The High Court has refused a judicial review challenge to a deportation order made against the father of an Irish citizen child, rejecting both grounds raised by the applicants.
In a judgment delivered on 4 June 2019, Mr Justice David Keane considered the Minister for Justice and Equality’s order of 15 August 2016, made under section 3(1) of the Immigration Act 1999. The applicants sought an order quashing it. The court refused the application; it did not make a new deportation order.
The father, a Nigerian national, entered the State unlawfully on a date before 28 May 2015. He and the child’s mother are not married or related, though it was contended they were in a stable relationship. Their son was born in the State in October 2002 and is an Irish citizen. The father acknowledged having had no contact with the mother or child between her arrival in 2002 and his own arrival in 2015. The Minister had found that he was not the child’s primary carer.
Before the deportation order, the Minister had refused the father’s application for residence as the parent of an Irish citizen child. That decision concluded that his removal would not compel the child to leave the European Union, and was not challenged. The Minister later made the deportation order after considering the family’s circumstances and the possibility of family life in Nigeria.
The first ground argued that the Minister had failed to weigh the child’s constitutional and EU rights properly and had treated the child as having to leave the State or the European Union if his father were deported. Justice Keane said the premise was mistaken: the earlier decision had found that the child would not be compelled to leave the EU. Whether the family could reasonably live together in Nigeria was a separate question for the deportation assessment. The judgment said the Minister had considered the child’s constitutional rights, and rejected the first ground.
The second ground argued that the Minister had wrongly prioritised rights under the European Convention on Human Rights over constitutional family rights, or conflated them. The judge found that the file note considered both. Although the order of analysis did not clearly show constitutional rights receiving precedence, that alone did not undermine the decision where the substance of the rights had been considered and weighed. He rejected the second ground.
The applicants also argued that the Minister’s proportionality assessment was wrong. The court said disagreement with the weight given to different factors was insufficient: the applicants had to establish unreasonableness under the Keegan and O’Keeffe test. They had failed to do so. The application for judicial review was refused.