O’Leary v Minister for Justice

adminLeave a Comment

Respondent/Defendant:Minister for Justice and Equality et al
Court/s:High Court
Nature of Proceedings:High Court of Ireland; Inter Partes; Application for Judicial Review
Judgment Date/s:24 Feb 2012
Judge:Cooke J
Category:Residence
Keywords:Family Life (Right to), Immigration, Residence, Residence Permit
URL:https://www.courts.ie/acc/alfresco/a5d3f6ab-fcd4-4a74-a1d9-a38b890d88f8/2012_IEHC_80_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts The elderly South African parents of Mrs O’Leary, a naturalised Irish citizen, wanted to live with their daughter and her family in the State. Mrs O’Leary’s parents had often visited their family in Ireland, and her mother had looked after the grandchildren during the summer months every year since 1996. The applicants claimed that Mrs O’Leary’s parents were dependent … Read More

Principles:

Contested immigration decisions where the immigrant has Irish family may, as in this case, fall to be assessed for their legality from the perspective of the Irish citizens.
 
In immigration-related administrative decision making, decision maker should seek to given an overall assessment of the merits of an application, rather than seek and articulate grounds to support a refusal.

S. 4 of the Immigration Act 2004 gives the Minister power to extend any permission to be in the State to a non Irish national and to prescribe conditions as regards duration which justly and reasonably meets the exigencies of a case.

Consideration of an applicant’s request under s. 4 of the Immigration Act 2004 cannot isolate the financial aspect of a case, lest it be unbalanced.

Go Back

AMS (Somalia) v Minister for Justice and Equality; AK (Afghanistan) v Minister for Justice and Equality

emnadmin


AMS (Somalia)
Respondent/Defendant:Minister for Justice and Equality
Court/s:High Court
Citation/s:[2012] IEHC 72
Nature of Proceedings:Judicial Review
Judgment Date/s:14 Feb 2012
Judge:Cross J.
Category:Refugee Law, Residence
Keywords:Dependant, Entry (Refusal of), European Convention on Human Rights (ECHR), Family Life (Right to), Family Member, Family Reunification, Refugee, Residence, Residence Permit
Country of Origin:Somalia Afghanistan
URL:https://www.courts.ie/acc/alfresco/0728a8d8-adb0-461d-8e04-8282437f77a0/2012_IEHC_72_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts The first applicant was a national of Somalia and was recognised as a refugee in the State in 2009. He applied to the Minister under Sections 18(3) and (4) of the Refugee Act 1996 for family reunification with his wife, mother and four minor siblings. All had been living in a refugee camp outside Mogadishu and, at the time … Read More

Principles:

For the purposes of family reunification part of the investigation of the family includes an assessment of the domestic circumstances of the dependent family member, not the refugee. 

The Minister’s decision must, per the Supreme Court decision in Meadows v Minister for Justice, disclose at least the essential rationale on foot of which the decision is taken. 

In exercising his discretion to grant permission to dependent family members to enter and reside in the State there must be a separate consideration by the Minister of the refugee and the different dependent family members and their individual personal circumstances. The Minister must carry out a balancing exercise in assessing the proportionality of his decision upon a refugee’s ECHR rights.

If the Minister had a fixed policy  as to family reunification of dependent family members of refugees he should state it so that it could be examined as being reasonable.

Section 18(4) of the Refugee Act 1996 did not contemplate a “sponsorship” requirement and any such requirement would require a legislative amendment.

Go Back

AO v Minister for Justice, Equality and Law Reform

emnadmin

Respondent/Defendant:Minister for Justice, Equality and Law Reform
Court/s:High Court
Citation/s:17 January 2012, 2012 IEHC, Unreported
Nature of Proceedings:Application for a stay on the implementation of a deportation order pending the determination of an application for leave for judicial review.
Judgment Date/s:17 Jan 2012
Judge:Hogan J.
Category:Deportation
Keywords:Child, Citizenship, Dependant, Deportation, Deportation Order, Family Life (Right to), Removal Order, Third-Country national found to be illegally present, Union Citizen
URL:https://www.courts.ie/acc/alfresco/bf3ea1b6-e98f-447c-a9c1-4eecdc63deea/2012_IEHC_8_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

The Applicant sought a stay on the implementation of his deportation order.  The Court had vacated an earlier interim injunction that the Court had granted after it transpired that the Applicant had failed to disclose a material fact, (i.e., that he had already applied, unsuccessfully, to the High Court for injunction). The Applicant presented himself to immigration officials as Mr … Read More

Principles:
  1. Where the non Irish national parent of an Irish child seeks an injunction restraining his or her deportation, the Court cannot not look at the matter from the point of view of the non national parent, but must look at it from the perspective of the child.
  2. Article 41.2 of the Constitution of Ireland implies that all children, irrespective of the marital status of their parents, have the same equal rights to that which the Constitution postulates as representing the fundamental rights of children in a family setting,
  3. Non marital Irish children must be deemed to have an unenumerated personal right by virtue of Article 40.3.1 to have the same rights as children whose parents are married.
  4. Non marital Irish children have a right to the care and company of their parents.
Go Back

X Adeoye & Ors v Minister for Justice, Equality and Law Reform & Ors

emnadmin

Respondent/Defendant:X Adeoye & Ors
Court/s:High Court
Citation/s:Unreported
Nature of Proceedings:Judicial Review
Judgment Date/s:25 Nov 2011
Judge:Hogan, J
Category:Citizenship, Deportation
Keywords:Absconding, Citizenship, Country of Origin, Dependant, Deportation, Deportation Order, Entry Ban, Expulsion, Expulsion Decision, Expulsion Order, Family Life (Right to), Family Member, Family Unity (Right to), Foreigner, Minor, Non-EU National, Non-national, Removal Order
Country of Origin:Nigeria
Geographic Focus:Ireland

The Adeoye family sought to quash a decision of the (then) Minister for Justice, Equality and Law Reform (the Minister) pursuant to s. 3(11) of the Immigration Act 1999 to refuse to revoke Mr Adeoye’s deportation order. Mr Adoeye, an architectural student from Nigeria married to an Irish citizen, who had been unsuccessful in an asylum application, and who had … Read More

Principles:It behoves the judicial branch of government to ensure that the fundamental rights in respect of marriage and family life are taken seriously and given “life and reality”. In deciding whether to revoke a deportation order made against the spouse of a citizen, the deciding Minister must weigh the rights of the applicants fairly.
Go Back

Case C-256/11 – Dereci v Bundesministerium fur Inneres

adminLeave a Comment

Respondent/Defendant:Bundesministerium fur Inneres
Court/s:ECJ
Citation/s:[2011] ECR I-0000
Nature of Proceedings:Preliminary ruling under Article 267 TFEU
Judgment Date/s:15 Nov 2011
Judge:Grand Chamber of the Court of Justice of the European Union
Category:EU Treaty Rights
Keywords:Child, Dependant, EU Treaty Rights, Family Life (Right to), Regularisation, Residence Permit
Country of Origin:Austria
URL:http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62011CJ0256:EN:HTML
Geographic Focus:Europe

The applicants were third country nationals who wished to live with their EU, and Austrian, citizen family members resident in Austria. The Union citizens had not exercised their free movement rights, and were not dependent on the applicants. All applicants had their applications for residence permits refused. The applicants and the Union citizens wished to live together, but there was … Read More

Principles:

European Union law and, in particular, its provisions on citizenship of the Union, must be interpreted as meaning that it does not preclude a Member State from refusing to allow a third country national to reside on its territory, where that third country national wishes to reside with a member of his family who is a citizen of the Union residing in the Member State of which he has nationality, who has never exercised his right to freedom of movement, provided that such refusal does not lead, for the Union citizen concerned, to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a citizen of the Union, which is a matter for the referring court to verify.

If, in considering, inter alia, a refusal of a residence permit in respect of a third country national, a national court considers that the situation is covered by EU law, it must examine whether the residence permit refusal undermines the right of respect for family life under Article 7 of the Charter. On the other hand, if the national court takes the view that the situation at issue is not covered by EU law, it must undertake an examination under Article 8(1) ECHR.

Go Back

Troci v Governor of Cloverhill Prison

emnadmin

Respondent/Defendant:Governor of Cloverhill Prison
Court/s:High Court
Citation/s:Unreported High Court (Hogan J) 2nd November 2011 2011 IEHC 405
Nature of Proceedings:Article 40.4.2 Enquiry
Judgment Date/s:02 Nov 2011
Judge:Hogan G.
Category:Deportation
Keywords:Deportation, Deportation Order, Detainee, Detention, Entry Ban, Expulsion, Expulsion Decision, Family Life (Right to), Family Unity (Right to), Third-Country National, Third-Country national found to be illegally present, Union Citizen
Country of Origin:Albania
URL:https://www.courts.ie/acc/alfresco/2cb16ab5-b669-4336-a856-160050889e46/2011_IEHC_405_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

This case involved an application brought under Article 40.4.2 of the Constitution of Ireland. The Applicant, Ervis Troci, an Albanian national, was arrested pursuant to s. 5(1) (d) of the Immigration Act 1999. He had sought asylum, and his application had been rejected and he subsequently sought to remain in the State for humanitarian reasons. While in the State, the … Read More

Principles:The suspicion on the part of an immigration officer or member of the Garda Siochana underpinning the arrest of a person against whom a deportation order is in force under s. 5(1)(d) of the Immigration Act 1999, must refer to some overt act or deed, including statements, on the part of the arrested person, or some external piece of intelligence which suggests that there is a risk that such a person will seek to evade deportation.
Go Back

PJ & Ors v Minister for Justice, Equality and Law Reform

adminLeave a Comment

Respondent/Defendant:Minister for Justice, Equality and Law Reform
Court/s:High Court
Citation/s:19 October 2011, 2011 IEHC 433, Unreported
Nature of Proceedings:Judicial Review
Judgment Date/s:19 Oct 2011
Judge:Hogan J.
Category:Deportation
Keywords:Child, Deportation, Deportation Order, Family Life (Right to), Protection (Humanitarian), Removal, Removal Order, Third-Country national found to be illegally present
URL:http://www.courts.ie/judgments.nsf/6681dee4565ecf2c80256e7e0052005b/c639b2992f99484c8025798800520265
Geographic Focus:Ireland

The applicants had sought leave to challenge their deportation orders, and the respondent refused to undertake not to deport them beyond a certain date. The applicants sought an interlocutory injunction restraining their deportation. The issues before the Court were whether the applicants were entitled to an interlocutory injunction pending the determination of the leave application, and, if so, whether the … Read More

Principles:

The phrase ‘stay of proceedings’ in Order 84 rule 20(7)(a) of the (N.B., pre 2012) Rules of the Superior Courts should be interpreted by reference to its basic underlying purpose, namely, to ensure that the High Court can make an order with suspensive effect in respect of both administrative, including deportation, as well as judicial decisions. The grant of a stay under r. 20(7(a) of the (N.B., pre 2012) Rules of the Superior Court is not governed by Campus Oil principles. Rather, an applicant is entitled to a stay pending the outcome of a leave application, absent special circumstances.

Special circumstances may include where the proceedings are doomed to fail or where there was no reasonable prospect that leave would be granted. While the mere fact that of medical resources in an applicant’s country of origin being significantly worse than those available in Ireland will not in itself justify judicial intervention, s. 3 of the Immigration Act 1999 presupposes that all relevant considerations, including humanitarian considerations, will be fairly examined prior to the making of a deportation order.

Go Back

BJSA (Sierra Leone) v Minister for Justice, Equality and Law Reform

adminLeave a Comment

Respondent/Defendant:Minister for Justice, Equality and Law Reform
Court/s:High Court
Citation/s:12 October 2011, 2011 IEHC 381, Unreported
Nature of Proceedings:Hearing re an interlocutory injunction pending a determination of leave to seek judicial review.
Judgment Date/s:12 Oct 2011
Judge:Cooke J.
Category:Refugee Law
Keywords:Child, Citizenship, Dependant, Deportation, Deportation Order, Family Life (Right to), Protection (Application for International), Protection (Subsidiary), Refugee, Removal Order, Third-Country national found to be illegally present, Union Citizen
Country of Origin:Sierra Leone
URL:https://www.courts.ie/acc/alfresco/9b80483a-8d32-45b8-b7eb-39fb194500bd/2011_IEHC_381_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

In this case the applicant sought an interlocutory injunction restraining deportation pending the determination of an application for leave for judicial review of, inter alia, a decision refusing to grant him subsidiary protection on, essentially, two grounds: that the decision was invalid because the procedure in place under the Irish Regulations failed to properly transpose Article 4.1 of Directive 2004/83 … Read More

Principles:
  1. There is no deficiency in the Irish asylum legislative regime in respect of the failure to expressly transpose the provision in Article 4.2 of Directive 2004/38 re cooperation into Irish legislation.
  2. The co-operative nature of the first instance assessment phase in the Irish asylum process is reflected in ss. 8(1); 11(1); 11(2); 11C; and 16(6) of the Refugee Act 1996 as amended. 
  3. The deciding authority is not wholly relieved of any obligation of co-operation in appropriate cases. The process must conform to the normal rules of fair procedures.
  4. There is no requirement that a draft subsidiary protection decision be submitted to an applicant for comment before it is adopted.
  5. The right to an effective remedy by way of an appeal under Article 39 of the Directive 2005/85 applies only to subsidiary protection if it forms part of a unified procedure.
  6. There is no superior remedy in Irish law by way of appeal against a first instance determination of an asylum application, such that the procedures under the Refugee Act 1996 do not constitute a comparator with subsidiary protection for the purpose of applying the EU principle of equivalence.
  7. It is only since the requirements of Directive 2005/85 and, in particular, Annex 1, became effective in Irish law that the Commissioner is a “determining authority”, and that there is a right of appeal against a determination of the Commissioner to the Tribunal. Insofar as the provisions of the 1996 Act provide a two-stage determination for an asylum application including a right to an effective remedy by way of an appeal, this is only because of the manner in which the State adapted the arrangements of the 1996 Act in order to comply with the requirements of Directive 2005/85.
Go Back

Adio and Ors v Ireland

adminLeave a Comment

Respondent/Defendant:Ireland
Citation/s:Application No. 8596/08
Nature of Proceedings:Admissibility
Judgment Date/s:17 May 2011
Judge:Fifth Section
Category:Deportation
Keywords:Deportation, Deportation Order, Family Life (Right to)
Country of Origin:Nigeria
URL:http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-105079
Geographic Focus:Europe
References:Meadows v. Minister for Justice, Equality and Law Reform; Bode v. Minister for Justice and Law Reform

The Applicants were Nigerian nationals, a mother and two children. The youngest child was born in Ireland in 2003 and was therefore an Irish citizen. In April 2005, Ms Adio applied for leave to remain in Ireland under the IBC/05 Scheme. In November 2005 she was informed that her application could not be considered under the Scheme as she had … Read More

Principles:

The ECHR considered the judgment of the Supreme Court in Meadows v. Minister for Justice, Equality and Law Reform and was not satisfied that the Applicants had demonstrated that the nature and standard of judicial review in Ireland would be such as would render it an ineffective remedy.

Go Back

PS & BE v Minister for Justice, Equality and Law Reform

adminLeave a Comment

Respondent/Defendant:Minister for Justice, Equality and Law Reform
Court/s:High Court
Nature of Proceedings:Judicial Review
Judgment Date/s:23 Mar 2011
Judge:Hogan J.
Category:Deportation
Keywords:Deportation, Deportation Order, Family Life (Right to), Immigration
Country of Origin:Ireland and Nigeria
URL:https://www.courts.ie/acc/alfresco/c91b71d4-8831-497c-a440-818740ab5266/2011_IEHC_92_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

P.S. was an Irishman who suffered from an intellectual disability, bi-polar disorder and a number of other chronic medical conditions requiring on-going medical supervision. He lived in the midlands and received the daily support of a religious order. In May 2009 P.S. met B.E., a Nigerian asylum seeker, and in November 2009 they were married. In December 2009, B.E.’s claim … Read More

Principles:

The requirement that the Minister must balance competing rights necessarily involves a recognition that, important as the principle of maintaining the integrity of the asylum system undoubtedly is, it must sometimes yield to countervailing and competing values, one of which is the importance of protecting the institution of marriage

Go Back

Khalimov v Minister for Justice, Equality and Law Reform

emnadmin

Respondent/Defendant:Minister for Justice, Equality and Law Reform
Court/s:High Court
Citation/s:[2010] IEHC 91
Nature of Proceedings:Judicial Review
Judgment Date/s:14 Jan 2010
Judge:Clark J.
Category:EU Treaty Rights
Keywords:Citizenship, EU Treaty Rights, Family Life (Right to), Naturalisation, Residence Permit, Visa
Country of Origin:Uzbekistan
URL:https://www.courts.ie/acc/alfresco/7dab727f-cfc1-4304-a5e0-7e4f5ab5c87a/2010_IEHC_91_1.pdf/pdf#view=fitH
Geographic Focus:Ireland
References:Sanni v Minister for Justice, Equality and Law Reform; Agbonlahor v Minister for Justice, Equality and Law Reform; R v Secretary of State for the Home Department, ex parte Mahmood; Boughanemi v France; JD v Residential Institutions Redress Committee and Ors; Slivenko v Latvia; Emonet v Switzerland; Kwakye-Nti et Dufie c. Pays Bas; Advic v United Kingdom; Sijakova v Macedonia; Ahmut v The Netherlands; Sen v The Netherlands

The Applicant was a national of Uzbekistan whose family, including his sister (an Irish citizen) resided in Ireland. The Applicant turned 18 in June 2008 and applied for a long-stay visa in July 2008. His application was refused by the Minister and the Applicant sought judicial review of that decision on the basis that the Minister failed to consider his … Read More

Principles:Article 8 of the European Convention on Human Rights cannot be considered to impose a general obligation on a State to authorise family reunion in its territory. An Applicant may not be entitled to the protection of Article 8 where he does not reside in a Contracting State to the Convention or where he is an adult, unless he can establish additional factors of dependence on his family.
Go Back

Ugbelase and Ors v Minister for Justice, Equality and Law Reform

emnadmin

Respondent/Defendant:Minister for Justice, Equality and Law Reform
Court/s:High Court
Citation/s:[2009] IEHC 598
Nature of Proceedings:Judicial Review
Judgment Date/s:17 Dec 2009
Judge:Cooke J
Category:Citizenship, Deportation
Keywords:Child, Citizenship, Deportation, Family Life (Right to)
Country of Origin:Nigeria
URL:https://www.courts.ie/acc/alfresco/08a7a5d0-8d52-4d4d-827e-1a21b0d071c2/2009_IEHC_598_1.pdf/pdf#view=fitH
References:OE v Minister for Justice, Equality and Law Reform; Osheku v Ireland; Fajujonu v Minister for Justice, Equality and Law Reform; A.O. and D.L. v Minister for Justice, Equality and Law Reform; Oguekwe v Minister for Justice, Equality and Law Reform; Dimbo v Minister for Justice, Equality and Law Reform; G. v An Bord Uchtala; McGee v Attorney General; Finn v Attorney General; Ryan v Attorney General

Mr Ugbelase was a Nigerian citizen whose application for refugee status in Ireland was refused. He met and married an Irish citizen. The Minister issued a proposal to deport him and invited him to make representations for humanitarian leave to remain. He made representations in December 2008 in which he mentioned his marriage to an Irish citizen. He did not … Read More

Principles:The deportation of a non-national parent could not in any sense interfere with the only right of the unborn child enshrined in Article 40.3.3 of the Constitution, namely the right to life (that is, the right to be born).
Go Back