Judge Hogan’s interesting judgement in Ezenwaka!
Ezenwaka & Anor – v- MJELR [2011] IEHC 328
BACKGROUND:
This judgment makes for good reading. It concerns a Nigerian mother Ms Ezenwaka, and her two children who in error, were granted a visa to enter the State and join Mr. Ezenwaka (husband to Ms. Ezenwaka and father to her children). He was resident in Ireland under the IBC Scheme, a scheme which did not permit such family members to join a beneficiary under the scheme in the State.
Mr. Ezenwaka is the father of an Irish child, Samuel but was not married to the mother of his child. He had on one occasion returned to Nigeria to see his wife and children and felt he needed to be re-united with them. A ‘D Type’ Visa was granted permitting family reunification by the Irish embassy in Abuja in 2008. On the basis of this, the Ezenwakas significantly altered their position in Nigeria. Ms. Ezenwaka sold her car, moved out of the family home, gave up her job and purchased tickets for the flight in anticipation of a permanent move to Ireland.
The family was refused entry to the State by immigration officials at Dublin Airport who formed the opinion that the visas had been issued in error and this was confirmed by contact with the Minister’s office who in turn explained that the IBC 05 policy did not cover this situation. The officials discovered that the Irish citizen child had been born to another woman who was not Mr. Ezenwaka’s wife.
Accordingly Ms. Ezenwaka and her two children returned to Nigeria were they remained ever since.
ANALYSIS:
Judge Hogan commented that ‘there is no doubt but that this entire episode was deeply disappointing- perhaps even traumatic – for the Ezenwakas. Certainly, it is not difficult to imagine the acute anguish and hardship which the family must have endured by agreeing to leave Nigeria permanently and o make a long journey to Ireland via Turkey, only to find that they are the victims of the unfortunate bureaucratic misunderstanding.’ The judge maintained that it was clear that the Ezenwakas had a legitimate expectation that they would be permitted to land ‘subject to other conditions..’
The immigration notice that issued to the family was issued pursuant to Section 4 (3) (j) of the Immigration Act, 2004 on the ground that their admission into the State would be contrary to public policy. The judge took issue with the decision to refuse based on ‘public policy’ as specified under the act i.e. it connotes a situation where that personal conduct of the immigrant poses a real and immediate threat to the fundamental policy interests of the State. In the present case, the judge commented that while the State was fully entitled as a matter of policy to restrict the operation of the IBC Scheme, and to take the view that the admission of this family did not come within the scope of that policy, ‘the concept of public policy in the context in which the phrase appears in s.4(3)(j) is a very different one. Neither Ms. Ezenwaka nor her children pose a threat to Irish public policy in that particular sense of the term.’
The judge also went on to say that the operation of the IBC Scheme could not exclude the possibility of exceptional and special cases. He took the view that the Ezenwakas were given no effective opportunity to address their case by reason of their special and unique circumstances.
In conclusion, Judge Hogan held that the decision of the immigration officials to refuse entry to the State should be quashed as it was based on an incorrect interpretation of the term ‘public policy’ in s 4 (3)(j). He held the decision was invalid since it was premised on the application of a fixed policy which did not take account of the unique position of the Ezenwakas. The Minister was directed to re-consider any fresh application made by the Ezenwakas for admission to the State. He will be required to consider ‘whether any exceptions to the existing policy should be made for the Ezenwakas in light of the hardships they have suffered and the implications (if any) the making of any exceptions might have for the fair and consistent application of the scheme for other cases.’
OUR THOUGHTS:
It is somewhat refreshing to read Judge Hogan’s findings in Ezenwaka. The case demonstrates the strict application of Ministerial Schemes such as the IBC 05 scheme which removes any opportunity for consideration and determination of special or unique cases. The judge went above and beyond determining the extent to which the State would be held liable for mistakes of its officials and went on to scrutinise the personal situation of the applicants, the incorrect application of the phrase ‘public policy’ as well as the problems that attach to rigid inflexible policies. While any fresh application ultimately rests in the hands of the Minister, at least the Ezenwakas have a second chance of admission to the State even though this chance arises three years after they were initially refused entry.
For more the full judgement click HERE
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