The Supreme Court has rejected the State’s appeal seeking a different legal test for injunctions that restrain deportation while an appeal is pending. It held that the test set out in Okunade applies both before trial and after an adverse first-instance decision, although how the test operates may depend on the circumstances of each case.
The appeal concerned a family of four Malawian nationals, anonymised in the judgment as the “Charles family”. After their applications for refugee status, subsidiary protection and leave to remain were refused, they brought judicial review proceedings. The High Court refused leave to seek judicial review in 2012. Their appeal from that decision was later transferred to the Court of Appeal.
In 2015, while that appeal was pending, the family sought an injunction to prevent their deportation. The Court of Appeal granted it, applying the principles in Okunade. The State appealed to the Supreme Court, which granted leave on the question of whether that test applied after an adverse decision in the court below and, if so, what test should apply.
Giving judgment on 28 July 2016, Mr Justice Clarke said the Supreme Court’s consideration was confined to the grounds on which leave had been granted. The family had listed no alternative grounds in its response to the leave application. The Court therefore did not consider whether the Court of Appeal had correctly applied Okunade to the facts of this case.
The judgment said the governing principle for interim orders is to minimise the risk of injustice while a case or appeal awaits a final decision. A court must first consider whether there is a stateable or arguable basis for the appeal, then weigh the potential injustice of granting or refusing an order. In some cases, the findings made at first instance may allow a court to assess the apparent strength of an appeal more closely, but the judgment said that depends on the case and does not create a separate test for appeals.
The Court rejected the State’s sole ground of appeal. It held that the Okunade test applies to an application for a stay or injunction after a first-instance hearing and pending appeal. The decision left the Court of Appeal’s injunction in place. It did not determine whether the family would ultimately succeed in their appeal or be entitled to remain in Ireland.