The High Court granted a stay preventing the deportation order against an anonymised woman and her two children from being implemented while their application for leave to seek judicial review is determined.
Mr Justice Gerard Hogan delivered judgment on 11 January 2012. The applicants had sought leave to challenge a deportation decision made on 5 August 2011, which they received on 16 August. They also sought to challenge a subsidiary protection decision made on 19 October 2010. Their proceedings began on 21 September 2011, and their motion for an interim injunction was issued on 21 November.
The judge said the applicants could probably establish grounds to extend the time limit for challenging the deportation decision. He said no explanation had been given for the delay in challenging the subsidiary protection decision, made almost a year earlier. He treated that decision as legally unimpeachable, subject to a possible exception involving improperly transposed EU law. He concluded that the applicants could not rely on that exception in this case and that the challenge to subsidiary protection was time-barred.
The applicants argued that they had no effective remedy, that the absence of an appeal from a subsidiary protection decision breached the EU principle of equivalence, and that the State had failed to properly transpose an EU directive’s requirement for cooperation with an applicant. The judge rejected the effective-remedy and equivalence arguments as unsustainable. He also held that the transposition argument did not reopen the time-barred challenge to the subsidiary protection decision.
However, he said the challenge to the constitutionality of section 3(1) of the Immigration Act 1999, and to its compatibility with the European Convention on Human Rights, was not tenuous or doomed to fail. The applicants relied on proportionality concerns about the potentially lifelong effects of a deportation order. The judge noted that the mother had lived in Ireland since March 2006, arriving as an adult, while one child was born in Ireland in 2006 and the other two children had spent most of their young lives there. He did not decide the underlying challenge.
Because the motion was brought before new judicial review rules took effect on 1 January 2012, the judge applied the former rule 20(7)(a). He held that an applicant awaiting a leave decision should not be placed in a worse position than one who had already obtained leave, and granted the stay pending determination of the leave application. The court did not determine the leave application or the substantive challenge to the deportation decision.