The High Court quashed deportation orders against an anonymised Nigerian mother and her minor daughter, finding that the Minister’s Article 8 assessment did not lawfully consider whether their removal was proportionate.
Mr Justice Mac Eochaidh delivered the judgment on 17 June 2015 in a judicial review of the Minister’s decision to make the orders. The court rejected the State’s objection that the applicants’ irrationality and disproportionality pleadings were too imprecise to proceed.
The mother arrived in Ireland in December 2008 and claimed asylum. Her daughter was born in Limerick in February 2009. Their asylum claims were rejected, as were later applications for subsidiary protection and leave to remain. The Minister made deportation orders dated 24 November 2010.
In the file assessment, the Minister accepted that deportation had the potential to interfere with the mother’s private life, including educational and social ties, but concluded that the consequences would not be grave enough to engage Article 8. The applicants argued that once private life in Ireland was accepted, the Minister had to assess whether removal interfered with it and, if the interference crossed the relevant threshold, consider whether deportation was lawful, necessary and proportionate.
The judge agreed. He said the Minister had accepted that the applicants had private lives in Ireland but used the gravity threshold to avoid the further questions required by Article 8. Where the facts establish private life and the claimed negative effect passes the applicable threshold, the decision-maker must carry out the Article 8(2) assessment, including proportionality. The court did not decide that the applicants could not be deported; it found the assessment underpinning the orders unlawful and said certiorari would issue.
A separate challenge argued that the Minister had to treat the child’s best interests as a primary consideration under the UN Convention on the Rights of the Child, which Ireland had ratified but not implemented. The judge held that the Convention did not directly create enforceable rights in Irish law and could not be read into the Immigration Act where the Act and Convention were in conflict on the primacy of the child’s interests.
The Minister had not addressed the applicants’ submission invoking the Convention. The judge nevertheless declined relief on that ground, concluding that a remittal would achieve no benefit because the lawful response would be to reject the argument. He dismissed that ground of challenge.