The Supreme Court has dismissed the Minister for Justice’s appeal and upheld a High Court order quashing a decision to refuse to revoke a deportation order against an Albanian national. The case must return for a fresh consideration of the revocation application; the Court did not itself revoke the deportation order or decide what the Minister’s decision should be.
The appeal concerned a refusal issued in July 2021 under section 3(11) of the Immigration Act 1999. The Minister had affirmed a 2019 deportation order. The High Court quashed the refusal in December 2022, finding that the decision had not properly considered the rights and best interests of the man’s Irish citizen son. The Minister appealed.
The Supreme Court rejected the Minister’s argument that the judicial review was an impermissible collateral attack on the 2019 deportation order, or that an earlier settlement prevented the family from challenging the later refusal. Under section 3(11), the family could seek revocation on the basis of further representations without proving the original order was invalid. The Minister had agreed, as part of the earlier settlement, to a fresh consideration of the application after additional representations.
The Court acknowledged that some information about the child’s autism diagnosis and other needs could have been provided earlier, and that the family had given no explanation for the delay. It nevertheless concluded that the High Court judge was entitled to allow the challenge, taking account of the nature of the child’s needs, the greater clarity available over time, and the Minister’s agreement to reconsider the application.
The Court held that Article 42A.1 of the Constitution applies when deportation decisions may seriously affect a child. In this case, the Minister was required to take account of the special circumstances, including the father’s role as the child’s principal carer. The Court also held that the child’s best interests had to be treated as a primary consideration.
That did not make the child’s interests paramount in this type of immigration decision, create a presumption against deportation, or dictate the outcome. The Minister may weigh other important considerations, including the public interest in deporting non-nationals who have committed serious violent crimes. But the decision must engage with the child’s constitutional rights and give proper consideration to his best interests.
The Supreme Court concluded that the High Court had ample justification for finding that the 2021 decision failed to consider the child’s rights under Article 42A.1 and to treat his best interests as a primary consideration. It therefore dismissed the appeal and upheld the order quashing the refusal to revoke.