The High Court has quashed a refusal of residency under the IBC/05 scheme and a deportation order against a Nigerian father, finding that the decisions failed to properly consider the rights and circumstances of his Irish citizen son.
In a judgment delivered on 14 November 2006, Ms Justice Finlay Geoghegan ruled that the Minister for Justice’s decision to refuse the father’s IBC/05 application was unlawful and invalid. The court found that the decision failed to consider the child’s personal rights under Article 40.3 of the Constitution and was incompatible with the State’s obligations under Article 8 of the European Convention on Human Rights.
The father had entered Ireland in February 2005 and applied for asylum, then sought permission to remain under IBC/05. His wife had lived in Ireland since 2003 and was granted permission to remain for two years in May 2005. Their son, born in Ireland in June 2003, was an Irish citizen and had lived in the State since birth. The father’s IBC/05 application was refused in March 2005 on the basis that he lacked continuous residence since his son’s birth.
The court also quashed the deportation order made in November 2005. The judge found that the reasons recorded for deportation— that refoulement was not an issue and that no issue arose under anti-torture legislation—did not amount to the grave and substantial reason required to deport a parent of an Irish citizen child.
The judge further found that the file assessment did not adequately address the child’s welfare or the likely effects of deportation on the family. It assumed the child would go to Nigeria with his father, without considering the possibility that the mother might remain in Ireland with the child, as she was entitled to do. The assessment also did not substantively address the family’s rights under Article 8.
The court ordered certiorari quashing the March 2005 IBC/05 refusal and remitted that application to the Minister for consideration and determination in accordance with law. It separately quashed the November 2005 deportation order. The judgment did not decide the remaining grounds of challenge, which the judge said were unnecessary to consider.