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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> E.B & Ors -v- The Minister for Justice & Anor [2013] IEHC 246 (30 April 2013) URL: http://www.bailii.org/ie/cases/IEHC/2013/H246.html Cite as: [2013] IEHC 246 |
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Judgment Title: E.B & Ors -v- The Minister for Justice & Anor Neutral Citation: [2013] IEHC 246 High Court Record Number: 2013 154 JR Date of Delivery: 30/04/2013 Court: High Court Composition of Court: Judgment by: McDermott J. Status of Judgment: Approved |
Neutral Citation [2013] IEHC 246 THE HIGH COURT JUDICIAL REVIEW [2013 No. 154 J.R.] IN THE MATTER OF THE IMMIGRATION ACT 1999, THE TREATY ON FUNCTIONING OF THE EUROPEAN UNION, THE CHARTER OF FUNDAMENTAL RIGHTS, THE CONSTITUTION OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS BETWEEN E. B. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND A. B.), J. B. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND A. B.), W. B. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND A. B.), A. B. AND F. B. K. APPLICANTS AND
THE MINISTER FOR JUSTICE AND EQUALITY RESPONDENT JUDGMENT of Mr. Justice McDermott delivered the 30th day of April, 2013 1. This is a ruling in respect of an ex-parte application brought by the applicants on the 4th March, 2013, seeking leave to apply for judicial review by way of an order of certiorari quashing the decision of the respondent dated the 31st January, 2013, refusing to revoke the deportation order which is in force against the fifth named applicant F.B.K. made the 18th November, 2009. The application was grounded on the affidavit of A. B.. Background The Deportation Order 4. The examination of file submitted to the Minister on the basis of which the decision to deport was made is a detailed thirty nine page consideration of the factors relevant to the making of the order. In particular, the Minister had regard to the character and conduct of the fifth named applicant as he was obliged to do under s. 3(6)(g) of the Act including any criminal convictions recorded against him. A garda report on file indicated that thirty four convictions had been recorded against Mr. B. A number of these were recorded against him on the same date. The convictions were as follows:-
(b) 14th October, 2003 – convictions for failure to produce a driving licence, having no driving licence, failing to produce an insurance certificate, having no insurance, in respect of which further fines were imposed and again in respect of having no insurance a consequential disqualification order from driving for twelve months was imposed; (c) 8th December, 2005 – convictions for no insurance, having bald tyres on his vehicle, failing to stop at the scene of an accident or to report its occurrence or to remain at the scene and failing to give appropriate information in respect of that accident in respect of which fines were once again imposed: a further disqualification order for one year from driving was imposed in respect of the failure to have insurance; (d) 3rd July, 2008 – convictions for theft and handling stolen property in respect of which an eighteen month prison sentence was imposed; (e) 29th July, 2008 – convictions for entering a building with intent to commit an offence and failing to produce on demand a valid passport (which was taken into consideration). A sentence of three months imprisonment was imposed; (f) 20th August, 2008 – conviction for theft contrary to s. 4 of the Theft Act, 2001 in respect of which a six month prison sentence was imposed: the offences of making a gain or causing loss by deception were also taken into consideration; (g) 17th November, 2008 – convictions for failure to produce a driving licence, failure to produce an insurance certificate, having no insurance, giving a false name contrary to s. 107 of the Road Traffic Act in respect of which a two month prison sentence was imposed. A five month prison sentence, together with a driving disqualification of twenty four months was imposed in respect of the conviction of having no insurance and other matters were taken into consideration; (h) 18th November, 2008 – convictions for custody of a false instrument, contrary to s. 29 of the Theft Act 2001, in respect of which a three month suspended sentence was imposed. Three month suspended sentences were also imposed in respect of charges of using a false instrument, handling stolen property and making a gain or causing loss by deception. He was also bound over to keep the peace and be of good behaviour for a period of two years.
“... Mr. B.’s employment prospects, which have been adversely effected, not only due to the current economic climate, but also by his numerous criminal convictions, may inhibit his reintegration into society and in turn perpetuate the cycle of offending. In this regard it is noted that Mr. B. has already demonstrated a high propensity to re-offend, as he has been convicted of a substantial number of offences over a number of years, which has resulted in his imprisonment in the state. In addition, it is noted that Mr. B. has had several prison sentences imposed on him during the course of his time spent in the state and that at the time of writing this submission he is currently serving a prison sentence in the state, at a substantial cost to the state...giving rise to a compelling public interest to protect the economic wellbeing of the country”. It was concluded that the deportation of the fifth named applicant was not disproportionate as the state had the right to prevent disorder and crime and to protect the economic wellbeing of the country which constituted a substantial reason associated with the common good requiring his deportation. 6. In respect of his right to family life it was noted that his mother and sister had already been granted refugee status in the state. His mother had been granted citizenship in Ireland on 5th March, 2007, and a second sister also resides in the state. In that regard no information had been submitted which suggested that there were further elements of dependency involving more than normal emotional ties between the fifth named applicant and his mother and sisters and, therefore, it was concluded that a deportation order would not inhibit his family rights with them. In respect of his wife and children it was accepted that if the Minister decided to deport the fifth named applicant this would constitute an interference with his right to respect for family life within the meaning of Article 8(1). In that regard it was concluded that a deportation order was in accordance with law and the legitimate aims of the state to prevent disorder and crime and to ensure the economic wellbeing of the country. It was also concluded that there was no less restrictive process available which would achieve those legitimate aims in this case. 7. It was noted that the fifth named applicant had served several prison sentences during the course of his time in the state and at the time of the writing of the submission he was serving a prison sentence. It was stated that the fifth named applicant had not been involved actively in the up-bringing of his children for a notable period of time in their lives due to his incarceration as a result of which there had already been some disruption to his family life. It was also noted that Mrs. B. had the choice to continue to reside in the state with the children, thereby enabling the citizen children to continue to enjoy the benefits of their Irish citizenship. The eight criteria set out in Uner v. The Netherlands (Application No. 4641/99) and Boultif v. Switzerland (Application No. 54273/00) were considered and applied to the case. The rights of each of the children were considered in the course of balancing the rights in issue as were the best interests of the children. 8. The constitutional rights of the Irish born children were also considered in detail in the examination of file, particularly in the context of the importance of their having the care and company of both parents. Having considered all the factors in respect of the position of the family and the children under the Constitution and the rights of the state, it was concluded that the deportation of the applicant was not disproportionate having regard to the state’s right to prevent disorder and crime and to protect the economic wellbeing of the country, and that these matters constituted a substantial reason associated with the common good requiring the deportation of the fifth named applicant. 9. The court has made extensive reference to the contents of the examination of file in order to place in context the history of the case to date. It is clear evidence of the extensive and careful consideration given by the Minister and his officials in the course of the deportation process to the factors which he was obliged to consider under s. 3 of the Immigration Act 1999, and the applicants’ rights under Article 8 of the European Convention on Human Rights and their rights under Articles 40, 41 and 42 of the Constitution. It is clear that the applicants’ rights were carefully balanced with those of the state and the issue of the proportionality of the deportation of the fifth named applicant was carefully considered by reference to each of the applicants and the family. 10. The deportation order was notified to the fifth named applicant on the 23rd April, 2010, and he was removed from the state in accordance with its terms on 16th February, 2011. 11. Meanwhile, by letters dated 23rd and 25th September, 2009, application was made by solicitors on behalf of the fifth named applicant for a renewal of his previous permission to reside in the state and under s. 3 of the Immigration Act 1999. The letters contained extensive submissions and the second letter relied upon two decisions of the European Courts of Human Rights namely, Boultif v. Switzerland (as cited above) and Maslov v. Austria [2008] ECHR (Application No. 1638/03) in support of the application. Subsidiary Protection The First Application under s. 3(11) 14. By letter dated 13th June, 2011, the respondent wrote to the fifth named applicant’s solicitors stating:-
15. An application was made by the fifth named applicant for a visa in Kenya, to which he had moved from the Democratic Republic of Congo to which he had been deported from Ireland. This online application was made on 26th October, 2011. No supporting documentation was recorded as having been received at the Irish embassy in Kenya and the applicant was notified of this on 1st December, 2011. By letter dated 14th December, 2011, his solicitors wrote to the respondent stating that the Irish Embassy in Dar Es Salaam had informed them that their client’s visa application had been referred to Dublin some three weeks earlier, but that the Irish Embassy could not issue a visa to the fifth named applicant when there was an outstanding deportation order in existence. They called upon the respondent to revoke the deportation order. A further request to process the visa application and/or the application for revocation of the deportation order was made by the solicitors on 8th February, 2012. 16. By letter dated 28th February, 2012, the respondent informed the solicitors for the fifth named applicant that the application for the revocation of the deportation order had been considered under s. 3(11) of the Immigration Act 1999, and the decision to make the deportation order “remains unchanged”. Enclosed with that letter was a document entitled “Consideration of Application for Revocation of Deportation Order Pursuant to s. 3(11) of the Immigration Act 1999” in respect of the fifth named applicant. It was completed by Mr. Mark Carleton, Executive Officer of the Repatriation Unit on 17th February, 2012. It was in turn reviewed by Ms. Maura Hynes, Principal Officer. Representations on behalf of the fifth named applicant in respect of the effect of the Zambrano decision on his case were fully considered in the determination. Having cited and quoted part of the Zambrano judgment it was stated that the effect of Article 20 of the TFEU was that:-
17. In addition, the effect of the decision of the European Court of Justice in Dereci (C-256/11; 15th November, 2011) was also said to be of relevance in this case and para. 66 of the judgment was quoted as part of the consideration:-
18. It was clear from the facts of the case that the fifth named applicant’s wife and children remained in the state and that it was unlikely that they would be required to leave the state because of his absence. Refusal of the Visa Application
(b) The applicant did not divulge his previous UK immigration history. (c) UK immigration history. (d) The fact that there was an Irish deportation order in effect. (e) The granting of the visa might result in a cost to public funds and resources. (f) It would not be in accordance with the common good to grant the visa to the applicant as he had not been in compliance with Irish law. The Second Application under s. 3(11) 21. In this second application the following issues were addressed:- His parental role: 22. It was submitted that apart from approximately twelve months spent in custody the fifth named applicant lived with his children in Ireland from their birth until he was deported in February, 2011. Whilst in prison, he had almost daily telephone contact with his children. The children also visited him in prison on a number of occasions. Since being deported, he claimed to have been in daily telephone contact with the children. It was also claimed that he played a central role in their upbringing and continued to be a central part of their lives. He claimed that there was an ongoing dependency by the children on their father. It was also submitted that any limitations on his parental role were caused by the deportation. It was submitted that it would be wholly unreasonable or disproportionate to expect the fifth named applicant’s children to attempt to relocate to the Democratic Republic of Congo in order to enjoy his company. However, the court is satisfied that the reality of this case is that the mother and children remain in this State and there is no intention to remove them from the state by their parents. The court is satisfied that these facts were not new. They were facts already considered by the respondent at the deportation stage and on the first application to revoke the deportation order, or they were facts which were readily available to the fifth named applicant that could have been put forward as part of his earlier submissions. The Applicant’s Criminal Convictions: 23. Two submissions were made in respect of the fifth named applicant’s previous convictions:-
(b) It was submitted that even if the respondent had the power in certain circumstances to refuse a right of residency to the non-EU parent of an Irish citizen child, the fifth named applicant’s criminal convictions were not of such seriousness as to warrant the exercise of that power in this case. It was submitted that the same standard of assessment in that regard should apply as that applicable under EU Directive 2004/38 – Article 27(2) which provides that measures taken on grounds of public policy or public security should comply with the principle of proportionality and be based exclusively on the personal conduct of the individual concerned. It provides that previous criminal convictions shall not in themselves constitute grounds for taking such measures and that the personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. It also provides that justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted. It was further submitted that the fifth named applicant could not reasonably be said to represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society such as to warrant permanently depriving his wife and children of his care and company in the state and that such a decision would be wholly disproportionate. The Right of the Fourth Named Applicant’s Daughter to be heard in the Application: 24. A submission was made that pursuant to Article 12 of the UN Convention on the Rights of the Child and his daughter’s ability to form her own views, the Minister was obliged to have a meeting with her and directly hear from her before he could have proper regard to her best interests as a primary consideration in the decision making process. This is also a matter which, regardless of its merit, could have been advanced in the earlier stages when making submissions or by way of application for judicial review. Entitlement to an Independent Appeal 25. It was submitted that the applicant’s Irish citizen children were entitled to an independent appeal mechanism under which a decision under s. 3 of the Immigration Act interfering with their rights to have their father reside in the state and their rights under Article 8 of the European Convention on Human Rights might be appealed. The absence of an independent appeal mechanism against a decision that infringes fundamental rights under Article 8 of the Convention was said to be incompatible with the European Convention on Human Rights. This again is a matter which, irrespective of its merits, could have been advanced by way of submission or application for judicial review in respect of the first refusal. 26. Additional correspondence followed and on 27th November, 2012, the respondent wrote to the fourth named applicant’s solicitor requesting “evidence that your client is in regular contact with his children in the form of telephone records, receipts of money transfers, email records or any similar correspondence”. Under cover of letter dated 20th December, 2012, an affidavit of Mrs. A. B. was submitted providing some evidence to that effect. 27. The court is satisfied that each of these matters could have been raised in the first application to revoke the deportation order. Indeed, the fifth named applicant’s parental role and previous convictions were clearly the subject of detailed consideration in the examination of file prior to deportation and the consideration of his application to revoke the deportation order on the first occasion which was refused. The court is further satisfied that any additional factors relied upon in the second application to revoke were matters which could and should have been addressed in the first application. The Decision on the Second Application
The applicant’s legal representatives also maintain that the applicant’s criminal convictions were not of such seriousness as to warrant the deportation of the application (sic) and, as set out in EU Directive 2004/38, previous criminal convictions should not in themselves constitute grounds for taking such measures. Although it is acknowledged that Mr. B.’s convictions individually were not at the most serious end of the spectrum of criminal activity, it is submitted that, when considered as a whole, the nature, number and time span of the offences demonstrates that the applicant showed a prolonged and flagrant disregard for the criminal laws of Ireland, giving rise to a compelling public interest in the affirmation of his deportation order. It is submitted that the applicant’s chances of obtaining employment are poor, given his record of criminal convictions and the current economic climate. In addition, it is noted that Mr. B. had several prison sentences imposed upon him while he was in Ireland, each of which was served at a substantial cost to the state. These issues give rise to a compelling public interest to protect the economic wellbeing of the country and are substantial reasons that reasons that the deportation order made in respect of F.B.K. be affirmed.” The Challenge to the Second Refusal to Revoke the Deportation Order 31. Grounds 5(1) to (4) contain a mixture of propositions concerning the operation of s. 3(11) of the Immigration Act 1999 in respect of the applicants’ family rights under Articles 40 and 41 of the Constitution, Articles 8 and 14 of the European Convention on Human Rights and Article 18, 20 and 21 of the Treaty on the Functioning of the European Union (TFEU) and Articles 7, 21, 24 and 45 of the Charter of Fundamental Rights of the European Union (the Charter). 32. Ground 5(5) is a challenge to the alleged unfairness of the decision in that it was asserted in the determination that there was “no verifiable evidence” adduced to support the contention that Mr. B had been actively involved in his children’s upbringing over a substantial period which led to a reasonable conclusion that the best interests of the children would not be “adversely affected” by a decision to affirm the deportation order. It was contended that this aspect of the decision was unreasonable because the evidence established that the fifth named applicant had resided with his family for most of the children’s lives and affidavit evidence had been adduced to demonstrate continuing contact between him and the family over the period since his deportation. Ground 6 argues for a right of appeal against the refusal to revoke the deportation order. General Principles and Repeated Applications under S. 3(11)
(2) It is only where an applicant can point to some significant feature not present when the original deportation order was made that there can be any obligation on the Minister to give detailed reconsideration to the question of deportation and this applies also to any second or subsequent application for revocation of a deportation order. (3) The principle of legal certainty requires that if the original deportation order was not challenged or if a first or earlier application for revocation was not challenged in the courts by way of judicial review, it must be assumed that the analysis of the Minister, on the basis of the facts, materials and considerations then before the Minister was correct. (4) The only basis upon which a challenge to a second or subsequent refusal by the Minister to revoke a deportation order can be brought is where reliance is placed on a proposition that there were new circumstances not before the Minister when the deportation order or previous decision not to revoke it was determined and where the challenge is directed to the consideration by the Minister of those new circumstances. (5) It is reasonable to assume that any person who is seeking revocation of a deportation order will include in their application all points which can be made in favour of the application which derived from their own rights and those of other family members. (6) There is an obligation on an applicant for revocation to place before the Minister all relevant materials and circumstances on which reliance is sought to be placed and the question of the existence of new and significantly material considerations such as might justify a reconsideration of a previous deportation decision (including a previous refusal to revoke) must be judged against that obligation. ‘5.6 If what is asserted to be a significant and material new consideration was actually available to the applicant at the time of the previous application, but was not advanced or brought to the Minister’s attention, then, in the absence of special circumstances, it is difficult to see how the existence of such a consideration can properly be advanced as a new consideration requiring an active reassessment by the Minister of the substantive merits of the case. For a new circumstance to require such a reassessment it must either have arisen after the earlier decision of the Minister or there must be a compelling explanation as to why, notwithstanding its existence at the relevant time, it was not then advanced.’ (7) A change in circumstances that may oblige the Minister to reconsider the making of a deportation order may include material changes in relevant and applicable legal frameworks including developments in both domestic and European Union jurisprudence if that is demonstrated to be of “real materiality to the facts of the case”. Grounds 5(1) to (3) 36. The matters considered by the Minister were subjected to a detailed assessment in accordance with the Oguekwe guidelines. The court is satisfied that no additional materials and issues, legal or factual, that could not have been brought forward at the time those decisions were made have been advanced by the applicant in the course of this application. Therefore, insofar as the applicant seeks leave to apply for judicial review on the basis of Articles 40 and 41 of the Constitution and/or Articles 8 and 14 of the European Convention on Human Rights in respect of the second decision refusing to revoke the deportation order, no stateable ground upon which to grant such relief exists. 37. These grounds also concern the effect of the principles established in the Zambrano decision in respect of the deportation of non-national parents of European citizen children. A number of propositions were advanced by the applicant:-
(b) the respondent was in breach of the children’s rights and the applicants’ rights as a family under the provisions of Articles 18, 20 and 21 of the TFEU and Articles 7, 21, 24 and 25 of the Charter because:- (i) that children had a right to cohabit and be brought up by their father in the state; (ii) the fifth named applicant’s spouse had a right to the company of her husband in the state; (iii) the contested decision refusing to revoke the deportation order was disproportionate as three years and three months had passed since the order was made; (iv) the contested decision discriminated against the children because they were denied the company of their father on the basis of a socioeconomic reason, namely his poor employment prospects. The Effect of the Smith Case
41. The first decision which refused revocation contained a detailed consideration of the extent to which the fifth named applicant participated in family life and contact and found in that regard that there had been a failure to submit satisfactory evidence to show that he was playing an ongoing and active parental role in his children’s lives. The additional information supplied in the second application which related to telephone contact between the fifth named applicant and the family, was clearly material that would have been available on the first application, but was not submitted. In addition, a further letter was submitted from the fifth named applicant’s daughter on the second application to revoke dated 30th March, 2012. This was a letter of a type which could have been submitted as part of the initial application. Extensive submissions containing the sentiments expressed in that letter were clearly made to and understood by the officials in the case in the first application. The second application was to a large degree, an effort to address evidential shortcomings perceived in the first application but not in respect of evidence that could not have been made available at the time of the first application. The court is satisfied that the matters of fact sought to be addressed in the second application were, therefore, substantially the same as those sought to be addressed in the first application and the subject of that decision. 42. These considerations also apply to the applicant’s claim that the respondent erred in law in holding that the applicants’ legal rights were not engaged in respect of the Charter of Fundamental Rights of the European Union. In the first decision to revoke the application the “consideration” of the applicants’ case specifically addressed whether the children would be forced to leave the European Union and be deprived of “the genuine enjoyment of the substance of their rights as European Union citizens” as already discussed. While the Zambrano decision was the subject of submissions at that time and the Zambrano and Dereci decisions were considered specifically in the “consideration”, no specific submissions were made in relation to how precisely the determination failed to have regard to the rights of the European Union citizen children in the circumstances of this case. A determination was reached in the first consideration that the refusal to revoke the deportation order would not force the children to leave the European Union or deprive them of the genuine enjoyment of the rights of European Union citizens. Clearly, this was a determination in relation to rights which the European Union children had under the TFEU or under the Charter. No challenge was mounted to this decision by way of judicial review or to the application of the principles set out in Zambrano and Dereci in that determination. Thus, that analysis of the application of legal principles must be viewed as correct in respect of the facts advanced at that time. 43. The court is satisfied that no new factual or legal issues beyond those that might have been raised in respect of the applicants’ rights under the TFEU and the Charter in respect of the first application to revoke the deportation order by way of an application for judicial review, arise in this application. In this case the points arising from the Zambrano and Dereci decisions were considered by the Minister at the time of the first application for revocation of the deportation order. If the applicants had any concern that the application of those legal principles was fundamentally flawed or in error, the appropriate relief was to make application for leave to apply for judicial review on that ground at that time. 44. The court is satisfied that the applicants in this case have failed to put forward any new facts, materials or legal issues such as would have required the Minister to enter into a full reconsideration of the case. Having reviewed the materials, evidence and submissions placed before the Minister in respect of both applications under s. 3(11), the court is not satisfied that the applicants have any arguable grounds to contend that they have put forward any new facts, materials or circumstances that arose between the application in respect of which the first refusal was made and the application that led to the decision, which is the subject of this challenge. It follows that this challenge is not directed to the consideration by the Minister of any new circumstances advanced by the applicants’ second application and consequently, there is no basis upon which to seek judicial review of the second refusal. Principles of European Law: Zambrano, the TFEU and the Charter of Fundamental Rights
(a) the right to move and reside freely within the territory of the member states.” 46. Article 21(1) provides that:-
(2) In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration. (3) Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.”
49. The applicants contend that they have an arguable ground that the application of the Zambrano and Dereci decisions and the further decisions in McCarthy v. Secretary of State for the Home Department (Case – 434/09 – 5th May, 2011) and O., S & L v. Maahanmuuttoviraso (Cases – C356/11 and C257/11 – 6th December, 2012) support the proposition that the Minister erred in law in finding that the applicants legal rights were not engaged and in declining to assess the case under the provisions of the Charter of Fundamental Rights of the European Union. Further, it was submitted that the respondent was somehow in breach of the applicants’ rights as a family under the provisions of the Article 7 of the Charter of Fundamental Rights. 50. In this case the European Union citizen children have never made use of their right of freedom of movement and have always lived in Ireland. In O.S. & L the European Courts of Justice reaffirmed the principles set out in Zambrano, McCarthy & Dereci, that European Union children, who have not made use of the right of freedom of movement, cannot for that reason alone “be assimilated to a purely internal situation, that is, a situation which has no factor linking it with any of the situations governed by European Union law”. The court stated that it has been held on a number of occasions that Article 20 TFEU precludes national measures, including refusals to grant rights of residence to family members of a Union citizen, which have the effect of denying Union citizens the genuine enjoyment of the substance of the rights conferred by their status. Further, the court has held that the refusal to grant a right of residence to a third country national in the member state of residence of his European Union children, if it had the consequence that those children would have to leave the territory of the Union in order to accompany their parents, would mean that the children would in fact be unable to exercise the substance of the rights conferred by their status. In addition, it was for a referring court to establish whether the refusal of the applications for residence submitted on a basis of family reunification in such circumstances concerned a denial of the genuine enjoyment of the substance of the rights conferred by their status. When making that assessment, the court also found that the fact that the mothers of European Union citizens hold permanent residence in a member state so that in law there is no obligation for them or their European Union citizen children who are dependent upon them to leave the territory of the member state, must be taken into account. In that regard also, the question of the custody of the children, in this case joint custody between the parents, must be considered and also whether any decision made would have the effect of harming a relationship between the children and their biological fathers. The national court must examine all of the circumstances of the case in order to determine whether in fact the decisions in such cases are liable to undermine the effectiveness of the Union citizenship enjoyed by the children concerned. 51. The fact that the third country national for whom a right of residence is sought is not a person on whom the children are legally, financially or emotionally dependent must be taken into consideration when examining the question whether the children would be unable to exercise the substance of the rights conferred. The court also held that a finding that the refusal to grant a right of residence to a third party national parent of a European Union child would result in the children being forced to leave the European Union, would be without prejudice to the question of whether on the basis of other criteria the right to reside could not be refused, for example, by reference to the right to the protection of family life. 52. Apart from the fact that the question of whether the children would be forced to leave the jurisdiction has already been considered on a number of occasions by the Minister and that nothing new has been adduced in relation to that matter, the court is satisfied having reviewed the papers and the various decisions made in this case by a number of officials, that the principles of European law set out above were properly considered in the challenged decision and that the applicants have no stateable case upon which the refusal to revoke the deportation order could be challenged. Ground 5(4)
54. In interpreting Article 7 and Article 24 of the Charter, Article 52(3) provides that insofar as the Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be “the same as those laid down by the said Convention”. This does not prevent European Union law providing more extensive protection for children but it is a tool of interpretation. There is an extensive body of jurisprudence in relation to the application of Article 8 of the European Convention on Human Rights in respect of deportation orders and applications to revoke them under s. 3 of the Immigration Act 1999. The jurisprudence of the European Court of Human Rights is, as a matter of course, applied in such cases (as indeed it was in this case) to considerations of the applicants’ rights to private and family life under Article 8. This assessment was carried out prior to the making of the deportation order and in the course of the consideration of both applications to revoke the deportation order, as is evident from a reading of the examination of file and the considerations of the file carried out by the officials in this case. That process has never been the subject of challenge by way of leave to apply for judicial review or otherwise by the applicants. Though the applicants contend that a different test should have been applied in the application of Article 7 of the Charter in respect of the private and family lives of the applicants on the application to revoke, the applicants have not advanced to the court any test different to that which was applied in respect of Article 8 of the European Convention throughout this process. The court is satisfied having regard to Article 52(3) of the Charter that the meaning and scope of Article 7 is the same as the meaning and scope of Article 8. The court is not satisfied that there is any stateable ground upon which it can be argued that Article 7 of the Charter of Fundamental Rights was in any respect misconstrued or breached. The best interests of the child were considered both in relation to the children’s constitutional rights and Convention rights in accordance with the principles laid down in Boultif and Uner. 55. There is nothing to suggest that the best interests of the children in this case were not a primary consideration in the decision made, nor is there any evidence to suggest that the state has denied direct contact or a personal relationship between the European Union children and their father. In that regard the maintenance of personal relationships and contact is not always dependent on the presence of the parent within the home or the state. 56. I am also satisfied that, having regard to the similarities of the matters to be considered under Articles 7 and 24 of the Charter and the TFEU respectively and the matters to be considered, both under the Constitution and the European Convention on Human Rights, there is no stateable ground upon which to seek leave to apply for judicial review in respect of ground 5(4). The Duration of the Deportation Order Unfair Findings: Ground 5(5) Ground 5(6) Conclusion |
