Supreme Court grants leave for judicial review regarding Minister's failure to consider children's emotional trauma in deportation case.

THE SUPREME COURT

[Appeal No: 355/2008]

Clarke J.

Laffoy J.

Charleton J.

Between/

O.O. (an infant acting by his mother and next friend C.O.) and O.E.O. (an infant acting her mother and next friend C.O.) and

O.D.O. (an infant acting his mother and next friend C.O.) and C.O. and Esmé J. (so named for the purposes of this appeal)

Applicants/Appellants

and

The Minister for Justice and Equality

Respondent

Judgment of Mr. Justice Clarke delivered the 19th March, 2015.

1. Introduction

1.1 This is an appeal against a refusal to give leave to seek judicial review in immigration proceedings. I find myself in disagreement

with the judgment to be delivered by Charleton J. in this case in which he proposes to uphold the refusal of leave. The purpose of this

judgment is to set out briefly my reasons for concluding that leave should be given.

1.2 The background to these proceedings and the issues which arise are fully set out in the judgment of Charleton J., and I do not

propose to repeat them here save where absolutely necessary. In substance, the fifth named applicant/appellant ("Esmé J.") is the

mother or grandmother of the other applicants. She had sought to challenge a refusal to revoke an order providing for her deportation

from Ireland but has since, in fact, been deported. Previous proceedings which raised issues concerning her deportation (but did not

challenge the validity of the deportation order itself) were settled on the basis of a fresh consideration of the case. As Charleton J.

notes, these somewhat unusual considerations lead to a number of preliminary questions, to which I first turn.

2. Preliminary Questions

2.1 The first such question which arises is as to whether these proceedings are moot. I agree with the conclusion reached by

Charleton J. that they are not. I would only add one further observation. If it were to be the case that a challenge to a deportation

order (or, indeed, as here, a challenge to a refusal to revoke same) were always to be considered moot once the relevant deportation

had taken place, then this could have a very significant effect on injunction proceedings brought before the High Court. If the

consequence, or at least a possible consequence, of a deportation order being put into effect would be to deprive a party of any

further opportunity to challenge the validity of the relevant order or a refusal to revoke same, then that factor, in itself, would have

to loom very large in determining where the balance of justice lay for the purposes of any interim or interlocutory application. I

appreciate that the argument put forward on behalf of the respondent ("the Minister") in this case does not necessarily imply that all

such challenges would, in fact, be moot should deportation occur. That does not, however, take away from the concern which I have

expressed.

2.2 The next preliminary question concerns the settlement of the previous proceedings, to which Charleton J. refers in his judgment.

It is clear, as Charleton J. points out, that the parties did not agree that the deportation order should be revoked. Rather, they

agreed that there should be a fresh consideration of whether that order should continue in force on the basis of such issues as the

members of the applicant’s family might wish to raise. It is not particularly clear to me as to what was gained by such a settlement,

other than the fact that the Minister agreed to make a contribution to costs. Any party affected is always entitled to invite the

Minister to consider revoking a deportation order. It does not need the settlement of proceedings to achieve this. Be that as it may

the possible relevance of the settlement of those proceedings to the issues which arise in this case is a point to which I will briefly

return in the context of the substantive issues which arise.

2.3 The third preliminary question concerns the threshold which must be met before leave can be granted. There is no dispute over

the fact that this is not one of those cases where substantial grounds need to be established, but rather one in which the ordinary

test for leave to seek judicial review, as identified in G. v. Director of Public Prosecutions [1994] 1 I.R. 374, is appropriate. I agree

with what is said by Charleton J. on this topic in his judgment. There was some debate at the hearing before us as to whether there

might be a difference between an "arguable" case and a prima facie or, indeed, a “stateable” case. I do not consider that there is.

Arguable, in that context, means that there are arguments in favour of the case, which the proposed applicant wishes to put forward,

which have some prospect of success. It is not, in that context, any different from a prima facie case. Given that Charleton J. makes

reference to my judgment in S. and Ors. v. Minister for Justice and Equality [2013] IESC 4, where I referred to "a sufficiently arguable

case", I should state that I consider that to be a reference to a case which is sufficiently arguable to meet the test of being capable

of success. The threshold is placed at a low level but it is, nonetheless, a threshold which requires some prospect of success to be

established. Otherwise, there would be little point in the filtering process inherent in the leave system.

2.4 The final preliminary matter dealt with by Charleton J. in the course of his judgment concerns the question of whether the full

case, now sought to be relied on, was put before the Minister on the occasion when the decision to refuse to revoke, which is the

subject of these proceedings, was made. As that question is, to a significant extent, intertwined with the substantive issues, I

propose to leave it over until dealing with those issues, to which I now turn.

3. The Substantive Issues - Approach

3.1 It must be recalled that it is necessary to approach these issues on the basis of the low threshold which needs to be established

in order for leave to be granted. Essentially, the case which is sought to be made is as follows. It is accepted that Esmé J. came to

Ireland and sought refugee status in circumstances where she clearly had no such entitlement. Indeed, in that context, her

application was remarkably honest. It is also accepted that there has been a previous refusal to permit her to remain in the country

as a result of an argument put forward that her presence was necessary to look after the infant children, who are also parties to this

application.

3.2 It is further accepted that the legal principles identified in Smith and ors v. Minister for Justice and Equality [2013] IESC 4 are, at

least, partially applicable. Charleton J. has cited a number of passages from my judgment in that case, and I do not propose to repeat

them here. In substance, this Court determined, in Smith, that it is not necessary for the Minister, on any subsequent application in

the context of deportation or the like, to re-examine matters which had already been previously assessed in a similar process. It is

necessary for new materials or issues to be placed before the Minister in order to require a significant re-examination and

reconsideration and, in addition, circumstances may arise where it will not be necessary for the Minister to consider such new

materials if they could and should have been placed before the Minister on an earlier occasion.

3.3 By way of minor addition, it must, of course, be noted that in the event that new materials or issues, properly so called, are

placed before the Minister and are of some weight, it may be necessary then, but only then, to revisit issues previously put forward.

Those issues, while not sufficient in themselves to warrant a decision in favour of an applicant, might, cumulatively, together with

truly new materials or issues, lead to a different conclusion. Against that background, it is necessary to turn to the merits of the

substantive issue

4. Substantive Issues - Merits

4.1 It appears to be the case that the father of the relevant infant children ceased to reside with them as a result of a breakdown in

relations with their mother, the fourth named applicant/appellant. These parents had come to Ireland in 2000 accompanied by a son

who, at that time, was four years old. Two further children were born in Ireland in 2001 and 2004 respectively. The couple separated

in 2005. It was in that context that arrangements were made for Esmé J. to come to Ireland in February, 2006. Esmé J.'s application

for asylum status was rejected in early course (she arrived in the State on the 22nd February, 2006 and, after her asylum application

was rejected, a deportation order was made on the 29th July of the same year) and no challenge is, nor could any challenge have

been, made to that decision. Thereafter, a decision to deport her was made, and there was some procedural confusion which arose

from the fact that, it would appear, a letter setting out submissions as to why a deportation order should not be made was received

late by the Minister, and more or less crossed with the decision to deport. However, it appears to be accepted that the relevant

submissions were, in any event, then considered on their merits even though they had been received late, and it was decided by the

Minister that the deportation should stand. There may be some legitimate debate as to whether it might be appropriate to

characterise what happened as a reopening by the Minister of the original question of whether a deportation order should have been

made in the first place (in the light of the timing of the receipt of the relevant submissions) or as an early decision by the Minister to

refuse to revoke the deportation order already made. However, it does not seem to me that anything of any significance turns on

that characterisation.

4.2 The case originally made was that the presence of Esmé J. was necessary to enable the fourth named applicant/appellant, ("the

mother"), as the mother of the appellant children, to continue to work and to support the first to third named applicants/appellants

("the children"). However characterised, the decision to allow the deportation order to stand involved rejecting that case.

4.3 Thereafter, proceedings were brought and were settled on the basis that the Minister would consider an application under s.3(11)

of the Immigration Act, 1999 (as amended) lodged on behalf of Esmé J., provided that such an application was lodged within fifteen

days of the date of the proceedings being struck out. It is the result of that consideration which is challenged in these proceedings.

4.4 In the submissions made to the Minister in the context of that consideration, attention was drawn to the separation of the

children's parents, and it was suggested that the presence of Esmé J. had brought a stabilising influence over the children. It was

suggested that the difficulties for the children which arose from that separation could be further evidenced if necessary by expert

reports which, it was said, "would illustrate the emotional trauma and disadvantage that the children are put to in view of the

absence of their father during the formative years". The submission then went on to suggest that such a report could be produced

"if you do not accept for any reason that such difficulties arise". It is in that context that the question arose as to whether the full

case had been made on that occasion to the Minister. The relevant representations to the Minister contained an assertion along the

lines which I have just identified, but went on to say that, if there was any doubt in the Minister's mind as to whether that assertion

was correct, expert evidence could be provided.

4.5 It must be recalled that, at this stage, this matter is being considered only for the purpose of establishing whether there is a

stateable case. In my view, it is sufficiently arguable, for the purposes of a leave application, that a party who makes a credible

assertion of a certain state of affairs and who goes on to say that, if any doubts are entertained about whether that state of affairs

is in fact so, further evidence might be forthcoming, is in a different position to someone who simply does not make reference to the

point at all. I would not, therefore, hold that it is unarguable that the Minister was obliged either to accept the assertion of

psychological harm or, if not so minded, to request sight of the proffered expert evidence.

4.6 It follows that this leave application should be approached on the basis that the Minister had to consider, to the extent that it

was material, whether the departure of Esmé J., in the particular circumstances of the case, might not have a particularly significant

effect on the children far above and beyond the effect which would have resulted from her earlier departure, at which time the only

case made for her remaining in Ireland was that she would have a central role in minding the children. It is, thus, arguable that this

was new material requiring fresh consideration. It also seems to me to be at least arguable that one of the consequences of the

settlement of the earlier proceedings was that the principles identified in Smith did not apply, or at least did not apply fully, in the

circumstances of this case. The underlying rationale behind Smith is that a party cannot require the Minister to repeatedly reconsider

what are, in substance, the same issues, or indeed, issues which could and should have been canvassed at an earlier stage.

However, in the light of the confusion which attached to the original submissions, which arrived just after the original deportation

order was made, and in the light also, in particular, of the settlement of the relevant proceedings, I am satisfied that it is sufficiently

arguable for the purposes of a leave application that the Minister was required, on the unusual facts of this case, to consider all of

the grounds put forward in 2008.

4.7 Having reviewed the documentation concerning the reasoning behind the Minister's decision under challenge, I am satisfied that it

is arguable that proper consideration was not given to the additional factor of the potential psychological harm to the relevant

children. It is true that the only reason why circumstances might be said to have changed was because Esmé J. had remained in

Ireland for a period of time as a result of her failed asylum application. During that time, however, it was asserted that, in the

particular circumstances of this case, and in the light of the break up of their parents' marriage, an especial bond had been formed

between the children and Esmé J. such that her departure might be particularly traumatic for them. The Minister did not necessarily

have to find that such a factor outweighed any other considerations in the case. Indeed, it may well be that the Minister was entitled

to take into account what was described in the decision document as the precarious immigration position of Esmé J. during that

period. But even if that is so, it is arguable that the Minister was required to weigh up, in a rational and proportionate way, the

competing factors, including the assertion that there was a particular effect likely to be visited on the children by the departure of

Esmé J.

4.8 In those circumstances, I would be prepared to grant leave to seek judicial review of the Minister's refusal to revoke the relevant

deportation order. I would, however, confine that leave to one ground being that:-

"The Minister failed to give adequate consideration to the effect which the departure of Esmé J. from Ireland at the

relevant time might have had on the infant applicants in the particular context of the assertion that such a departure

would have an effect of particular and professionally verifiable emotional trauma on those children."

4.9 That does not mean that some of the other issues which were canvassed on this appeal might not arise in the context of such a

judicial review. For example, the precise constitutional or convention entitlements of the parties clearly arise in the context of an

assessment of the type of consideration which the Minister might be required to give. The consequences of the settlement also

potentially arise. It is arguable that the terms of settlement may at least have required a re-consideration of materials, which would

not otherwise have been required to be considered, in the light of the decision of this Court in Smith. But those questions are clearly

subsidiary to the principal issue, which is as set out in the ground on which I would grant leave.

Conclusions

5.1 For those reasons, I would allow the appeal and grant leave to seek an order of certiorari by means of judicial review directed

towards quashing the Minister's decision to refuse to revoke the deportation order of Esmé J. in this case.

5.2 I would confine that leave to the ground set out in para. 4.8 above.