The High Court has quashed the refusal of Mercy Oviawe’s application to remain in Ireland, ruling that the Minister for Justice had to consider the constitutional and private-life rights of her Irish citizen twins when deciding the case.
In a supplementary judgment delivered on 14 November 2006, Ms Justice Finlay Geoghegan ordered that the application be remitted for consideration and determination according to law. The court did not grant residence permission or decide what the Minister must conclude on reconsideration.
Oviawe, a Nigerian national who arrived in Ireland in March 2002, applied under the IBC/05 arrangements in February 2005, relying on her Irish-born children. Her twin son and daughter, born in Ireland on 29 July 2002, are Irish citizens. Her other children had lived with her in Ireland since 2002.
The Minister refused the application by letter dated 16 November 2005. The stated reason was that Garda National Immigration Bureau advice recorded convictions in January 2001 and January 2004, and the Minister was not satisfied she was of good character. The judgment says the parties agreed that Oviawe had disclosed a shoplifting conviction on her application. It also records a January 2004 conviction relating to goods worth €99: she pleaded guilty and received a total three-month sentence, suspended for 12 months on a €300 bond to keep the peace and be of good behaviour.
The judge considered whether a conviction excluded an applicant from the IBC/05 scheme. The published arrangements did not refer to convictions, and the application form asked applicants to disclose any convictions. The court concluded that Oviawe was entitled to apply and have her application considered despite her conviction.
Following its earlier judgment in *Bode and Others v Minister for Justice, Equality and Law Reform*, the court held that the twins had a qualified right to have their constitutional personal rights considered. It also found that the refusal had not been made compatibly with the State’s obligations under Article 8 of the European Convention on Human Rights to respect their private life. The judgment notes that the respondents made no submission that the children’s rights could be left out of account because of Oviawe’s conviction.
The court held the refusal unlawful on both grounds and ordered certiorari quashing it, together with remittal for a lawful reconsideration. It said the conviction remained a relevant matter for the Minister to consider.