The High Court has temporarily restrained the deportation of an anonymised applicant whose partner was in the final weeks of pregnancy, pending further order of the court. The judge said her vulnerability and reliance on him for support were special factors warranting intervention despite his poor immigration history and an existing deportation order.
Mr Justice Colm Mac Eochaidh made the order on 1 August 2015, on an urgent application for a pre-leave interlocutory injunction. The court did not decide whether the applicants should be granted leave to bring judicial review. That application was adjourned to the first motion day of the new term, with the respondents allowed to seek a hearing during the court vacation.
The first applicant had a deportation order and had applied in May 2015 for its revocation under section 3(11) of the Immigration Act 1999. No decision had issued. His partner, the second applicant, was pregnant and due to give birth on 29 August. The judge recorded her evidence of a history of depression and self-harm, limited means and little family support in Dublin. He accepted, for the purpose of the injunction application, that the first applicant was caring for and supporting her.
The court found an arguable case that deporting him before the revocation application was decided could unlawfully affect the second applicant’s rights. It also found an argument that deportation before the birth could interfere with rights the child might have upon birth. The judge stressed that these were provisional conclusions on an interlocutory application and might not survive fuller consideration.
The judge did not resolve conflicting High Court decisions about whether an unborn child’s rights must be considered on a revocation application. Nor did he rule on the underlying legality of the deportation order or decide the judicial review case.
He rejected the separate argument that the State’s practice of not giving a definitive deportation date in advance was unlawful. He said the applicant had not shown that the absence of a precise date had caused harm or prevented access to lawyers or the courts, and found no arguable case on that claim at this stage. The applicant remained free to seek leave on that issue, which would be considered under the applicable standard by the judge hearing it.
Weighing the temporary balance, the judge said it would be harsh to deport the first applicant in the days before his partner gave birth. He acknowledged the respondent’s submission that the couple conceived knowing a deportation order existed, but concluded that the partner’s circumstances were a special countervailing factor. The injunction restraining deportation was granted until further order. The court refused the applicants’ costs application because leave had not yet been granted and might be refused.