FIFTH SECTION

DECISION

Application no . 52223/13 Charles SMITH and others against Ireland

The European Court of Human Rights (Fifth Section), sitting on 24 June 2014 as a Committee composed of:

Boštjan M. Zupančič, President, Ann Power-Forde, Helena Jäderblom, judges,

and Stephen Phillips, Deputy Section Registrar ,

Having regard to the above application lodged on 23 July 2013,

Having deliberated, decides as follows:

THE FACTS

The applicants in this case are members of the same family composed of the two parents and their four children, two of whom are adults. The first applicant is Charles Smith, born in Ireland in 2002. The second applicant is his sister Alimat Smith, born in Ireland in 2006. The third applicant is their sister Sirikat Smith, born in Nigeria in 1989. The fourth applicant is their brother Rufai Smith, born in Nigeria in 1993. The fifth and sixth applicants are the mother and father, respectively Ajoke and Omololu Smith, both born in 1967 in Nigeria.

A. The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows. The fifth and sixth applicants travelled from Nigeria to Ireland in in January 2002, where they claimed asylum alleging grave concerns for their safety on account of the strong opposition of their respective families to their marriage, because of their ethnic and religious differences. Their asylum claim was rejected. The fifth applicant was at an advanced stage of her pregnancy when she arrived in the country and gave birth to the first applicant, Charles, eight days later. Under the nationality law in force at the time, he automatically acquired Irish citizenship ( jus soli ). The fifth applicant remained in Ireland with her young son while the sixth applicant moved on to the United Kingdom sometime around May of that year where he was convicted of drugs offences and sentenced to seven years ’ imprisonment. In February 2005 the third applicant, Sirikat, travelled from Nigeria to Ireland to join her mother. The following month the fifth applicant was granted residence in Ireland by virtue of her status as the mother of an Irish citizen child. In July of that year the sixth applicant was released from prison and deported from the United Kingdom to Nigeria. In 2006 the second applicant, Alimat, was born. She did not acquire Irish nationality by birth, domestic law having been changed by that stage. That July, the third applicant, Sirikat, was granted permission to reside in Ireland. In September 2006, the sixth applicant re-entered the country, illegally. He was accompanied by the fourth applicant, Rufai. The six applicants then lived together as a family. The younger children attended school and the eldest enrolled in third-level education. The fifth applicant secured employment with a cleaning company, while the sixth applicant improved his vocational qualifications and had a future offer of employment as a security guard.

In July 2008 the sixth applicant applied for permission to remain in the State for himself and for Rufai. The application was unsuccessful. In March 2010 the Minister for Justice, Equality and Law Reform made a deportation order against the two, which was accompanied by a 36-page memorandum containing a detailed analysis and assessment of the impact that the deportation would have on the applicants ’ family life. No appeal was brought against the deportation order. In July 2010, the sixth applicant left the family home, staying away for almost one year, a fact that he later sought to conceal but eventually admitted. He travelled to Belfast in September 2010 and from there on to London. The first applicant, Charles, visited him in London for the Christmas holidays at the end of 2010. The sixth applicant returned to Ireland in June 2011, where he commenced proceedings seeking to revoke the deportation order. He relied in particular on the ruling of the Court of Justice of the European Union in the case Zambrano v. Office national de l ’ emploi (ONEm) , C-34/09, handed down the previous March.

On 21 October 2011 the Minister decided to grant temporary permission to remain in the State to Rufai for a period of three years, but he rejected the sixth applicant ’ s request to revoke the deportation order against him, affirming it instead. The sixth applicant did not challenge that decision. Instead he made a second request to the Minister on 24 November 2011 to revoke the order, with further representations on 9 December 2011. The Minister rejected the request and re-affirmed the order on 14 December 2011. It was in relation to this decision that the applicants sought judicial review.

Their application was dismissed by the High Court on 5 March 2012. That court recalled that the Minister was not obliged to entertain an application for revocation unless it was based on some new fact or information or some change of circumstance that had come about since the making of the deportation order and which, if established, would render its implementation unlawful. The only development since the first affirmation of the order was the decision to permit Rufai to remain in the country. That was not relevant to the sixth applicant ’ s situation, however, since he based his argument entirely on the Irish nationality of his son Charles. The renewed request for revocation of the order was therefore a mere reiteration of the argument that the Minister rejected the first time, which decision the applicants had failed to challenge. An individual could not postpone implementation of a deportation order by repeated applications to revoke. The judge further observed that the Minister had given detailed consideration to the applicants ’ rights under Article 8, as set out in the memo communicated to them at the time of the initial decision to deport. It had not been challenged then and could not be reopened now as part of a second attempt to seek revocation of the order. At the end of his judgment, the judge made the following remark on the substance of the applicants ’ case:

“ 25. ...[T]he Court is satisfied that no stateable case has been made out for the grant of leave. Even if it is a case in which some tenable argument could be said to have been raised, it is also a case in which there are compelling reasons why the Court should exercise its discretion to refuse to entertain the application. This is a case in which there has been repeated abuse by Mr. Smith of the immigration laws of the State and the laws of another Member State. He left the State illegally while present as an asylum seeker. He illegally entered the United Kingdom and was engaged in criminal activity for which he was convicted. Having been deported from the United Kingdom and the territory of European Union, he re-entered that territory and the State illegally. Following the making of the deportation order he evaded it and again re-entered the United Kingdom illegally. When applying for permission to remain on foot of the Zambrano judgment, he lied about his whereabouts and movements. This history of disregard for the law would, in the judgment of the Court, be ample ground for refusing the application in any event.”

The sixth applicant was removed to Nigeria on 7 March 2012.

The applicants appealed to the Supreme Court, which gave its decision on the case on 1 February 2013. In his judgment, Clarke J. agreed with the decision of the High Court. He noted that when the Minister had refused the first application to revoke, it was in the knowledge that, simultaneously, Rufai was to be allowed to remain in the country for three years. Therefore, if the prospect of Rufai remaining in Ireland was a reason for the Minister to reconsider the case of the sixth applicant, then that argument should already have been advanced when the first application to revoke was made. Furthermore, if the Smith family considered that the Minister had failed to take adequate account of their new situation, they should have challenged his decision to affirm the order against the father. Having failed to do so at the right time, it was now too late. The judge then commented on the merits of the applicants ’ case in the following terms:

“6.3 Any Minister would be required to have regard to the serious wrongdoing of Mr. Smith in respect of not just of how he has dealt with the Irish immigration system (which factors were, of course, known to the Minister at all material times and noted by the trial judge), but also the serious criminality in which Mr. Smith engaged and the circumstances, by specific reference to the family rights and entitlements which are now sought to be asserted to his advantage, in which that criminality occurred. It must be recalled that Mr. and Mrs. Smith came to Ireland in 2002 and Charles, who is the only Irish citizen amongst the Smiths, was born in that year. Far from carrying out his role in personally vindicating the family rights of Charles, Mr. Smith travelled to the United Kingdom and became engaged in very significant criminality such as warranted a lengthy custodial sentence. Those actions were taken at the very time when Charles and, indeed, Mrs. Smith as the mother of Charles, had a most immediate need of such family support as Mr. Smith might be in a position to give. It is not, in my view, unreasonable to characterise his actions in departing Ireland, engaging in serious criminality, and in putting himself in a position where he was unable to engage in family life, as being actions in total disregard of any family rights involved.

6.4 In that context, it should also be noted that Mr. Smith ’ s actions in respect of his own family are not confined to the original occasion when he went to the UK and became involved in serious criminality. It is clear that while Mr. Smith was, purportedly, in Ireland seeking to place reliance on whatever legal rights he might have in the context of the Irish immigration system, he had in fact, again, travelled to England. On the facts of this case, there is, therefore, no reality to the asserted position of Mr. Smith in respect of his family. He has repeatedly left the jurisdiction and not tended to the needs of his family. The failure is, therefore, directly connected with the very rights now sought to be asserted.

6.5 When coupled with Mr. Smith ’ s other wrongdoing in respect of the immigration system as outlined by the trial judge, it seems to me that this is the kind of case where, on the facts, there could only be one answer if the matter was referred back to the Minister. The Minister would be almost certain to, and would be well justified in, concluding that, even if there were new circumstances, same could not outweigh the extraordinary weighty balance against revoking Mr. Smith ’ s deportation, which stems from his own reckless disregard of the rights of his own family members.”

The appeal was dismissed.

B. Relevant domestic law

Section 3 of the Immigration Act 1999 provides, as relevant:

“(1) ... [T]he Minister may by order (in this Act referred to as “a deportation order”) require any non-national specified in the order to leave the State within such period as may be specified in the order and to remain thereafter out of the State.

...

(11) The Minister may by order amend or revoke an order made under this section including an order under this subsection.”

COMPLAINT

The applicants complained under Article 8 of the Convention about the deportation of the sixth applicant.

THE LAW

Article 8 of the Convention provides:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Court notes at the outset that the domestic courts considered that the applicants failed to challenge the deportation order in a timely and procedurally-correct manner. Both the High Court and Supreme Court addressed, albeit succinctly, the substance of the applicants ’ Article 8 complaint. Even assuming that the application cannot be rejected for non ‑ exhaustion of domestic remedies, it is nevertheless inadmissible for the reasons set out below.

The Court notes that although the applicants characterised the actions of the domestic authorities as an interference with their right to respect for family life, the question to be examined in this case is whether the respondent State has a positive obligation to permit the sixth applicant to reside in the country so as to maintain and develop family life there (see Butt v. Norway , no. 47017/09 , § 78, 4 December 2012, and also Nunez v. Norway , no. 55597/09 , § § 68-70 , 28 June 2011) . That does not materially alter the analysis, however. Be it in the context of positive or negative obligations, the State must strike a fair balance between the competing interests of the individual and of the community as a whole. In doing so, the domestic authorities enjoy a certain margin of appreciation.

As is well-established in the Court ’ s case-law (see among many other authorities Darren Omoregie and Others v. Norway , no. 265/07, 31 July 2008) the Contracting States are entitled, subject to their treaty obligations, to control the entry into and residence on their territories of non-nationals. There is no general obligation under Article 8 requiring States to respect immigrants ’ choice of the country of their residence or to authorise family reunion in their territories. The extent of a State ’ s obligation to permit the foreign relatives of persons resident within the State will vary according to the particular circumstances of those concerned and to the general interest. The factors to be taken in account include the extent to which family life is effectively ruptured, the extent of ties in the Contracting State, whether there are insurmountable obstacles to the family returning to the country of origin of one or more its members, and whether there are considerations of public order weighing in favour of exclusion, or factors of immigration control such as a history of breaches of immigration law.

Applying these principles to the present case, the Court observes that, having regard to the family ’ s history as described above, while the deportation of the sixth applicant has disturbed the life of the family, it cannot be said to have effectively ruptured it. Their life together has been characterised by the long absences of the sixth applicant from the family home due to circumstances of his own making. He was absent from the first applicant ’ s life for the first four years, a fact emphasised by the Supreme Court, as well as from the lives of his two older children during the period of his imprisonment in the United Kingdom. He returned to Ireland in September 2006 and left the family again in July 2010, staying away for almost a year. The family life has been punctuated by the long absences of the sixth applicant. Despite this, the other applicants succeeded in establishing their life together in Ireland and are lawfully resident there. There is no obligation on them to leave Ireland and, as anticipated by the authorities, the first five applicants have chosen to remain there after the sixth applicant ’ s removal to Nigeria.

As for the extent of the applicants ’ ties to Ireland, these are not the same for all of them. The strongest ties are clearly those of the two youngest children, who were born and raised there, and in particular the first applicant, who holds Irish citizenship. The domestic courts indicated that he was the only member of the family to have acquired the citizenship of the host State. Before this Court the applicants indicated that the second, third and fifth applicants were naturalised Irish citizens. However, the appendices submitted with the application included photocopies of the Nigerian passports of the third and fifth applicants, the latter including mention of the second applicant. Their claim in respect of their Irish nationality is, therefore, unsubstantiated. Regarding the third and fourth applicants, the Court recalls that they spent their childhoods in Nigeria, only going to Ireland in their teenage years, where they appear to have integrated well. As for the fifth applicant, while the materials provided to the Court indicate that she, too, has integrated well into Irish society, she entered the country as a married woman, having no ties to it until the birth of the first applicant eight days after her arrival. The sixth applicant ’ s ties to Ireland must be regarded as tenuous at best. Since 2002 he has stayed in Ireland for just over four years – and that period was not a continuous one. For the time that he was there, his status was that of an illegal alien.

The Court will next consider whether there would be insurmountable obstacles to the return of the first five applicants to Nigeria should they wish to resume their family life there. Notwithstanding the first and second applicants ’ strong ties to Ireland, they were of an adaptable age at the time of the deportation (10 years and 6 years respectively), and can still be regarded as adaptable two years later. Whilst they have never lived in Nigeria, there would not be, in principle, any issue of language, since English is widely spoken there. It may also be presumed that that they have an understanding of the culture of their parents and their wider family. The Court also notes that, according to statements he made to the authorities when he first arrived in Ireland, the sixth applicant has two other sons in Nigeria. The third and fourth applicants, in addition to having been raised in their country of origin, are no longer children in any event. Indeed, they had already attained the age of majority by the date of their father ’ s deportation. For all of the family members still in Ireland, therefore, the prospect of re-locating to Nigeria so as to re-join the sixth applicant cannot be regarded as excessively difficult.

The Court recogni s es that the best interest of the two minor family members is a primary consideration in its assessment of the claim. It notes in this respect that for most of their lives they have lived only with their mother and older siblings whilst their father was absent from the family. Should their mother and siblings choose to remain in Ireland and not to join the sixth applicant in Nigeria, the family unit in which they have lived for most of their lives may continue unchanged.

Concerning the sixth applicant, there were strong considerations of public order weighing in favour of his exclusion. Within a short time of his arrival in Ireland he engaged in what was, unquestionably, serious criminal activity in the United Kingdom, reflected in the heavy sentence imposed on him. He then flouted Irish immigration law through his unlawful presence in the country from 2006 onwards, and was not wholly truthful in his communications with the immigration authorities. The Court considers that by his own actions the sixth applicant undermined whatever weight his family ’ s rights under Article 8 might otherwise have had. The Court further notes the criticisms voiced by the domestic courts at the manner in which the applicants sought to reverse the deportation order, the Supreme Court stating “ there can be little doubt but that permitting persons to make repeated applications for revocation of deportation orders in the absence of significant new materials or circumstances would contribute to such delays and have an adverse effect on the orderly implementation of the Irish immigration system”.

Where, as in this case, family life was established within the host State at a time when the immigration status of some of the family members – here the fifth and sixth applicants – was irregular, the persistence of family life there is necessarily precarious. For the sixth applicant ’ s removal to be considered incompatible with Article 8, truly exceptional circumstances would need to be shown to exist ( Rodrigues da Silva and Hoogkamer , cited above, § 39). The Court does not perceive any such circumstance in this case.

Finally, the Court would note that even if the first to fifth applicants choose to remain in Ireland, there is no legal impediment to their visiting the sixth applicant in Nigeria for extended periods.

The above considerations lead the Court to conclude that the deportation of the sixth applicant from Ireland, supported by detailed reasoning by the Minister that was accepted as convincing by the High and Supreme Courts, lay well within the domestic authorities ’ margin of appreciation.

It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

             Stephen Phillips BoÅ¡tjan M. Zupančič              Deputy Registrar President