The High Court granted a father leave to pursue limited judicial review claims concerning applications for residency and revocation of a deportation order, but refused to restrain his deportation while those claims are determined.
Mr Justice Michael Peart delivered the judgment on 3 July 2007. The father had been arrested on 23 June under a valid, unchallenged deportation order made on 6 March 2001. His solicitors applied to the Minister for Justice on 25 June 2007 for residency based on his family circumstances and for revocation of the order. Those applications had not yet been decided.
The father’s wife had been granted permission to remain in Ireland, which also allowed their five children to stay with her. Two children were born in Ireland. The father’s own application under the IBC 05 scheme had been refused in 2005 because he had not been continuously present in the State since the children’s births: he had been deported in October 2004 and returned in January 2005.
The court granted leave to seek declarations about whether deporting the father without lawful consideration of the pending applications would breach the applicants’ constitutional, Convention and children’s rights. It also granted leave to seek an order requiring the Minister to consider the residency and revocation applications in accordance with law. The judge stressed that leave was granted on the low threshold of arguability. He made no final ruling on those claims and did not permit a challenge to the validity of the 2001 deportation order.
The court separately considered an interlocutory injunction under the Campus Oil principles. It assumed a fair issue existed for trial, but found that the applicants had not shown irreparable loss if the father left while the applications were considered. The family’s concern was separation and the loss of his emotional and practical support; the judge held that the evidence did not establish the required irreparable harm.
The judge also weighed the balance of convenience. He considered the valid order, the father’s prior deportation and unauthorised return, and his conduct in dealings with immigration authorities. Concluding that these factors outweighed the family’s case for his continued presence, the court refused the injunction. The judgment therefore left the deportation order in force and did not prevent removal while the judicial review proceedings or the Minister’s consideration of the applications proceeded.