Ireland - Supreme Court, 18 October 2007, A.N. v Minister for Justice Equality and Law Reform [2007] IESC 44

Country of Decision:
Country of Applicant:
Date of Decision:
18-10-2007
Citation:
[2007] IESC 44
Additional Citation:
2004 No.459 J.R.
Court Name:
Supreme Court
Printer-friendly versionPrinter-friendly version
Headnote: 

The Minister for Justice issued a mother and her 5 children with deportation orders as failed asylum seekers pursuant to section 3(2)(f) of the (Irish) Immigration Act 1999. The only application for asylum was in the mother’s name. The children had not been issued with refugee status determinations at all and were not mentioned in the decision.  The minor applicants challenged the deportation orders on the basis that their designation as failed asylum seekers was wrong in law. They had never made asylum applications. The High Court granted the applicants leave to seek judicial review but later refused the substantive relief of orders of certiorari quashing the deportation orders on the basis that the mother’s application had covered the children. The applicants appealed to the Supreme Court as the Court deemed the issue a point of law of exceptional public importance. The Supreme Court set aside the High Court judgment and made an order of certiorari quashing the children’s deportation orders, finding that there was no record of any decision refusing asylum applications on behalf of the children. The Court held that such a refusal was a fundamental prerequisite to the Minister’s power to make a deportation order under section 3(2)(f) of the Immigration Act 1999.  Finnegan J. also held that where an application by a parent of a minor is unsuccessful, the child is entitled to apply for asylum based on his own circumstances and that where a child’s parents are successful, the child should benefit by virtue of the principle of family unity. The principle of family unity operates for the benefit of the minor and not against him.

Facts: 

The 5 minor applicants in this case were Nigerian nationals who arrived in Ireland in May 1998 in the company of their mother. They were all aged under 12 years at that time. The mother applied for refugee status but this application was refused following a refugee appeal.  In August of 2000, she was issued with a proposal to deport letter and invited to make any representations as to why she should be allowed to remain in the State.  Representations were made on her behalf by her then solicitor. Nothing happened until July of 2002 when a second proposal to deport letter was issued indicating that the Minister  proposed to make a deportation order for the mother and each of the children 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 mother’s application was being treated by the Minister as encompassing applications for each of the minors. Representations were made by the mother’s solicitor but these representations were merely to repeat representations made on behalf of the mother back in 2000. Deportation orders against the mother and each of the children were made by the Minister on 8th August 2002. By motion returnable on the 10th December 2003 the next friend and the minors sought leave to apply by way of judicial review for an order of certiorari quashing all six deportation orders. In a reserved judgment of 31st October 2003 Finlay Geoghegan J. refused the mother leave to apply for judicial review but granted leave to the minors. The ground upon which leave was granted to the minors was

“The deportation orders relating to the (minor) applicants are invalid in that the (minor) 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 on the basis that the mother’s application was considered to cover the children but the Judge certified the following questions of law for the Supreme Court on appeal:

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.

Decision & Reasoning: 

The Court examined the provisions of the UNHCR. Handbook on Procedures and Criteria for Determining Refugee Status dealing with the principle of family unity and found that the same definition of a refugee applies to all individuals regardless of age: thus a minor will have to establish a well-founded fear of persecution within the 1951 Refugee Convention in order to gain refugee status. However, where the minor is an infant or very young 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 Court also held that there was no record of any decision refusing asylum applications on behalf of the children and that such a refusal was a fundamental prerequisite to the Minister’s power to make a deportation order under section 3(2)(f) of the Immigration Act 1999.

Outcome: 

The deportation orders against the children were quashed.

Observations/Comments: 

This decision, which had a major impact in Ireland, indicates that a minor must be able to make an asylum application on his own behalf if he can invoke reasons why he should be granted refugee status that are different from and independent  of  the reasons provided by his parents (who may have already been refused refugee status). The parents are now asked at an early stage of the process whether the children have any separate independent claim and are provided with the opportunity to issue separate claims for the children. Even where the children’s claim falls to be assessed with the adult’s claim (i.e. it is the same claim) the refugee decision will refer to each person and reject the claim for each person.