The High Court has granted leave to an Irish citizen child and his father to challenge a deportation order, finding substantial grounds to argue that the decision-making process did not adequately assess the child’s rights and the family’s circumstances.
Mr Justice McMahon’s judgment, delivered on 22 May 2009, concerns an application for leave to seek judicial review of a deportation order made against the father on 27 January 2009. The father is a Nigerian citizen; the child, born in Ireland in 2004, is an Irish citizen. The judgment says the child has a twin brother who is also an Irish citizen.
The father came to Ireland in November 2007 to reunite with his family. The judgment says he had lived with his wife, children and two stepchildren as a family unit since then. It records that the mother, an Ivory Coast citizen, had permission to remain under the IBC 05 residency scheme and had established a business. The applicants alleged that the father helped at home and with the children’s education and social activities.
The court reviewed the executive officer’s report that formed the basis of the Minister’s decision. The report concluded there was nothing to suggest the family faced insurmountable obstacles to establishing a life in Nigeria. The judge said the report did not sufficiently consider facts relevant to the Irish citizen child’s personal rights, did not identify with sufficient clarity a substantial reason requiring the father’s deportation, and did not adequately assess and weigh the family’s circumstances. He considered that this approach may have resulted from over-reliance on an “insurmountable obstacles” test.
The judgment discussed the Supreme Court’s decision in Oguekwe, which requires consideration of facts relevant to the citizen child’s rights, identification of a substantial reason for deporting a foreign national parent, and a reasonable and proportionate decision. It also noted that the depth of consideration depends on the child’s circumstances, including age and development. The judge said the report in this case did not reflect those principles.
The court granted leave on grounds 5.1 to 5.9 of the applicants’ statement. It also granted an extension of time, describing the delay as minor and noting that the respondents had not made a strenuous objection. This was a decision at the leave stage: the court did not determine the judicial review challenge or quash the deportation order.