Oguekwe -v- Minister for Justice Equality and Law
Reform
Dimbo -v- Minister for Justice Equality and Law
Reform
SUPREME COURT
Judgment delivered on May 1st, 2008 by Ms Justice
Denham, The Chief Justice, Mr Justice Murray, Mr Justice Fennelly,
Mr Justice Kearns and Mr Justice Finnegan concurring.
JUDGMENTS
In both cases the court allowed the Minister's
appeal against the decision of the High Court that the applicants
were entitled to an order of certiorari in relation to the
Minister's rejection of their entitlement to stay in Ireland under
the Irish-born child scheme. However, it dismissed his appeal
against the High Court decision quashing the deportation orders
against the applicants.
BACKGROUND
Both cases concerned the Nigerian parents of
Irish-born children, where the father of one and both parents of
the other were found not to be eligible to live in Ireland under
the Irish-born child scheme introduced by the former minister for
justice in 2005. Deportation orders were then issued against
them.
Two separate issues therefore arose: whether the Minister was entitled to refuse the parents the right to live in Ireland under the IBC scheme; and whether he was right to issue deportation orders against them.
Six other cases were heard dealing with the same issue. These were Bode, Fares, Oviawe, Duman, Adio and Edet, and judgments in all but the Edet case were delivered by the Supreme Court on December 20th, 2007. The general facts and law relating to the Irish-born child scheme were outlined in the Bode judgment, where it was found that this was an administrative scheme, and the Minister was entitled to apply the conditions laid down in the scheme.
The particular issue raised in these two cases was the requirement under the scheme of continuous residence in the State with the Irish-born citizen child.
In the Oguekwe case Blessing Oguekwe, the second named applicant, arrived in the State in April 2003 and gave birth to her son, Prince Roniel Oguekwe in June that year.
The first named applicant, Chuka Paul Oguekwe arrived in the state on February 3rd, 2005 and stated he wished to apply for residency on the basis of his son's Irish citizenship.
On March 10th, 2005 the Minister stated that the application had been refused on the grounds that he had not shown he had resided in the State with his son, or that he had played an active part in his upbringing on a continuous basis since his birth. However, the second-named applicant, the childs mother, was successful in her application for residency.
In the High Court Ms Justice Finlay Geoghegan found that the Minister's decision not to allow the first-named applicant residency under the IBC scheme was invalid, for the same reasons as she gave in the Bode case (over-turned on appeal to the Supreme Court), that the child's rights under the Constitution and the European Convention on Human Rights were not observed.
In the Dimbo case George Dimbo, the first-named applicant, was born in Ireland on May 6th, 1996 and is an Irish citizen. In August 2005, when he was nine years old, his parents, Ifedinma Dimbo and Ethelbert Dimbo, applied under the Irish-born child scheme for residency in Ireland. This was refused, on the grounds that they had not lived continuously in the State since the birth of George.
The High Court judge, Ms Justice Finlay Geoghegan, found that the boy had spent approximately 3½ years in the State, as he and his mother had returned to Nigeria in 1998.
However, they returned to Ireland in 2002, and were joined by the childs father in 2003. They left again in January 2004 and returned in February 2005.
The judge found that by August 2005 the boy had re-established a private life in the State, actively participating in school and school-related activities, and forming social relationships.
Ms Justice Finlay Geoghegan found that the decision of the Minister to refuse the parents residency in Ireland under the IBC scheme was invalid, because of a breach of the applicant's rights under Article 40.3 of the Constitution, and a breach of the Minister's obligations under Section 3 of the European Convention on Human Rights Act of 2003. This incorporated the Convention into Irish law, and Article 8 of the Convention guarantees respect for a citizen's private life, which she found included his participation in school life and his enjoyment of the care of his parents.
The Minister appealed these decisions to the Supreme Court
DECISION
Ms Justice Denham allowed the Minister's appeal of
the decision on the parents' right to reside, for the same reasons
as those set out in the Bode judgment. "The parameters of the
scheme were clearly stated and included the requirement of
continuous residence," she said.
In the Oguekwe case she found that the Minister "could come to no other conclusion, that the first-named applicant's application did not meet the criteria of the scheme."
In the Dimbo case she pointed out that the fact that the applicants were not continuously resident in the State was not contested. "The terms of the IBC 05 Scheme were established clearly by the Minister. The scheme included a requirement of continuous residence in the State with the child. The applicants did not meet this criteria. Therefore the Minister acted within the terms of the scheme in refusing their application."
The applicants' appeal of the Minister's decision was misconceived, she found, and she allowed the appeal of the Minister.
Turning to the question of the deportation orders served on the applicants, she outlined the fact that the first named applicant in the Dimbo case, the son, had written to the Minister telling of his progress in school and effectively asking the Minister to permit his parents to remain in Ireland.
The applicants sought a judicial review of the deportation orders on the basis that the applicants' rights under the Constitution and the European Convention on Human Rights had not been observed. This succeeded in the High Court, and the Minister had appealed this decision.
The judge stated that the grounds of appeal raised several specific issues: the nature of the consideration required to be made by the Minister of the facts relevant to the rights of the citizen child; the type of consideration to be given to issues relating to the child, including the education of the child in the State and in a prospective other country; the type of inquiry which is required of the Minister; the identification of a reason for the deportation; whether the Minister should record specific considerations prior to making deportation orders; the issue of proportionality; the European Convention on Human Rights; the relevance of the IBC 05 Scheme, and the untruthful submissions and evidence on the second-named applicant in the Dimbo case.
In the Oguekwe case, similar issues were raised, but the question of family reunification was also an issue, as the Irish citizen child and his mother were entitled to live in Ireland.
The Supreme Court reviewed the jurisprudence of the European Court of Human Rights on this issue, as well as the decision in the AO and DL -v- the Minister for Justice case.
Ms Justice Denham said: "I would affirm the decision that the consideration of the Minister should be fact specific to the individual child, his or her age, current educational progress, development and opportunities. This consideration relates not only to educational issues but also involves the consideration of the attachment of the child to the community, and other matters referred to in s.3 of the Act of 1999."
However, she disagreed with the High Court that the Minister was required to inquire into the educational opportunities available to the Irish citizen child of a proposed deportee in the country of return.
"In the exercise of his discretion the Minister is required to consider the Constitutional and the convention rights of the parents and children and to refer specifically to factors he has considered relating to the position of any citizen children."
The appropriate test was whether there was a substantial reason for deporting the first-named applicant (the father) in the Oguekwe case.
Ms Justice Denham set out a list of 16 matters relevant for consideration by the Minister when making a decision to deport the parent of an Irish-born child.
She found that the Minister was required to consider the Constitutional and Convention rights of all applicants, including express consideration of those of the Irish-born child, in making his decision. This had not been done in either case, so she upheld the decision of the High Court in reviewing the deportation orders.
The full text of the judgment is available on www.courts.ie
Mel Christle SC, John Traynor SC and Michael Lynn BL, instructed by the Chief State Solicitor, for the State; Sara Moorehead SC, Brian OMoore SC, Patrick F OReilly BL and Donal Donnelly BL, instructed by Ceemax and Co, Solrs, Dublin and Daly Lynch Crowe and Morris Solicitors, Dublin, for the respondents.