U Ors -v- MJELR Ors
High Court
Judgment was given by Mr Justice Hedigan on December 11th.
Judgment
The court found that the children of a Nigerian family were not entitled to subsidiary protection, and that their rights under Article 8 of the European Convention on Human Rights were not infringed to an extent disproportionate with the legitimate aim of the State to control its borders. They therefore did not established substantial grounds for a judicial review of the Minister’s decisions, and leave was refused.
Background
The mother of the family arrived in Ireland with her four children, aged between four and nine, in July 2005 and applied for asylum. This was refused later that month, the decision was upheld by the Refugee Appeals Tribunal in October that year and they were told they would be deported. In December they issued judicial reviews proceedings, and leave was refused in March 2007.
Representations were then made to the Minister seeking leave to remain, explaining that the children were in school and pre-school, and that they would be forced to live in poverty if they had to return to Nigeria.
They were informed of their right to apply for subsidiary protection under the European Communities (Eligibility for Protection) Regulations 2006. They made this application, which was rejected in October 2007.
The applicants are challenging the proposed deportations on the grounds that their rights under Article 8 of the Convention (respect for private and family life) would be infringed. The analysing officer accepted that the deportation would engage their rights, but stated that this would be proportionate to the legitimate aim of the State of maintain control of its borders and therefore necessary in a democratic society.
She also noted that as the mother did not know of her husband’s whereabouts and had no other family ties in the State, the proposed deportation would not interfere with her family rights.
The mother argued that the Minister failed to take account of the best interests and well-being of the children when assessing the proportionality of their deportation, referring to the principles enunciated in the ECtHR case Uner -v- The Netherlands. She also argued that no real consideration had been given to the risk of serious harm they faced if returned to Nigeria.
Decision
Mr Justice Hedigan said that the Uner case concerned the principles involved with an immigrant who had established roots in the deporting country. The applicant was a Turkish immigrant who moved to The Netherlands with his family when he was 12. At the age of 18 he was given a permanent residence permit. He entered a relationship with a Dutch woman and they had a son.
He committed a number of offences, including manslaughter, for which he was convicted, and on his release his residence permit was withdrawn and a 10-year exclusion order was imposed on him. He claimed a violation of Article 8 on the grounds that the State had failed to take into account the interests of his Dutch partner and Dutch child.
In its ruling the Strasbourg court stated that in making such decisions the state should take into account “the best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled”.
In its conclusion it also held that the expulsion of the applicant was proportionate.
“I would have my doubts as to whether the principle set out at paragraph 58 of the Uner judgment applies in a situation such as the present where the family members are not migrants well established in the country but, rather, have entered the State as asylum seekers and have an entitlement to remain here only until their status is determined,” Mr Justice Hedigan said.
He also said he was satisfied that the Minister did take the best interests into account before making the deportation order. The analysing officer had considered the representations made on behalf of the applicants and had found that the interference with the Article 8 rights would be justified under the Convention.
She also referred to the case-law of the courts relating to the absence of any entitlement to remain in the State purely to benefit from medical, social or other forms of assistance.
Referring to the Minsters refusal of subsidiary protection, the judge said it did not appear that the applicants adverted to any new or altered facts, other than those in their rejected asylum application.
Referring to the mothers fear of being separated from her children, he accepted this was a subjective fear, but said there was no evidence of any nature that the State intended to separate the family unit. Accordingly he was not satisfied that the applicants had established substantial grounds for judicial review, and he refused leave.
The full judgment is on www.courts.ie
Anthony Lowry BL, instructed by Seán Mulvihill Solicitors, Cork, for the applicants; Sinead McGrath BL, instructed by the Chief State Solicitor, for the Minister