Nigerian mother loses court challenge

 

A RULING by the Supreme Court yesterday rejecting Nigerian mother Pamela Izevbekhai’s latest attempt to prevent her deportation may mark the end of her Irish legal challenges.

Final orders will be made by the court next Wednesday in the proceedings by Ms Izevbekhai, who claims her two daughters, Naomi (9) and Jemima (8), face genital mutilation if deported to Nigeria.

Her lawyers said yesterday they were considering their options, including proceedings before the European Court of Human Rights, and it is understood there will be no attempt to deport her before next Wednesday. Ms Izevbekhai was not in court.

In a majority four-to-one decision, the Supreme Court rejected her claims that the Minister for Justice has discretion, by virtue of regulations enacted here in 2006 after the family’s deportation was ordered, to reconsider her application to stay here.

It was argued the family’s application for protection should be considered under the European Communities (Eligibility for Protection) Regulations, 2006, but the Supreme Court found the Minister had no discretion to do so as the deportation order was made prior to the regulations being enacted.

The regulations did not confer on the Minister a discretion to reopen deportation orders before those regulations were introduced, nor was he obliged to do so in limited cases where he accepted new facts or altered circumstances, the majority court said.

The Minister has not accepted there are new circumstance in this case and has brought his own proceedings seeking to have the entire case dismissed, claiming it was based on a “lie” that her first child, Elizabeth, died from genital mutilation in 1994.

The State says there is no evidence to certify this and alleges her first child was born in 2000.

Ms Izevbekhai says this is untrue and she has evidence to show when Elizabeth died.

Yesterday’s ruling comes after several unsuccessful legal challenges by Ms Izevbekhai since her deportation was ordered in September 2005 after she failed to obtain refugee status through the normal channels.

Delivering the majority decision, Mr Justice Nial Fennelly (with whom Chief Justice John Murray, Mr Justice Adrian Hardiman, and Ms Justice Fidelma Macken agreed), said the preliminary issue arose out of a High Court judgment last year, in a separate case, over whether a person was entitled to protection against deportation following the coming into operation of the 2006 regulations.

In that case, Mr Justice Kevin Feeney found the Minister for Justice has discretion in certain circumstances to allow an application for subsidiary protection even where a deportation order (as in Ms Izevbekhai’s case) was signed before October 2006.

If a person already refused protection or leave to remain could identify new facts or circumstances about their case, the Minister had discretion on whether or not he considered the case again, Mr Justice Feeney ruled.

Mr Justice Fennelly said, having considered the regulations and case law, he had concluded Mr Justice Feeney erred in his interpretation of the relevant regulation, Regulation 4(2), which states the Minister shall not be obliged to consider an application for subsidiary protection where an application for asylum has been refused.

In her dissenting judgment, Mrs Justice Susan Denham said she was satisfied the Minister has a discretion, but not an obligation, to consider an application for subsidiary protection under regulation 4(2).

Dan Keenan adds: Minister for Justice Dermot Ahern said his department would have to examine the implications of the Supreme Court decision. He said Ms Izevbekhai’s case had “been tried and tested in the courts” and had “involved forged documents”.

“Asylum had to be fair and robust,” he said. He said publication of the Immigration Bill followed discussions with Opposition TDs, and their concerns had been taken into consideration. “Hopefully it can pass quickly through the Dáil,” he said.