The High Court refused leave to apply for judicial review in a case concerning a deportation order made against a father of a Polish citizen child. The ruling did not decide the injunction issue, which the court said was not before it at this stage.
The applicants sought a declaration that implementing the deportation order would be unlawful while the Minister considered a request to revoke it, as well as injunctive relief. Their solicitor’s letter said the child’s birth was a material change in circumstances and argued that removing the father to his country of origin would infringe the child’s EU rights.
The Minister opposed leave, arguing that the proceedings were in substance a collateral challenge to the deportation order, barred by section 5 of the Illegal Immigrants (Trafficking) Act 2000, as amended. The Minister also pointed to the absence of an application to extend time or grounds supporting such an extension.
Justice O’Regan said the court’s only issue was whether to grant leave. She noted that she had refused an injunction on 26 April 2017, but had been advised that the Court of Appeal had since granted an injunction pending the leave application. The injunction itself was therefore not decided in this ruling.
The judge found the proposed review indirectly challenged the substance and validity of the deportation order, bringing it within section 5. The order had been notified to the father’s last known address in October 2016, and no extension of the statutory 28-day period had been sought. The court also said the child was already born when the deportation order was made, so the birth was not a new event arising afterwards.
The judgment noted that the child was in the care and custody of the mother and that the father had limited contact since about April 2017. Although DNA evidence had been produced to establish paternity, the applicants had not explained the extent of access or how the father’s removal would actually impair the child’s EU rights. The judge said the revocation request made a bald, unsubstantiated assertion on that point.
The court added that even if section 5 did not apply, the leave application would fail for the same lack of supporting detail. Leave was refused. The judgment did not determine the underlying revocation request or make a fresh order on the injunction.