Ireland / High Court / [2012] IEHC 104 AO v Minister for Justice, Equality and Law Reform, Ireland and the Attorney General

Facts of the case:

The applicant is a Nigerian national who was engaged to a Muslim woman. He fled Nigeria as a result of threats from third parties who objected to the fact that she was marrying a Christi. His asylum claim in Ireland was rejected on the basis that Nigeria had a functioning police force; nevertheless, the applicant affirmed that he did endeavour to seek police protection and that it was unavailing. He therefore submitted a claim for subsidiary protection, which was also rejected and, as a consequence, the Minister for Justice made the decision to deport him. The applicant sought to challenge by way of judicial review the decision of the Minister to refuse his application for subsidiary protection. The applicant also sought to challenge the Minister’s refusal to revoke the deportation order which had been made against him, on the ground that the deportation would breach his right to family life. In fact, once in Ireland, the applicant had become father of an Irish citizen child. The applicant also applied for an injunction restraining his deportation on the grounds that there is every likelihood that if he were to be deported, he would never again see his dughter during her childhood.

Outcome of the case:

The High Court granted an injunction restraining the deportation of the applicant until a fixed date. In fact, the High Court can only give a precautionary and short-term relief. The applicant shall, in the meantime, apply to the Minister to revoke the deportation order.

Paragraphs referring to EU Charter: 

 

21. The applicant now seeks to invoke two divergent streams of European Union law in order to stay the enforcement of the deportation order. The first line of argument is based on Baby C.'s citizenship of the Union as recognised by Article 20TFEU, whereas the second argument concerns Article 24 of the EU Charter of Fundamental Rights.

22. While it has to be acknowledged that this argument was not pressed strongly on this occasion at least, it seems appropriate to deal with it nonetheless. So far as Article 20TFEU is concerned, this was interpreted by the Court of Justice in Case C- 34/08 Ruiz-Zambrano [2011] E.C.R. I-000 as meaning that a Member State could not take action against a third party national with dependent minor children in that Member State where those children are also EU citizens and reside if this had the effect of obliging such children to leave the territory of the Un ion. As I explained at greater length in my judgment in AO (No.2), the applicant cannot realistically invoke Ruiz-Zambrano in the present case. Baby C. is not dependent on Mr. O. (who, in any event, has not contributed to the child 's upkeep) and, as an Irish citizen, her right (and that of her mother, Ms. Y.) to reside in Ireland derives from Article 9 of the Constitution and not at all from European Union law. Nor is there any prospect that Baby C. will be obliged to leave the territory of the Union even if Mr. O. were to be deported.

23. I n these circumstances, I do not think that Mr. O. can establish substantial grounds by which the execution of the deportation order can be stayed on Ruiz­ Zambrano grounds and I would accordingly refuse to grant leave to apply for judicial review on this ground.

24. The applicant further relies on Article 24(3) of the EU Chatter of Fundamental Rights which provides that:-

‘Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her interests, unless that is contrary to his or her interests.’ (emphasis supplied)

25. It is difficult to disagree with Mr. O'Shea's submission to the effect that if Mr.0. is deported it would be difficult to see how Baby C could maintain any personal relationship with her father or have any direct contact with him were he to be deported to Nigeria. Indeed, given the nature of the estrangement between her parents, the (relative) inaccessibility of that country from Ireland and the potentially indefinite nature of any deportation order, the stark probability is that, as we have already noted, Baby C. will never see him again.

26. Nor can it presently be said that permitting supervised access to Baby C. on the part of Mr. O. would be contrary to her interests. It is true that Mr. O. has a criminal conviction and that in the course of his ruling on the issue of access, Judge Lindsay observed that Mr. O's appreciation of honesty and truthful ness was "casual at best". Furthermore, Judge Lindsay also found that Mr. O. had made a threat to abduct Baby C. to Ms. K., even though he considered that Mr. O. did not have the wherewithal to remove her from the jurisdiction. It was for this reason- among others- that Judge Lindsay directed that any access should be supervised.

27. The fact remains, however, that Judge Lindsay did direct that Mr. O. have limited supervised access. The very fact that he did so means that this court must proceed on the basis that such contact is positively in Baby C.'s interests and, furthermore, that refusal access would not be contrary to her interests.

28. Yet it is here unnecessary to pronounce upon the exact meaning and scope of Article 24(3) of the Charter at this juncture, save to observe in passing that the words of this provision, certainly if taken at face value, might yet have considerable implications for immigration law and practice. It is unnecessary to give any concluded view on this question, because it is equally plain from the so-called horizontal provisions of the Charter determining its scope and application that Article 24(3) (like the remainder of the substantive provisions of the Charter) is triggered only where a Member State is "implementing Union law": see Article 51 (1).

29. When, therefore, is a Member State implementing Union J aw? It is impossible at this juncture to essay a complete and exhaustive definition of this term, certainly in the absence of further guidance from the Court of Justice. There i s certainly a spectrum of possibilities here, ranging from those cases where, on the one hand, a Member State exercises a discretionary power conferred upon it by Union legislation to those other cases at the other end of the spectrum where the events in dispute concerning are wholly internal to that Member State and simply concern domestic law.

30. A good example of the former category of case is supplied by the judgment of the Court of Justice in Cases C-411/10 and C-493110 N.S. [2011] E.C.R. I-000. Here the question was whether a Member State was "implementing" Union Jaw in the sense of Article 51 (1) in considering whether to exercise a discretionary power conferred directly on Member States by the Dublin Regulation.

...

Perhaps not surprisingly, the Court answered this question in the affirmative:

64. Article 51 (1) of the Charter states that the provisions thereof are addressed to the Member States only when they are implementing European Union law.

65. Scrutiny of Article 3(2) of Regulation No 343/2003 shows that it grants Member States a discretionary power which forms an integral part of the Common European Asylum System provided for by the FEU Treaty and developed by the European Union legislature.

66. As stated by the Commission, that discretionary power must be exercised in accordance with the other provisions of that regulation.

67. In addition, Article 3(2) of Regulation No 343/2003 states that the derogation from the principle laid down in Article 3(1) of that regulation gives rise to the specific consequences provided for by that regulation. Thus, a Member State which decides to examine an asylum application itself becomes the Member State responsible within the meaning of Regulation No 343/2003 and must, where appropriate, inform the other Member State or Member States concerned by the asylum application.

68. Those factors reinforce the interpretation according to which the discretionary power conferred on the Member States by Article 3(2) of Regulation No 343/2003 forms part of the mechanisms for determining the Member State responsible for an asylum application provided for under that regulation and, therefore, merely an element of the Common European Asylum System. Thus, a Member State which exercises that discretionary power must be considered as implementing European Union law within the meaning of Article 51 (1) of the Charter.

...

31. Less straightforward cases present more difficulty. It may well be that where, for example, the State exercises a discretionary power pursuant to the European Arrest Warrant Act 2003 that the Charter will apply, although this matter is not at all free from difficulty, as Edwards J. acknowledged in Minister for Justice and Equality v. D.L. [2011] IEHC 248. Other difficult questions may possibly arise regarding the scope of application of the Charter where this is said to be triggered by the presence of possibly accidental factors of nationality and free movement in circumstances which might otherwise suggest the happening of events purely internal to this Member State. Might the Charter apply to the issues in the present case if, for example, Ms. K. happened to be a Belgian national who was exercising free movement rights in this State?

32. It is not necessary for me to examine these wider questions because, as I have already noted, the right of Ms. K. and Baby C to reside in this State derives entirely from Article 9 of the Constitution by virtue of their status as Irish citizens. Neither can the deportation power of the State be said to derive from European Union law, since­ as reflected in the Immigration Act 1999 - it is rather a legislative expression of the inherent right of all states under international law to regulate and control their own borders: see, e.g., the comments of Keane J. and Denham J. in Laurentiu v. Minister for Justice [1999] 4 I.R. 26.

33. It i s, of course, true that both the Qualification Directive (2004/83/EC) and the Procedures Directive (2005/85/EC) approximate the minimum substantive and procedural rules applicable to asylum application in respect of the law of each Member State. The Immigration Act 1999 nonetheless remains an item of autochthonous legislation and, in this respect, it is, for example, quite different from the European Arrest Warrant Act 2003. While the Act of2003 gives effect to an EU Framework Decision which fundamentally re-placed all pre-existing intra-European extradition law, this cannot be said of the Act of 1999 which pre-dates both the Qualification Directive and Procedures Directive. Of course, the situation might well be otherwise if asylum and immigration matters were fully harmonised at EU level, so that national laws dealing with these matters were replaced by new legislation which operated exclusively within the confines of EU legislation and which was designed to transpose same.

34. For the moment, however, the Act of 1999 remains an item of purely domestic legislation and in exercising a discretionary power thereunder (such as the power to deport), the State is not "implementing" Union legislation in the sense envisaged by Article 51 of the Charter. If, however, the State is not implementing Union law (as I have so found), then the substantive provisions (including Article 24(3)) of the Charter can not apply. For these reasons, I have concluded that the applicant cannot establish substantial grounds in respect of this issue and I would accordingly refuse the applicant leave to app l y for judicial review on this ground.