system.
Decision:
The Supreme Court dismissed the appellants’ appeal.
