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Lobe v The Minister for Justice, Equality and Law Reform, [2003 IESC 3 ] was a Irish Supreme Court case. Its importance arises from the assertiveness of the court in making it clear that there is “no absolute right for a child to have the care and company of its parents in Ireland and that this can be provided abroad". Before this, the law recognised the right of an Irish born child to the care and company of his or her parents and this is what the central focus of this case was. This case essentially set a new landmark for all cases concerning deportation orders assessed in light of an Irish born child's citizenship.

Background
This decision of the Minister for Justice, Equality and Law Reform's obligation to deport anyone when it is considered that there are grave and substantial reasons to do so even where Irish born children will have to be deported along with the parents. The Minister is to take several considerations into account before making a decision including the time the families have spent in the State as well as the provisions found under the Dublin Convention. Lobe and his wife argued that they had children born in Ireland and therefore the Irish children had family rights under Articles 41.1.1, Article 41.2 and Article 42 of the Constitution. They sought for judicial review of the High Court decision. However, the court refused to grant them judicial review. The parents do not have an absolute right to raise the children in Ireland as this can be done in the country they are to return to as well. In addition, the Court found that there were grave and substantial reasons for ordering their deportation.

The first and second named applicants in this case Mr. and Mrs. Lobe arrived in Ireland on 31st March, 2001 with their three children from Czech Republic. Mrs. Lobe was pregnant when she arrived in Ireland and the family applied for asylum. The decision to refuse them stay on the 24th July 2001 came as a result of Article 8 of the Dublin Convention. Hence, the State decided to transfer their application for asylum to the United Kingdom. The couple made an appeal of the decision to the Refugee Appeals Tribunal on the basis that Mrs. Lobe was pregnant and could not travel to the United Kingdom. This decision was rejected too on the 29th August, 2001. Soon after that they were informed on the 3rd October 2001 that they are to present themselves to the Gardaí on 4th October 2001 to “make arrangements for their removal from the State”. Nevertheless, the proceedings were adjourned so that Mr and Mrs Lobe can send a written submission explaining why they and the other children should not be deported in respect to Kevin, the Irish born child.

Mr. and Mrs. Lobe had Kevin in Galway on the 2nd November 2001. Mr. John Lohan, a Principal Officer in the Immigration Division of his department wrote a memorandum on which the Minister based his decision dated 19th December. Here the families' length of stay in the state was taken into account as well as the circumstances they will face if they had to return to their native State. It was found that the family had only spend nine months in Ireland. Therefore, even if they had to return to the United Kingdom or Czech Republish, they would be able to easily adapt to the new surroundings. Moreover, it was decided that there was no real risk to their lives if they had to be deported. The Minister justified his order on the basis that the integrity of the Immigration and Asylum system in Ireland needs to be maintained and this overbore the interests of Mr and Mrs Lobe.

On the other hand, Mr Osayande's case was also heard in collaboration with Mr and Mrs Lobe. Mr Osayande was arguing on the same grounds as the Lobes as he too had an infant who was Irish born. Mr and Mrs Osayande came to Ireland on 6th May 2001 with a three year old named Emmanuella. He applied for asylum soon after he arrived in the State but denied that he had not made any previous applications for asylum in any other country. This was later established to be untrue as he had applied for asylum in England on 23 September 1999. However, that application was dismissed on 17th March 2001. Like Mr Lobe, Mr Osayande pleaded to stay in Ireland on the basis of his wife's extreme pregnancy conditions and that because of her pregnancy she cannot travel. The Minister agreed to let Mrs Osayande stay back in Ireland, however he ordered Mr Osayande to be deported to England. Consequently, he sought after a judicial review of this decision.

The only differences between the Lobe case and the Osayande case is that Mr Osayande lied about his asylum applications. Adding to that, the Minister had also provided an extra reason for justifying his decision regarding Mr and Mrs Lobe which was that the family would not have any problems in terms of adaptability.

Holding of the Supreme Court
The family applied for judicial review by the High Court and the case was heard by Mr Justice T.C. Smyth on 8th April 2002. Both applications in these two cases were dismissed and the case was then appealed to the Supreme Court. In the supreme court, both cases argued that the minor applicants had an “unqualified right to reside in the State” under Articles 2, 9, 40.1 and 40.3 of the Constitution. Counsel on behalf of the Appellants submitted that both Kevin and Osaze had a right to the care and company of their respective parents by virtue of being Irish citizens. Accordingly, if this right needs to be protected then their parents should also remain in the State. Their arguments were mainly rooted from a 1990 case called Fajujonu v Minister for Justice. It was found that a minor who had Irish citizenship could only be deported with the parents in extreme circumstances and for the sake of common good. The counsel further submitted that a “general desire to maintain the integrity of the immigration system” should not be taken a valid reason for deporting the Appellants, unless it is proven that a continued residency of these people will be against common good. With regard to the Dublin Convention, it was argued that this should only be applied by the Minister in parallel to the rights of citizens vested in the Constitution. The Convention does not impose on the State an obligation to transfer the Applicants to another Convention State such as the United Kingdom. In addition, the length of time which Applicants had spent in Ireland is irrelevant to their constitutional rights. A person's constitutional rights is conferred from the Constitution itself, not from their length of stay in the State.

While counsel on behalf of the Minister accepted that the Irish born children had rights, the main question before this Court was to what extent can that allow the parents to reside in Ireland. They drew a fair line between this case and Fajujonu and ultimately stated that in the latter case the Appellants had remained in Ireland for a total of eight years. Also, because the family had stayed in Ireland for so long that Ireland became their home residence. In addition, one of the parents had been qualified for a work permit and the only reason it was refused was because the Minister had said no. None of these circumstances can be inferred from this present case and so Fajujonu is not a persuasive authority on which the Appellants can rely on. He further asserted that the European Convention on Human Rights and Fundamental Freedom permits a State to limit family rights in order to manage who can enter the State and who cannot. It is also equally important to note that constitutional rights of any citizen are never absolute. This includes the right to remain in the State, although there needs to be valid reasons to do so. Irish citizens are entitled to live in Ireland but they are not obliged. The Court found that in this case the children due to their ages do not have a capacity to make a decision as to where they want to live. Therefore, this right to live in Ireland can be said to only be conferred to them when they are of a certain age to make such a decision. Moreover, they may decide they want to live somewhere else once they grow up. The children do have a right to the care and company of their parents but should this right be limited when their parents have no rights to remain in Ireland? The Court decided that in such instances, parents in risk of deportation cannot simply take advantage of their Irish born children to obtain residency in Ireland. Furthermore, the State has a right to control immigration.

The court went on to find that the decision was not “manifestly contrary to reason and common sense” and should not have been set aside by the High Court. The Minister, however, was found to have the power to assess the impact a decision in one application will have on the immigration and asylum system. The State is therefore entitled to apply the Dublin Convention in this case and “ensure that the applications for asylum were dealt with by the country” in a responsible manner.

The Supreme Court dismissed the appeal and upheld the decision of the High Court with Fennelly J dissenting. Fennelly J did not think it was appropriate to favor an applicant in these circumstances based on how long they have stayed in Ireland. He agreed with the Plaintiff council that constitutional rights cannot be decided by the length of time a party has resided in the State. He also was not persuaded by the council on behalf of the State when they made their respective submissions to this Court.

Subsequent developments
After a further ruling by the Supreme Court in 2003, the process of the Irish Born Child Scheme (IBC/05) was altered and non Eu nationals who wished to receive Irish citizenship through the scheme can not do so any longer. Close to 11,000 residency claims that had been lodged were suspended and deportation orders were assigned to individuals.

Background
The facts in this case are that Mr. Noel Corcoran parked his car outside a shop by the name of Tea Time Express Coffee Shop located in Talbot Street, Dublin. However, the car was left unlocked and with the keys in the ignition as the defendant proceeded to buy a sandwich. As a result, an unknown individual jumped into the car and Corcoran saw the car turning from Talbot Street into Talbot Lane. As this was happening, Breslin happened to walk across Talbot Lane.. Subsequently he got injured by the car. Breslin brought a claim of negligence on the part of Corcoran for “leaving the car unattended in the manner described”. He joined the Motor Insurers’ Bureu of Ireland (MIBI) as a second defended and damages were agreed for £65,000. Butler J in the High Court “apportioned all the liability to MIBI and gave a decree against it with costs". The MIBI is sued in this case because of the agreement made with the government to pay out claims where victims suffer as a result of uninsured drivers. If the Supreme Court found that Corcoran is liable then MIBI would not be held responsible for any damages.

It was agreed that Breslin had a clear case against “whoever was responsible for the driving of the car”. MIBI in this case are arguing that the liability lies with the owner of the car. In the circumstances of this case, Corcoran argued that there was a high possibility of the car being stolen and that it was reasonably foreseeable that someone would get injured as a result of this. The High Court relied on a Supreme Court decision made in Conole v Redbank Oyster Company to conclude that the novus actus interveniens by the thief, broke the chain of causation and thus Breslin was not liable. He added that in order for Corcoran to have liability for Breslin's injuries, there would have to be evidence showing that Corcoran knowingly left his car in an area that is prone to theft and known for people driving cars recklessly.

Holding of the Supreme Court
Fennelly J started his judgement in the Supreme court by stating that to leave one's car on a public street unlocked with the keys in the ignition is utter foolishness. This is because there are as one would imagine, plenty of people who would take advantage of such situations. MIBI brought the case to the Supreme Court arguing that the High Court did not take into consideration the "admitted negligence" of the owner of the car which caused the accident. The Court examined principles behind duty of care and the exact cause of the damage that Breslin experienced. Duty of care is analysed in terms of proximity and foreseeability primarily. Other aspects such as reasonability, fairness and matters of justice can also come into play. Proximity means that the parties must be close enough to each other in a way that it can be reasonably foreseen that one person's negligence would cause damages to the other. So, foreseeability is closely linked with proximity. Corcoran should have foreseen that leaving his car unattended would amount to the car being stolen and because this was not taken into account, he acted carelessly. However, he does not have a responsibility for the way the thief was driving his car making this an illegal act. Thus Corcoran is “not vicariously liable”.

The Supreme Court took into account similar claims by plaintiffs in the case of Cahill v Kenneally where it was found that the defendant acted recklessly and should have foreseen the results their actions will have. That case was applied to this present case to reach a conclusion. Fennelley J found that it was an act of “gross carelessness” on behalf of Corcoran to leave his car on a busy city street with the keys in the ignition. Furthermore, the Judge argued that it was also reasonably foreseeable that any goods left in the car would be stolen and that if the car were to carry commercial goods, the owner would have been liable for their loss. The Judge was satisfied that the test of proximity was present but dismissed the appeal on the ground that it was “the negligent driving, not the taking of the car, which has caused the damage”. For this case to be successful, it would have to be shown that Breslin would have foreseen the thief's reckless driving as well as the taking of the car. Cars are stolen for various reasons and although criminal, it does not mean the thief is a reckless driver. Hence, the Supreme Court dismissed the appeal since it was reckless driving which caused Breslin's injuries.