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High Court of Ireland Decisions |
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> O. -v- MJLR & Ors [2012] IEHC 1 (06 January 2012) URL: http://www.bailii.org/ie/cases/IEHC/2012/H1.html Cite as: [2012] IEHC 1 |
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Judgment Title: O. -v- MJLR & Ors Composition of Court: Judgment by: Hogan J. Status of Judgment: Approved |
Neutral Citation Number: [2012] IEHC 1 THE HIGH COURT 2011 972 JR BETWEEN/ A. O. APPLICANT AND
MINISTER FOR JUSTICE AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL RESPONDENTS JUDGMENT of Mr. Justice Gerard Hogan delivered on 6th January, 2012 1. On 13th October, 2011, I granted an interim injunction restraining the deportation of the applicant, a Nigerian national, until 2pm the following day. While that interim injunction was granted on an ex parte basis, the order has been continued from time to time by consent. 2. On 14th December, 2011, the respondents issued a motion whereby they sought to have the interim injunction discharged on the ground that the applicant had failed to make disclosure of a highly material fact, namely, that the applicant had previously made an unsuccessful application for an injunction in September, 2011 on the same or similar grounds before my colleague, Mr. Justice Herbert. 3. The applicant is a Nigerian national who, by his own account, has a chequered immigration history, having been excluded from the United Kingdom following his conviction for possession of a stolen passport. He arrived here by air from Bratislava in March, 2009 and he was in possession of a Nigerian passport and an Austrian identity card. The passport was in the name of a Mr. X. and it contained a valid Irish entry visa. 4. On his arrival, the applicant originally presented himself to immigration officials as Mr. X. He later claimed asylum in Ireland under his true name. Subsequent Garda investigations established that Mr. X.’s passport had been stolen from him at a bank in Vienna. The applicant was subsequently charged with the offence of handling stolen property (i.e., the stolen passport) and he pleaded guilty to this offence before the Cloverhill District Court in May, 2009 whereupon he received a six months sentence. 5. As just noted, the applicant had claimed asylum in the State following his arrival from Slovakia. The basis of the claim was that he had fled Nigeria as a result of threats from third parties following his engagement to a Muslim woman whilst he was Christian. He contended that his fiancée had been murdered. The asylum process came to an end following the determination of the Refugee Appeal Tribunal on 25th November, 2009, that the applicant’s account was not credible. 6. On 12th January, 2010, the Minister informed the applicant of an intention to deport him. The applicant then applied for subsidiary protection, but he was informed on 9th August, 2011, that this application had been rejected. The applicant was also informed that the Minister had made a decision to deport him. 7. At the end of August, 2011 the applicant then made an application under s. 3(11) of the Immigration Act 1999, to revoke the deportation order on the basis that he had two Irish citizen children. While this application was rejected by letter communicated to the applicant on 14th September, 2011, it nevertheless is appropriate to describe the circumstances pertaining to the Irish citizen children. 8. According to Mr. O.’s own account, the first child, Ms. A, was born in Belfast in August, 2004 and now resides with the applicant’s former partner, Ms. B., in Dagenham, London. The applicant avers that Ms. A. has visited him here and, further, that he provides some financial assistance to Ms. B. to assist her with child rearing. It would seem probable, however, that Ms. A. will live permanently in the United Kingdom under the care of Ms. B. 9. At some stage following his application for asylum, Mr. O. became romantically involved with a Ms. Y. Ms. Y is an Irish national who resided in the border region and in Dublin. She is professionally qualified and she is currently in the process of moving to practice her profession in the United Kingdom. 10. She maintains that she was cruelly deceived by Mr. O. During this period he had managed to lead an affluent lifestyle and she contends that he led her to believe that he was previously a male model who was now working for a UK property firm. At no stage did Mr. O. disclose that he had a criminal record or that he was currently in the asylum process. She found herself unexpectedly pregnant in April, 2010 and the relationship foundered shortly thereafter after she discovered what she claims were compromising messages from another female on his mobile telephone. In fairness to Mr. O., it should be stated that this general account is emphatically denied by him, not least the contention that the pregnancy was unplanned. 11. Ms. Y. gave birth to a baby daughter in late 2010, but she says that Mr. O.’s request for access in respect of the child first came some three months later. Mr. O. then issued proceedings under the Guardianship of Infants Act 1964, in late March, 2011. Ms. Y. avers that she believes that this was simply a tactical and opportunistic ploy on his part so that his paternity of the child could be used to his advantage for immigration purposes, prompted by the publicity which surrounded the decision of the Court of Justice of the European Union in Case C-34/08 Ruiz Zambrano [2011] ECR I-0000. This judgment had been delivered on 8th March, 2011. 12. While the full parameters of that decision and its implications for immigration law generally are matters for further argument, the general effect of that decision was that the parent of a child holding EU citizenship could not be deported from the Member Sate in question where this would mean that the child would also have to leave the Union territory. In the words of the Court of Justice:-
43. A refusal to grant a right of residence to a third country national with dependent minor children in the Member State where those children are nationals and reside, and also a refusal to grant such a person a work permit, has such an effect. 44. It must be assumed that such a refusal would lead to a situation where those children, citizens of the Union, would have to leave the territory of the Union in order to accompany their parents. Similarly, if a work permit were not granted to such a person, he would risk not having sufficient resources to provide for himself and his family, which would also result in the children, citizens of the Union, having to leave the territory of the Union. In those circumstances, those citizens of the Union would, as a result, be unable to exercise the substance of the rights conferred on them by virtue of their status as citizens of the Union.” 14. These custody proceedings are at present ongoing before the District Court. It is, of course, that court alone which has seisin of those proceedings and nothing in this judgment should be understood as expressing any view in respect of these issues which are entirely a matter for the District Judge. The application before Herbert J. in September, 2011 16. As Mr. Nicholson, solicitor for the respondents, explained in his affidavit, Herbert J. gave further directions which are of some considerable importance to the present application:-
18. It should also be stated that the applicant’s solicitor has filed a full affidavit explaining this omission. The applicant’s solicitor was not physically present when the application was moved and the agent who attended counsel was not aware of the earlier September application or the directions given by Herbert J.. It is clear from this affidavit that under pressure of time counsel simply forgot to mention the earlier application. I accept that this was an inadvertent omission and that there was absolutely no intention to mislead the court. Both legal representatives in question have tendered their apologies which, needless to say, are fully accepted. The jurisdiction to set aside the interim injunction 20. This Court’s jurisdiction to set aside an order made ex parte is expressly recognised by O. 52, r. 3 RSC which provides that:-
22. The rationale for this rule was well explained by McCracken J. in Voluntary Purchasing, a case concerned with an application to set aside an ex parte order made pursuant to s. 1 of the Foreign Tribunals Evidence Act, 1856. The order had directed that a firm of accountants be represented before an examiner to give evidence in aid of the execution of a default judgment granted by a court in the United States in a civil matter. In dealing with the question of jurisdiction, McCracken J. in his judgment ([1995] 2 I.L.R .M. 145,147) pointed out that, while O. 39, rr. 33 – 34 RSC dealt with the procedures under the 1856 Act and provided for an ex parte application, it made no express provision for any further application to set aside the ex parte order. He also concluded that the application did not come within O. 52, r. 3, so that the application to set aside could not be made under that provision. He went on to say:-
The obligation extends to counsel. There is an obligation on the part of counsel to draw the judge’s attention to the relevant Rules, Acts or case law which might be germane to his consideration. That is particularly so where such material would suggest that an order of type sought ought not to be made.” Whether the order of 13th October, 2011, should be set aside 26. This question was examined by Clarke J. in Bambrick v. Cobley [2005] IEHC 43. Here the plaintiff obtained a Mareva injunction on an ex parte basis following a dispute concerning the retention of monies following a land transaction. The plaintiff had, however, failed to disclose the fact that the parties had in correspondence discussed the manner in which these monies might be retained and the amount in question. Furthermore, it appeared that the parties contemplated retained some €50,000 of the €100,000 which was in dispute. 27. The test of non-disclosure was formulated thus by Clarke J.:-
1. The materiality of the facts disclosed. 2. The extent to which it may be said that the plaintiff is culpable in respect of a failure to disclose. A deliberate misleading of the court is likely to weigh more heavily in favour of the discretion being exercised against the continuance of an injunction than an innocent omission. There are obviously intermediate cases where the court may not be satisfied that there was a deliberate attempt to mislead but that the plaintiff was, nonetheless, significantly culpable in failing to disclose. 3. The overall circumstances of the case which lead to the application in the first place.”
While I am not prepared to hold on the evidence that the plaintiff deliberately mislead the court, I am constrained to the view that as a solicitor the plaintiff, in particular, ought to have been aware to his duty to disclose all material facts and must be regarded as significantly culpable in failing to bring to the attention of the court matters which on any objective view would have had the potential to influence the court’s determination.” 31. It is true that, as Clarke J. noted in Bambrick, the court retains a discretion not to vacate the injunction, the failure to make appropriate disclosure notwithstanding. This would not, however, be an appropriate case in which such a discretion should be exercised, since the non-disclosure here goes to the very heart of the order which the court made ex parte. The exercise of the set aside jurisdiction in a case such as the present one is not intended to be punitive although, of course, different considerations might well apply where a litigant acted mala fide. Nor is the jurisdiction to be exercised in a formalistic or mechanical fashion: it is rather essentially restitutionary in nature. In other words, by setting aside the original order the court is acting in the interests of two fundamental constitutional values, namely, the integrity of the administration of justice itself (as reflected in Article 34.1) and the importance of fair procedures (as reflected in Article 34.1 and Article 40.3.1). 32. By thus setting aside the original order, the court thereby seeks to restore the status quo ante insofar as it is feasible to do so. This does not mean that the court cannot grant the applicant further relief (cf. the comments of Glidewell L.J. in Bowmaker Ltd. v. Britannia Arrow Holdings Ltd. [1988] 3 All E.R. 178). It does mean, however, that in the event that the court were to grant an applicant further injunctive relief, it would do so now afresh in circumstances where it has been armed with all the relevant facts and where it is not now operating under a misunderstanding or misapprehension as to those facts. Conclusions
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