Supreme Court allows appeal quashing deportation orders where minors had no separate asylum application.

THE SUPREME COURT

JUDICIAL REVIEW

[S.C. No: 459/2004]

Denham J.

Geoghegan J.

Fennelly J.

Kearns J.

Finnegan J.

BETWEEN

A N AND L N, C N, U N, C N AND W N, MINORS SUING BY THEIR MOTHER AND NEXT FRIEND A N

APPLICANTS/APPELLANTS

AND

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM AND COMMISSIONER OF AN GARDA SIOCHÁNA

RESPONDENTS

Judgment of Mr Justice Finnegan delivered on the 18th day of October 2007

A N (hereinafter the “next friend”) is not a party to this appeal her application for leave to apply for judicial review having been

refused in the High Court. She is the mother and next friend of the second to sixth appellants named in the title hereof (hereinafter

“the minors”) whose application for judicial review was refused in the High Court. In the case of the minors the learned High Court

judge granted leave to appeal pursuant to section 5(3)(a) of the Illegal Immigrants Trafficking Act 2000 on the following points of

law:-

1. Whether the procedures for dealing with an application for asylum pursuant to the Refugee Act 1996 or the pre-existing

non-statutory scheme permit the Minister to receive and determine an application for refugee status made by the parent

of a minor child (which child accompanies that parent) on the parent’s own behalf and on behalf of or including such minor

child as the application for asylum of that child either at all or where the parent does not advance or bring to the

attention of the Minister any facts or circumstances relevant to that minor separate and distinct from the facts of

circumstances relevant to the parent’s application.

2. Whether in considering an application for asylum made by or on behalf of an accompanied minor the Minister is obliged

to consider the application of an accompanied minor in his or her own right separately and distinctly from that of the

accompanying parent and whether for that purpose the Minister is obliged to

(a) Ascertain the views of the minor and more particularly the fears of the minor related to the application for a

declaration of refugee status.

(b) Ascertain the capacity of the minor to express his or her views directly and

(c) Interview the minor unless such interview would cause unnecessary hardship and trauma on the minor.

The facts

The minors are Nigerian nationals who arrived in Ireland on the 10th May 1998 in the company of their mother. They were then aged

12 years 5 months, 8 years 11 months, 6 years 3 months and twins 4 years 3 months respectively. On the 11th May 1998 the next

friend applied for asylum and was requested to and did complete a questionnaire. She was interviewed on the 30th May 1999. By

letter dated 18th February 2000 she was informed that her application for refugee status had been refused. She appealed against the

refusal and on the 25th July 2000 a recommendation was made by the Refugee Appeals Authority, following an oral hearing, that the

appeal be dismissed on the basis that the next friend had not satisfied the Authority that she had a well founded fear of persecution

on a convention ground. By letter dated 23rd August 2000 the next friend was notified of this recommendation and of the fact that it

was being upheld and that the Minister proposed to make a deportation order in respect of her pursuant to the Immigration Act 1999

section 3. She was invited to make any representations as to why she should be allowed to remain in the State within a period of

fifteen days. Representations were made on her behalf by her solicitor. By letter dated 1st July 2002 it was confirmed to the next

friend and to the minors that the Minister proposed to make a deportation order against each of them in accordance with the

Immigration Act 1999, section 3(2)(f) they being persons whose application for asylum had been refused. Up to this date there had

been no indication in correspondence or otherwise that the next friend’s application was being treated by the Minister as

encompassing applications for each of the minors. The letter gave information as to the options open to the next friend and the

minors, namely to make written representations as to why they should be allowed to remain temporarily in the State or to leave the

State before the deportation orders should be made. Enclosed with that letter were a number of address notification forms, one for

the first next friend and one for each of the minors. These were duly completed, signed in each case by the next friend and returned

by the next friend’s solicitor as requested. By letter dated 8th July 2002 representations were made by the next friend’s solicitor:

these representations however were merely to repeat representations made on behalf of the next friend in response to the letter of

23rd August 2000 and at a time when the second named applicant had not yet attained the age of sixteen years. By letter dated 9th

August 2002 addressed to the next friend and the minors all six were furnished with copies of deportation orders dated 8th August

2002 and requested to present themselves at Trim Garda Station on Friday, 16th August 2002 at 2.30 p.m. to make arrangements for

their deportation. By motion returnable on the 10th December 2003 the next friend and the minors sought leave to apply by way of

judicial of review for an order of certiorari quashing all six deportation orders. In a reserved judgment of 31st October 2003 Finlay

Geoghegan J. refused the next friend leave to apply for judicial review but granted leave to the minors. The ground upon which leave

was granted to the minors was as follows:-

“The deportation orders of the 2nd August 2002 relating to the second to sixth named applicants are invalid in that the

second to sixth named applicants were not on the date persons whose applications for asylum had been refused by the

first named respondent within the meaning of section 3(2)(f) of the Immigration Act 1999.”

The application failed in the High Court but the learned trial judge certified the points of law cited above.

The Affidavits on the application

1. The grounding affidavit.

The grounding affidavit was sworn by the minor’s solicitor and largely consists of the chronology set out above. However in paragraph

14 thereof he identified a separate well-founded fear of persecution particular to the minors and separate and distinct from that

expressed by the next friend on the application and at interview. He did this in the following terms:-

“I am instructed that all the applicants herein fear that because of their race, ethnicity or membership of a social group,

they will be subjected to female genital mutilation if returned to Nigeria and that their health and life will be severely

impaired and threatened if so returned. I believe that such a procedure would be extremely harrowing and dangerous.”

He further deposes that the minors did not apply for asylum nor were they afforded the opportunity of an independent application or

separate advocacy of their concerns. They were not interviewed. They did not get an opportunity to outline their concerns.

2. Affidavit of Charles O’Connell

Charles O’Connell swore an affidavit on behalf of the first-named respondent in response to the grounding affidavit. He deposes that

the next friend listed the names and dates of birth of each of her children in her application for refugee status. Five reference

numbers were assigned of which reference number 69/1346/98(b) related to the next friend and 69/1346/98 (c), (d) (e) and (f) and

(g) to the minors. The policy of treating the application for asylum of the next friend as being an application on her own behalf and on

behalf of each of the minors who accompanied her was applied taking into account the diminished capacity of the minors. The policy

has its origin in paragraph 213 of the E.C.H.R. Handbook on Procedures and Criteria for Determining Refugee Status. The reason given

by the next friend for seeking asylum was a threat to herself and her children. The first named respondent believes that the next

friend acquiesced in the procedures adopted and at no time did she object to the same.

3. The next friend’s affidavit.

The next friend swore an affidavit in reply to that of Mr O’Connell.

In her affidavit the next friend deposes that on the 11th May 1998 on applying for asylum she was given a Form ASY/1 for completion

which she duly completed: she exhibits a copy of the same. The form states that it must be completed “by all persons seeking

refugee status”: in fact only one form was completed and that relates to the next friend. It gives the name of the person making

application as A N and contains her personal information – date of birth, place of birth, sex, marital status, religion, nationality and so

forth. It required her to list her children and give their sex, date of birth, place of birth and where they then were. A great deal of

further information was required of the next friend including details of her parents, her brothers and sisters, her education, her

employment record and countries in which she had lived. Other than to set out in relation to the minors their name, sex, date and

place of birth and where they now are no further information was sought in relation to the minors. She was required to set out why

she was seeking asylum and this she did in the following terms:-

“I seek asylum because my brother in the Army and he get problem with Army and they looking for him and he run away

and they say they will arrest his family, all the people, and kill them if brother don’t come out. Then they phone me to tell

me that Army is coming to my house from the village because they go our village to look for brother but was not there.

Then I ran to the agent that bring me. Then took me and children to Cotonu, France and Ireland. Then I tell him to take

money from uncle in village. Uncle knows him.”

By letter dated 11th March 1999 the next friend was requested to attend for interview on the 30th March 1999. The letter contained

the following sentence:-

“Unfortunately there are no facilities for children in the Department so arrangements should be made to have them looked

after while you attend for interview.”

Because of this the children did not attend at the interview. The next friend duly attended for an interview which was recorded as

“questions and answers” in manuscript: she signed each page of the same. She was asked why she left Nigeria and replied:

“Because of the problem that my brother had. He is in the Army and they planned a coup 1997 in December and it failed

and the Government is looking for him. Army officers who did not give me their names called at my house looking for him. I

told them that he was not there. They left a message to tell him report at the camp within 24 hours and that if he did not

do this his family would be in a problem. This was around the 27.04.98 and they left. They went to the village to threaten

my parents so my uncle phoned me and they (military) left another message that if they don’t find him (brother) they

would kill the family. So now my uncle told me that they said that they were coming back to the house and that if don’t

find him they were going to arrest me and it is going to be very bad. Could even take my life. So I now ask my uncle what

to do. He said that I would have to run away like my brother’s wife ran to America. I moved with the children to live with

relatives at 13 Shogunle Street, Lagos. I called my uncle again and he told me to leave the country, that it is not safe.

He told me to wait and give him time to contact an agent that he knows. On 3 or 4-05-98 I rang my uncle and he told me

that he contacted an agent and that he would take me and children out of Nigeria. Then he gave me the agent’s address

to meet the agent the following day. I went and met the agent and he talked and he told me that he was taking us to

Ireland in a ship. He said that my uncle was paying the cost. I don’t know how much. The agent called to the place that I

was staying on 8-5-98 and he took us in a bus from Lagos to Cotonu. I think it is in the Benin Republic. We spent some

time there as we travelled on bus for 8-12 hours. Then we got a ship to France and I don’s know where we arrived in

France. Then we went to Ireland arriving on the 10-5-98. Change please to 11-5-98. The agent was with us on the bus

and in the ship. I don’t know what port in Dublin we came into. The agent’s name was Martin Bolojoko.”

Later in the interview she was asked the reason the authorities wanted her and she replied as follows:-

“Because I lived with my brother and he was missing and his family said that I was the next person and that they (Army)

would arrest me and put me in jail until my brother came out of hiding.”

She was asked again as to the grounds for claiming asylum and answered:

“Political grounds because they would kill me and the five children.”

She went on to say that the Army arrested her father and mother but let them out after some time and that if she returned to Nigeria

she would be killed. At the end of the interview she was asked a number of questions, the answers to which were again recorded and

she signed the same. The first question and the answer to the same are as follows:-

“Q. Do you wish to add anything to what you have said?

A That it is up to you to keep us as we can’t go back.”

The minors were not, save as above, considered at the interview.

A report of the interview was prepared. It deals with the basis of the claim as follows:-

“She is applying for asylum because her brother who was a member of the military was allegedly involved in the December

1997 reported coup plot. Around 27-04-98 Army officers called to her house looking for her brother. She claims they

threatened to kill her and her children if she did not find her brother.”

The report contains no mention of the minors other than the threat to kill them and on its face relates only to the next friend.

On the 3rd March 2000 the first named applicant was informed of the decision to refuse her recognition as a refugee. Again there was

no mention of the minors.

It was not until the letter of 1st July 2002 notifying the Minister’s proposal to make deportation orders that mention of the minors was

first made in correspondence from the Minister.

Was there an application on behalf of the Minors?

The next friend’s application was dealt with on a non-statutory basis in accordance with the State’s undertaking to the United

Nations in the Hope Hanlan letters. The Supreme Court in V.Z v. The Minister for Justice [2002] 2 I.R. 135 at 148 accepted the

relevance of the U.N.H.C.R. Handbook on Procedures and Criteria for Determining Refugee Status in considering procedures adopted

by the State to fulfil Convention obligations. The following matters are drawn from the Handbook. The Convention leaves it to each

contracting state to establish the procedure that it considers most appropriate for the determination of refugee status having regard

to its particular constitutional and administrative structure. There is no objection to refugee status being considered under informal

arrangements. However certain basic requirements are considered essential. The relevant facts in the first place must be furnished by

the applicant. While the general legal principle is that the burden of proof lies on the applicant, cases in which an applicant can

provide evidence of his statements will be the exception rather than the rule. Thus while the burden of proof in principle rests on the

applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner and in some

cases it may be necessary for the examiner to use all the means at his disposal to produce the necessary evidence in support of the

application. An initial interview should normally suffice to bring the applicant’s story to light. The basic information is frequently given

in the first instance by completing a standard questionnaire which will normally not be sufficient to enable the examiner to reach a

decision and one or more personal interviews will be required. Since the examiner’s conclusion on the facts of the case and his

personal impression of the applicant will lead to a decision that affects human lives he must apply the criteria in a spirit of justice and

understanding.

The Handbook has a section headed “Unaccompanied Minors”. In dealing with unaccompanied minors that section casts light on the

approach to be taken to accompanied minors. The relevant paragraphs are as follows:

“213 There is no special provision in the 1951 Convention regarding the refugee status of persons under age. The same

definition of a refugee applies to all individuals regardless of their age. When it is necessary to determine the refugee

status of a minor, problems may arise due to the difficulty of applying the criteria of “well-founded fear” in his case. If a

minor is accompanied by one (or both) of his parents, or another family member on whom he is dependent, who requests

refugee status, the minor’s own refugee status will be determined according to the principle of family unity.

214 The question of whether an unaccompanied minor may qualify for refugee status must be determined in the first

instance according to the degree of his mental development and maturity. In the case of children, it will generally be

necessary to enroll the services of experts conversant with child mentality. A child – and for that matter an adolescent –

not being legally independent should, if appropriate, have a guardian appointed whose task it would be to promote a

decision that will be in the minor’s best interests. In the absence of parents or of a legally appointed guardian it is for the

authorities to ensure that the interests of the applicant for refugee status who is a minor are fully safeguarded.

215 Where a minor is no longer a child but an adolescent, it will be easier to determine refugee status as in the case of an

adult, although this again will depend upon the actual degree of the adolescent’s maturity. It can be assumed that – in

the absence of indications to the contrary – a person of 16 or over may be regarded as sufficiently mature to have a well

founded fear of persecution. Minors under 16 years of age may normally be assumed not to be sufficiently mature. They

may have fear and a will of their own, but this may not have the same significance as in the case of an adult.

216 It should, however, be stressed that these are only general guidelines and that a minor’s mental maturity must

normally by determined in the light of his personal, family and cultural background.

217 Where the minor has not reached a sufficient degree of maturity to make it possible to establish well founded fear in

the same way as for an adult, it may be necessary to have greater regard to certain objective factors. Thus, if an

unaccompanied minor finds himself in the company of a group of refugees, this may - depending on the circumstances –

indicate that the minor is also a refugee.

218 The circumstances of the parents and other family members, including their situation in the minors’ country of origin,

would have to be taken into account. If there is reason to believe that the parents wish their child to be outside the

country of origin on grounds of well founded fear of persecution, the child himself may be presumed to have such fear.

The principle of family unity is dealt with in paragraphs 181 to 188 of the Handbook and is also relevant. These provide as follows:-

181 Beginning with the Universal Declaration of Human Rights which states that “the family is the natural and fundamental

group unit of society and is entitled to protection by society and the State”, most international instruments dealing with

human rights contain similar provisions for the protection of a family.

182 The Final Act of the conference that adopted that 1951 Convention:

“Recommends Governments to take the necessary measures for the protection of the refugee’s family, especially

with a view to:

(i) ensuring that the unity of the refugee’s family is maintained particularly in cases where the head of

the family has fulfilled the necessary conditions for admission to a particular country;

(ii) the protection of refugees who are minors, in particular unaccompanied children and girls, with

special reference to guardianship and adoption.”

183 The 1951 Convention does not incorporate the principle of family unity in the definition of the term “refugee”. The

above mentioned Recommendation in the Final Act of the Conference is, however, observed by the majority of States,

whether or not parties to the 1951 Convention or to the 1967 Protocol.

184 If the head of a family meets the criteria of the definition, his dependants are normally granted refugee status

according to the principle of family unity. It is obvious, however, that formal refugee status should not be granted to a

dependant if this is incompatible with his personal legal status. Thus, a dependant member of a refugee family may be a

national of the country of asylum or of another country, and may enjoy that country’s protection. To grant him refugee

status in such circumstances would not be called for.

185. As to which family members may benefit from the principle of family unity, the minimum requirement is the inclusion of

the spouse and minor children. In practice, other dependants, such as aged parents of refugees, are normally considered

if they are living in the same household. On the other hand, if the head of the family is not a refugee, there is nothing to

prevent any one of his dependants, if they can invoke reasons on their own account, from applying for recognition as

refugees under the 1951 Convention or the 1967 Protocol. In other words, the principle of family unity operates in favour

of dependants, not against them.

186 The principle of the unity of the family does not only operate when all family members become refugees at the same

time. It applies equally to cases where a family unit has been temporarily disrupted by the plight of one or more of its

members.

187 Where the unity of a refugee’s family is destroyed by divorce, separation or death, dependants who have been

granted refugee status on the basis of family unity will retain such refugee status unless they fall within the terms of a

cessation clause; or if they do not have reasons other than those of personal convenience for wishing to retain refugee

status; or if they themselves no longer wish to be considered as refugees.

188 If the dependant of a refugee falls within the terms of one of the exclusion clauses, refugee status should be denied

to him.”

Accordingly to comply with the Convention the procedural requirements are modest and may be met by the following:

1. the applicant for refugee status must furnish the relevant facts.

2. although the burden of proof, in principle, rests on the applicant the duty to ascertain and evaluate all relevant facts is

shared between the applicant and the State.

3. an appropriate procedure is to require the applicant to complete a questionnaire giving basic information to be followed

by one or more personal interviews as may be required.

Also of some relevance is paragraph 190 of the E.C.H. R. Handbook which has this to say:-

“It should be recalled that an applicant for refugee status is normally in a particularly vulnerable situation. He finds himself

in an alien environment environment and may experience serious difficulties, technical and psychological, in submitting his

case to the authorities of a foreign country, often in a language not his own. His application should therefore be examined

within the framework of specially established procedures by qualified personnel having the necessary knowledge and

experience, and an understanding of the applicant’s particular difficulties and needs.”

In relation to minors, taking into account the principle of family unity, I take from the Handbook the following guidelines. The same

definition of a refugee applies to all individuals regardless of age: thus a minor will have to establish a well founded fear within the

Convention and where the minor is of tender years this clearly creates a difficulty. Accordingly a minor accompanied by a parent and

whose parent requests refugee status will have his refugee status determined according to the principle of family unity. Where the

head of the family fulfils the necessary conditions for admission as a refugee the contracting state should ensure that the refugee’s

family unity is maintained. Paragraph 184 of the Handbook provides that if the head of a family meets the criteria of the definition of

refugee his dependants are normally granted refugee status according to the principle of family unity. However under paragraph 185 if

the head of the family is not a refugee there is nothing to prevent any one of his dependants, if they can invoke reasons on their own

account, from applying for recognition of their status as refugees: the principle of family unity operates for the benefit of the minor

and not against him. Minors under 16 years of age may normally be assumed not to be sufficiently mature to have a well founded fear

of persecution. The handbook envisages, it seems to me, an application by the parent of a minor child and if that is successful the

minor will be granted status and if unsuccessful the minor can apply based on his own circumstances and reasons: see E.C.H.R.

handbook paras. 184 and 185.

Conclusion on the first point of law

Taking guidance from the E.C.H.R. Handbook I am satisfied that on an application by a parent of a minor child the Minister under the

non-statutory regime could deal with that application without having regard to the minor. If the application succeeds the minor should

be given refugee status. If the application is unsuccessful then the minor is entitled to apply for refugee status based on his own

circumstances and reasons. The E.C.H.R. Handbook does not envisage the parent’s application as being also an application on behalf

of the minor nor that on failure of the parent’s application the status of the minor should be determined without regard to his

individual circumstances or reasons. Thus the Minister was in error in treating the next friend application as being one on behalf of the

minors also. The next friend’s application was not an application by the minors but if successful, applying the principle of family unity,

would benefit them. In the present case there was no application by or on behalf of the minors. Accordingly on the central issue on

the application for judicial review there had been no application by or on behalf of the minors and the Immigration Act 1999 section

3(2)(f) did not apply to them: the basis upon which the Minister purported to make deportation orders in relation to the minors did not

exist. I would answer the first point certified in the negative.

There having been no application on behalf of the minors the second question certified does not arise for consideration.

I would allow the appeal and make an order of certiorari quashing the deportation orders made in respect of the minors. Further, I

have had the benefit of reading the judgment handed down by Mr Justice Fennelly, the order which he proposes and the reasons

which he gives in paragraph 38 thereof and I agree with the same.