Judgment: 2012-04-03 · Court archive

High Court pauses deportation until June 30 over child’s rights

The court granted leave to challenge the deportation order on constitutional grounds concerning the applicant’s daughter and imposed a short-term injunction, conditional on an application to the Minister to revoke the order.

High Court · [2012] IEHC 104

Who, what, where, when and why

Who

See the report below for the parties involved.

What

The court granted leave to challenge the deportation order on constitutional grounds concerning the applicant’s daughter and imposed a short-term injunction, conditional on an application to the Minister to revoke the order.

Where

No place detail is included in this summary.

When

Judgment:

Why

Reasons reported in the judgment

The judge said the District Court had already allowed the father limited, supervised access. He concluded that, viewed objectively, the child’s mother had failed in her duty to protect the child’s rights by opposing any access. He stressed that this was not a personal criticism of her. The mother had described the father’s guardianship and access applications as tactical efforts to avoid deportation. Those were her submissions, not findings that the applications were made for that purpose.

The High Court has restrained the deportation of a Nigerian man until June 30, 2012, while he applies to the Minister for Justice to revoke the deportation order. The injunction is temporary and conditional; the court refused the open-ended protection he sought until his daughter reached adulthood.

In a judgment delivered on April 3, 2012, Mr Justice Hogan granted the applicant leave to seek judicial review over the impact of deportation on his infant daughter’s rights under the Constitution. He also allowed him to amend his pleadings to include those claims and, if necessary, a claim under the European Convention on Human Rights. The daughter was not joined as a party, but the court said it could consider her interests without formally adding her to the case.

The judge said the District Court had already allowed the father limited, supervised access. He concluded that, viewed objectively, the child’s mother had failed in her duty to protect the child’s rights by opposing any access. He stressed that this was not a personal criticism of her. The mother had described the father’s guardianship and access applications as tactical efforts to avoid deportation. Those were her submissions, not findings that the applications were made for that purpose.

The court refused leave on the applicant’s arguments that the refusal of subsidiary protection breached EU rules on an effective remedy, that the EU Charter applied to the deportation decision, and that the child’s EU citizenship prevented his deportation. The judge said the child was not dependent on her father and would not be forced to leave the European Union if he were deported.

A separate challenge to the subsidiary protection decision, based on the requirement to seek the applicant’s comments before an adverse decision, was adjourned pending a forthcoming Court of Justice ruling. The judgment did not decide that challenge.

The judge said the Minister should first consider the circumstances under the statutory power to revoke a deportation order. The injunction lasts only until June 30 and depends on the applicant making that application in the meantime. The court gave no direction on how the Minister should decide it. If the applicant is dissatisfied with the Minister’s decision, the judgment says he must bring fresh proceedings to challenge it.

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