Deportation Order issued against Third Country National on basis of Failure to Establish ‘Family Life’ Within the State

Case Study: K.A (Nigeria) v Refugee Appeals Tribunal [2012] IEHC 109

This case concerned an application for leave to seek judicial review of a decision to issue a deportation order against the applicant. The applicant argued that the Minister erred in law in failing to assess the manner in which the deportation order would affect the applicant’s entitlement to respect for her family life under Article 8 of the European Convention of Human Rights.

The applicant, a Nigerian national, arrived in the state in November 2007 as an unaccompanied minor just before her fifteenth birthday. The applicant then resided with her aunt who was already living in the state with her two children. The applicant claimed she had been living with her grandparents before leaving Nigeria and she came to Ireland for a ‘better life’. Following the failure of her asylum claim and the rejection of her application for subsidiary protection, the Minister considered representations made for leave to remain in the state and then issued a deportation order against the applicant, which is now sought to be challenged.

The essential basis of the applicant’s application for leave to remain was that her aunt and two daughters had come to regard her as a member of their family, which is protected under Article 8 of the Convention. This argument was supplemented by information such as the fact that she was preparing to sit the leaving certificate and she was an active member of her church and youth group. The essential basis the Minister relied on in deciding that her Article 8 family rights would not be infringed was the fact that the applicant was now an adult aged eighteen, had been living in the state for a relatively short period of time during which she was pursuing an asylum application and was living with non-direct relatives.

The issued raised is thus whether the assessment made by the Minister is a rational one having regard to the information available as to the applicant’s circumstances and whether it is compatible with the criteria required to be applied by law in assessing ‘family life’ for the purposes of Article 8.

The High Court considered a number of previous judgments of the European Court of Human Rights on the question of expulsion.  A clear approach emerged that to constitute family life for the purposes of Article 8, mere legal residence over a period is insufficient. There must be evidence that the individual established personal roots in the contracting state through personal relationships, education, employment or other indicators such that the contracting state has become the real centre of the individual’s way of life.

The High Court applied these criteria to the circumstances of the case. It was found that the conclusion reached by the Minister was not wrong in relation to family life.   The Court outlined the applicant’s position.

Her family life for fifteen years was that spent with her grandparents and other relatives in Nigeria. Her aunt had had no involvement in the Applicants life prior to her coming to Ireland. There was doubt as to the family ties between the applicant and her aunt as her aunt had never mentioned the applicant in her application for permission to remain. Finally, although the applicant asserts that her aunt regards her as her daughter, the practical quality of the relationship has not been expanded on or explained in evidence.

In these circumstances, the High Court was satisfied that no stateable case had been made that the Minister erred or reached an unreasonable conclusion in deciding that the these circumstances did not amount to "family life" in the sense of a settled way of life in an established family group, in which there are subsisting emotional ties between the applicant and her aunt and younger cousins. For all of these reasons the application for leave was refused.

Brophy Solicitors
11.05.12

Stay on Deportation Order Issued

A Nigerian man has been issued a stay on his deportation in the High Court today, despite alleged deception on his part in relation to his identity as a former male model working for a UK property firm. Mr Justice Hogan issued the stay but stressed that his decision was "exclusively" motivated by the welfare of a child "Baby C". The infant is the child of the woman who has made the aforementioned allegations. The man in question is part of unfinished District Court proceedings in relation to care and custody of this child. The stay on proceedings will hold until the District Court makes a decision. If the man is successful in the District Court, the State must reassess his deportation order on foot of the child’s right to the care and company of her father balanced against a fair immigration system. If he is unsuccessful, the stay on the deportation order will lapse.

The man in question entered the State illegally on another man’s passport but claimed asylum under his own name. The passport had been stolen in Vienna and thus the Nigerian gentleman pled guilty and served a 6-month sentence for handling stolen goods.

After forming a relationship with a professional Irish woman, it transpired he deceived her into thinking he lead an affluent lifestyle as a former male model working for a UK property firm. She had no knowledge of his criminal convictions or his involvement in the asylum process. The baby was born in late 2010 but the relationship had already broken down. The woman claims that the applicant’s interest in guardianship and custody are a mere ploy to aid his immigration issues.

As there seemed no particular hope of reconciliation between the pair, Mr Justice Hogan was of the opinion that should the gentleman be removed from the state, it was reasonable to believe that he would not have any contact with Baby C, thus he granted a stay on these grounds.

Brophy Solicitors

20.1.12