The Court of Appeal has granted an interlocutory injunction restraining the deportation of two parents and their children to Malawi while an appeal concerning their subsidiary protection decisions is pending.
In a judgment delivered by Mr Justice Gerard Hogan on 27 July 2015, the court held that all four applicants had an arguable case that the decisions refusing subsidiary protection were invalid. It said the decisions appeared to rely on adverse credibility findings made during the earlier asylum process without giving the applicants an opportunity to dispute those findings.
The family’s asylum applications had been rejected by the Refugee Appeals Tribunal in November 2009. The Minister for Justice refused subsidiary protection in May 2011 and made deportation orders in August that year. The High Court dismissed the family’s challenge in April 2012. Their appeal was transferred to the Court of Appeal in October 2014, and they sought an injunction to prevent deportation while it was being heard.
The court recounted the parents’ account that the mother’s father had threatened to sexually assault his granddaughter in Malawi, following advice from a local witchdoctor. The Tribunal rejected the account on credibility grounds. Hogan J said the later subsidiary protection decisions relied heavily on those credibility assessments. He considered that the Court of Justice of the European Union’s ruling in *MM v Minister for Justice* supported a separate and effective hearing at the subsidiary protection stage.
The judge criticised the parents for working illegally and avoiding immigration reporting obligations after the deportation orders were made. He said their conduct, considered alone, would weigh strongly against discretionary relief. But he treated the children’s circumstances separately: the daughter had lived in Ireland since arriving as an infant, and the son was born there. Neither was an Irish citizen. The judge said deportation would disrupt their home, schooling, friendships and family life, and that the children should not bear the consequences of their parents’ conduct.
He concluded that the balance of convenience strongly favoured restraining the children’s deportation. He also found that deporting the parents would compromise the children’s constitutional interest in their parents’ care and company. The order was interlocutory: it restrained deportation pending the outcome of the appeal and did not finally decide the validity of the subsidiary protection decisions or the appeal itself.