High Court finds "door cannot be shut" even by deportation
In BS & Ors v Minister for Justice, Equality and Law Reform, Ms Justice Clark in the High Court considered an application by a married couple to quash a decision of the Minister refusing to revoke a 2002 deportation order (carried out in 2003) against the husband. The applicants claimed that the deportation infringed their legal, constitutional rights and/or family rights under the European Convention on Human Rights.
The wife and second applicant was a Nigerian national (who had later become an Irish citizen by naturalization), with two Irish citizen children. The younger of these children (the third applicant, born in 2003) was the son of the husband - whom she had met in 2002 and married in 2003 before he was deported and before the third applicant was born. Since the deportation order was carried out, the husband had been unemployed and was living in Nigeria, whilst the wife was employed in Ireland and the children attended school there. The wife supported the husband financially, and the family occasionally visited him on holiday in Nigeria.
The applicants applied for revocation of the deportation order in 2009. The focus of this application was that the Minister had never been made aware that the husband was married and his wife was pregnant with his Irish citizen child at the date of deportation. The Minister refused to revoke the deportation order on a variety of grounds, including that the affirmation of the deportation order would not interfere with the father's ECHR Article 8 rights, and the need of the Irish state to protect its borders.
Following the reasoning of Fennelly J in Cirpaci v Minister of Justice, Justice Clark found that the Constitutional rights of the children and wife who had remained here were very strong. Justice concluded that it would be disproportionate to expect the mother and two Irish national children to move to Nigeria, and to refuse to revoke the deportation order simply on the basis of immigration control.
The effect of the judgment in this case therefore suggests that the "door cannot be shut" by deportation, and even an entirely valid deportation cannot amount to a permanent exclusion order.
This was a pre-Zambrano case and the judge expressly "refrain[ed] from making any determination on the applicability of the Zambrano ruling to this or any other similar application". As the father was deported before the Irish national child was born, he would not have qualified for a visa or leave to remain under Zambrano. As the Irish Constitution already provided the necessary protection for the family, the judge felt there was no need to rely upon European law although she noted that Article 8 of the ECHR "represents the other side of the coin in the insurmountable obstacles test".
Click here to read a PILA Bulletin piece from May 2011 on the Zambrano case.
Click here to view guidance issued by the Irish Naturalisation and Immigration Service post-Zambrano.
Irish High Court quashes denial of Palestinian family's asylum application
In Nateel & Ors v Minister for Justice, Equality and Law Reform and Refugee Appeals Tribunal, the High Court quashed a finding of the Refugee Appeals Tribunal on the basis that its conclusion had "no evidential foundation". In this case Justice Hogan heavily criticised the facts that the Tribunal took into consideration, and the weighting it placed on them, when refusing the applicant's asylum claim.
The applicant Mrs Nateel was a Palestinian who lived in the Gaza Strip until 2009, working as a teacher. Her husband was a director general of a Palestinian non-governmental organisation, who had been undertaking doctoral studies in Britain since 2005 (and accordingly had permission to live in Britain and travel to and from Ireland). As a result of one of the woman's children being an Irish national (born in Belfast in 2003), Ireland's Department of Foreign Affairs had evacuated the family (Mrs Nateel, the Irish national child and her three other children) to Dublin via Cairo following Israel's 2008 offensive against the Gaza Strip.
Justice Hogan noted that the Tribunal's decision - which rejected the applicant's asylum claim on credibility grounds - made heavy emphasis on the fact that the applicant's husband had not applied for asylum. Justice Hogan acknowledged that there are "many circumstances where the failure of one spouse to claim asylum might seriously impact on the credibility of the other spouse who is claiming asylum." In this case however, he found that the applicant's husband had given "a perfectly valid and completely tenable explanation" - namely he did not need to claim for asylum because he had lawful status in the UK. The judge also criticised the Tribunal's emphasis on the applicant's husband's salary, saying it was not clear how that was "in any way relevant to an issue which was before the Tribunal member." The circumstance of the Irish national child's birth (the applicant had travelled to Belfast for the purposes of giving birth), "was really fundamentally irrelevant to anything which the Tribunal was required to decide" and there was no "legitimate connection" to the asylum application.
Justice Hogan referred the case back to the Tribunal for reconsideration.
Click here to read an Irish Times article summarizing the case.