The High Court quashed deportation orders against a mother and four children after finding that the Minister for Justice had failed to carry out a required proportionality assessment under Article 8 of the European Convention on Human Rights.
In a judgment delivered on 10 November 2017, Mr Justice Richard Humphreys extended the time for the family’s judicial review application and ordered certiorari removing the deportation orders for the purpose of quashing them. The orders had been made on 5 May 2017.
The family had arrived in Ireland from Pakistan in 2016. The judgment records that one child had Down syndrome and another had spina bifida, hydrocephalus and kidney disease. The family argued that the medical care available in Pakistan would be significantly worse and that removal would harm the child’s health.
The judge rejected the Article 3 challenge. He held that the evidence did not meet the high threshold of establishing substantial grounds to believe there was a real risk of treatment contrary to Article 3. In those circumstances, the Minister was not required to make a finding that treatment specifically appropriate to an applicant would be available in Pakistan.
The Article 8 issue was different. The Minister had accepted that deportation could interfere with the family’s private life but decided the consequences were not serious enough to require a proportionality assessment. The judge said physical and mental health could fall within Article 8, even where the evidence did not meet Article 3’s threshold.
The family had submitted an article describing life for a person with spina bifida in Pakistan as “more than miserable”. The judge said this was evidence of a potentially significant disparity in treatment and had not been expressly rejected by the Minister. He identified a confusion between the distinct Article 3 and Article 8 questions, a failure to acknowledge that a significant health impact could engage Article 8, and evidence supporting the claimed disparity.
On those particular facts, the judge held that the Minister had to conduct an Article 8 proportionality analysis unless rejecting the claimed disparity. He stressed that this did not mean the Minister was barred in principle from making deportation orders. The court had not yet reached the question of whether a proportionality assessment would ultimately weigh against the family.
Following further submissions, the judge awarded costs to the applicants, including reserved costs, and stayed the order until 11 December 2017 on the respondent’s undertaking not to act on the deportation orders.