The High Court refused an ex parte application for leave to seek judicial review of the Minister for Justice and Law Reform’s refusal to revoke a deportation order against David Kangethe. Mr Justice Cooke delivered the judgment on 7 October 2010.
The challenge concerned a decision made on 6 September 2010 under section 3(11) of the Immigration Act 1999. The application was to revoke a deportation order made on 21 September 2009. The court stressed that the order itself was valid and was not open to challenge in this application. The question was whether the circumstances advanced in support of revocation made continued implementation of the order unlawful.
The applicant, who arrived in Ireland from Kenya in 2007, had been unsuccessful in claiming asylum and subsidiary protection. His solicitors said he had been in a relationship for two years with Peninah Wanjiku, an Irish citizen, and that they were engaged to marry. They said she was pregnant with his child, who would be an Irish citizen, and that she could not relocate to Kenya with her existing Irish-citizen child without that child’s biological father’s permission.
The Minister’s file note addressed those matters, including the relationship and family life in Ireland, the claimed obstacle to relocating, and the expected child. The court noted that the applicant had not provided documents showing he was divorced from his wife in Kenya or that the marriage had ended. The file note also recorded that he had not supplied information to substantiate why the other child’s father’s consent would be an insurmountable obstacle. The judge said a certificate concerning whether the applicant could marry in Kenya had not been put to the Minister and its provenance and status were unexplained.
The court said a refusal to revoke a valid deportation order could be challenged only on limited grounds, including an error of law or a material mistake of fact. It found that the Minister had carefully considered the changes put forward and that the five proposed grounds did not establish an arguable case that the decision was irrational or unlawful. The judge also held that the constitutional right of an unborn child that could be asserted before birth was the right to life, and found no arguable case that the Minister had to anticipate the child’s personal rights before birth.
The court refused leave. It did not conduct a substantive judicial review hearing or set aside the Minister’s decision or the deportation order.