The High Court has granted leave to challenge a decision refusing to revoke deportation orders against a mother and her nephew, finding an arguable gap in the Minister’s assessment of the welfare of the mother’s two Irish citizen children.
Mr Justice Cooke’s judgment, delivered on 14 January 2011, concerns a judicial review application at the leave stage. The underlying decision was made under section 3(11) of the Immigration Act 1999. The court did not quash the refusal or decide the substantive challenge; it allowed specified applicants to apply for judicial review on one ground.
The deportation orders were made in 2004. The later events relied on were the births of the two children in 2005 and 2007. The Minister’s file note assessed the family circumstances and weighed the applicants’ rights against the State’s interests. It proceeded on the assumption, accepted by both sides in court, that the children would go to Nigeria with their mother if deportation went ahead.
The judgment said the note considered whether the children could legally enter and live in Nigeria, and whether their young ages would make it practical for them to establish lives there. But it did not assess how, in practice, they might live and be supported. The court also noted a letter from the mother stating that she feared imprisonment and had no home or relatives to return to in Nigeria.
Mr Justice Cooke said it was arguable that further inquiry was needed into the practical consequences for the children if they went to Nigeria with their mother, and whether an arrangement could allow them to remain in Ireland, with or without her. He noted that the children were very young and that their natural father lived in Ireland but appeared to have little contact with them. The judgment did not determine what arrangements would be possible or what the children’s welfare required.
Leave was granted to the first, third and fourth applicants on a single ground concerning the Minister’s inquiry into the children’s welfare and their right to reside and be reared in Ireland. Other requested reliefs were deemed unnecessary. The court refused to extend leave to the second applicant, the mother’s nephew, because the allowed ground concerned the children’s rights and did not establish a distinct basis to challenge his deportation order. The judgment said the Minister might refrain on humanitarian grounds from deporting him separately while the proceeding continued, but the court had no basis to grant leave or an injunction in his case.