The High Court refused leave for judicial review and denied the relief sought by a Mauritian man, his partner and their minor daughter, an Irish citizen. The application asked the court to require the Minister for Justice to undertake that the man would not be deported while his residence application was considered, and to restrain deportation in the meantime.
The man had entered Ireland on a student visa in 2009. A deportation order was made in March 2014 after immigration authorities began proceedings the previous year. He did not present himself as directed in May 2014. The order was not challenged in these proceedings.
In October 2015, he applied for residence based on his parentage of an Irish citizen child, relying on the European Court of Justice’s Zambrano judgment. He re-filed the application on the required form in November. His solicitors sought an undertaking that he would not be removed while it was assessed. The Minister declined to give one, saying removal would occur only in accordance with the law and due process. The residence application remained undecided.
The applicants argued that deportation before a decision could undermine the child’s EU rights and that a stay was needed to provide an effective remedy. The Minister argued that the deportation order remained valid, no decision had yet been made on the residence application, and there was no legal obligation to give the undertaking.
Justice Faherty said the issue at this stage was whether the applicants had shown substantial grounds for an arguable judicial review case. She found they had identified no reviewable decision: the deportation order was not under challenge, and the residence application had not been decided. The refusal to give an undertaking did not, in the circumstances, establish a legal duty that could be enforced by mandamus.
The judge did not decide whether the man qualified for residence under Zambrano, whether the child’s EU rights would be engaged, or whether there were grounds for revoking the deportation order. Those questions remained for the Minister to consider. She also did not assess where the greatest risk of injustice lay, because the applicants had not established an arguable basis for the requested injunction.
The court concluded that substantial grounds had not been shown to the required threshold. Leave was refused and the relief sought in the notice of motion was denied.