The Supreme Court has ruled that delay in issuing a deportation order does not, by itself, give a non-national permission to remain in Ireland. It dismissed the Minister for Justice and Equality’s appeal on that legal point, while leaving intact the High Court’s order quashing the deportation orders on other grounds.
The case concerns MIH and her minor daughter, SIH, who are Pakistani nationals. They came to Ireland from the UK in July 2014 with MIH’s brother, Mr C, a British subject who moved to Ireland to establish a business. They applied for EU residence cards in May 2015, claiming they qualified as permitted family members of an EU citizen.
The Minister refused the applications in November 2015 and refused a review in February 2017, finding that the applicants had not shown dependency, membership of Mr C’s household or a need for his personal care on serious health grounds. The Minister then proposed deportation. The orders were signed on 24 August 2018 and notified to MIH and SIH on 5 September, about 18 months after the proposal. They were told to leave by 6 October 2018.
In July 2020, the High Court quashed the orders on grounds that included errors in the Minister’s decision-making and inadequate consideration of statutory and human-rights matters. The Minister’s Supreme Court appeal concerned the High Court’s separate comments about delay. The applicants argued that delay could affect the proportionality of deportation and their rights; the Minister argued it could not create a right to remain.
Delivering judgment on 11 May 2021, Mr Justice Peter Charleton said delay may allow circumstances and relationships to change, and those developments may need consideration. But delay alone does not convert an unlawful or precarious immigration status into permission to remain. Where delay becomes unreasonable, a court may in an appropriate case order the administration to decide an application; that remedy does not grant the requested status.
The Supreme Court confirmed that the High Court’s quashing order stands because the grounds for it were not before the Court on appeal. The deportation orders therefore remain quashed. The Court said a fresh residence-card application, made on 29 December 2020 and based on the claim that MIH and SIH were part of Mr C’s household, was for the Minister to consider under the applicable European law. It made no finding on that application and did not decide whether the applicants qualify for residence.