A ruling today by the Supreme Court rejecting Nigerian mother Pamela Izevbekhai’s latest bid to prevent her deportation may mark the end of her Irish legal challenges.
Final orders will be made by the court next Wednesday in the proceedings by Ms Izevbekhai, who claims her two daughters, Naomi (9) and Jemima (8), face genital mutilation if deported to Nigeria.
Her lawyers said yesterday they were considering their options, including proceedings before the European Court of Human Rights, and it is understood there will be no attempt to deport her before next Wednesday. Ms Izevbekhai was not in court.
In a majority four-to-one decision, the Supreme Court rejected her claims the Minister for Justice has discretion, by virtue of regulations enacted here in 2006 after the family’s deportation was ordered, to reconsider her application to stay here.
It was argued the family’s application for protection should be considered under the European Communities (Eligibility for Protection) Regulations 2006 but the Supreme Court found the Minister had no discretion to do so as the deportation order was made prior to the regulations being enacted.
The regulations did not confer on the Minister a discretion to reopen deportation orders made prior to the bringing in of those regulations nor was he obliged to do so in limited cases where he accepted new facts or altered circumstances, the majority court said.
The Minister has not accepted there are new circumstance in the case and has brought his own proceedings seeking to have her entire case dismissed claiming it was based on a “lie” that her first child, Elizabeth, died from genital mutilation in 1994.
The State says there is no evidence to certify this and alleges her first child was actually born in 2000.
Ms Izevbekhai says this is untrue and she has evidence to show when Elizabeth died.
Today’s ruling comes after several unsucessful legal challenges by Ms Izevbekhai since her deportation was ordered in September 2005 after she failed to obtain refugee status through the normal channels.
Delivering the majority decision, Mr Justice Nial Fennelly (with whom Chief Justice John Murray, Mr Justice Adrian Hardiman, and Ms Justice Fidelma Macken agreed), said the preliminary issue arose out of a High Court judgment last year, in a separate case, over whether a person was entitled to protection against deportation following the coming into operation of the 2006 Regulations.
In that case, Mr Justice Kevin Feeney found the Minister for Justice has discretion in certain circumstances to allow an application for subsidiary protection even where a deportation order (as in Ms Izevbekhai’s case) was signed before October 2006.
If a person already refused protection or leave to remain could identify new facts or circumstances about their case, the Minister had discretion whether or not he considered the case again, Mr Justice Feeney ruled.
Mr Justice Fennelly said, having considered the regulations and case law, he had concluded Mr Justice Feeney erred in his interpretation of the relevant regulation, Regulation 4(2), which states the Minister shall not be obliged to consider an application for subsidiary protection where an application for asylum has been refused.
That was a negative proposition and specified what the Minister is not obliged to do but contained no words to confer any positive power or discretion on the Minister, Mr Justice Fennelly said.
The judge also said Ms Izevbekhai had not pointed to any provisions of the EU directive, providing for the bringing in of the subsidiary protection regulations, which required member states to adopt a provision that the Minister has discretion to re-consider deportation in circumstances of new evidence.
The directive conferred a right “from” October 2006 for consideration of subsidiary protection on a defined category of persons but says nothing about those who have received consideration prior to that date, Mr Justice Fennelly said.
In her dissenting judgment, Ms Justice Susan Denham said she was satisfied the Minister has a discretion, but not an obligation, to consider an application for subsidiary protection under regulation 4(2).