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CA and SOA v. Minister for Justice, Equality and Law Reform et al.

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Court/Judicial body: High Court of Ireland
Date: November 23, 2007 CRC
Provisions:Convention on the Rights of the Child (general reference)
Other international provisions:European Convention on Human Rights ( Article 3: Prohibition of torture and inhuman or degrading treatment or punishment; Article 6: Right to a fair trial; Article 8: Right to a private and family life; Protocol 7: Crime and Family)
Domestic provisions: Irish Nationality and Citizenship Act 1956, as amended by the Irish Nationality and Citizenship Act 2004

Case summary

Background: A woman from Nigeria whose child (who had been living with her in Ireland) sought review of a deportation order against her, noting in particular that her child had not been ordered to leave the country. The proceedings were complicated by the fact that the woman and her child, although subsequently released, had previously been held in custody (effectively under arrest) and under threat of being forced to board an airplane leaving the country, even though the child was not yet due for deportation.

Issue and resolution: Immigration; separated children. There were two key questions – first, whether the deportation amounted to a breach of the mother’s rights under the European Convention on Human Rights; and second, whether it was legitimate to deport the mother while leaving the child in Ireland, and/or whether the decision to deport the mother was effectively a decision to deport the child, even without a deportation order having been made (and, if so, whether this would be legitimate). The Court found that there was no violation of the mother’s rights, and that the deportation order against her was lawful despite her having a child who had not yet been ordered to leave the country.

Court reasoning: On the first issue, the Court determined that the minister was end to find that a deportation to Nigeria was legitimate and not contrary to the European Convention on Human Rights. On the second issue, the Court determined that the child was not an Irish citizen, which might have given the mother an enment to remain in the country. The Court also determined that no deportation order had been made in respect of the child, but it was up to the mother to decide whether to leave the child in Ireland or to take him to Nigeria with her.
Excerpt citing CRC and other relevant human rights 1. …that the proposed deportation violates the rights of the applicants under the United Nations Convention on the Rights of the Child, 1989 (being a relief which, even at this stage, cannot succeed in as much as that convention is not part of the domestic law and interlocutory relief to restrain deportation pending the disposition of the proceedings). … 11. With respect to the issues raised pursuant to the European Convention on Human Rights and Fundamental Freedoms and the Human Rights Act, 2003, it is asserted that there is a breach of the applicant’s rights under Article 8 of the Convention (which protects the right to respect for private and family life, home and correspondence); there is no inhibition on the enjoyment of family life by both applicants out of the jurisdiction and in particular, in Nigeria; none of the factors allegedly affecting the first named respondent, upon which she relied for the purposes of her application for asylum, are in any sense relevant to the second applicant and the only additional factor is an assertion of hardship, vulnerability to disease or mortality in the absence of a proper scheme of social welfare. I do not see that there is an enment to asylum merely because of these factors, certainly, no authority has been quoted to me to support that proposition. The Minister considered whether or not children may return to which would have, say, inferior welfare and health services to those available in Ireland, which is effectively the assertion; thus even if the assertion is right it was addressed. 12. It is further asserted that a “necessary factor” (to be considered by the Minister) is the “best interest of the second named applicant”, that the first named applicant is a law-abiding person who poses no threat to the State or any of its citizens and that she is able and willing to enter the workforce, while the second named applicant is a healthy child. It seems to me that these are issues which were considered by the respondent Minister and are solely matters for him. 13. As to the proposition which is advanced pursuant to Article 3 of the Convention (that no-one shall be subjected to torture or to inhuman or degrading treatment or punishment) it is submitted, in this context, that the applicants would be killed. This is quintessentially a matter for the Refugee Applications Commissioner, the Refugee Appeals Tribunal and the Minister and full consideration has been given to this. It is submitted on the basis of Campbell & Cosans v. United Kingdom [1982] 4 E.H.R.R. 731 that a mere threat of inhuman or degrading treatment may itself violate Article 3. Again, the issue of whether or not the applicants’ rights in this regard might be infringed has been considered by the Minister on the merits, as I have said. With respect to Article 2 of the Convention (the right to life), similarly, that consideration required by law to that right has been afforded by the Minister. 14. No-one could doubt that in the exercise of any powers pursuant to the Immigration Act, as amended, the European Convention on Human Rights Act, and the obligations arising under the Convention, extend thereto but it seems that there is no breach of any Convention right in and about the manner in which the Minister has acted. 15. Issues of procedural fairness have been raised with special reference to Protocol VII of Article 1 of the Convention. That provision is paraphrased in his submissions by Mr. McMorrow (I think accurately) to the effect that “An alien lawfully resident in the territory of a State shall not be expelled there from except in pursuance of a decision reached in accordance with law and shall be allowed … (b) to have their case reviewed, and (c) to be represented for those purposes before the competent authority or a person or persons designated by that authority.” It is submitted that in the present case (and I quote from the submission): “There is no procedure whereby an appeal resulting in a review of their decision can be undertaken by the first named respondent and as outlined above at 3(b) the applicant received no hearing in respect of the representations which their then legal representatives made on their behalf in response to the proposal to deport them.” 16. This element of the submission is somewhat ambiguous inasmuch as it could be read as a mere submission that there was a breach since there was no oral hearing on the occasion of the Minister’s proposal to make a deportation order; it could further be read in a wider sense to the effect that there is no procedure whereby “an appeal” resulting in a review of the decision could be taken, in addition to the absence of a hearing (whether oral or in writing). I do not believe that the Convention is breached by the procedure prescribed by law as to the adjudication on the claim made by the first named applicant for refugee status. There is a three-stage procedure (after the initial claim for asylum) namely, an opportunity to be heard (and to make representations) before the Commissioner and, later, on appeal, before the Tribunal. The Minister is thereafter required to exercise an independent judgment, based on the evidence, and having regard to the applicable law, before he makes a decision or, ultimately, a deportation order. In the first instance, it seems to me that any right to be heard can be an enment to be heard in writing, and, in this instance, I do not see any factual basis for asserting that the representations made by on her behalf at all times were not properly considered by the Minister. The Minister reviewed the case, after the appeals process had been concluded with earlier oral hearings, when the first named applicant was represented; the fact of the hearing, at the very least, before the Tribunal, in my view, discharges any obligation for an oral hearing later since the Tribunal must be “a person or persons designated” by the Minister; the review conducted by the Minister is just such in any event. This is to say nothing of the fact that there is no suggestion in the protocol that there is a duty, at the review stage, to afford such oral hearing (at the risk of an element of repetition). CRIN Comments: CRIN believes this decision is inconsistent with the CRC in that under Article 3 of the Convention, the best interests of children must be a primary consideration in all proceedings that concern them. Article 9 of the Convention further clarifies that children have a right to live with their parents, and that they should not in general be separated from parents against their will. In failing to consider these two Articles in its review of this case, the Court did not adequately consider the rights or interests of the child involved. Citation: [2007] IEHC 393 Link to Full Judgment: This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice. 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