Judgment: 2019-02-22 · Court archive

Court of Appeal dismisses challenge to refusal to revoke deportation order

The court upheld the refusal after finding the child’s interests had been treated as a primary consideration, while noting the decision would have been better if it expressly analysed a later access arrangement.

Court of Appeal · [2019] IECA 123

Who, what, where, when and why

Who
  • Minister for Justice and Equality (Respondent)
What

The court upheld the refusal after finding the child’s interests had been treated as a primary consideration, while noting the decision would have been better if it expressly analysed a later access arrangement.

Where

Places mentioned in the report

  • Ireland
When

Judgment:

Other dates in the report
  • 23 December 2013; 22 July 2014

    The appeal concerned a decision made under section 3(11) of the Immigration Act 1999, which allows an application to revoke a deportation order. The original order, made on 23 December 2013, was not challenged. The Minister refused to revoke it on 22 July 2014, and the High Court dismissed the father and child’s judicial review challenge in October 2016.

Why

Reasons reported in the judgment

The Court of Appeal has dismissed an appeal challenging the refusal to revoke a deportation order against an anonymised father. The court held that the Minister for Justice and Equality’s decision was lawful and that the child’s best interests had been treated as a primary consideration.

The Court of Appeal has dismissed an appeal challenging the refusal to revoke a deportation order against an anonymised father. The court held that the Minister for Justice and Equality’s decision was lawful and that the child’s best interests had been treated as a primary consideration.

The appeal concerned a decision made under section 3(11) of the Immigration Act 1999, which allows an application to revoke a deportation order. The original order, made on 23 December 2013, was not challenged. The Minister refused to revoke it on 22 July 2014, and the High Court dismissed the father and child’s judicial review challenge in October 2016.

The father had arrived in Ireland in 2006 and claimed asylum, but his claim was rejected. His applications for residence were also refused. After his marriage to a British national broke down, he sought access to their child and applied to have the deportation order revoked.

The father and the child argued that the Minister had failed to identify or properly consider the child’s best interests, including the child’s interest in the father’s presence. They relied in part on an arrangement allowing the father to see the child for two hours every second Friday and requiring maintenance of €15 a week. The Minister said the evidence did not establish family ties strong enough to show that deportation would adversely affect the child.

The Court of Appeal noted a procedural discrepancy: despite the parties’ references to a District Court order, the access and maintenance terms were an interim agreement handed to the court and continued by consent. No District Court order had been made. The court nevertheless considered the appeal on the assumption that an order existed.

The judges found that the arrangement formalised the same fortnightly access the father had previously reported. The father’s submissions to the Minister had not argued that the arrangement changed the child’s best interests. The court also accepted that the initial deportation decision and the later refusal could be read together, as the same decision-maker made both within seven months.

The court said it would have been preferable for the Minister to expressly analyse how the changed circumstances affected the child’s best interests. But, reading the refusal in the round and considering the earlier decision, the judges concluded the Minister had treated those interests as a primary consideration and was entitled to find them outweighed by the State’s immigration-control interests. The appeal was dismissed; the unchallenged deportation order remained in force.

Read the original court judgment

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