Johnson v Minister For Justice, 16th Apr 2026, Immigration

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Johnson and Anor v The Minister For Justice (Approved) [2026] IEHC 221 (16 April 2026)
URL: https://www.bailii.org/ie/cases/IEHC/2026/2026IEHC221.html
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THE HIGH COURT

JUDICIAL REVIEW

Record No. 2025/427 JR

[2026] IEHC 221

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IN THE MATTER OF SECTION 5 OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT, 2000 (AS AMENDED)

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Between:

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JAGSON JOHNSON

and

L.E.C. (A MINOR SUING BY AND THROUGH HIS FATHER AND NEXT FRIEND JAGSON JOHNSON)

Applicants

and

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THE MINISTER FOR JUSTICE

Respondent

Judgment of Mr Justice Cian Ferriter delivered  this 16 day of April 2026

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Introduction

1. In these judicial review proceedings, the applicant seeks an order revoking a decision of the respondent ("the Minister") dated 5 February 2025 ("the decision") refusing to revoke a deportation order made in respect of the first applicant on 24 July 2024 ("the deportation order") following an application to the Minister by the applicant pursuant to s.3(11) Immigration Act, 1999 ("s.3(11)") to revoke the deportation order.  The second applicant is the infant child of the first applicant.  The second applicant was born on 23 July 2024, the day before the deportation order was made.

2. The first applicant's application for revocation of the deportation order centred on the constitutional and ECHR rights he said would be breached in the event that the deportation order was not revoked. Those rights included the personal and family rights of the first applicant and the p ersonal, family and educational rights of his son, the second applicant.

3. For ease, unless the context otherwise makes clear, I will refer to the first applicant as the "applicant".

Background

1. The applicant is an Indian national.  He arrived in the State on 5 July 2014 on a student visa.  His last student visa permission expired in May 2016.  He was the subject of a deportation order on 30 May 2017.  He then sought international protection in September 2017. This deportation order was revoked on 27 September 2017 as a result of the lodging of an application for international protection on 18 September 2017.

2. The process of dealing with that international protection application seems to have been considerably delayed, including by the intervention of the Covid pandemic.  His application for international protection was refused by the IPO ("International Protection Office") on 7 May 2021.  The applicant appealed to the International Protection Appeals Tribunal ("IPAT") and, following an oral hearing, IPAT in a decision of 15 December 2023 affirmed the recommendation of the IPO not to grant the applicant international protection.

3. The applicant made a separate application pursuant to s. 49 of the International Protection Act 2015 ("the 2015 Act") for permission to remain in the State. In a decision on that application ("the s.49 decision"), dated [insert] the applicant was refused permission to remain in the State.

4. On 16 January 2024, the applicant lodged a request for a review of the s. 49 decision refusing him permission to remain in the State.   In support of that application, the applicant submitted a (handwritten) letter from his partner, CC, dated 12 January 2024, in which she stated that " I am writing to let you know that [the applicant] is my boyfriend and I am carrying his child ".

5. A case worker at the IPO concluded a review under s. 49(7) of the 2015 Act ("the s.49(7) review") and, on 13 June 2024, affirmed the earlier decision that the applicant should not be given permission to remain in the State.  While a considerable number of documents had been submitted to the IPO, in the context of the s.49(7) review, relating to the applicant's educational and employment background, the only document submitted in respect of his relationship with CC was the handwritten letter from her dated 12 January 2024.  In considering the right to respect for family life in the s. 49(7) report, the decision maker made clear that a lack of supporting documentation was a factor in the refusal decision:

" At the time of writing this report, no documentary evidence has been received in regards to the child's birth. However, other than providing this office with information [in relation to the pregnancy], and her name and advising of the relationship, the applicant has provided no further details in respect of [CC], or of the relationship, including evidence corroborating its existence."

1. The Minister proceeded to make the deportation order on 24 July 2024 which was notified to the applicant by letter of 7 August 2024.  The applicant was directed to leave the State by 7 September 2024, in default of which he was directed to report to the Garda National Immigration Bureau ("GNIB") on 23 October 2024 to make arrangements for his removal from the State.

2. In a letter of 9 September 2024, the applicant's then solicitors made a submission to the Minister in support of an application under s. 3(11) for revocation of the deportation order of 24 July 2024. In support of the application, the applicant submitted a number of documents in respect of his family life, including the handwritten letter of CC dated 12 January 2024 which had been lodged in support of the s. 49(7) review, a further handwritten letter of CC dated 30 August 2024 and a handwritten letter of the applicant also dated 30 August 2024.  A number of photographs of the applicant with CC and their newborn child in the labour ward of Waterford University Hospital after their son's birth, and in the aftermath of that birth, were also submitted.

3. The submission in support of the s. 3(11) application stated, under the heading "Family circumstances", that the applicant confirmed that he was in the delivery room and in the postnatal unit for his child's birth.  During his partner's admission to hospital, he was present for the full time allowed in the hospital.  The letter of 30 August 2024 from the second applicant's mother stated:

"Jagson and I met last year, He started in my workplace. We got to talking and from there it developed into us hanging out more and eventually turned into a relationship. I then found out in November 2023 that I was pregnant and from there Jackson was at hospital appointments that he was able to get off. He also attended pregnancy scans I had again if able to get them off work which they were pretty flexible with.

**

Our son was born 23.7.24 called him Luca.  As Jagson is my partner, he comes over the see Luca every day and is always a part of his son's life.

**

We are currently trying to look for a place for ourselves, to be family and possible future a growing family"

1. The first applicant's letter of the same date stated:-

"Me and [CC] has worked on all types of child accessories and equipment so that our child grow healthy.  I stay with my child every day after my working hours so that [CC] can take some rest during me with my child.  We three are currently in a small place so we are planning to get our own place to live together. We have currently applied for our mortgage and waiting for the approval of the mortgage provider."

1. The submission stated that, although the applicant and his partner were living at separate addresses in Waterford, they were looking for a place of their own and a mortgage advice enquiry was submitted in support of that contention.

2. The submission quoted reasonably extensively from the relevant case law, including from para. 5 of the concurring judgment of Collins J in the Supreme Court in AZ v The Minister for Justice [2024] IESC 35 (" AZ ") (a case dealing with a deportation order in respect of a non-national who was married to an Irish citizen and was father to a number of Irish citizen children with his wife) where Collins J stated that the fact that the applicant there had an Irish citizen child who had lived in the State since birth did not render the applicant immune to deportation but that " where the effect of a deportation order would be to separate [the Irish citizen child from his father]... that too is a significant factor to which the Minister must have appropriate regard ", noting that this followed from the well-established jurisprudence of the Supreme Court, in particular, Oguekwe v Minister for Justice [2008] 3 IR 795 (" Oguekwe ").  The submission also quoted from para. 6 of the judgment of Collins J in AZ that, as is evident from Oguekwe, " the weight to be given to that factor would depend on all the facts and requires a case by case, fact sensitive assessment by the Minister ".

3. The submission accepted that the applicant was not immune to deportation because he had a child born since the deportation order was made but did submit that the effect of the deportation on the applicant and his child was a significant factor to which the Minister must have appropriate regard and submitted that " the deportation of the applicant would separate this newborn child from his father and rupture the father-son bond ".  The submission stated that the application, accordingly, engaged Articles 40, 41, 42 and 42A of the Constitution, Articles 7 and 24 (2) of the Charter of Fundamental Rights of the European Union ("the Charter") and Article 8 of the European Convention on Human Rights ("ECHR").

4. The submission went on to address the interests of the child being adversely affected by the deportation decision and submitted that there was an obligation to treat the best interests of the child as a primary consideration.  This reflected the analysis of the Supreme Court (Woulfe J) in AZ.

The Decision

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1. In light of the issues raised in these proceedings, it is necessary to set out the content of the decision in some detail.

2. The decision commences by setting out the factual background, including the background in relation to the applicant's presence in the State, initially on student visas, thereafter without lawful permission leading to the original deportation order which was revoked following his internation protection application. This section of the decision detailed his applications for international protection and permission to remain, in addition to the deportation order in issue in these proceedings, as detailed above. This section of the decision concluded by noting that the applicant was due to present at the offices of the GNIB on 23 October 2024 but that the applicant had failed to do so and was thus classified as "an evader in the State".

3. The next section of the decision is headed " Correspondence/representations submitted for consideration under section 3(11) ".  This section of the decision addresses in some detail the submission made by the applicant's solicitors on 9 September 2024 seeking the revocation of the deportation order and the documents provided in support of the revocation application "by way of evidence of his relationship" with CC and his Irish citizen son.  This section referenced the content of the handwritten letters of the applicant and CC dated 30 August 2024 and the submissions made in relation to their personal circumstances.  There was also reference to the submissions made, and documentation submitted, in relation to the applicant's employment history.

4. The next section of the decision is headed " Consideration of representations submitted pursuant to section 3(11) ".  This section concluded by noting that the decision maker had considered the submissions and supporting documents now advanced on behalf of the applicant in respect of his private and family life in the State and then moved on to consider those matters In the subsequent sections of the decision.

5. The next section of the decision is headed " Consideration under the Irish Constitution Articles 40, 41, 42 and 42A ".  The first section of this part of the decision considers the applicant's personal rights, in particular his private life rights, under Article 40 of the Constitution.  It concluded that a decision by the Minister to deport the applicant did not constitute a breach of the right to respect for his personal rights under Article 40.

6. I should note that in this section of the decision, it was noted that even were it accepted that the applicant's right to private life/association/autonomy took a form capable only of being exercised while he was physically located in the State:-

" such a right falls to be considered against important interests of the State in preventing crime. Absent exceptional circumstances, it is submitted that the State's interest in this regard would generally prevail over the right of the applicant to private life/association/autonomy ".

This is said by the applicant to be an error given the absence of any criminal record on the part of the applicant.

1. The decision then deals with the issue of the applicant's " Irish citizen partner ".  This section of the decision largely deals with an application of the principles set out in Gorry v Minister for Justice [2024] 1 IR 666 (" Gorry ").  It should be noted that the Gorry case dealt with a situation where a non-Irish citizen who was married to an Irish citizen was the subject of a deportation order.  The majority judgment of the Supreme Court delivered by O'Donnell J (as he then was) in that case considered inter alia the rights of married persons under Article 41 of the Constitution (which article deals with the rights of the family) in a deportation context.

2. The decision in this section begins by stating that the applicant submitted that he was in a relationship with CC, an Irish citizen, and that "It is accepted that as an Irish citizen the couple constitute a family within the meaning of Article 41 of the Constitution".  This appears to be in error as the applicant and his partner are not married.  The decision recognises that CC as an Irish citizen has a right to live in Ireland and an individual right to marry.  This section then addresses the nature of the relationship between the applicant and CC and states as follows:-

"I acknowledge the submission that Mr Johnson is in a relationship with [CC] , however, besides such a claim by Mr Johnson, his legal representative, and a personal handwritten letter from [CC] on 30 th August 2024 confirming inter alia that she met Mr Johnson 'last year', no further substantive or documentary evidence recording [CC] 's nationality, by way for example of a Birth Certificate or Passport, has been provided. Besides a claim that they met at work, and that [CC] became pregnant (circa October/November 2023 on the basis of the date of birth of her son), no evidence to corroborate when their relationship in fact commenced and how it proceeded during [CC] 's pregnancy and following the birth of their son on 23 rd July 2023. I acknowledge the several copy photographs purported to have been taken at the time of the birth [of the second applicant] , no further documentary evidence has been provided, and submissions in respect of Mr Johnson's private and family life in the State rests with that from Niall J. Walsh & Co, on 23 rd September 2024.

**

I acknowledge the submission inter alia, under cover of 9 th September 2024, that Mr Johnson and [CC] 'currently live at separate addresses in Waterford, the couple are looking for a place of their own' and intend 'to have a home for the family and possibly grow the family too'. I have considered that besides a submission in respect of Mr Johnson's employment prospects in the State under cover of 23 rd September 2024, no further or up-to-date information, or supporting documents, have been received to show the status, if any, of the relationship between Mr Johnson and [CC] at this time."

1. The decision goes on to state:

"In considering the nature of the relationship between Mr Johnson and [CC] , which is unascertained but submitted to have commenced **** prior to [CC] becoming pregnant in October or November 2023, I have considered their relationship started at a time when Mr Johnson's status in the State was precarious in that he was residing under a temporary permission while his IP claim was being considered. Mr Johnson was unsuccessful in his claim for IP or PTR and he ceased to be an applicant under the International Protection Act, 2015, on 27 th June 2024 becoming the subject of a Deportation Order on 24 th July 2024. In considering whether family life could be established elsewhere, no information has been submitted demonstrating that [CC] would be prevented from travelling to India to visit Mr Johnson and maintain the relationship.

**

A decision to make a deportation order in respect of Mr Johnson after appropriate consideration of the facts, is not invalid merely because it affects the parties [right] to cohabit in Ireland and it would be more difficult to live in another country."

1. This section of the decision concludes:

"All factors relating to the position and rights of the couple have been considered and these have been considered against the rights of the State. In weighing these rights, it is submitted that the factors relating to the rights of the State are weightier than those factors relating to the rights of the couple. In weighing these rights, it is submitted that a decision to make a deportation order in respect of Mr Johnson is not disproportionate as the State has the right to uphold immigration law and to ensure the economic well-being of the country."

1. The applicant challenges as flawed the reliance here on the economic well-being of the country.

2. The decision then turns to the question of the position of the second applicant, under the heading " Irish citizen son ".  This section of the decision accepts that family life arises between the applicant and his son.  The decision states:

" While it is accepted that family life arises between Mr Johnson and [the second applicant] , no substantive submissions, or up-to-date information, has been provided in respect of his Irish citizen son, and the information provided and available at this time rests with the submission of 9 th September 2024.

I acknowledge that as an Irish citizen, [the second applicant] has personal rights under Article 40 of the Constitution. These rights include the right of Irish citizen child to reside in the State, to be reared and educated with due regard to her welfare, to the society, care and company of her parents, and to the Constitution. The best interests of the child are a primary consideration to be considered along with other relevant considerations."

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1. This reflects the principles established inter alia in Oguekwe and in AZ.

2. The decision then states:-

**

" I have considered the submissions and copy photographs purporting to be of [the applicant, CC and the second applicant at the time of his birth] no substantive or documentary evidence in respect of status, or otherwise, of Mr Johnson's relationship with his son or his son's mother, has been provided at this time.

**

On the basis of the dearth of information and documentary evidence provided at this time, it is not accepted that if the Minister decides to make a deportation order in respect of Mr Johnson that this will require his son to leave the State. It is accepted that if the Minister decides to make a deportation order in respect of Mr Johnson that this would make it difficult to maintain a relationship based on face-to-face contact with his son, however, no information in relation to the status, if, any of his relationship with his son has been provided at this time which warrants further consideration.

While I accept that [the second applicant] is 6 months old at this time, and an infant, on the basis of the lack of information available at this time, or information to illustrate that he and his son's mother have moved to reside together as a family, it is considered reasonable to suggest that Mr Johnson, if he so wishes, could maintain contact with his son through letters, cards and later by telephone and/or skype if returned to India and that it would be open to his son to travel and visit him in India."

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1. The decision then cites from the Supreme Court decision in Odum v Minister for Justice (No. 2) [2023] IESC 26 (" Odum "), including from the judgment of O'Donnell CJ at para. 29 to the effect that the residence of the first applicant in that case in Ireland was "precarious":

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"In this case, the first applicant's residence in Ireland was, in the language of the European Court of Human Rights, precarious. It would be exceptional for such residence alone to amount to a consideration of such weight as to mean that a deportation decision was invalid as breaching the rights of the individual. Nevertheless, the fact of a relationship and the rights of the children involved must be taken into account in the deportation decision. It would require exceptional considerations of particular weight to prevent the State from requiring a non-citizen, whose presence in Ireland was unlawful, to leave the State having regard to the weight that must be accorded to the fundamental interests of the State in maintaining its capacity to control entry to and exit from the State. "

1. The decision also cites from para. 38 of the judgment of the Chief Justice in Odum to the effect that there was no evidence of a real meaningful relationship between the applicant father in that case and his children such as to give rise " to even the possibility that the deportation would be an impermissible interference with family and private life under Article 8 and the same considerations must lead to the same conclusion in the case of [the children] to the care and companionship of their parents under the Constitution ".

2. The decision maker stated:

"By analogy with the applicant in Odum, Mr Johnson's presence in the State has also been precarious since his entry, both as a student with a temporary and conditional Stamp 2 permission which expired on 27 th May 2016, and as an applicant for IP and PTR which ceased on 24 th June 2024. While I acknowledge [the second applicant] is an infant of 6 months, Mr Johnson has failed to provide any evidence of that it would be an interference with his son's rights to remove him from the State or his relationship with his son is such that his deportation would cause them irreparable harm. It is concluded that as Mr Johnson has not provided any evidence of any real and meaningful relationship, his deportation would not be a disproportionate interference with his family rights as provided by the Constitution."

1. The applicant challenges as erroneous the decision-maker's reliance on Odum in the decision.

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1. This section of the decision then goes on to consider how the deportation of the applicant could affect the rights and welfare of his citizen child, which rights "must be regarded as a primary consideration".  Paragraph 118 of the Supreme Court judgment of Woulfe J in AZ is quoted:

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"While the child's best interests are a primary consideration, this does not necessarily dictate the outcome as in many cases there may also be other important considerations which the Minister must weigh in the balance in arriving at deportation decisions."

1. The decision then stated that the applicant " has not provided any evidence of how his son would be affected by his deportation, nor has he provided information about the relationship, if any, that he has with his son other than that he is an Irish citizen residing in the State having been born to [the applicant's mother]".

2. The applicant submits that this is a material error in light of the evidence in fact submitted, including the contents of the handwritten letters of CC and the applicant.

3. The decision then says that the Minister must weigh the factors and principles in a fair and just manner to achieve a reasonable and proportionate decision.

4. The decision then states:-

**

"It is accepted that is in the best interest of [the second applicant] to have the care and company of both his parents. However, this has to be balanced against the overall public interest and the particular facts of the case. Given that [the second applicant] , it is reasonable to conclude, has permission to remain in the State, it is not accepted that if the Minister decides to deport Mr Johnson that his son will be required to leave the territory of the European Union. I have considered that it is open for Mr Johnson's son to remain in the State with his mother, and to maintain contact with Mr Johnson by telephone and potential visits to India if that is a choice his mother wishes to make. While I acknowledge the submission, under cover of 9 th September 2024, in respect of [the second applicant's] constitutional right to have his father reside with him in the State, no information to illustrate that he has a relationship with his son, beyond being present during his birth, has been provided by Mr Johnson."

1. This latter sentence is challenged by the applicants as being in error.

2. The decision continues:

"Although the rights of Mr Johnson and his son, as considered above, are a paramount consideration, it is considered that in the particular circumstances of the case, the family's interests and the child's best interests are outweighed by the rights of the State. While I acknowledge the submission that Mr Johnson is in a relationship with [CC] , who he met and commenced a relationship with on an unascertained date in 2023, no evidence of his ongoing involvement in the life of his son has been provided and the right of the Minister to remove Mr Johnson is not disproportionate to the ends sought to be achieved and the order of deportation is a necessary measure for the purpose of achieving the common good.

**

Therefore, it is submitted that a decision by the Minister to make a deportation order in respect of Mr Johnson is not in breach of the rights under Article 41, Article 42, or Article 42A of the Constitution, extending to him and his family, as outlined and considered above."

1. The applicant submits that this section of the decision, and the decision as a whole, is vitiated by a failure on the part of the decision maker to properly engage with the evidence in fact submitted by the applicant, including the evidence that he is involved in the daily care of his son (a factor which he says rendered the case materially distinguishable from the facts in the Odum case).

2. The decision then, finally, goes on to address the question of " consideration under section 3 of the European Convention on Human Rights Act 2023 having regard to Article 8 ECHR " and accepts that family life arises between the applicant, his son and CC and that the family enjoyed a right to respect for family life under Article 8 ECHR.  This section of the decision notes that " It is difficult from the dearth of supporting documents provided at this time to accept that the relationship between the applicant and CC which is submitted to have commenced on an unknown date in 2023 is one of substance and durability ".

3. The decision then states:-

"It is accepted that it is in the best interest of [the second applicant] to have the care and company of both of his parents. However, this has to be balanced against the overall public interest and the particular facts of the case. Given that his mother acted as primary carer for her son since his birth six months ago, it is not accepted the if the Minster decides to make a Deportation Order in respect of Mr Johnson that this will require his son to leave the territory of the European Union. It is open to [the second applicant] to remain in the State with his mother, and to maintain contact with Mr Johnson by telephone, skype, email and potential visits to India, if that is a choice the couple wish to make.

**

It is not accepted that if the Minister decides to make a deportation order in respect of Mr Johnson that this will require his son, [the second applicant] to leave the State given that he resided with her mother, [CC] , who it is asserted is an Irish citizen. It is accepted that if the Minister decides to make a deportation order in respect of Mr Johnson that this would make it difficult to maintain a relationship based on face-to-face contact with his son and it accepted that it is in the best interest of [the second applicant] to have the care and company of both of her parents. However, this has to be balanced against the overall public interest and the particular facts of the case."

1. This section of the decision concludes that, while the rights of the applicant and his family are not underestimated, it is considered that in the particular circumstances of the case the family's interests are outweighed by the rights of the State and that the deportation of the applicant was not disproportionate to the end sought to be achieved and the order for deportation is a necessary measure for the purposes of achieving the common good.

2. This decision maker concludes by recommending to the Minister that the deportation order not be revoked.  The Minister then adopted that recommendation.

The applicant's case

1. In their statement of grounds, the applicants allege that there was a failure on the part of the Minister to adequately consider the evidence and to give sufficient weight to the right of the second applicant to the care and company of both his parents.  The case is made that it was a breach of the relevant constitutional rights (being the rights in articles 40, 41, 42 and 42A of the Constitution) and that the court can decide that without having to defer to the views of the Minister.  It is further pleaded that the decision was disproportionate and failed to have due regard to the evidence before the Minister of the meaningful relationship between the couple and between the first applicant and his son.  It is pleaded that the Minister erred in fact in determining that " No information to illustrate that [the applicant] has a relationship with his son, beyond being present during his birth has been provided by [the applicant]".  It is pleaded that the reliance on the Supreme Court judgment in Odum was misplaced and in error.

2. The applicants plead that the decision effectively brings the family life of the family in the State to an end but that the consequences of that decision are not lawfully and proportionally engaged with by the Minister, having regard to the rights of the infant son in particular.  It is pleaded that the proportionality assessment in the decision was flawed and the decision is invalid as a consequence.

3. It is further pleaded that the decision fell into error in refusing the application, inter alia, on the grounds of the "economic well-being of the State" and the State's interest in preventing crime.

4. A core basis of the applicant's submissions at the hearing before me was that the decision failed to properly engage with the evidence in fact put before the Minister as to the nature of the relationship between the applicant and his partner and, in particular, the nature of the relationship between the first applicant and his son, the second applicant. It was also submitted that the applicants' constitutional rights were not properly weighed in the balance by the Minister and that the affirmation of the deportation order was disproportionate and unlawful as a result. It was also submitted that Odum was wrongly invoked and applied by the decision maker given that the facts in that case were wholly distinguishable from the facts before the decision maker.

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Relevant legal principles

The principles applicable to review of a deportation decision

**

1. Section 3(1) Immigration Act 1999 as amended ("the 1999 Act") empowers the Minister to make a deportation order in respect of a non-national. Section 3(11) of the 1999 Act empowers the Minister to amend or revoke such an order.

2. The Supreme Court in Oguekwe set out the principles applicable when the Minister is making a decision as to deportation under s.3 of the 1999 Act of a non-national parent of an Irish born citizen child. The judgment of Denham J. (as she then was) in Oguekwe makes clear that where the mother and child are Irish citizens, regard has to be had to the personal rights of the Irish-born citizen child and of the family unit and to interference with those rights " which will include consideration of the nature and history of the family unit " (para 85(3) and (5)). The constitutional rights (including the personal rights) of the Irish born child must be expressly considered including the rights of that child to:

(a)     reside in the State,

(b)     be reared and educated with due regard to his welfare,

(c)     the society, care and company of his parents, and

(d)     protection of the family, pursuant to Article 41.

1. The ECHR rights of the child and of the applicants must also be considered. The Minister is not obliged to respect the choice of residence of a married couple (and a fortiori, it would seem as a result of Gorry, the rights of a long-term cohabiting couple).

2. Denham J stated in Oguekwe (also at para 85) that:

**

"(10) The State's rights require also to be considered. The State has the right to control the entry, presence, and exit of foreign nationals, subject to the Constitution and international agreements. Thus the State may consider issues of national security, public policy, the integrity of the immigration scheme, its consistency and fairness to persons and to the State. Fundamentally, also, the Minister should consider the common good, embracing both statutory and Constitutional principles, and the principles of the Convention in the European context."

**

1. Further, she stated that:

**

"(11)     The Minister should weigh the factors and principles in a fair and just manner to achieve a reasonable and proportionate decision. While the Irish born child has the right to reside in the State, there may be a substantial reason, associated with the common good, for the Minister to make an order to deport a foreign national who is a parent of an Irish born child, even though the necessary consequence is that in order to remain a family unit the Irish born child must leave the State. However, the decision should not be disproportionate to the ends sought to be achieved."

1. Denham J concluded (at para 85(16)) that

"On judicial review of a decision of the Minister to make an order of deportation, the court does not exercise and substitute its own discretion. The court reviews the decision of the Minister to determine whether it is permitted by law, the Constitution, and the Convention."

1. To the foregoing analysis must be added the constitutional rights of the child as now recognised in article 42A of the Constitution. Woulfe J addressed this matter in his judgment in AZ (which, as noted earlier involved the proposed deportation of a non-national citizen of an Irish citizen spouse and Irish citizen children). He noted that the child's rights under article 42A include the right to have his/her welfare considered, in the sense of what is in his/her best interests, in immigration decisions which impact upon custody and access (para 116). The best interests of the child consideration is "a primary consideration" under article 42A.2.1 of the Constitution (in contrast to Article 42A.4.1, relating to the welfare, long-term interests and (in the case of adoption) even the status of the child, which requires that the best interests of the child is "the paramount consideration" (para 121)). Importantly, Woulfe J clarified in AZ that " while the child's best interests are a primary consideration, this does not necessarily dictate the outcome, as in many cases there may also be other important considerations which the Minister must weigh in the balance in arriving at deportation decisions " (para 118).

2. Those other important considerations clearly include the State's rights including, as Denham J noted in Oguekwe (at para 85(11), set out above) " its  right to control the entry, presence, and exit of foreign nationals, subject to the Constitution and international agreements. Thus the State may consider issues of national security, public policy, the integrity of the immigration scheme, its consistency and fairness to persons and to the State. "

3. It is clear that the State's interest in immigration control while an important consideration cannot be applied in a vague or perfunctory fashion (see dicta of O'Donnell J. (as he then was) in Gorry at para 17). Equally, as O'Donnell J. explained in Gorry the State's interest in immigration control can apply at both a general and a case-specific level such that the applicant's particular immigration history can also be a legitimate factor to be weighed in the balance. In considering the protection of the family under Article 41 of the Constitution, O'Donnell J in Gorry set out guidance on the balancing exercise to be carried out in the context of an immigration decision as follows (at pars 71 and 72):

"[71] ... if the couple can add to the fact of marriage the evidence of an enduring relationship that if the State were to refuse the non-citizen party entry to the State for no good reason, and simply because it was a prerogative of the State, it could be said that such an approach failed to respect the rights of those involved and, in particular, the institution of Marriage ...  unless there was some other consideration in play — it would be difficult to envisage a valid decision refusing entry to the State to the long term spouse of an Irish citizen seeking to return to Ireland to live ... any refusal of entry would require clear and persuasive justification.

**

[72] A different situation arises if the State's refusal is based not simply on the fact of immigration control, but because of the immigration history of the non-Irish spouse and, in particular, if a deportation order has been made and been evaded before the marriage was entered into. Refusal to revoke the deportation order would not normally amount to a failure to [respect the institution of Marriage] . However, the length and duration of the relationship may become relevant — particularly if the relationship has endured abroad and the deportation order was a considerable time in the past."

1. It is also the case that the residence status in Ireland of the subject of a deportation order is material in the conduct of the balancing exercise. As O'Donnell CJ noted in Odum at para 29: " It would require exceptional considerations of particular weight to prevent the State from requiring a non-citizen, whose presence in Ireland was unlawful, to leave the State having regard to the weight that must be accorded to the fundamental interests of the State in maintaining its capacity to control entry to and exit from the State."

2. The case law also makes clear that it is important that a sufficient evidential basis is established for both the rights asserted and the weight to be attached to such rights in the balancing exercise involved in immigration-related decisions, including decisions to deport non-citizens. Accordingly rights based on the existence of a parent-child relationship, or a durable and meaningful relationship between adults (married or otherwise) must be made out by proper evidence with necessarily lesser weight attaching to uncorroborated accounts or assertions. This is sensibly so to avoid abuse of the immigration system.

3. In Odum, O'Donnell CJ (at para 37) approved the approach of Cooke J. in S(F) & ors v. Minister for Justice, Equality and Law Reform [2010] IEHC 433 where Cooke J addressed a contention that the deportation of the second applicant in that case would be damaging to the interests and welfare of an individual who was contended to be a member of a household and in the care of the applicants. At paragraphs 30-31 of the judgment Cooke J. said:-

"Apart from the fact that P. has lived with the family since March 2008, and has developed a close relationship with the children and goes to the same school as the third named applicant, nothing by way of evidence is given as to the reality of family life in question. What is the daily routine? Who brings the children to school? Who collects them from school? In particular, nothing is said as to the nature of the bond, if any, which has developed between the second named applicant and P.. Does he help with her homework? Does he attend teacher/parent meetings? Does he take the children on outings together? Nothing is said as to how she participates in the normal everyday life of the family.

**

In the judgment of the Court, if a case is to be made that the removal from the State of the second named applicant (who was, when the application to revoke was made, at most, a foster parent of two years standing to an otherwise unrelated child,) will constitute such grave interference as to infringe the right to family life under Article 8 or some personal right of the citizen under the Constitution, *it is necessary that detailed evidence be given to the decision-maker as to the nature, quality and character of the family life in question.** Nothing of that nature has been done in this case..."* (Emphasis supplied by O'Donnell CJ).

1. While counsel for the applicant contended that Odum was distinguishable on its facts, it seems to me that O'Donnell CJ in Odum was clearly endorsing a more general principle that detailed evidence is required to substantiate the existence of any relationship or family life which is said to be at risk in a deportation context.

2. This approach can be seen elsewhere in immigration-related matters. For example, the Court of Appeal emphasised in F.B. v Minister for Justice and Equality [2020] IECA 89 (a case concerning a challenge to a decision refusing family reunification under s. 18 of the Refugee Act 1996) that the asserted existence of a family relationship grounding a family reunification application was "in essence, a matter of fact" (at para 73) which needed to be established before the rights claimed were engaged. Likewise, in Abbas v Minister for Justice [2021] IECA 16, the Court of Appeal (Binchy J) considered the evidential value of declarations submitted in support of immigration applications to the Minister and emphasised (at paras 82 and 83) the importance of supporting and vouching documentation to support statements made by applicants for residency.

3. In Odum, evidence of a meaningful relationship between the applicant and his Irish citizen children was tellingly absent and this proved fatal to his challenge to a decision to deport him. In AZ, in contrast, ** evidence was furnished by the non-national applicant father to the Minister regarding his citizen child's diagnosis of autism, that child's significant hearing loss and his increased dependency on his father for care needs as his mother had been involved in a road traffic accident and also had heavy work commitments throughout the Covid-19 pandemic. Letters were furnished from the child's audiologist and his speech and language therapist, along with a report from a psychologist confirming his autism diagnosis, hearing loss and additional needs. At the time of the impugned decision in that case (June 2021), the Irish citizen child was 13 years old. The applicant had been married to his Irish citizen wife since 2012 (their relationship dated back to 2005). The Supreme Court observed that " the evidence suggests the existence of very real and close bonds of mutual affection between AZ and his wife and son and indicates that he plays a very important role in raising and caring for CZ, who has particular health and developmental issues " (Collins J at para 3).

4. The thread flowing through the jurisprudence is that greater weight is going to be attached to properly evidenced, meaningful and durable family relationships (including relationships with children) when seeking to establish and thereafter weigh the rights flowing from such relationships in any balancing exercise against the countervailing interests of the State in a deportation context.

Discussion

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1. While I accept that there are material points of distinction between the facts involved in the Odum case (where no evidence of a family relationship with the applicant's children was made out at all, in contrast to the position here where the fact of some family life was accepted), in my view the passage from the judgment of Cooke J in SF v Minister for Justice [2010] IEHC 43, cited by O'Donnell J in Odum (at para. 37, as set out at para 62 above) is of general relevance to an application under s. 3(11) to revoke a deportation order, i.e. that " it is necessary that detailed evidence be given to the decision maker as to the nature, quality and character of the family life in question ".

2. The applicant had been put on notice in the s. 49(7) report that a lack of supporting documentation was a factor in refusing the applicant permission to remain, leading to the deportation order issuing against him. Despite this, in the application to revoke the s. 3(11) application, no supporting documentation or other objective evidence was submitted in respect of the strength of the first applicant's relationship with the mother of the second applicant and no information was provided in this respect other than that they had met at work at some point in 2023 and she had become pregnant in circa October / November 2023. No supporting documentation was submitted in respect of the applicants' relationship other than photos from a very limited period and no information was provided other a generalised statement than that the first applicant was present at the second applicant's birth, visits him every day and worked on child accessories and equipment. As made clear in Odum, if a case was to be made that the removal from the State of the first applicant would constitute such a level of grave interference as to infringe the right to family life under article 8 ECHR or under the Constitution, the Minister was entitled to require that detailed evidence be given as to the nature, quality and character of the family life in question. The Minister was entitled to require more than uncorroborated letters and a handful of photos of a confined period.

3. In an age where the vast majority of people (particularly people of the age of the first applicant and the second applicant's mother) leave a digital footprint in the form of social media postings, WhatsApp messages, texts and photographs, it is telling that, other than photographs taken around the immediate aftermath of their son's birth, there was simply no corroborating information or evidence provided to substantiate the existence of a meaningful and durable relationship between the applicant and CC.  There was no evidence, for example, of social outings together; no reference letters from friends evidencing their status as a couple; no evidence as to how they manage their social and financial affairs; no evidence of the marking of birthdays or other significant occasions.  The evidence from CC contained in her letters of 12 January 2024 and 30 August 2024 was terse and very generalised in its terms.

4. I do not accept the submission that the decision maker failed to have regard to the evidence in fact submitted, including the handwritten letters.  The decision states on its face that all materials submitted was considered by the decision maker.  The decision quotes from the letters.  It is clear from the decision that, despite the absence of a birth certificate being submitted for the second applicant, the decision maker accepted that the first applicant was his father.  It was also accepted that there was some family life between the first applicant and CC and their son.  However, the evidence submitted fell a long way short of substantiating a meaningful and enduring relationship between the applicant and CC or between the first applicant and the second applicant, his son.  The decision records at various points the decision-maker's views as to the absence of further substantive or documentary evidence in relation to the nature of their relationship, views which it was clearly open to the decision-maker to take on the material before him.

5. The applicant's letter of 13 August 2024 references staying with his child every day after his working hours so that CC could take some rest.  None of the detail that might be expected to reflect the lived experience of a truly enduring family unit is otherwise set out. There is no evidence, for example, of whether the applicant, his son and CC go on outings together, what the overall care arrangements are in relation to their son, what they do at weekends and the like.

6. The applicant contends that the decision-maker erred materially in stating that " No information to illustrate that he has a relationship with his son beyond being present during his birth has been provided by " the applicant.  In the context of the decision as a whole, it seems to me that the reference to "illustrate" here is a reference to corroborating evidence or information beyond that contained in the handwritten letters.  The next paragraph of the decision, in a similar vein, references the absence of "evidence" of the applicant's ongoing involvement in the life of his son.  It is clear that the decision-maker was both aware of and had regard to the contents of the letters from the applicant and CC.  However, the decision-maker was not satisfied that the material submitted evidenced a meaningful relationship.  It seems to me that that was a conclusion reasonably open to the decision-maker and I do not believe that there has been any material error or breach of rights in the conclusions reached by the decision-maker in relation to the quality and nature of the relationship between both the applicant and CC, and the applicant and his son.

7. While it is of course the case that the second applicant was only six months old at the time of the decision, and only a number of months old at the time of the application and related submission lodged with the Minister in September 2024 in support of the application to revoke the deportation order, one would have thought that photographs would be available to show the ongoing involvement of the applicant with his son, including, for example, photographs of walks of the applicant with his child in a buggy, or of the applicant with his son and his partner's family or friends and the like.  While I accept that the facts as found by the decision-maker can be distinguished from those in Odum, given that the decision-maker here accepted that the applicant was the father of his son and that there was, as a matter of fact, some family life, this case is nonetheless quite far removed from the facts in AZ where extensive evidence was advanced verifying the deep and substantive nature of the relationship between the applicant father against whom a deportation order had issued, and his children, in particular a child with autism who had a particular dependency on his father for care and where the applicant had been married to his Irish citizen wife for a lengthy period.  In that case, the Supreme Court (Collins J) observed (at para. 3) that the evidence suggested "the existence of very real and close bonds of mutual affection" between the applicant and his wife and son and indicated "that he played a very important role in raising and caring for [his autistic son], who has particular health and developmental issues". While I take the point that the child in the case before me is very much younger than the key child in AZ, such that one would not expect the same extensive record of the nature of the relationship, one would nonetheless expect more than generalised assertions as to the nature of the father-son relationship and a few photos of the applicant and his son around the time of his birth.

8. In my view, the decision-maker properly recognised, as regards the rights of the second applicant as an Irish citizen child, that the best interests of the child were a primary consideration pursuant to Article 42A.2.1 of the Constitution.  However, as a matter of law, the Supreme Court in AZ (Woulfe J at para. 118) held that " while the child's best interests are a primary consideration, this does not necessarily dictate the outcome, as in many cases there may also be other important considerations which the Minister must weigh in the balance in arriving at deportation decisions ".

9. The applicant submitted that the son should not be punished by the rupture of his right to the care and custody of his father, by the fact that he is of a very young age.  His right to the care of his father is one that endures for his childhood.  However, in my view, the age of a child is a potentially relevant factor in weighing the rights and interests involved.  This is not a situation where there has been a long, ongoing durable relationship between father and son (such as the case in AZ), the rupturing of which could inevitably lead to significant or irreparable harm to the child.

10. The rights of the applicant and his son had to be balanced against the fact that significant weight can be legitimately given on the facts of this case to both the State's general interest in controlling who enters and exits from the State, but also to the particular circumstances of the applicant who was in a precarious state while residing in this jurisdiction, given the fact that he was residing here unlawfully for a period after the expiry of his last student visa (indeed, he had been the subject of an earlier deportation order) and where his position was precarious while he was an applicant for international protection, and where he failed to report to the GNIB when directed to do so and was classed as an evader as a result.

11. In my view, the decision-maker acted lawfully and proportionately, in accordance with the test set down in Oguekwe, in balancing the respective rights and interests involved before concluding that the Minister should not revoke the deportation order.

12. In this regard, the applicant submitted that the general interest invoked by the decision-maker as weighing against the rights of the applicant and his family and son were at too generalised a level, in relation to the State's interest in controlling immigration, and simply inapplicable, in the case of the State's interest in ensuring the economic well-being of the country.  However, the State's right to uphold immigration law to ensure the economic well-being of the country is considered in the context of the question of the applicant and his partner, and the weight to be attached to their rights as a couple was not a significant weight given the findings made - in my view, correctly - by the decision-maker in relation to the absence of convincing evidence of a meaningful relationship between them and also the fact that the applicant's status in the State was precarious at the time when that relationship commenced.

13. In any event, it is clear considering the decision as a whole that the applicant had regard to both the general interest of the State in controlling immigration (a factor to which O'Donnell CJ appeared to attach significant weight in Odum (at paragraph 29)) but also to the particular circumstances of this case where the applicant's residence status in the State was always precarious, where he had resided in the State for periods unlawfully, and where he had failed to present himself to the GNIB following the making of the deportation order such as to lead to him being classified as an evader in the State.  These are all factors which cumulatively carry significant weight.  In my view, the decision-maker correctly and lawfully analysed and weighed these factors, and proportionately and correctly determined that they outweighed the rights of the applicant and the rights of his son in the circumstances of this case.

14. In my view, the decision-maker correctly applied the principles in Oguekwe.  The decision-maker properly considered the potential interference with the rights of the applicants and properly engaged in a consideration of "the nature and history of the family unit" in accordance with para. 85(5) of the decision of Denham J in Oguekwe.  The decision-maker expressly considered the constitutional rights of the Irish born child, including his right to reside in the State, to be reared and educated with due regard with his welfare and his right to the society, care and company of his parents.  The ECHR rights of the applicants were also considered.  Relevant constitutional rights were considered.  The decision-maker then also properly considered the State's rights including its right to control the entry, presence and exit of foreign nationals, subject to the Constitution (in accordance with para. 85(10) of Oguekwe).

15. The factors and rights and interests involved were, in my view, weighed in a fair and just manner and the decision that was arrived at was a reasonable and proportionate one.  The reasons invoked in weighing the State's interests in favour of the affirmation of the deportation order were substantial ones.

16. There was appropriate consideration of the nature of the first applicant's relationship with his son and the fact that such relationship can be maintained at least to some extent notwithstanding his deportation to India.

Other alleged material errors

1. As noted earlier, at p. 6 of the decision (in the section headed Consideration under the Irish Constitution Articles 40,41, 42 and 42A) it is stated " even were it accepted that Mr Johnsons right to private life association/autonomy takes a form capable only of being exercised while he is physically located in the State, such a right falls to be considered against the important interests of the State in preventing crime ". The applicant contends that this was a material error vitiating the decision. There was no other reference to crime in the decision and there was no suggestion that the applicant had ever engaged in criminal conduct. It does not seem to me reading the decision as a whole that this was a material factor that weighed in the balancing exercise carried out in the decision. In my view, it was not a material error of fact such as to give rise to an entitlement to an order of certiorari.

2. Likewise, in my view the reference, in the section of the decision relating to the applicant's Irish citizen partner, to weighing the rights of the State including the right "to ensure the economic well-being of the country" was not a material error. It is clear reading the decision as a whole that the core focus of the decision as regards the weighing of the rights of the State in the balancing exercise involved a particular focus and a particular weight being given to the integrity of immigration control and the rights of the State in that context particularly in circumstances where the applicant's residency status in the State was at all material times precarious. The decision-maker was entitled to reach the conclusions he did on the basis of those latter factors alone.

3. I would observe that while I believe that the decision maker's analysis was fair and lawful in all the circumstances of this case, and properly considered the evidence before him, aspects of the wording of the decision in places (such as references to preventing crime and to the economic interests of the State) gave the appearance of having been "cut and paste" from other decisions or possibly deriving from template decisions. While there is nothing in principle wrong with decision-makers drawing assistance from templates when crafting decisions, it is of course important that decisions are made by reference to the particular facts before the decision-maker and the application of the applicable legal principles to those facts and that the final text of the decisions is carefully checked to ensure that extraneous matters have not crept into the decision.

Conclusion

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1. In my view, for the reasons outlined above, the decision of the Minister in this case was permitted by law, the Constitution and the Convention, and I find no grounds to overturn or interfere with it.

2. I accordingly refuse the applicants the relief they seek.

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