The High Court has refused the Minister for Justice’s motion to dismiss a judicial review challenge to a deportation order, finding that the case did not meet the high threshold for being stopped before its leave application was heard.
The judgment, delivered by Mr Justice Cooke on 14 February 2011, concerned proceedings brought by a father and his Irish-citizen minor daughter. The father sought to challenge a deportation order made in respect of him. The court was considering only the Minister’s motion to dismiss the proceedings as an abuse of process or as frivolous, vexatious and without a reasonable prospect of success. The application for leave to bring the judicial review had not yet been heard.
The Minister’s motion followed the father’s departure from Ireland after the proceedings began and after the Minister had undertaken not to implement deportation before 29 November 2010 pending the leave application being listed. He applied for asylum in Belgium on 23 October 2010. A fingerprint search identified earlier asylum proceedings in Ireland, and he was transferred back under the Dublin Regulation. The Minister argued that the sequence showed disregard for the asylum system and that the court process had been used to gain time to leave the State.
The father said in an affidavit that he panicked after receiving notice of the deportation order and a requirement to leave by a specified date. He said he feared arrest, detention and return to Ivory Coast, and left Ireland intending to contact his solicitor from abroad for advice.
The court noted that the proposed judicial review grounds were general and identified no specific material error of law or fact. They challenged the department’s assessment of his circumstances, including the rights of his Irish-citizen daughter and family members. Justice Cooke said the grounds might face scepticism at the leave stage, but they were not so wholly unstatable that the proceedings should be dismissed immediately. Dismissing the case would also deprive the child, who was a party, of the opportunity to have her arguments considered.
The judge also declined to find that the proceedings had been started for an improper purpose. He described the father’s failure to attend an earlier asylum interview and his later departure for Belgium as indicating a casual attitude to his asylum application and disregard for the law. But he gave him the benefit of the doubt about panicking and found no necessary premeditated connection between the judicial review and the later flight. The motion was refused. The judgment did not determine the leave application or the underlying challenge to the deportation order.