The High Court dismissed a judicial review challenging the Minister for Justice and Equality’s refusal to revoke a deportation order against E.M.O. The court also discharged an injunction that had been granted during the proceedings, effective from the oral delivery of judgment, and adjourned the matter to allow the applicants to consider seeking leave to appeal.
The case concerned a refusal under section 3(11) of the Immigration Act 1999, which gives the Minister power to revoke a deportation order. E.M.O. had entered Ireland in August 2008 on a visa issued as the son of an EU national. His permission to remain lasted one month and was not renewed. The judgment records that he later made a fraudulent asylum application under another identity; it was withdrawn in January 2009.
E.M.O. began a relationship with co-applicant Caroline Greene, an Irish citizen, in 2009. They became engaged in 2011. A deportation order was made against him in December 2013. A challenge to that order was later compromised: the proceedings were struck out with costs to E.M.O., who was to make a section 3(11) application. The Minister refused that application in December 2014, with notice sent in February 2015. The present judicial review was brought to challenge that refusal.
The applicants argued that the compromise of the earlier case allowed them to raise issues about the deportation order again. The judge rejected that argument. By agreeing to strike out the challenge, E.M.O. had, in effect, waived points that could have been raised against the original order. At the later section 3(11) stage, the Minister generally had to consider changed circumstances and whether deportation would then substantively breach rights. The compromise did not itself establish that the original order was legally defective.
The court distinguished procedural objections, such as alleged failures to consider matters or inadequate reasoning, from substantive breaches of rights. It said the Minister was not required at the section 3(11) stage to revisit procedural complaints about the original order. Although a substantive breach, including one involving Article 8 of the European Convention on Human Rights, would have to be considered, the judge found no such breach established. The judgment described E.M.O.’s initial permission as lasting approximately one month and said the remainder of his stay was unlawful.
The applicants also relied on the decision in Gorry, arguing it changed the law on the consideration of obstacles to relocating to a country of deportation. The judge held that Gorry did not prohibit consideration of such obstacles as one factor among several, and did not make the deportation order invalid.
The court dismissed the application and discharged the injunction. It adjourned the case to allow consideration of an application for leave to appeal, which, if made, had to include written submissions and proposed questions.