High Court quashes deportation order due to fair procedures breach but allows Zambrano decision to stand.

THE HIGH COURT JUDICIAL REVIEW Record No: 2024 1208 JR [2026] IEHC 361 BETWEEN:

MAS, NV and ZAS (A MINOR) SUING BY HER MOTHER AND NEXT FRIEND, NV

APPLICANTS

- and -

THE MINISTER FOR JUSTICE RESPONDENT

JUDGMENT of Mr Justice Cian Ferriter delivered on 11th June 2026

Introduction

1. In these judicial review proceedings, the applicants seek an order quashing a decision made by the respondent (“the Minister”) in June 2024 deciding that the first applicant (a non- EU national) was not entitled to remain in the State in accordance with the terms of the CJEU

decision in Case C-34/09 Zambrano (as developed in subsequent CJEU case law) notwithstanding that his wife (the second applicant) and their daughter (the third applicant) reside with him in the State. For ease, I will refer to this decision of the Minister as “the Zambrano decision”.

2. Following on from the Minister’s Zambrano decision, the Minister made a deportation order pursuant to s.3 Immigration Act 1999, as amended, in respect of the first applicant on 11 December 2024 (“the deportation order”), based on a detailed examination of file and recommendation of an official in the Minister’s department. The first applicant seeks an order in these proceedings quashing the deportation order also. Background

3. The first applicant (for ease “the applicant” unless the context otherwise requires) is an Egyptian national who currently resides in the State with the second applicant (“V”) (an EU national who is the applicant’s second wife) and the third applicant, their daughter, who was born in the State in 2019.

4. The applicant has, to put it mildly, a chequered immigration history both in this State and in the UK. I will come to the detail of that history when considering the decisions under challenge. He also has a history of criminal convictions both in this State and in the UK. He was arrested in October 2020, when his daughter was a little over 12 months old, and charged with offences relating to organisation of prostitution, brothel keeping, money laundering and use of a false instrument. He was detained in custody following his arrest and charge. He was convicted in the Dublin Circuit Criminal Court for these offences and sentenced to four years imprisonment, of which he served 33 months, being released in August 2023 (when his daughter was almost 4 years old). He had prior convictions for fraud and theft in the UK which led to his deportation from that jurisdiction in 2009.

5. The applicant says that he met V in 2016 in Dublin and began a relationship. They married in the State in June 2019 and V gave birth to their daughter in September 2019.

6. In February 2020, the applicant applied for an Irish residence card on the basis of his marriage to V (having divorced his first wife). The application was refused as V was not exercising her EU Treaty Rights in the State. This decision was not appealed.

7. On 21 September 2023, the applicant was informed by letter from the Minister that the Minister proposed to make a deportation order in respect of him under s. 3 of the Immigration Act 1999, as amended, as he was a person serving a term of imprisonment in the State at that time.

8. He was invited to make submissions on the proposed deportation order within 15 days. He did not make submissions in response to that letter as such, however, he had at that time in train an application to the Minister for permission to remain on the basis of his parentage of an Irish citizen child and he made that application (i.e. the Zambrano application) on 26 September 2023.

9. The Minister refused his application for permission to remain in the State in a Zambrano decision of 26 June 2024.

10. Shortly afterwards, the applicant launched judicial review proceedings to challenge the Minister’s Zambrano decision.

11. The Minister’s department wrote to the applicant on 6 January 2025, including a copy of a deportation order made by the Minister on 11 December 2024. The decision to make the deportation order was based on a recommendation of file under s. 3 of the 1999 Act made by a senior departmental official in the Repatriation Division on 29 October 2024. This was in turn based on an extensive 20-page examination of file under s. 3 of the 1999 Act conducted by an official of the Minister on 24 October 2024.

12. The applicant then launched further judicial review proceedings to challenge the Minister’s deportation order.

13. The two judicial review proceedings were ultimately consolidated into these proceedings and I heard the challenges to the two decisions (the Zambrano decision and the deportation order decision) at the one hearing. This judgment accordingly addresses the judicial review challenge to each of the two decisions.

14. I will consider firstly the applicant’s challenge to the Zambrano decision before turning to his challenge to the deportation order.

Challenge to the Minister’s Zambrano decision

Relevant legal principles

15. In order to put the applicant’s challenge to the Zambrano decision in context it is necessary to set out the principles established by the CJEU in the Zambrano case as developed in subsequent CJEU authorities.

16. The CJEU in Zambrano Case C-34/09, 8 March 2011 (“Zambrano”), established the principle that a non-EU citizen parent who has an EU citizen child resident in the State may have a derived right of residence in the State if the effect of the non-EU citizen being removed from the EU would also result in such a child having to leave the territory of the EU. The principle established in Zambrano was developed and refined in a series of subsequent authorities, including Case C-325/09 Secretary of State for Work and Pensions v Maria Dias,

21 July 2011, Marín Case C-165/14, 14 November 2016, Chavez-Vilchez Case C-133/15, 10 May 2017 (“Chavez-Vilchez”), and KA Case C-82/16, 8 May 2018 (“KA”).

17. In Chavez-Vilchez, the CJEU held (at para. 70) that, in order to assess the risk that an EU citizen child might be compelled to leave the territory of the EU (and thereby be deprived of the genuine enjoyment of the substance of his or her rights to reside in the EU):

"It is important to determine, that in each case at issue in the main proceedings, which parent is the primary carer of the child and whether there is in fact a relationship of dependency between the child and the third-country national parent. As part of the assessment, the competent authorities must take account of the right to respect for family life, as stated in Article 7 of the Charter of Fundamental Rights of the EU ["the Charter"], that article requiring to be read in conjunction with the obligation to take into consideration the best interests of the child, recognised in Article 24(2) of that Charter."

18. The court went on to hold that, for the purposes of such assessment, the fact that the other parent, an EU citizen, is actually able and willing to assume sole responsibility for the primary day-to-day care of the child is a relevant factor but is not of itself a sufficient ground for the conclusion that there is not, between the third-country national parent and the child, such a relationship of dependency that the child would be compelled to leave the territory of the EU if a right of residence was refused to the third-country national (at para. 71). The CJEU held that "In reaching such a conclusion, account must be taken, in the best interests of the child concerned, of all the specific circumstances, including the age of the child, the child's physical and emotional development, the extent of his emotional ties both to the Union citizen parent and to the third-country national parent, and the risk which separation from the latter might entail for that child's equilibrium" (also at para. 71).

19. In KA, the CJEU reiterated that EU citizenship, as conferred by Article 20 TFEU, is intended to be "the fundamental status of nationals of the Member States", such citizenship of the EU confers on each EU citizen "a primary and individual right to move and reside freely within the territory of the Member States…" (at para. 48). It confirmed, at para. 57, that it is the duty on the relevant authority (the Minister in this case) to assess, on a Zambrano application for residence on the part of a non-EU national parent of an EU citizen child, whether there exists "a relationship of dependency of such a nature that a derived right of residence must as a general rule be accorded to that third-country national under Article 20 TFEU since otherwise the Union citizen would be compelled, in practice, to leave the territory of the EU as a whole and therefore would be deprived of the general enjoyment of the substance of the rights conferred on them by that status". It re-iterated (at paras 71 to 74) the approach taken in Chavez-Vilchez (as set out at paras 17 and 18 above).

20. The CJEU held in KA (at para. 91) that, as a justification for delegating from the right of residence of EU citizens or members of their families, the concepts of "public policy" and "public security" must be interpreted strictly and that the concept of public policy pre-supposes the existence "in addition to the disturbance of the social order which any infringement of the law involves, a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society". A similar test applies in respect of the question of public security. The court held in KA (at para. 93) that it cannot be automatically assumed solely on the basis of the criminal record of the person concerned that there exists a genuine, present and sufficiently serious threat to the requirements of public policy or public security; as the CJEU put it, such a conclusion can be reached "only after a specific assessment… of all the current and relevant circumstances of the case in light of the principle of proportionality, of the child's best interests and of the fundamental rights whose observance the court ensures".

21. The CJEU went on to state, at para. 94: "That assessment must therefore take account in particular of the personal conduct of the individual concerned, the length and legality of his residence on the territory of the Member State concerned, the nature and gravity of the offence committed, the extent to which the person concerned is currently a danger to society, the age of any children at issue and their state of health, as well as their economic and family situation".

The impugned Zambrano decision

22. The Zambrano decision made by the Minister in June 2024 is structured as follows.

23. It firstly sets out the background to the applicant and his interaction with the immigration authorities. It notes that he was initially refused leave to land at Dublin Airport in February 2011 for deception as it was believed that it was his intention to travel to the UK where he had criminal convictions and from where he was deported following sentence in 2009 for fraud and theft. It notes that the applicant was afforded several opportunities to tell the truth about his UK history but continued to lie until he was shown a photograph from the UK Border Agency.

24. The decision notes that the applicant was granted permission to enter the State as he was the holder of a long-stay visa to allow him join his then EU wife. He was subsequently refused asylum in the State. He was the subject of a proposed deportation order in November 2012. Representations for leave to remain in the State pursuant to s. 3 of the 1999 Act were made on his behalf in January 2012 and, in November 2013, he was informed that new regulations had been introduced for the processing of subsidiary applications (he had made such an application), however, he did not engage with that process. The decision notes that he was arrested in the UK in August 2014 on suspicion of sexual trafficking and keeping a brothel (it appears that this may have been in Northern Ireland). No charges resulted. He was the subject of a takeback request from Ireland to the UK in 2014 but was not transferred within the permitted time frame.

25. The decision noted the documentation submitted to support the role he was playing in his daughter's life and stated:

“It is accepted that the applicant is involved in the upbringing of the child. The applicant resides with [V] and their child as a family unit and participates in the care of the child.”

26. The decision then references the applicant's contention that he met his citizen child's mother in 2016 in Dublin and began a relationship and that she had stated in her statutory declaration that their firstborn child was stillborn in 2017, that they married in the State in June

2019 and that V gave birth to their daughter in September 2019. The decision then states: "They are currently involved in a stable, subsisting relationship".

27. (As we shall see, when we come to the terms of the deportation decision, the applicant contends that the Minister took a very different view as to the nature of the marital relationship and the applicant's relationship with his daughter, in a decision given only four months after the Zambrano decision, and in a manner which was unfair in failing to either reason the differences between the conclusions on these central issues or to give the applicant an opportunity to address a proposal to depart from these findings).

28. The Zambrano decision then lists the applicant's 27 previous criminal convictions in the State which relate to the convictions in the Dublin Circuit Criminal Court and the sentencing of the applicant in December 2021 for offences relating to organisation of prostitution, brothel keeping, money laundering and use of a false instrument.

29. The decision notes that the convictions for organisation of prostitution and money laundering are convictions of a serious offence and that his further convictions demonstrate a "persistent pattern of serious criminality indicating an ongoing disregard by the applicant for the laws of the State". The applicant takes issue with the use of the term "ongoing" in the absence of any criminality since those convictions.

30. The decision then proceeds to apply the test in KA (although not referencing KA by name) in concluding that the applicant constituted a "genuine, present and sufficiently serious threat" having regard to his convictions and his history and pattern of criminality which demonstrated an "ongoing disregard for the laws of the State". It is noted that this conclusion needed to be considered against the family circumstances arising and, in particular, having regard to the best interests of the child.

31. The decision then addresses the relationship between the applicant and his Irish citizen child. The decision makes reference to the applicant’s submission that, while he was in custody in prison, he was in regular contact with his daughter every day through permitted calls (two calls per day with her) and face-to-face visits with her every two weeks. The decision also notes his submission that, since his release from custody, his activities with his daughter included reading, drawing and painting together and that he was teaching her Arabic as he hopes for her to be able to speak it when she grows up. The decision references a letter in support of his application from a doctor and the statutory declaration from V in which V stated that the applicant played an important role in the daughter's upbringing and that they were a happy family together and also that their daughter was "very attached emotionally and mentally with her daddy on a daily basis" and that she shared the parental custody of their daughter as he is the "premium carrier [sic] of the child as well" by which I take to mean a joint primary carer of their daughter.

32. The decision then states that "It is reasonable to conclude on the basis of this information that the applicant is involved in the care of [his daughter] who was four years old whilst it would appear that the applicant has been playing this role since the child's birth, it should be noted that the applicant was in prison for 33 months. This is a substantial period of [the daughter’s] life and the applicant's legal representatives have also confirmed that, during the applicant incarceration, “[V] was the daughter's full-time carer”.

33. The decision proceeds to state that, while it would be undoubtedly the case that refusal of permission to the applicant such that he would no longer be present to provide care of his daughter would have "a significant impact" of the child; “however this must be balanced against the genuine, present and sufficiently serious threat the applicant presents to the State”. The decision states that:-

"This conclusion has been reached on the basis of the applicant's personal conduct and while it is recognised that he plays a significant role in the life of the child, the potential consequences of his engagement in serious criminality and ongoing disregard for the law of the State is a matter that he must take personal responsibility for including the potential consequences that this may have in relation to his potential refusal of permission in the State and the impact this will have on the child. The applicant alone is responsible for these consequences and the impact it may have on his child, due to his criminality. The applicant has exhibited a continuous pattern of criminal behaviour, which demonstrates a clear disregard for the best interests of the citizen child."

34. (The applicant here criticises what he says is the inappropriate conflation of the public security question of criminality with the assessment of the derived rights interest arising from his custody and care of his daughter.)

35. The decision then quotes a number of relevant paragraphs from the judgment of the CJEU in Chavez-Vilchez, and also references the CJEU judgment in Zambrano. The decision

– correctly – notes that “to be considered is whether the EU citizen child would have to leave the territory of the EU if residence is refused to the third-country national parent”. The analysis that follows notes that the applicant participates in the care of the citizen child. It then states "However it must be noted that the child's mother… is an EU citizen and that she resides with them and plays an active role in their upbringing… Having regard to the above information, it appears that the citizen child… resides in the family unit" with the applicant V:

"It is therefore reasonable to conclude that while the applicant participates in the care of the citizen child her mother [Ms V] plays an active role in the life of their child and is capable of being her primary carer should a right of residence be denied to the applicant. It is therefore reasonable to conclude that a refusal of residence to the applicant will not, at present, force the citizen child to leave the State."

36. The decision then notes that the fact that the EU citizen parent can assume responsibility for the child as a primary carer "is a relevant factor but not in itself a sufficient ground for considering that there was not, between the child and third-country national parent such a relationship of dependence that the child would be compelled to leave if residence is refused to the third-country national parent".

37. The decision then notes that an assessment must therefore be carried out to expressly consider in the best interests of the child all the specific circumstances including the age of the child, the child's physical and emotional development, the extent of her emotional ties to both the EU citizen parent and the third-country national parent and the risk which separation might entail for the child's equilibrium. The decision then proceeds to conduct such an assessment. It notes that, while the applicant participates in the care of his child, both parents are involved in the upbringing of the citizen child and that it does not appear to be beyond the capacity of the child's mother to take on the role of primary carer. The decision notes that "The child is also at an age where her emotional ties are not fully developed". It then states that having regard to all information submitted, it is reasonable to conclude that, while the applicant's removal would result in an "immediate absence from the child's life [and] will cause a level of upheaval [for the child], this will not have a significantly damaging impact on her equilibrium",

noting that contact could be maintained by way of visits by the child to the applicant and telephone and online contact.

38. The decision then notes that the applicant alone was responsible for these consequences and the impact it may have on his child due to his criminality, the applicant having exhibited "a continuous pattern of criminal behaviour which demonstrates a clear disregard for the best interests of the citizen child".

39. The decision notes that, while refusal of permission to the applicant would have a significant impact on the daughter and that the Minister had an obligation to protect society, the applicant had demonstrated through his conduct that he represents a genuine present and sufficiently serious threat as a result of his engagement in serious criminality in the State, "as well as his ongoing pattern of continued disregard for the laws of the State". The decision referred to a lack of understanding on the applicant’s part of the gravity of the offences he committed outside the State, in demonstrating a continued involvement in criminality while present in this jurisdiction and demonstrates a clear inclination towards criminal behaviour. The decision-maker also states that:

"Regard must be had to the manner in which the applicant entered the State through the use of false documentation in order to evade deportation by the authorities in the United Kingdom. This demonstrates a deliberate attempt to mislead the authorities in the State, and further demonstrates a clear disregard for the rule of law in its application to all individuals. Following due consideration of the above, [the applicant's] convictions in the State and the United Kingdom draws the conclusion that he constitutes a genuine, present and sufficiently serious threat to society."

40. The decision-maker then proceeds, under the heading "Recommendation", to a

conclusion that the refusal of the permission to the applicant would not result in his daughter, on the basis of the circumstances as they currently exist, having to leave the territory of the Union and therefore being deprived of the genuine enjoyment of the substance of her rights as a European citizen.

41. The recommendation then goes on to state that "However, even if this conclusion is incorrect, it is concluded that exceptional circumstances arise in the case, having regard to the applicant's personal conduct, the basis of which it is concluded the applicant represents a genuine, present and sufficiently serious threat".

The applicants’ case in relation to the Zambrano decision

42. The applicant contends that the Minister, in her Zambrano decision, failed to properly apply the Chavez-Vilchez test, in particular, failed to identify the primary carer of their child as between the applicant and his EU citizen wife and failed to properly engage with the relation of dependency between the applicant and his daughter. He also contends that there was a failure to expressly consider the Article 7 family rights and Article 24 best interests of the child in the Zambrano decision assessment.

43. The applicant further contends that, contrary to the key requirements in these authorities, the Minister here wrongly evaluated the question of the applicant's criminality at the earlier stage of assessing whether the Zambrano derived rights test had been satisfied and that, as a matter of substance and sequencing, this should have come only after the derived rights question had been looked at.

44. The applicant also contends that there is a contradiction between the acceptance earlier in the decision as to the nature and quality of the family unit and the applicant's relationship with his daughter, and the conclusion of the decision.

45. The applicant also submits that the decision-maker fell into error in relying, at various points in the Zambrano decision, on the applicant's "continued" disregard for the laws of the State and his "continued" involvement in criminality while resident in the State and his "ongoing" disregard for the laws of the State.

46. Finally, he says that no proportionality analysis was conducted by the decision-maker in respect of the reliance on criminality as a reason for justifying the refusal of permission to remain in the State.

Discussion

47. In my view, a fair reading of the decision as a whole shows that V was identified as the primary carer, with the applicant also regarded as providing significant care. I do not believe there has been a failure to understand and apply the correct test; the decision-maker quoted the correct test from the CJEU judgment in Chavez-Vilchez and clearly understood the test she was applying. The decision had earlier correctly set out that V was the child’s full-time carer during the applicant’s incarceration which it should be recalled was up to the date of the decision, some 33 months out of the child’s life to that point of some 57 months. The decision notes that the applicant “participates” in the care of the child and that “both parents are involved in the upbringing” of the child; nowhere is there a finding that he was the primary carer. The reference in the decision to V being capable of being the child's primary carer should a right of residence be denied to the applicant is, in my view, in substance a finding, in accordance with the correct application of the test in Zambrano and Chavez-Vilchez, that the child would not be compelled to leave the EU if the applicant was not granted permission to remain and was correctly arrived at following an assessment of the factors identified in Chavez-Vilchez as relevant to such a determination.

48. The decision noted that, while refusal of permission to the applicant would have a significant impact on the daughter and that the Minister had an obligation to protect society, the applicant had demonstrated through his conduct that he represents a genuine present and sufficiently serious threat as a result of his engagement in serious criminality in the State, "as well as his ongoing pattern of continued disregard for the laws of the State". The decision referred to a lack of understanding on the applicant’s part of the gravity of the offences he committed outside the State, in demonstrating a continued involvement in criminality while present in this jurisdiction and demonstrates a clear inclination towards criminal behaviour. In my view, these are unimpeachable findings on the facts before the decision-maker.

49. While the applicant complains that the decision wrongly conflates the public policy and public security issues in the derived rights analysis, I respectfully disagree. An assessment of the child's development and the extent of her emotional ties to each parent in the circumstances of this case must necessarily factor in the fact that the applicant, through his criminality, was largely absent from his child's life (apart from daily calls and fortnightly visits) during his period of almost three years in prison, i.e. for a considerable period of his young daughter's life up to the date of the Zambrano decision.

50. As noted earlier, under the heading "Recommendation", the decision-maker concluded that the refusal of the permission to the applicant would not result in his daughter, on the basis of the circumstances as they currently exist, having to leave the territory of the EU and therefore being deprived of the genuine enjoyment of the substance of her rights as a European citizen. It seems to me that this is a finding that was lawfully open to the Minister and was arrived at by a correct understanding and application of the applicable tests as set out in the Zambrano line of jurisprudence, including the decision in Chavez-Vilchez.

51. The recommendation then goes on to state that "However, even if this conclusion is incorrect, it is concluded that exceptional circumstances arise in the case, having regard to the applicant's personal conduct, the basis of which it is concluded the applicant represents a genuine, present and sufficiently serious threat". Again, this seems to me to be an unimpeachable conclusion on the application of the principles set out in KA.

52. The decision-maker had earlier stated that:

"Regard must be had to the manner in which the applicant entered the State through the use of false documentation in order to evade deportation by the authorities in the United Kingdom. This demonstrates a deliberate attempt to mislead the authorities in the State, and further demonstrates a clear disregard for the rule of law in its application to all individuals. Following due consideration of the above, [the applicant's] convictions in the State and the United Kingdom draws the conclusion that he constitute a genuine, present and sufficiently serious threat to society."

53. In my view, this was a valid and proper application of the test set out in KA in relation to assessment of public policy or public security concerns.

54. The conclusion is also, as a matter of sequencing, arrived at after an independent and prior finding in relation to the application of the Zambrano/Chavez/Vilchez test. The recommendation notes in addition that the applicant's daughter "has resided in the State without the full-time presence of the applicant in her life during the applicant's incarceration in the State for 33 months" and notes that, in those circumstances and having regard to all the information set out, it is recommended that permission should be refused to the applicant.

55. I should say that I do not see that there has been any breach in substance of the application by the Minister of the tests in Chavez-Vilchez and KA in the manner in which the document is sequenced. It is clear that the Minister properly addressed the question of the nature of the relationship between the applicant and his daughter, and the nature of the family

relationship including the marital relationship in assessing whether the daughter was likely to be compelled to leave the EU.

56. While the references to the applicant’s "continuous" and "ongoing" involved in criminality may have been loosely phrased, the clear sentiment being conveyed was that this was not a case of once-off criminal offending by the applicant in respect of which he had been rehabilitated but, rather, that, notwithstanding his convictions for serious matters in the UK, he moved to Ireland and continued to engage in serious criminality in this State. This was clearly relevant to the assessment before the decision-maker and I do not see that there was any error of law involved.

57. The references to the criminal record and behaviour of the applicant in the course of the derived rights assessment were relevant to that assessment in the sense, as summarised by the decision-maker in the recommendation section, that the daughter had resided in the State without the full-time presence of the applicant in her life during his incarceration in the State for 33 months, which was a considerable period of his young daughter's life (who was not yet five years old at the time of the June 2024 decision). That was clearly relevant to an assessment of the nature of the quality of his relationship with his daughter and the extent to which she was in practical terms likely to be to compelled to leave the EU if he was forced to leave the EU.

58. Insofar as it is complained that there was no proportionality analysis conducted in respect of the Minister's reliance on criminality as a reason for justifying the refusal of permission to remain in the State, it seems to me that in substance a proportionality analysis was conducted. The decision-maker, having identified a “genuine present and sufficiently serious threat” resulting from the applicant's criminal history, weighed that factor in substance against the relationship with his daughter, expressly bearing in mind that the applicant had been incarcerated for 33 months of her life. While it may have been preferable to spell out in clearer terms that a proportionality analysis was in fact conducted, it seems to me that in fairness to the decision-maker such an assessment was in substance done. It cannot be fairly said that the

decision was not reasoned in this regard.

59. Accordingly, I do not accept that the Zambrano decision of June 2024 is unlawful under any of the grounds advanced.

The deportation decision

Background

60. As noted earlier, the Minister’s department wrote to the applicant on 6 January 2025, including a copy of a deportation order made by the Minister on 11 December 2024. The

decision to make the deportation order was based on a recommendation of file under s. 3 of the 1999 Act made by a senior departmental official in the Repatriation Division on 29 October 2024. This was in turn based on an extensive 20-page examination of file under s. 3 of the 1999 Act conducted by an official of the Minister on 24 October 2024. For ease, I will refer to the examination of file document as “the deportation decision” or “decision” and the author of that document as the decision-maker.

Relevant legal principles

61. Section 3(1) Immigration Act 1999 as amended (“the 1999 Act”) empowers the Minister to make a deportation order in respect of a non-national. Section 392)(a) provides that a deportation order can be made in respect of a person who has served or is serving a term of imprisonment imposed on him or her by a court in the State.

62. Section 3(6) of the 1999 Act provides that:

“in determining whether to make a deportation order in relation to a person, the Minister shall have regard to—

(a) the age of the person;

(b) the duration of residence in the State of the person;

(c) the family and domestic circumstances of the person;

(d) the nature of the person's connection with the State, if any;

(e) the employment (including self-employment) record of the person;

(f) the employment (including self-employment) prospects of the person;

(g) the character and conduct of the person both within and (where relevant and ascertainable) outside the State (including any criminal convictions);

(h) humanitarian considerations;

(i) any representations duly made by or on behalf of the person;(j) the common good; and

(k) considerations of national security and public policy,so far as they appear or are known to the Minister.”

63. The Supreme Court in Oguekwe v Minister for Justice [2008] 3 IR 795 ("Oguekwe") set out the principles applicable when the Minister is making a decision as to deportation under s.3 of the 1999 Act of a non-national parent of an Irish born citizen child. The judgment of Denham J. (as she then was) in Oguekwe makes clear that where the mother and child are Irish citizens, regard has to be had to the personal rights of the Irish-born citizen child and of the family unit and to interference with those rights “which will include consideration of the nature and history of the family unit” (para 85(3) and (5)). The constitutional rights (including the personal rights) of the Irish born child must be expressly considered including the rights of that child to:

(a) reside in the State,

(b) be reared and educated with due regard to his welfare,

(c) the society, care and company of his parents, and

(d) protection of the family, pursuant to Article 41.

64. The ECHR rights of the child and of the applicants must also be considered.

65. Denham J stated in Oguekwe (also at para 85) that:

“(10) The State's rights require also to be considered. The State has the right to control the entry, presence, and exit of foreign nationals, subject to the Constitution and international agreements. Thus the State may consider issues of national security, public policy, the integrity of the immigration scheme, its consistency and fairness to persons and to the State. Fundamentally, also, the Minister should consider the common good, embracing both statutory and Constitutional principles, and the principles of the Convention in the European context.”

66. Further, she stated that:

“(11) The Minister should weigh the factors and principles in a fair and just manner to achieve a reasonable and proportionate decision. While the Irish born child has the right to reside in the State, there may be a substantial reason, associated with the common good, for the Minister to make an order to deport a foreign national who is a parent of an Irish born child, even though the necessary consequence is that in order to remain a family unit the Irish born child must leave the State. However, the decision should not be disproportionate to the ends sought to be achieved.”

67. Denham J concluded (at para 85(16)) that

“On judicial review of a decision of the Minister to make an order of deportation, the court does not exercise and substitute its own discretion. The court reviews the decision of the Minister to determine whether it is permitted by law, the Constitution, and the Convention.”

68. To the foregoing analysis must be added the constitutional rights of the child as now recognised in article 42A of the Constitution. Woulfe J addressed this matter in his judgment in AZ v The Minister for Justice [2024] IESC 35 ("AZ") (a case dealing with a deportation order in respect of a non-national who was married to an Irish citizen and was father to a number of Irish citizen children with his wife). He noted that the child’s rights under article 42A include the right to have his/her welfare considered, in the sense of what is in his/her best interests, in immigration decisions which impact upon custody and access (para 116). The best interests of the child consideration is “a primary consideration” under article 42A.2.1 of the Constitution (in contrast to Article 42A.4.1, relating to the welfare, long-term interests and (in the case of adoption) even the status of the child, which requires that the best interests of the child is “the paramount consideration” (para 121)). Importantly, Woulfe J clarified in AZ that “while the child’s best interests are a primary consideration, this does not necessarily dictate the outcome, as in many cases there may also be other important considerations which the Minister must weigh in the balance in arriving at deportation decisions” (para 118).

69. Those other important considerations clearly include the State’s rights including, as Denham J noted in Oguekwe (at para 85(11), set out above) “its right to control the entry, presence, and exit of foreign nationals, subject to the Constitution and international agreements. Thus the State may consider issues of national security, public policy, the integrity of the immigration scheme, its consistency and fairness to persons and to the State.”

Summary of applicant’s case and Minister’s response to that case

70. While I will come to the terms of the deportation decision in some detail shortly, in summary terms, the applicant complains that the decision is vitiated by various errors of law and failure to apply fair procedures including, in particular, that the finding in this decision as to the absence of a durable marriage between the applicant and V and of a proper relationship between the applicant and his daughter was fundamentally at odds with conclusions to the contrary in the Zambrano decision made in respect of the applicant in June 2024 without either reasoning why there was a departure from the June 2024 contrary findings or without giving the applicant an opportunity to make submissions in respect of a proposed departure from the earlier findings. The applicant contends that the mere four-month gap in time between the June 2024 Zambrano decision and the October 2024 deportation decision did not warrant such fundamentally different conclusions as to the nature of the marital and father-daughter relationship without proper reasons and/or inviting submissions on same.

71. The applicant further contends that the decision-maker wrongly applied the Supreme Court decision in Odum v Minister for Justice (No. 2) [2023] 2 ILRM 164 ("Odum") in circumstances where that case dealt with a very different scenario (in contrast to the situation of the applicants here, in Odum there was no evidence of any relationship between the applicant there and his children at all); and that the decision was in error in its ECHR analysis in failing to refer to the significant weight required to be attributed to the child's interests in weighing the respective rights and interests when deciding whether or not to deport the applicant.

72. The Minister's answer to the applicant’s case on the deportation decision, in short, is that the findings of the June 2024 Zambrano decision were accepted and the decision-maker was at pains to rely on the absence of updating information since then, which was a valid approach; there was no absence of fair procedures in the circumstances; that the principle in Odum was correctly applied and that Oguekwe was properly applied also and that there was no error in the ECHR analysis.

73. Before addressing the applicant’s case and the Minister’s response to it, it is necessary to address the terms of the deportation decision.

Terms of the Deportation Decision

Overview

74. The decision document is a lengthy one at some 20 single-spaced pages and I do not propose to quote from it in any more detail than is necessary.

75. In broad terms, the deportation decision is structured as follows. The decision-maker firstly sets out and addresses each of the matters contained in s. 3(6) of the 1999 Act. The question of prohibition of refoulment is then considered, as is s. 4 of the Criminal Justice (UN Convention Against Torture) Act, 2000. There is then consideration given to “Articles 40, 41,

42 and 42A” of the Constitution and a conclusion on those matters. The decision then looks at the position of the applicant's EU national wife; then the position of the applicant’s Irish citizen daughter, before moving to a consideration under s. 3 of the European Convention on Human Rights Act 2003, having regard to Article 8 ECHR before reaching a conclusion on the Convention issues and then, finally, considering the question of any humanitarian considerations.

Background and s.3(6) criteria

76. The decision sets out in some detail the applicant's history in the State and his interaction with the immigration authorities. It notes his previous marriage and the two children from that marriage and then his second marriage (the marriage to V) in June 2019 and the birth of their daughter in September 2019. The documentation submitted in support of his Zambrano application is set out and a helpful chronology of his timeline of interactions in the State, including his criminal convictions, is then set out. Under the heading of the applicant’s employment prospects (s. 3(6)(f)), it notes that while he has no permission to work in the State "given the current economic climate, it is reasonable to conclude that [the applicant’s] employment prospects would be good in the event that he had an appropriate immigration permission" while noting that his employment prospects in certain fields of employment may be limited as a result of his convictions. Under the s. 3(6)(g) heading of character and conduct of the applicant both within and outside the State, his criminal activities and convictions are recorded as was his arrest in August 2014 in Northern Ireland on suspicion of sexual trafficking and keeping a brothel and the fact that no charges were laid in relation to these matters and that he was dealt with as a person who had entered the UK illegally. The interest of the common good in upholding the integrity of the asylum immigration procedures of the State is referenced under the common good criterion in s. 3(6)(j). This public policy is noted as having a bearing (understandably given his record of criminal conduct). Under the heading “prohibition of refoulment”, the applicant's submissions in relation to a Freedom House Report on Egypt 2024 is noted and a finding is made that this did not indicate that prohibition of refoulment would apply to him if returned to Egypt.

The applicant’s Constitutional rights

77. The decision in its consideration under the heading “Articles 40, 41, 42 and 42A of the Constitution” assesses the applicant's rights to private life/association/autonomy and notes that such rights fall to be considered against the important interests of State in preventing crime and that the State's interest in regard will generally prevail over his private rights. This section of the assessment says that it was significant that the applicant had engaged in criminal behaviour in the State and that his behaviour showed a "blatant disregard" for the laws of the State and notes the State’s interests in pursuit of the legitimate aim of the prevention of disorder or crime "which must be considered weighty". It is noted that no substantive submissions were made on behalf of the applicant in response to the s. 3 proposed deportation notification of 21 September 2023 and it was stated that the applicant's residency in the State “at this time is uncorroborated notwithstanding his release from custody on 1 August 2023 and his application for permission to remain as a parent of an Irish citizen child which commenced on 22 September 2023 but which was refused on 26 June 2024”. The section concludes that a

decision by the Minister to deport would not constitute a breach of any of the applicant's personal rights under Article 40. That finding is not impeached in these proceedings.

Marriage to EU citizen

78. The decision then moves to a consideration of the fact that the applicant is married to an EU citizen. The decision notes that it is accepted that the couple constitute a family within the meaning of Article 41 of the Constitution. This section notes that the applicant was arrested on 19 October 2020 and remanded in custody following his conviction on a guilty plea of 6 July 2021 where he received a four year custodial sentence for 27 charges against him (as previously detailed). The decision notes that "information submitted in support of his previous unsuccessful application in support of his [Zambrano application] on 22 September and 6 November 2023 have been duly considered at this time".

79. This section of the decision goes on to acknowledge his marriage to Ms V in June 2019 and the birth of their daughter in the State in September 2019 at a time when his EU citizen spouse (Ms V) was not exercising her EU rights in the State. The decision also mentions that the applicant was refused permission to remain in the State as a parent of an Irish citizen child in June 2024 "and no up-to-date information in respect of his relationship with his wife, or child, has been provided at the time of writing". The decision goes on to state that all matters concerning the applicant and V, insofar as they have been made known, have been considered.

80. The decision then states:

"While no submission has been received by or on behalf of [the applicant] it is impossible to say with certainty how long he had remained in the State at the time of his arrest on 19 October 2020, however, I acknowledge he married in the State on 12 June 2019 and his daughter was born in the State on 27 September 2019. I have considered on the basis of the limited law for permissions granted to [the applicant] and the many periods of residence in the UK over the years it is difficult to accept or ascertain how long he resided in the State prior to his arrest on 19 October 2024 or since his release on 1 August 2023 or if he is in fact residing in the State at this time."

81. The decision then goes on to state that:

"In considering the nature of the relationship between [the applicant and Ms V] I have considered the submissions in respect of the applicant's unsuccessful [Zambrano application]. I have considered that no substantive or up-to-date submissions or representations in relation to Ms V or her five-year-old daughter, besides that provided to support his [Zambrano application] on 22 September 2023. I have considered, on the basis of the lack of any real or substantive submissions, it is difficult to accept that their asserted marriage on 12 June 2019 has subsisted for five years, or that they are residing together in the State." (emphasis supplied)

82. The applicant submits that this runs directly contrary to the finding in the Zambrano

decision (set out at para 26 above) that the applicant was (as of June 2024) “involved in a stable, subsisting relationship" and that he was involved at that time in the upbringing of his child and that he resided with V and their child as a family unit and participates in the care of the child.

83. The decision-maker goes on to acknowledge the written submissions advanced by the applicant's solicitors on 22 September 2023 and 19 November 2023 and the applicant's handwritten Zambrano application form of 24 August 2023 and acknowledges the submission that the applicant "shares minding duties of [their daughter]" with his wife who he records is currently in receipt a social welfare and that he does not hold permission.

84. The decision-maker also acknowledges the submission that the applicant met Ms V in 2016 in Dublin and that they got married in 2019 when Ms V was around six months pregnant and his submission that "We are still married and residing together". The decision acknowledges a rent review notice of July 2023 in both their names. The decision then goes on to state:

"While the above submissions in support of [the applicant's] unsuccessful [Zambrano application] are accepted, no further substantive or reliable evidence of the ongoing relationship between [the applicant and Ms V] has been provided. It is difficult, from the dearth of the submissions and supporting documents provided at this time, to accept that this marriage, which was entered into at a time when [the applicant] was residing in the State without any lawful permission, is one of substance and durability, and no up-to-date submission have been provided in response to the Minister’s proposal to deport notification on 21 September 2023. It is further considered significant that no up-to-date submission or information has been received from friends and family of [the applicant and Ms V] attesting to the character and relationship of this couple or family."

85. The applicant submitted that there was no basis for him to provide such up-to-date information in light of the clear findings in favour of the applicant in relation to the nature of his marriage and of his relationship with his daughter as set out in the June 2024 decision and

that the decision-maker breached fair procedures in making such adverse findings without inviting him to make follow up submissions.

86. The decision-maker then goes on to state that she considered that the applicant and Ms V:- "…on the basis of his criminal convictions in the State were separated for a period of

33 months, two years nine months from 19 October 2020 to 1 August 2023 when he gained temporary release from prison. In addition, in considering whether family life could be established elsewhere, no information has been submitted which demonstrates that Ms V would be prevented from travelling to Egypt to visit the applicant and maintain their relationship in the manner in which it developed."

87. The decision then goes on to note submissions made as part of the Zambrano application in terms of the enhanced prisoner status that the applicant received six months into his custodial term and the temporary release he obtained at the latter end of his sentence and that he had utilised his time in custody in a productive manner by completing courses in prison. The decision then states that, notwithstanding the applicant's "desire to minimise his conviction, the sentence imposed indicates a propensity on his part towards his criminal behaviour and a flagrant disregard for the laws of the State" and noted as significant the fact that the applicant failed "at any time, to show or record any remorse which would go to some way to illustrate that he understands the nature of his very serious convictions in the State".

88. The decision-maker then notes, in considering the nature of the relationship between the applicant and Ms V that "their marriage in the State occurred at a time when he had no permission to remain and his application for an EU residence card, on the basis of this marriage, was ultimately refused while it was determined that his EU spouse was not exercised her EU rights in the State". It also notes that in considering whether family life could be established elsewhere, no information had been submitted to demonstrate that Ms V would be prevented from travelling to Egypt to visit the applicant to maintain their relationship. This section of the decision concludes by submitting that the factors relating to the rights of State were weightier than the factors relating to the rights of the couple. The decision to make a deportation order in respect of the applicant would not be disproportionate "as the State has a right to uphold immigration law, prevent disorder or crime and to ensure the economic wellbeing of the country". The applicant's Irish citizen daughter

89. The deportation decision then goes on to address the question of the applicant's Irish citizen daughter and notes that, while it is accepted that family life arises between the applicant and his daughter, "no substantive submissions or up-to-date information has been provided in respect of [his daughter] and the information provided and available at this time rests with the submission of 22 September 2023" as part of the applicant's unsuccessful Zambrano application which was refused in June 2024.

90. The decision acknowledges the applicant's daughter’s rights under Article 40 of the Constitution, including her right to reside in the State, to be reared and educated with due regard to her welfare and to the society, care and company of her parents and to the protection of the family pursuant to Article 41, and the decision correctly states that rights also arose under Articles 42 and 42A of the Constitution and that the best interests of the child are a primary consideration to be considered along with other relevant considerations.

91. The principles in Oguekwe are then set out. The decision-maker states that it was not accepted that, if the Minister decided to make a deportation order in respect of the applicant, that this would require his daughter to leave the State, and the decision-maker, while accepting that if a deportation order was made in respect of the applicant it would make it difficult to maintain a relationship based on face-to-face contact with his daughter, notes the submission made in the Zambrano application context on behalf of the applicants that during his incarceration, he was in regular contact with his daughter through calls and fortnightly or weekly face-to-face visits. The submissions made on his behalf in the context of the unsuccessful Zambrano application in September and November 2023 are quoted from including the applicant's statements as to his activities with his daughter since being released from custody. The decision-maker notes that, notwithstanding the refusal of the applicant's application for permission to remain as a parent of an Irish citizen child on 26 June 2024, no further up-to-date or substantive submissions in response to the Minister's notification as to the proposed deportation order pursuant to s. 3 of the 1999 Act had been received "to record the current status of the relationship with his five-year-old daughter". It then states that, on the basis of the lack of information available at this time, it was considered reasonable to suggest that the applicant, if he so wished, could maintain contact with his daughter by telephone and/or Skype if returned to Egypt and it will be open to his daughter to travel and visit him in Egypt.

92. The judgment of O'Donnell CJ in Odum is then set out to the effect that the applicant's residence in Ireland was precarious but that the fact of a relationship and the rights of the children must be taken into account in a deportation context. There is then a reference to the section of O'Donnell CJ's judgment in Odum where the Supreme Court relied on the absence of any evidence of any substantive relationship with his children.

93. The decision then proceeds to say that "By analogy with the applicant in Odum, [the applicant's] presence in the State has also been precarious since his entry". I might pause to note that the applicant's counsel does not take issue with that statement; he does however take issue with the next part of the sentence, which reads "…and he has not provided any evidence of engagement with his daughter such that it would be an interference with his daughter’s rights to remove him from the State, or his relationship with his daughter is such that his deportation would cause them irreparable harm.” The decision goes on to state that “It is concluded that as [the applicant] has not provided further or additional evidence of a real and meaningful relationship, his deportation would not be a disproportionate interference with his family rights as provided by the Constitution."

94. This is said by counsel for the applicant to directly contradict the June 2024 decision findings.

95. The decision then goes on to refer to the Supreme Court's recent decision in a AZ v Minister for Justice and Equality [2024] IESC 35, where it was held that Article 42A(1) was “of relevance in the context of deportation-related decision-making that may affect the child whereby the rights and welfare of a citizen child must be considered as a primary consideration". The operative part of the judgment of Woulfe J in AZ at para. 118 of his judgment is then set out, i.e. that "[w]hile the child's best interests are a primary consideration this does not necessarily dictate the outcome as in many cases there may also be other important considerations which the Minister must weigh in the balance in arriving at deportation decisions". The decision then states that besides the written submission on behalf of the applicant of 22 September 2023, he had failed to provide further evidence of how his daughter would be affected by his deportation and also failed to provide information about her or any relationship he has with her other than that provided to support his Zambrano application.

96. The decision-maker goes on to state that she accepted that it is in the best interests of the applicant's daughter to have the care and company of both of her parents but that this needed to be balanced "against the overall public interest and the particular facts of the case". It noted that, given that Ms V is an EU national, she had permission to remain in the State. It was not accepted that, if the Minister decided to deport the applicant, his daughter would be required to leave the territory of the EU. The decision-maker notes that she considered it was open to the applicant’s daughter to remain in State with her mother and to maintain contact with the applicant by telephone or potential visits to Egypt if that is the choice her mother wishes to make and that "While I acknowledge the lengthy written submission under cover of 22 September 2023 no further or other information has been provided at this time to illustrate the status of [the applicant's] relationship with his daughter". (emphasis supplied)

97. The decision then notes that the applicant’s very concerning criminal behaviour in the State cannot be considered a trivial matter that causes no harm to society and that his convictions are a “flagrant disregard” for the laws of the State and that it is appropriate to have regard to the right of the State to remove him in order to protect the public against further crime which is in pursuit of the legitimate aim of the prevention of disorder of crime and that this is a weighty factor. The decision then states:

"Although the rights of [the applicant and his daughter]… are a paramount consideration it is considered that in the particular circumstances of the case, the family's interests and the child's best interests are outweighed by the rights of the State".

98. The decision then states that, while the decision-maker acknowledged the submission that the applicant resided in the State with Ms V and his daughter, “no up-to-date evidence of [the applicant's] ongoing involvement in the life of his daughter, since his release, has been provided” (emphasis supplied). Counsel for the applicant states that this is a material error as evidence of the applicant's ongoing involvement in the life of his daughter since his release in August 2023 was provided in September 2023.

Conclusion on constitutional rights

99. This section of the decision goes on to state that:-

"I have considered that the right of the Minister to remove [the applicant] to prevent disorder or crime therefore exists as a substantial reason for making the deportation order. Having regard to the above consideration and all the circumstances arising in this case, deportation is not disproportionate to the ends sought to be achieved and the order of deportation is a necessary measure for the purpose of achieving the common good.

Therefore it is submitted that a decision by the Minister to make a deportation order in respect of [the applicant] is not in breach of the rights under Article 41,

42 or Article 42A of the Constitution extending to him and his family as outlined and considered above."

ECHR analysis

100. In the ECHR analysis section of the decision, the decision expressly records the information put before the Minister in the Zambrano application context and quotes from the statutory declaration of Ms V to the effect that the applicant's daughter was "very attached emotionally and mentally to her daddy on a daily basis plus I and [the applicant] share the custody parental of our child as he is a premium carrier [sic] of the child as well". The

decision-maker accepted that family life arose between the applicant, Ms Vand their daughter and that the family enjoyed the right to respect for family life under Article 8 ECHR and that the right to respect for private life under Article 8 also arose. The decision went on to reason why it was submitted that a decision to make a deportation order was a justified interference in the right to respect for private and family life by reference to the pressing need and legitimate aim pursued by the making a deportation order being the legitimate aim of the State to prevent disorder or crime and it being necessary in a democratic society in pursuit of a pressing social need and proportionate to the legitimate aim being pursued within the meaning of Article 8(2). A proportionality analysis is then set out.

101. The decision, in its ECHR analysis, goes on to analyse in this context the applicant's immigration history, his convictions and the submissions received in the Zambrano application context. It takes the view that it was not accepted that, if the Minister decided to make a deportation order, that this would require the applicant's daughter to leave the State given that she resided with her mother in the State and seeks to balance the overall public interest on the facts of the case with the fact that a deportation order would make it difficult to maintain a face-to-face relationship with the applicant's daughter. The decision notes that, if the applicant is deported, the family would be entitled to apply for Egyptian citizenship as a spouse and child of the applicant, and it would be open to Ms V to move there with their daughter if she so wished. It stated that the applicant's daughter was five-years-old at the time of the submission "and therefore is considered to be of a young and adaptable age and as a result a move to a different country would not cause her significant difficulty", noting that she would have little difficulty in picking up the language particularly given that the applicant's mother tongue was Egyptian.

102. It was accepted by the decision-maker that it would cause "some difficulty in adjustment" for Ms V and the applicant's daughter to relocate to Egypt and that as Romanian and Irish citizens, Ms V and her daughter had a right to reside in the State or in Romania and enjoy the right to family life. However, this was said to be balanced against the right of the State to prevent disorder or crime and protect its citizens and that the potential hardship faced by the applicant's family in relocating to Egypt to be with him would be outweighed by the public interest in preventing disorder or crime and protecting the rights and freedoms of others on the particular facts of the case. It was noted that it was open to Ms V to remain in the State with her daughter and maintain contact with the applicant by telephone and potential visits to Egypt if that is a choice the couple wish to make and that "the circumstances the family now find themselves in is as a direct result of the actions of [the applicant] alone". Reference to the applicant's convictions and period in imprisonment is referenced in this context as is the fact that he failed to advance any submission in respect of any element of remorse for his behaviour.

103. The decision notes that the applicant's behaviour in the State, "which can only be described as serious", clearly indicates:

"…a propensity on his part towards criminal and fraudulent behaviour, and a flagrant disregard for the law of the State. This type of behaviour on the part of an individual with no immigration status in the State cannot simply be minimised on the basis of his desire to remain in the State with his wife and child."

104. The decision then makes reference to the fact that the applicant, without lawful permission, continued to enter and leave the State, travelling and residing between the UK and Ireland until his first marriage to a UK national ended and his attempts to remain in the UK were exhausted and that he further attempted as a spouse of an EU national and the parent of an Irish citizen child to gain a right of residence in respect of which he was unsuccessful. It notes that apart from a temporary permission to remain while his asylum claim was being processed in 2011, he had never held a lawful permission to enter and remain in the State over the last 13 years and the gravity of this behaviour along with his serious criminality in the State should not be ignored. It also noted that in circumstances where the Minister had an obligation to prevent disorder or crime and protect the rights of freedom of others, it was of significance that the applicant had "minimised behaviour and failed to express a level of remorse or insight into his offending in the State and relevant to the offence for which he was convicted". It notes that, rather than show a level of sincere regret for his criminal behaviour, "he has instead sought to rely on limited and undocumented claims that he has resided, worked and contributed to the State over the past 13 years while information from the UK shows a similar pattern there” and that the applicant "even at this point in time has failed to provide evidence of his asserted integration in the State and instead seeks to rely on his family life in the State".

105. The conclusion on the ECHR analysis is that, although the rights of the applicant and his family are "not underestimated", the family's interests in the particular circumstances of the case were outweighed by the rights of the State and that deportation was not disproportionate to the ends sought to be achieved and that the order of deportation was a necessary measure for the purpose of achieving the common good.

Discussion

106. Subject to one important matter, in my view, the deportation order decision is, in general terms, considered and properly structured, has regard to the correct legal issues, applies the correct legal principles and is not vitiated by any material error.

107. However, in my view, the decision-maker erred as a matter of fair procedures in repeatedly relying on the fact the applicant had failed to provide up to date evidence or submissions since the Zambrano decision in relation to the status of his marital relationship and his relationship with his daughter to arrive at conclusions on those issues which were substantively different from the findings in his favour on those issues in the Zambrano decision, without giving the applicant an opportunity to make representations as to the up-to-date position or as to why the Minister ought not depart from his department’s own findings on those issues made just four months previously. The adverse conclusions reached on those issues were clearly material to the decision-maker’s overall analysis and decision and, as such, fair procedures required that the applicant be given an opportunity to make representations on those matters before a final decision was reached.

108. As set out earlier in this judgment, the Minister found in the Zambrano decision of June 2024 that there was “a durable, stable family relationship” between the applicants, that the applicant was involved in the upbringing of his child and that he resided with V and their child and participated in the care of the child. However, in the deportation order decision some four months later, in October 2024, the decision-maker made the following findings:

(i) that it was difficult to accept that the asserted marriage had subsisted for 5 years or that the applicant and his wife were residing together in the State at all.

(ii) that there was no up-to-date evidence of a real and meaningful relationship between the applicant and his daughter

(iii) that there was no evidence of the current status of the applicant’s relationship with his daughter

(iv) that there was no up-to-date evidence of a real and meaningful relationship between the applicant and his daughter

109. These conclusions were not reached on the basis that the earlier findings were in error but on the basis that up-dated information or evidence had not been provided. However, no such up-dated information or evidence was sought and the applicant could not reasonably have anticipated that such information would be required following the Zambrano decision of June 2024 in the absence of any notice that the Minister intended to quite radically depart from her findings on substantively the same matters made only four months previously. The findings were clearly material to the assessment being conducted by the decision-maker. In my view, fair procedures required that the applicant be given an opportunity to make representations on those matters before a final decision was reached.

110. In arriving at this conclusion, I am not to be taken as expressing any view as to the

decision which it would be open to the Minister to make on a fresh assessment of the matter following any further representations which the applicant may wish to make. I have already concluded that the Zambrano decision lawfully and fairly concluded that the rights of the applicant, his wife and child were outweighed by the interests of the State in preventing crime/public security, notwithstanding the positive findings as to the nature of the family relationships. The applicant’s history of serious criminality and questionable immigration law compliance are clearly potentially very significant matters to weigh in the scales when it comes to a fresh assessment of the deportation order question. However, given the gravity of the consequences of a deportation order decision, it is important, as Oguekwe makes clear, that such a decision is arrived at lawfully. Such lawfulness must involve appropriate regard for the subject of a proposed deportation order to fair procedures. For the reasons I have outlined, in my view there was a material breach of fair procedures in this case.

111. For completeness, I should note that, as regards the applicant’s contention that the

decision-maker erred in her reliance on Odum, I recently considered the question of Odum, and what it is authority for, in my judgment in J. v Minister for Justice and Equality [2026] IEHC

221. I do not believe that the Minister was in error in principle in relying on Odum here by analogy. As I pointed out in J., what Odum and other authorities such as AZ reveal is that the question of the weight to be attached to the rights of a family, vis-a-vis a non-EU parent in a deportation context, is a factand contextsensitive one; such weight can exist on a spectrum between the minimal weight which will be applied in the Odum-type scenario of there being no evidence of any meaningful relationship at all between the non-EU national proposed deportee and his Irish citizen child, on the one hand, and the strong weight to be attached to such rights in an AZ-type context where there is compelling evidence of an ongoing, significant and durable relationship between the proposed deportee non-EU national parent and the Irish citizen child. It is for the Minister to assess where the applicant here fits into such scale on a fresh assessment of the deportation order question.

112. I should also say that, apart from the fair procedures error I have identified above, I do not believe that there was otherwise any material error in the ECHR analysis contained in the final number of pages of the decision. The ECHR analysis did not fail to take into account the significant weight to be attached to the child's interests.; it expressly had regard to the child's interests but considered that there were compelling countervailing interests arising from the applicant’s serious criminality and his absence of a lawful basis to remain in the State over a considerable period, along with a comparable pattern of disregard for the laws in the UK.

Subject to the flaw in fair procedures I have identified above, I do not see that there was any error in principle in the approach taken by the decision-maker on this issue.

Conclusion

113. For the reasons outlined above, I have concluded that the applicant has not advanced any sufficient grounds to warrant the quashing of the Zambrano decision but has identified a significant breach of fair procedures in arriving at the deportation decision.

114. I will, accordingly, make an order of certiorari quashing the deportation order and direct that the question of whether or not to make a deportation order in respect of the applicant be considered afresh by a different decision-maker in the Minister’s department with an opportunity to be given to the applicant to make such fresh submissions as he considers appropriate on that matter.