The High Court ruled that the Minister for Justice, when considering an application to revoke a deportation order under section 3(11) of the Immigration Act 1999, must consider the applicant’s current and prospective circumstances, including the likely position of a child who was unborn when the application was made.
Mr Justice Richard Humphreys delivered the judgment on 29 July 2016 in judicial review proceedings brought by I.R.M., Sarah Jane Rogers and their daughter, S.O.M., against the Minister, Ireland and the Attorney General. The court granted leave on the latest amended grounds and made a declaration setting out the minister’s duty. It refused the remaining reliefs. The judgment did not decide the pending residency application or require the minister to approve a revocation request.
The case concerned I.R.M., a Nigerian national who had arrived in Ireland in 2007 and was made subject to a deportation order in 2008. In May 2015, he applied to have that order revoked. Rogers was pregnant at the time. After their daughter was born in August 2015, a separate residency application based on parentage of an Irish citizen child was submitted; it remained outstanding when the hearing began. The court recorded that the section 3(11) application was intended to be withdrawn in favour of that later application, but it nevertheless considered issues about the earlier application, with the parties’ consent.
The judge held that the minister was not legally required to decide a section 3(11) application before deportation, because such an application does not suspend a deportation order. Deportation could proceed if the minister remained lawfully satisfied that it would not infringe legal rights. The minister must, however, decide administrative applications within a reasonable time, and delay alone would not make a deportation unlawful.
In considering a section 3(11) application, the minister must address the applicant’s representations and any change of circumstances that could make deportation unlawful through an actual or prospective breach of rights. Where an application relies on a child who is unborn, the minister must consider the rights the child would likely have after birth, insofar as relevant. The court stressed that this duty to consider does not create an automatic right to remain in Ireland until the birth or require the minister to allow the application.
The court also rejected the claim that a person subject to deportation was entitled to notice of the precise date of removal, where 28 days had passed from notification of the order. It said there was no constitutional right to have a partner present for a birth when that partner had no legal entitlement to remain in the State. The minister’s undertaking not to deport I.R.M. remained in force under its terms, with liberty to apply if the respondents sought to withdraw it.