Judgment: 2015-03-19 · Court archive

Supreme Court judge would allow challenge over deportation decision’s effect on children

In a divided appeal, Clarke J. said leave should be granted to seek judicial review on one limited ground; the judgment records a different view from Charleton J.

The Supreme Court ·

Who, what, where, when and why

Who
  • Esmé J.
  • The Minister for Justice and Equality (Respondent)
  • Clarke J.
  • Charleton J.
What

In a divided appeal, Clarke J. said leave should be granted to seek judicial review on one limited ground; the judgment records a different view from Charleton J.

Where

Places mentioned in the report

  • Ireland
When

Judgment:

Why

Read the report below for the decision and any reasons given.

A Supreme Court appeal concerned whether a family could seek judicial review of the Minister for Justice and Equality’s refusal to revoke a deportation order concerning Esmé J., who had since been deported from Ireland. In a judgment delivered on 19 March 2015, Clarke J. said he would allow the appeal and grant leave on one limited ground.

The applicants included three infant children, their mother, and Esmé J., described in the judgment as the mother or grandmother of the other applicants. Their names were anonymised, with “Esmé J.” stated to be the name used for the purposes of the appeal. The case challenged the Minister’s refusal to revoke the deportation order, not the original refusal of asylum.

The judgment recounts that the children’s parents separated in 2005. Esmé J. arrived in Ireland in February 2006, and a deportation order was made in July that year after her asylum application was rejected. Earlier proceedings were settled on the basis that the Minister would consider a fresh application to revoke the order. The settlement did not require the order to be revoked.

Submissions to the Minister said Esmé J.’s presence had stabilised the children after their parents’ separation and that her departure could cause emotional trauma. They offered expert reports if the Minister doubted that claim. Clarke J. considered it arguable that the Minister had to assess the claim or, if in doubt, request the offered evidence. He also considered it arguable that the claimed psychological effect was new material requiring fresh consideration, and that the unusual history of the earlier proceedings could affect how prior legal principles applied.

Clarke J. said it was arguable that the Minister had not properly considered the potential psychological harm or rationally and proportionately weighed it against other factors, including Esmé J.’s precarious immigration position. He stressed that the Minister was not required to conclude that the children’s interests outweighed the other considerations.

The leave he proposed was confined to whether the Minister adequately considered the possible effect of Esmé J.’s departure on the children, given the claim of particular and professionally verifiable emotional trauma. Clarke J. would allow judicial review seeking an order to quash the refusal to revoke the deportation order. This was a decision about permission to bring that challenge, not a final ruling on whether the refusal was unlawful. The judgment states that Clarke J. disagreed with Charleton J., who proposed upholding the refusal of leave.

Read the original court judgment

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