AAG-A and Anor v The Minister For Justice

THE HIGH COURT JUDICIAL REVIEW IN THE MATTER OF SECTION 5 OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 (AS AMENDED) [2026] IEHC 125 Record No. 2024/1368/JR BETWEEN AAG-A AND OEA (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND AAG-A) APPLICANT AND THE MINISTER FOR JUSTICE RESPONDENT JUDGMENT of Ms Justice Miriam O’Regan, delivered on the 4th day of March 2026. Preliminary matters 1. This matter is linked to an allied matter of OPA v The Minister for Justice record number [2024/1369/JR]. 2. In a recent judgment of Bradley J in the matter of SM v Minister for Justice [2025] IEHC 629 (“SM”), the High Court gave a judgment in a pathfinder matter, dealing with various 2 issues that arise in both the instant matter and the above allied matter. The outstanding issue raised in the within matter is dealt with in this judgment. The applicants in this and the allied matter rely on their written submissions in respect of the issues determined by Bradley J aforesaid, for the purposes of an appeal, on the basis that this Court will follow the judgment of Bradley J. 3. The outstanding issue addressed in this judgment concerns the best interest of the minor child, being the within second named applicant. Background 4. The first named applicant is a Nigerian national who arrived in Ireland in September 2021 together with her three children and made an application on 10 September 2021 for international protection which application included an application on behalf of her then three dependent children including the second named applicant. Since that time two of the first named applicant's three children have attained their majority and were not therefore considered in the within impugned decision. 5. Following the initial interview, the completion of the questionnaire and the subsequent s.35 interview the applicant was deemed not to require international protection and same was therefore refused. Following an appeal IPAT also refused the applicant international protection. 6. On 7 October 2022 IPO issued a decision dated 6 October 2022 refusing the applicant permission to remain. By way of application for a review of 1 August 2023 the applicant sought a review of the refusal for permission to remain under the provisions of s.49(7) of the International Protection Act 2015 (“the 2015 Act”). By decision of 13 August 2024, which issued on 27 August 2024, the review application was refused. It is this refusal that the first named applicant and her dependent son challenge in these proceedings. 3 Section 49(7) application 7. Various judgments have noted the similarities between the status and considerations to be afforded in respect of a s.49(7) application and an application under s.3(11) of the Immigration Act 1999 (“the 1999 Act”). Section 49(7) is regarded as a general residual discretionary power of the Minister. 8. In DE v the Minister for Justice & Equality & Ors. [2018] 3 IR 326 the Supreme Court was considering s.3(11) of the 1999 Act, however, Clarke CJ at para. 35 of his judgment addressed the appropriateness or otherwise of the Minister granting humanitarian leave to remain and stated: – “Such an issue is not, strictly speaking, concerned with legal rights and entitlements but rather is subject only to the entitlement of a relevant person to make representations to the Minister as to the basis on which it is said that the Minister might be persuaded to grant humanitarian leave and to the entitlement to have the Minister consider those representations.” 9. In the recent pathfinder decision of Bradley J in SM, aforesaid, the court noted at para. 70 thereof where the applicant had an unsuccessful asylum and subsidiary protection application which decision has not been challenged by way of judicial review the entitlement of the applicant in respect of humanitarian considerations is that of making representations to the Minister and an entitlement to have the Minister to consider those representations. 10. In MK v Minister for Justice & Equality [2022] IESC 48, at para. 26, the Supreme Court noted the weights and their relative relationship between the applicant's interest and the State's interest in maintaining an orderly immigration system indicating that where residence is precarious the State's interest prevails and will always justify an interference with private life that a refusal of leave to remain necessarily involves unless there is something more. The court gave an example such as health either physical or mental as being something more. The State's interest in maintaining the integrity of the immigration system will justify interference with 4 private life when all that can be asserted is that a life has been lived in a country where that residence is and is known to be precarious. 11. It is clearly the case therefore that the decision under s.49(7) involves the seeking of the benefit of permission to remain pursuant to the Minister's general residual discretion and does not involve the making of a deportation order. Submissions of 1 August 2023 12. Insofar as there are submissions contained in the letter from the applicant’s solicitor of 1 August 2023 the bulk of those submissions comprise an effective restatement of the failed claim for international protection notwithstanding that the IPAT refusal of international protection has not been challenged by way of judicial review. 13. It is stated in the letter that the first named applicant has strong ties to Ireland and has made every effort to integrate and would have a positive impact on the common good. At that time she was in the State for almost two years, was enrolled in a health services skills course and felt at home in Ireland. The children were enrolled in education and engaged in their academic studies. The applicant was involved in several community organisations including participation in a series of workshops and had undertaken several education and upskilling courses. The letter also enclosed a number of exhibits relative to the second named applicant, namely, that he is involved in playing soccer and Gaelic football. In addition, there is a letter from his school to the effect that he had an exemplary attendance record and was achieving well. It is recorded in the letter that the applicant was living peacefully in Ireland without fear of arbitrary arrest, torture or murder and uprooting would have an unsettling effect. It was noted that the applicant would have a positive net effect on the common good given her employability, her ability to speak English and her level of integration. The applicant had built both personal and professional relationships in her new home. 5 14. When it was indicated to counsel for the applicant that there was limited reference to the second named applicant in the letter of 1 August 2023 it was said that the second named applicant identifies with his mother and is settled in their home. Interestingly, the applicant asserts that this association identification with the second named applicant's mother in the submissions does not apply in relation to the decision impugned. Impugned decision 15. Having set out the two parties for whom the relevant decision applied, the decision states “unless otherwise stated, conclusions reached for the applicant in each section of this document will also apply to her dependent.” The documentation furnished in support of the application is identified together with the documentation furnished during the currency of the international protection appeal. It is stated that all representations and correspondence received from or on behalf of the applicant including documentation submitted to IPAT as well as the IPAT decision report have been considered in the context of drafting the report. At p.6 it was noted that the second named respondent was being considered as a dependent in the report. The specific details in relation to the second named applicant are noted at pp. 7-8 of the report. 16. Counsel on behalf of the applicant noted from the outset that no medical issue arose in the context of the instant challenge. Counsel for the applicant complains that in the conclusion in the s.49(7) decision reference is only made to the applicant without any reference to the second named respondent and similar complaints are made in respect of other portions of the decision which refer to the applicant but without referring to the second named applicant. At p.14 of the decision the fact that the second named applicant is attending school and is a registered player of football and GAA is noted in the context of a proportionality assessment, and it is further stated: – 6 “This information presents some details of the applicant’s associations and personal development in the State, although it is noted that this is limited in nature.” 17. At p.16 it was noted that the first named applicant's two daughters also were the subject matter of a negative permission to remain decision and as such a decision to refuse permission to remain to the entire family, as a family unit, does not sunder the family and allows for them the enjoyment of family life in their country of origin as a family unit. 18. The recommendation concludes with a statement: “I have considered the best interest of the children in this report.” Submissions 19. The applicant argues that the best interest of the child must be considered in the decision and a reasoned determination afforded. It is complained that the decision failed to assess the child's best interest under the Constitution and/or the ECHR. In this regard the applicant relies on Article 42A.1 of the Constitution and notes that there is no reference at all in the decision to the constitutional provision. It is said that there is only one line in the decision relative to the best interest of the second named applicant namely the final sentence in the decision. It is complained that reference throughout the decision is to the applicant which was identified at the opening of the decision as being the first named applicant. 20. The applicant places significant reliance on the Supreme Court decision in AZ & Ors. v the Minister for Justice & Equality [2024] IESC 35 (“AZ”) together with the jurisprudence referenced in that decision for the purposes of securing a quashing of the within impugned decision. 21. The applicant argues that as there is a freestanding obligation on the decision-maker to consider the best interests of the minor child it would be best practice to reference the constitutional specifically. The provision contained in Article 42A.1 states: – 7 “The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.” 22. In Sivsivadze v Minister for Justice [2016] 2 IR 403; [2015] IESC 53 Murray J indicated that the above obligation in Article 42A.1 “is an obligation placed on the branches of the Government described as organs of the State in Article 6 of the Constitution including the judicial branch of the Government.” 23. At para. 28 of the judgment of Humphreys J in POT v CFA [2016] IEHC 101 it was held that Article 42A poses an autonomous duty on the court to uphold the natural imprescriptible rights of the child independently of any positions adopted by the parties. 24. At para. 87 of the judgment of Woulfe J in AZ it is said that the obligation to protect these imprescriptible rights apply to immigration decisions. 25. Woulfe J further noted at para. 92 of his judgment that in the course of the judgment of Phelan J in the High Court in AZ she understood from a consideration of other cases that what is required is a consideration of the child's rights from the separate distinct an individual perspective of the child rather than the child as a member of the family. 26. The applicant argues that reference to the best interest of the children in the decision is not specific enough. 27. The respondent does not argue that the best interest of the child should not be considered but this has to be viewed in the context of the submissions made and the nature of the decision impugned. 28. At para. 27 of AZ, Woulfe J referred to the judgment of Phelan J in the High Court where she accepted that it may be possible to read the examination of file document as including a consideration of the child’s rights under Article 42A without reference being made to that provision, where it is clear that the values enshrined in Article 42A are reflected in the 8 Minister's considerations. It is argued that accordingly there is no flaw in the decision by failure to reference Article 42A. 29. Some of the case law referenced by the applicant deal with an Irish citizen minor which is not the case in the instant circumstances. Furthermore, it is pointed out by the respondent that all cases relied on by the applicant relate to the making of deportation orders against a parent thereby depriving the minor of the care and society of such parent where the child remains in Ireland. 30. It is said that there is no freestanding right to a child to remain in the State or to succeed in an application in this regard because of his presence in the State. 31. In AZ, Phelan J in the High Court, had noted that the court was considering the lawfulness of an order which was accepted would interfere with a citizen child’s right of access and custody with his father should the father be deported and the child remain in Ireland. 32. At para. 89 of the decision of Woulfe J it was indicated that the decision in KRA v Minister for Justice and Equality [2019] 1 IR 567 appeared to Phelan J to have limited application as there was no proposal to deport a child in a manner which might interfere with rights the child enjoyed in the State. It was the deportation of the child's father while the child remains in the State which gave rise to the need for consideration of the child’s rights and best interest with regard to custody and access to his father. 33. At para.100 of the decision Woulfe J indicated that the trial judge did not err in finding that Article 42A.1 applies in deportation decisions which concern a non-national who has an Irish born citizen child residing in the State. At paragraph 111 Woulfe J noted that Phelan J held in her decision (which was upheld by the Supreme Court) that “where immigration proceedings concern an order which impacts on the custody and access such as in this case then as a matter of Irish constitutional law the best interest of the child requires to be weighed as a paramount or primary concern.” 9 34. Woulfe J at para. 123 of his judgment confirmed that the weighing of the various interests on the facts and circumstances of a given case is a matter for the judgement of the Minister and the court can only interfere if the decision is unlawful. 35. In the decision of Collins J in AZ at para. 11, the Judge agreed that in any case where the interest of a child would be adversely affected by a deportation decision the interest of the child must be given sufficient weight and, in these circumstances, his or her best interests must be regarded as a primary consideration. At para.14 of his judgment, Collins J agreed with the views of Woulfe J that there is no de facto presumption or default rule against deportation where that would be contrary to the best interest of the child. 36. The respondent points to the fact that there is very little reference to the second named applicant specifically in the letter of 1 August 2023 and what is included in respect of the second named applicant can be categorised solely as matters of fact without any submission at all – there was no argument placed before the decision-maker as to where the best interest of the second named applicant lay and the Minister is informed by what is before him. Consideration 37. In my view there is a significant difference between the caselaw relied upon by the applicants and the instant matter where no issue arises as to care, company, access, custody, society or the sundering of a family unit. 38. The concept of the best interest of the second named applicant did not feature at all in the review application of 1 August 2023 and accordingly there was no indication of the views of the first named applicant as to where the best interest of the second named applicant lies. In these circumstances it appears to me that it was lawful for the decision-maker to be satisfied that the best interest of the second named applicant might be met by maintaining the entire family as a family unit so as to enable them to enjoy family life in their country of origin as a family unit which, from reading the decision as a whole, in the absence of any submission at 10 all to the contrary, is the clear reason why the decision was considered to be in the best interest of the second named applicant. In the context of the circumstances of this matter I am satisfied that the reason for the decision on the issue of the best interest of the second named Applicant is sufficient. 39. That the decision-maker considered the best interest of all three of the first named applicant's children does not negative a consideration of the best interest of the second named applicant. 40. The within decision does not comprise a deportation order notwithstanding that the next step in the immigration process is likely to be a consideration on refoulement and the making of a deportation order. The applicants, entirely independently of the outcome of the permission to remain negative decision, will have a right during the deportation process to raise the issue of the best interest of the second named applicant as is clearly demonstrated by the various case law relied upon by the applicant. 41. Given the opening sentence in the impugned decision, it is not accepted that the decision concentrated solely on the first named applicant and all facts concerning the second named applicant placed before the decision-maker were duly included and considered. 42. The applicant has not demonstrated the statement contained in the first full paragraph on p.5 of the decision is incorrect. That statement is to the effect that all representations and correspondence received relating to the review application and the documentation that was before IPAT was considered. Furthermore, given the nature of the decision made, the limited content as aforesaid in the letter and attachments of 1 August 2023 and the statement in the decision to the effect that the order does not sunder the family, the applicant has not demonstrated that the decision is unlawful or did not consider the best interest of the second named applicant. 11 43. The lack of reference in the decision to Article 42A.1 of the Constitution does not render the decision unlawful. 44. Insofar as the applicants assert that submissions are made by the applicant and it is for the Minister to tease them out the applicant has not pointed to any additional obligation on the Minister absent any evidence or indeed submissions to divine what might be otherwise in the best interest of the second named applicant, other than ensuring that his family remains as a unit together. 45. In the circumstances the applicant is not entitled to an order of certiorari in respect of the decision of 13 August 2024 and the reliefs claimed in the statement of grounds are hereby refused. Costs 46. As this judgment is being delivered electronically, I will also take this opportunity to deal with the issue of costs. In the circumstances, given the respondents have been successful, they are presumptively entitled to their costs. Should the parties have any difficulty with the proposed costs order they should file submissions of not more than 1,000 words within 7 days of this judgment being delivered.