Rights of the child mean father should not be deported
EA Anor -v- Minister for Justice and AnorNeutral citation 2012 IEHC 371.
Judgment was given by Mr Justice Gerard Hogan on September 7th, 2012.
A Nigerian asylum-seeker and father of an Irish child, who had “manipulated the asylum system and engaged in egregiously wrongful conduct”, obtained an injunction restraining his deportation because his child had a constitutional right to the care and protection of his parents.
The applicant entered the State in June 2005 and applied for asylum. In December 2006, he married a fellow Nigerian who had been granted refugee status in April 2005 and was a qualified nurse. Their son was born in October 2007.
In his asylum application, he claimed to be Sudanese and that he had fled the Janjaweed militia. The Refugee Applications Commissioner and the Refugee Appeals Tribunal rejected his application as lacking credibility. He applied for subsidiary protection, during which it emerged he was in fact a Nigerian citizen. His application was rejected in December 2009, he was deported in April 2010 and he re-entered the State in December 2010.
The couple separated in 2008 and obtained a decree of judicial separation in November 2011, although this was kept from the Minister during the application. The child lives with his mother in Dublin and the applicant lives in Galway, but he saw his son at least once a week. He said his son’s presence in Ireland was why he defied the deportation order and returned to Ireland.
“There is no question at all but that if one looked at this matter from the perspective of Mr A, his outrageous conduct would have plainly disentitled him to any prospect of relief,” Mr Justice Hogan said.
“Here, again, however, the court must unfortunately shut its eyes to his illegal and deceitful conduct in the higher interests of protecting the welfare and interests of the child . . . In matters of this kind the court must, where possible, give primacy to the constitutional rights of the child to the care and company of his parents in the manner envisaged by article 42.1 of the Constitution.”
Mr A had argued he was entitled to remain under the 2011 European Court of Justice judgment in Ruiz-Zambrano, concerning a Colombian couple who lived in Belgium and whose children were Belgian, but who were denied social welfare in a situation where this would have led to them being forced to leave the country and where they could not return safely to Colombia. The court found that the parents of EU citizen children could not be denied the right to live in the EU. However, Mr Justice Hogan said this did not apply in this case, as the mother was entitled to live in Ireland as a refugee, the child was an Irish citizen and it was highly likely the mother and child would live in Ireland for the foreseeable future. The deportation of the father would not lead to the child having to leave Ireland.
Mr Justice Hogan said Mr A, whatever his other failings, had sought to take an active role in rearing his son. It was not clear how they could continue to have a meaningful relationship if he were deported, when in all probability, the child would be unlikely to see him again during his minority.
He then addressed the issue of consistency of allowing Mr A to stay with other High Court judgments based on similar circumstances, notably Alli (2010), when the court upheld a decision by the Minister of Justice to deport the father of a family when the mother and children had the right to stay in Ireland and wished to do so.
Mr Justice Hogan said that in these cases the mothers were exercising a choice; in this case the mother was a refugee, so was not in a position to return to Nigeria.
He said the applicant had engaged in egregiously wrongful conduct and had no personal merits that would entitle him to protection, nor was he entitled to rely on the European Court of Justice judgment in Zambrano. But the court must approach the question from the perspective of the child and seek to ensure that the substance of his constitutional right to the care and company of his parents was upheld. Accordingly he restrained Mr A’s deportation. The full judgment is on courts.ie.
Paul O’Shea, instructed by Burns Kelly Corrigan, Harold’s Cross, Dublin, for the applicant; David Conlon Smith, instructed by the chief State solicitor, for the Minister