The High Court continued a temporary stay on the deportation of an anonymised Nigerian man until 24 January 2012, pending a District Court hearing on his application for guardianship and access to his infant daughter. The stay was made because of the child’s interests and to allow her father to participate in the proceedings; the High Court did not decide whether he should have access or guardianship.
In a judgment delivered on 17 January 2012, Mr Justice Hogan said the District Court was due to hear the application on 22 February. He said the stay was to continue for what he hoped would be a short period, measured at most in weeks. The matter was to return to the High Court on 24 January, when the court would discuss the precise form of relief pending the District Court’s decision.
The judge said that if the District Court ruled against the father’s application, the injunction would lapse. If it found that some access was in the child’s best interests, the extent of any further injunction could be reconsidered. The High Court did not decide what should happen after the District Court’s ruling.
The man had arrived in Ireland in 2009 using a stolen passport and identity document, the judgment said. He pleaded guilty to handling stolen property and received a six-month sentence. His asylum claim was later rejected on credibility grounds. The judgment records that an earlier interim injunction had been vacated on 6 January 2012 because of material non-disclosure, and that a previous stay application had been unsuccessful.
The father’s application for subsidiary protection had also been rejected. He sought to challenge the deportation order, arguing, among other things, that his Irish-citizen daughter’s rights under the EU citizenship ruling in Ruiz Zambrano were engaged. The judge provisionally considered expanded grounds that the applicant had asked to add, but concluded that the Zambrano argument and an effective-remedy argument did not raise a fair question to be tried.
The judge said the child had not, so far as was known, seen her father, and he had not contributed to her upkeep. He considered there was no prospect that deporting the father would require the child to leave the European Union, as her Irish-citizen mother could reside in Ireland or the United Kingdom.
Despite his scepticism about the father’s application, the judge said the issue of guardianship and access belonged to the District Court and should not be pre-empted. He continued the stay solely because the child might have a constitutional interest in the care and company of both parents, and because her father might need to be physically present to give evidence.