The High Court has quashed a Ministerial decision refusing a woman permission to remain in Ireland, finding that the decision did not comply with statutory requirements on humanitarian and family considerations.
Mr Justice Max Barrett delivered the judgment on 9 December 2019 in O v Minister for Justice and Equality, [2019] IEHC 833. The applicant, anonymised as Ms O, had sought judicial review of a decision made on 12 June 2018 and notified in September that year. It found no material change in her circumstances and refused permission to remain under section 49 of the International Protection Act 2015.
Ms O entered Ireland in 2013, applied for asylum in 2014 and later sought international protection. Her asylum application was refused, and the International Protection Appeals Tribunal affirmed the refusal of international protection in February 2018. She had been granted Stamp 4 permission to remain on a Zambrano basis in January 2016 as the mother of an Irish citizen daughter. The court said that temporary permission did not make the judicial review moot: Ms O was entitled to have her separate application under the 2015 Act determined according to law.
The court found the Minister’s handling of the prohibition on refoulement unlawful and irrational. An earlier assessment had concluded that returning Ms O to her country of origin would not breach section 50. The later decision said no further refoulement analysis was necessary because she had temporary permission and would not be returned. The court said that left the earlier determination in place, although that could not have been what the decision-maker intended. It also said the notice’s conclusion that there had been no material change in circumstances was not properly reached, given the grant of Zambrano-based permission.
Separately, the court found the refusal of permission to remain under section 49(4) unlawful. The Minister had relied on an Article 3 European Convention on Human Rights analysis, but the judgment found no express consideration of Article 8 or apparent consideration of Ms O’s constitutional family rights in relation to her daughter. The court also stressed that humanitarian considerations under section 49(3) are broader than the high threshold for an Article 3 breach.
The court granted certiorari, quashing the challenged review decision. The judgment did not itself grant Ms O permission to remain. It said that if the Minister did not intend to issue a deportation order, permission to remain had to be granted under the relevant provisions; it did not state that such an order had been made.