The High Court has discharged an injunction that had prevented the deportation of a mother and her eight-and-a-half-year-old daughter, but stayed the discharge until 20 January 2017. The short stay was to allow the applicants to pursue any consequential applications and put their affairs in order.
The ruling by Mr Justice Richard Humphreys concerned interim protection while the applicants appealed an earlier decision dismissing their judicial review challenge to refusals to revoke deportation orders. The judge had granted leave to appeal that decision. He said the underlying deportation orders remained in force and were unchallenged; the current proceedings concerned the refusal to revoke them, not a challenge to the orders themselves.
Applying the test set out by the Supreme Court in Okunade, the judge found that the balance of justice and convenience favoured lifting the injunction. He said the public interest in implementing the deportation orders, the mother’s evasion of immigration authorities, the limited prospects of the appeal, and the applicants’ ability to pursue legal arguments from outside the State weighed against keeping the injunction in place. He also said the applicants would have no legal entitlement to remain even if they succeeded in having the refusal decisions reconsidered.
The judge recognised that deportation would disrupt the child’s life, but did not consider that decisive. He reasoned that, if the appeal failed, deportation appeared likely in any event, and considered that the child would be better able to adapt to a change in location now than at an older age. These were the judge’s assessments in deciding the interim application, not a determination of the appeal.
The order discharged the existing injunction, stayed that discharge until 20 January 2017, and directed that the parties be heard on consequential applications and outstanding costs. In a postscript, the judge said he concluded that no separate leave to appeal was required in this case because leave had already been granted and an appeal concerning the stay would be ancillary. He left open the question for a future case involving a free-standing appeal.