High Court dismisses deportation challenge where Minister properly considered family ties and border control aims under ECHR Art 8.

[2018] IEHC 31

THE HIGH COURT

JUDICIAL REVIEW

[2017 No. 728 J.R.]

BETWEEN

MARCIO DUQUE DE SOUZA

ERICA PIRES DA COSTA SOUZA

KAMYLLE DA COSTA SOUZA (A MINOR SUING BY HER FATHER AND NEXT FRIEND MARCIO DUQUE DE SOUZA)

ALYNE DA COSTA SOUZA (A MINOR SUING BY HER FATHER AND NEXT FRIEND MARCIO DUQUE DE SOUZA)

EMANUELLE DA COSTA SOUZA (A MINOR SUING BY HER FATHER AND NEXT FRIEND MARCIO DUQUE DE SOUZA)

APPLICANTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY, THE ATTORNEY GENERAL AND IRELAND

RESPONDENTS

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 12th day of January, 2018

1. The applicants are a family from Brazil. The father arrived in the State as a non-visa required national with a visitor permission that

expired on 17th October, 2010. Notwithstanding his illegal presence in the State, he found employment in a meat factory. The wife

and the two eldest children, who were born in Brazil, arrived in Ireland, in 2011 again as non-visa required nationals. Their visitor

permissions expired on the 31st August, 2011, and they have been illegally present in the State since then. The fifth named applicant,

the youngest child, was born in the State on 29th April, 2013. The applicants made representations seeking regularisation of their

status in the State, which were unsuccessful. They were notified of a proposal to make deportation orders. Representations were

made in response which included referring to the close relationship between the children and maternal grandparents and uncles who

are lawfully resident in the State. Notwithstanding these representations, deportation orders were made on 9th August, 2017, and are

now challenged in these proceedings. I have received helpful submissions from Mr. Gary O’Halloran B.L. (with Mr. Mark de Blacam S.C.

for the applicants) and from Ms. Denise Brett S.C. (with Mr. Tim O’Connor B.L. for the respondents).

The alleged entitlement pursuant to the McMahon report

2. The applicants never made any submission that the Report of the Working Group on Improvements to the Protection Process (the

McMahon report) should be applied to them. That failure is fatal to this argument (see I.S.O.F. v. Minister for Justice, Equality and

Law Reform [2010] IEHC 386 (Cooke J.)). In my view there is no obligation on the Minister to set out criteria for deportation, but

even if there is, it was done in the McMahon report (see my judgment in C.O. v. Minister for Justice and Equality [2017] IEHC 725

[2017] 11 JIC 2406). It is clear that the Minister has a wide discretion at deportation order stage (see F.P. v. Minister for Justice,

Equality and Law Reform [2002] 1 I.R. 164, per Hardiman J. at 173-174, A.B. v. Minister for Justice and Equality [2016] IECA 48

(Ryan P.), P.O. v. Minister for Justice and Equality [2015] 3 I.R. 164 [2015] IESC 64) so no illegality arises here. More fundamentally,

however, these applicants are not protection applicants. They simply do not get off the starting blocks in terms of qualification for

any discretion based on the McMahon report, which is confined to such applicants.

The alleged breach of art. 8 of the ECHR

3. A complaint is made of a breach of art. 8 of the ECHR in relation to the relationship between the minor children and their other Irish

resident relatives, their grandparents in particular. However, the Minister clearly considered this issue and sets out the submissions

made in that regard. This is not a case similar to M.A. v. Minister for Justice Equality and Law Reform [2009] IEHC 245 where the

relationship of other family members was not considered and where the Minister addressed the issue of art. 8 without reference to the

relationship between the applicants and other family members. It is acknowledged by the Minister that the grandparents and uncles

reside in the State. Reference is made to Ezzouhdi v. France (Application no. 47160/99, European Court of Human Rights, 13 February

2001) to the effect that a relationship between adult relatives does not necessarily attract the protection of art. 8 without elements

of dependency involving more than normal emotional ties. The decision notes that the State has the right to control entry of non-

nationals and that for the purposes of art. 8(2) the control of borders is a legitimate aim. That point is referred to by Charleton J. in

Esme v. Minister for Justice and Equality [2015] IESC 26. The decision also notes that the Minister is not obliged to respect the

choice of country of residence of an applicant for the purposes of art. 8 (see Nunez v. Norway (Application no. 55597/09, European

Court of Human Rights, 28 June 2011)). The Minister also commented on the unanimous acceptance by the Supreme Court in P.O. v.

Minister for Justice and Equality [2016] IESC 64 at para. 86 of the judgment of Charleton J., of the principle in Butt v. Norway

(Application no. 47017/09, European Court of Human Rights, 4 December 2012) at para. 34, that children should be identified with the

interests of their parents for (substantive) immigration purposes. The Minister considered that the inconvenience experienced by the

applicants would not reach the threshold of exceptional circumstances amounting to insurmountable obstacles to the return of the

family together to Brazil, and therefore their family life would not be disrupted in an unlawful manner. The analysis noted that the

children are of an adaptable age and that there was no separation of the nuclear family involved. It seems to me that the

consideration of the art. 8 issue is thorough and certainly well within the discretion afforded to the Minister, who considered the

family circumstances, but crucially referred to art. 8(2) to the effect that the legitimate aim of the control of borders outweighs such

considerations. Such an approach is certainly open to the Minister and no illegality in this regard has been demonstrated.

Order

4. For the foregoing reasons the order will be that the application be dismissed.