KRA v Minister for Justice and Equality

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Respondent/Defendant:Minister for Justice and Equality
Court/s:Court of Appeal
Citation/s:[2017] IECA 284
Nature of Proceedings:Appeal
Judgment Date/s:27 Oct 2017
Judge:Ryan S.
Category:Deportation
Keywords:Child, Deportation, Deportation Order, Immigration, Non-national
Country of Origin:Nigeria
URL:https://www.courts.ie/acc/alfresco/7b2278a6-5194-4c63-bc6d-24315b843318/2017_IECA_284_1.pdf/pdf#view=fitH
Geographic Focus:Other

Facts: Ms KRA, the first named applicant, was born in Nigeria in 1975. She married there and had three children. In early 2008, she came alone to Ireland while pregnant and sought asylum. Her baby, the second named applicant, BMA, was born four days later on 14 March 2008. The asylum application was rejected and in March 2009, Ms KRA … Read More

Principles:

Article 42A of the Constitution did not amount to a bar to the deportation of a non-citizen child who was undergoing primary education in the State. The circumstances of the mother and child in this case did not require separate and individual consideration by the Minister. The Minister was not obliged to make a comparison between the educational opportunities in Ireland and Nigeria before making a decision on whether to revoke the deportation order. 

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Rughoonauth v Minister for Justice and Equality (No.2)

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Respondent/Defendant:Minister for Justice and Equality
Court/s:High Court
Citation/s:[2017] IEHC 241
Nature of Proceedings:Judicial Review
Judgment Date/s:24 Apr 2017
Category:Residence
Keywords:Deportation, European Convention on Human Rights (ECHR), Immigration, Non-national, Residence, Student
URL:https://www.courts.ie/acc/alfresco/cb16d5cf-2121-4204-954c-7e3966b4afde/2017_IEHC_241_1.pdf/pdf#view=fitH
Geographic Focus:Other

Facts: The applicants were students from Mauritius who entered the State on student permissions in 2008 which were renewed for over four years but then expired and the applicants thereafter remained in the State without permission. The Minister made deportation orders against them which rejected their assertions that they had acquired private life rights in the State by reason of … Read More

Principles:

Non-nationals who are resident in the State on student permissions should not be regarded as settled migrants.

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WS v Minister for Justice and Equality

Respondent/Defendant:Minister for Justice and Equality
Court/s:High Court
Citation/s:[2017] IEHC 128
Nature of Proceedings:Judicial Review
Judgment Date/s:23 Feb 2017
Judge:O'Regan M.
Category:Residence
Keywords:Deportation Order, European Convention on Human Rights (ECHR), Family Life (Right to), Immigration, Non-national, Residence, Student, Visa
Country of Origin:Malaysia
URL:http://courts.ie/Judgments.nsf/0/36BBA683D8E20E90802580F0005A4B79
Geographic Focus:Ireland

Facts:  The applicant was a Malaysian citizen who arrived initially in Ireland in 2007 with his wife. They had secured a visitors’ permission to remain for 90 days, however they outstayed this period by approximately 2 years when they returned to Malaysia in 2009. In July 2009 the applicant secured a 1 year valid student visa and his wife and … Read More

Principles:

The conditions attached to a student visa did not preclude such a person from being considered to be a settled migrant for the period for which they have permission.

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Wang (a minor) v Minister for Justice and Law Reform

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Respondent/Defendant:Minister for Justice and Law Reform
Court/s:High Court
Citation/s:[2012] IEHC 311
Nature of Proceedings:Judicial Review
Judgment Date/s:23 Jul 2013
Judge:Cooke J
Category:EU Treaty Rights, Residence
Keywords:Adult, Child, Dependant, EU Treaty Rights, Family Formation, Family Member, Freedom of Movement (Right to), Member State (Remain in the), Minor, Non-EU National, Non-national, Residence, Residence Permit, Union Citizen
Country of Origin:China / Hungary
URL:https://www.courts.ie/acc/alfresco/86f5c09d-0e67-49c9-a8bd-7b4b05b39981/2012_IEHC_311_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts The second applicant was a Chinese national who arrived in the State on a student visa in 2004. She met a Hungarian national in 2005 and they married in 2006. She was subsequently granted permission to remain in the State for a five-year period under the European Communities (Free Movement of Persons) (No. 2) Regulations 2006 as the  wife … Read More

Principles:

It was not arguable that a parent could claim to be a dependent of a three year old EU citizen child and an adult could not be the dependent of a child. 

It was arguable that a parent might be considered a member of the household of a minor EU citizen and the term household was open to the interpretation that if one individual is an EU citizen all members of the group could be regarded as equal members of the household.

In applying the Chen principles and considering the question of self-sufficiency within those principles, it must be clear what test of self-sufficiency the Minister was applying. The Minister must reach a reasonable and proportionate conclusion in assessing an application as to whether the Chen conditions are met.

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Mallak v Minister for Justice, Equality and Law Reform

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Respondent/Defendant:Minister for Justice, Equality and Law Reform
Court/s:Supreme Court
Citation/s:[2012] IESC 59
Nature of Proceedings:Appeal
Judgment Date/s:06 Dec 2012
Judge:Supreme Court (Fennelly J gave judgment for the Court) (Denham CJ, Murray J, O’Donnell J, McKechnie J)
Category:Citizenship, Naturalisation
Keywords:Charter of Fundamental Rights of the European Union, Citizenship, Citizenship (Acquisition of), Geneva Convention & Protocol, Naturalisation, Non-national, Refugee, Refugee (Convention)
URL:https://www.courts.ie/acc/alfresco/01c05728-fb80-47dc-a324-7b100387151a/2012_IESC_59_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts The appellant was a citizen of Syria. He and his wife were recognised as refugees in Ireland in 2002 and he subsequently applied for a certificate of naturalisation pursuant to Section 15 of the Irish Nationality and Citizenship Act 1956 (as amended). This application was refused by the Minister in November 2008 acting in his absolute discretion. He did … Read More

Principles:

It does not necessarily follow that where a decision is in the absolute discretion of the decision maker, no reason need be given for it. There is a difference between having a reason and disclosing it. It cannot be correct to say that the ‘absolute discretion’ conferred on the Minister necessarily implied that he is not obliged to have a reason. That would be the very definition of an arbitrary power and the rule of law required all decision makers to act fairly and rationally, meaning that they must not make decisions without reasons.

While the grant or refusal of a certificate of naturalisation is, at least in one sense, a matter of privilege rather than of right, the mere fact that a person is seeking access to a privilege does not affect the extent of his right to have his application considered in accordance with law or apply to the courts for redress. It would be contrary to the notion of a state founded on the rule of law if all persons within the jurisdiction, including non-nationals, did not in principle have a constitutionally protected right of access to the courts to enforce their legal rights.

It is impossible for an applicant to address the Minister’s concerns and to make an effective application when he is in complete ignorance of the Minister’s concerns. More fundamentally, it is not possible for an applicant, without knowing the Minister’s reason for refusal, to ascertain whether he has a ground for applying for judicial review and, by extension, it would not possible for the courts to effectively exercise their power of judicial review.

Several converging legal sources strongly suggested an emerging common view that persons affected by administrative decisions have a right to know the reasons on which they are based including Section 18 of the Freedom of Information Act 1997, Article 296 of the Treaty on the Functioning of the European Union (TFEU) and Article 41 of the EU Charter of Fundamental Rights, which provides that every person shall benefit from the right to good administration including the obligation of the administration to give reasons for its decisions,  as well as relevant jurisprudence. 

The Supreme Court considered that at the very least the decision maker must be able to justify the refusal to give reasons.

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Jin Liang Li v Governor of Cloverhill Prison

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Li
Respondent/Defendant:Governor of Cloverhill Prison
Court/s:High Court
Citation/s:[2012] IEHC 493
Nature of Proceedings:Application pursuant to Article 40.4 of the Constitution
Judgment Date/s:28 Nov 2012
Category:Detention, Refugee Law
Keywords:Asylum, Asylum (Application for), Detainee, Detention, Detention Facility, Enforcement Measure, Illegal Stay, Migrant (Illegally resident / staying), Non-national, Overstay(er), Refugee, Removal, Repatriation, Return (Forced), Third-Country national found to be illegally present
Country of Origin:China
URL:https://www.courts.ie/acc/alfresco/a7c7aa7f-d1f0-445a-a68d-2aa94dc25131/2012_IEHC_493_1.pdf/pdf#view=fitH

Facts The applicant was a Chinese national who was living in the State for approximately 13 years, having overstayed his visa entitlements and had been working illegally. The applicant refused to cooperate in obtaining travel documents for him and it later transpired that he had another valid passport unknown to the Irish authorities. He was arrested and as arrangements were … Read More

Principles:

The power to arrest an asylum applicant under section  9(8)(a) of the Refugee Act and detain him or her for up to 21 days is a form of preventive civil detention.

Given the constitutional guarantee in Article 40.4.1 the objective necessity for such detention must be compellingly established. The constitutional considerations must inform, and by necessity, delimit these powers to arrest and detain a person. The words ‘public order’ are juxtaposed beside ‘national security’ and this meant that the phrase ‘public order’ must be given its narrower and more restricted meaning. In that context the reference to public order referred to the threat posed to fundamental state interests by the likely conduct or even, in particularly unusual cases, the very presence of the applicant for asylum in the State.

Conduct which flouted the immigration regime, such as not cooperating or working illegally, was not conduct which threatened fundamental state interests.

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Okunade v Minister for Justice, Equality and Law Reform

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Respondent/Defendant:Minister for Justice, Equality and Law Reform
Court/s:Supreme Court
Citation/s:[2012] IESC 49
Nature of Proceedings:Appeal
Judgment Date/s:16 Oct 2012
Judge:Supreme Court (Clarke J delivered judgment for a unanimous Court) (Denham C.J, Hardiman J, Fennelly J, O'Donnell J)
Category:Deportation, Residence
Keywords:Deportation, Deportation Order, European Convention on Human Rights (ECHR), Family Life (Right to), Migrant (Illegally resident / staying), Minor, Non-national, Removal, Repatriation, Residence
URL:https://www.courts.ie/acc/alfresco/d25e51cd-9709-48e1-8b57-e167c5657e0d/2012_IESC_49_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts The applicants were Nigerian nationals whose asylum claims had been refused and who had made applications for subsidiary protection in the State and also applied to the Minister for permission to remain in the State for humanitarian reasons (“leave to remain”). The minor applicant was four years of age and was born in Ireland. He was not an Irish … Read More

Principles:

The Court considered the proper test for the granting of a stay or an injunction which has the effect of preventing an otherwise valid measure or order from having effect pending trial, while the court is also attempting to determine a regime which is necessary to properly protect the interests of all parties pending the full trial. The underlying principle must be that the court should put in place a regime which minimises the overall risk of injustice and that underlying principle remains the same whether or not the court is considering whether to place a stay on a measure or to grant an injunction.  The court must act in all cases so as to minimise the risk of injustice and that same underlying principle applied in any application in the context of judicial review.

The entitlement of a country to exercise a significant measure of control, within the law, of its borders was an important aspect of public interest of any state. Therefore, a significant weight needed to be attached to the implementation of decisions made in the immigration process which are prima facie valid and a high weight should be placed on the need to respect orders and decisions in the immigration process unless and until they are found to be unlawful. However, the Court considered the possible injustice to an applicant is a factor which must also be given weight, independent of any additional consequences which may be said to flow from deportation on the facts of an individual case.

However, in the absence of any additional factors on either side, then the position of the Minister would win out. The default position was that an applicant will not be entitled to a stay or an injunction. It may be that on the facts on any individual case, there are further factors that can properly be taken into account on either side.

If an applicant could demonstrate that a deportation, even on a temporary basis, would cause more than the ordinary disruption in being removed from a country, such as a particular risk to the individual or a specific risk of irremediable damage then such facts, if they were sufficiently weighty, could readily tilt the balance in favour of the injunction or a stay. Where, on an arguable basis, the High Court was faced with a situation where there was a credible basis for suggesting a real risk of significant harm to the applicant if they were to be deported, it would require very weighty considerations indeed to displace the balance of justice on the facts of that case.

Also all due weight needed to be attached to the undesirability of disrupting family life involving children, where after a successful judicial review or any other process, the children might be allowed to remain in or return to Ireland. 

At the stage of deciding on whether to grant a stay or an injunction the court has to decide on where the least risk of injustice lies, and the weight to be attached to any such difficulties will necessarily depend on the facts of the case, and such difficulties are not necessarily decisive, but are one factor to be taken into account.

The strength of the case can be taken into account provided that the assessment of the strength of the case does not involve analysing disputed facts or dealing with complex issues of law.

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Scully v Minister for Justice and Equality


Scully
Respondent/Defendant:Minister for Justice and Equality
Court/s:High Court
Citation/s:[2012] IEHC 466
Nature of Proceedings:Judicial Review
Judgment Date/s:16 Apr 2012
Category:Deportation, EU Treaty Rights, Residence
Keywords:Child, Citizenship, Deportation, Deportation Order, EU Treaty Rights, Family (Nuclear), Family Life (Right to), Family Member, Family Unity (Right to), Immigrant, Migrant (Labour), Minor, Non-EU National, Non-national, Residence, Union Citizen
Country of Origin:Ireland / Nigeria
Geographic Focus:Ireland

Facts The applicants were the parents and minor children, whose husband and father, the second applicant was made the subject of a deportation order in 2009, and on foot of which he was deported. An application was made to the Minister to revoke the deportation order but the Minister refused. The applicants sought to quash the refusal to revoke the … Read More

Principles:

The Minister must construe and apply the protections afforded by Article 40.3, 41 and 42 of the Constitution of Ireland and Article 3 and 8 of the European Convention on Human Rights (ECHR) in light of the personal and family circumstances of applicants, particularly in relation to minor applicants as [Irish and] EU citizens.

The Minister must reach reasonable and proportionate conclusions, given the permanent impact of a deportation order on the personal and family circumstances of applicants, and having regard to any changed facts contained in an application to revoke a deportation order, and to circumstances where there are minor applicants who are [Irish and] EU citizens.

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Tahir v Registrar for County Cork

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Respondent/Defendant:Registrar for County Cork
Court/s:High Court
Citation/s:[2012] IEHC 191
Nature of Proceedings:Judicial Review
Judgment Date/s:16 Feb 2012
Judge:Hedigan J
Category:Citizenship
Keywords:Country of Nationality, Nationality, Non-national
Country of Origin:Somalia
URL:https://www.courts.ie/acc/alfresco/34baf877-a0d7-4b84-a54e-2e72fb52ebcd/2012_IEHC_191_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts The applicant claimed to be a national of Somalia and applied for asylum in the State. Her application was refused. A short time later she and the second applicant decided to marry.  They were advised of an appointment to meet the Registrar in order to fulfil the necessary requirements for their three month notification of their intention to marry. … Read More

Principles:

In order to fulfil the necessary requirements for the three month notification of an intention to marry, evidence of identity is required under Section 46(7) of the Civil Registration Act 2004.

It is not a breach of fair procedures for a registrar to require a person to submit evidence of identity and an identity document such as a passport and it is open to a registrar to consider whether or not the requirements of Section 46(7) have been met.

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

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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.
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Ejerenwa v Governor of Cloverhill Prison

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Respondent/Defendant:Governor of Cloverhill Prison
Court/s:Supreme Court
Citation/s:2011 IESC 41, 28th October 2011, Unreported
Nature of Proceedings:Article 40.4.2 Enquiry
Judgment Date/s:28 Oct 2011
Judge:Denham C.J.
Category:Deportation, Detention
Keywords:Asylum Seeker, Border Crossing, Deportation, Detainee, Detention, Entry (Illegal), Nationality, Non-EU National, Non-national, Refoulement, Refoulement (Non-), Removal, Removal Order, Third-Country National, Third-Country national found to be illegally present
Country of Origin:Contested
URL:https://www.courts.ie/acc/alfresco/e9112918-ca1e-4951-b432-19ca4e38ba69/2011_IESC_41_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

This case involved an appeal to the Supreme Court in respect of an application brought under Article 40.4.2 of the Constitution of Ireland. The High Court had found that the Applicant’s detention was in accordance with law. The Applicant appealed this to the Supreme Court. On the evening of 1 August 2011, Gardai stopped a bus which had crossed the … Read More

Principles:
  1. A detention order should contain clear information on its face as to the basis of its jurisdiction. In respect of s. 5(2)(a) of the Immigration Act 2003, in particular, it is necessary for a detention order to state on its face which provision or provisions of s. 5(1) of that Act apply.
  2. A warrant of detention is not required to make statements of law, and it is not necessary for a detention order to show on its face the time permitted for detention, where the period permitted for detention is a matter of general law and/or provided by statute.
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Om v Governor of Cloverhill Prison

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Respondent/Defendant:Governor of Cloverhill Prison
Court/s:High Court
Citation/s:1st August 2011, 2011 IEHC 341, Unreported
Nature of Proceedings:Article 40.4.2 Enquiry
Judgment Date/s:01 Aug 2011
Judge:Hogan, G.
Category:Deportation, Detention
Keywords:Deportation, Deportation Order, Detainee, Detention, Entry Ban, Expulsion, Expulsion Order, Nationality, Non-EU National, Non-national, Refoulement, Refoulement (Non-), Removal, Removal Order, Third-Country National, Third-Country national found to be illegally present
Country of Origin:Contested
URL:https://www.courts.ie/acc/alfresco/bcf48dda-1963-4d70-b922-1aab45121c45/2011_IEHC_341_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, David Fracis Om, who had unsuccessfully sought asylum, claimed to be Liberian, but his precise origins were a matter of doubt throughout the asylum process. The Refugee Applications Commissioner had found that he showed a distinct lack of knowledge of Liberian history and geography, … Read More

Principles:
  1. The question of whether a suspicion that a person intends to evade deportation, so as to allow for that person’s detention, is justified under s. 5(1) (d) of the Immigration Act 1999 is an objective one.
  2. Detention of a person (against whom a deportation order has been made) under s. 5 of the Illegal Immigrations Act 1999 must be for the purposes of effecting a deportation order, and it must be evident that the deportation can actually be effected within the eight week statutory period.
  3. Matters relevant to whether there is any likelihood that deportation can be effected within the maximum detention period are:
    whether there is an investigation of an Applicant’s nationality;
      whether it would be necessary for the Minister to consider the issue of refoulement afresh; and
        practicalities re organising deportation.
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