The High Court refused leave to seek judicial review of a deportation order made against a Nigerian father who had remained in Ireland after his temporary permission expired. The court also refused the respondents’ separate application to dismiss the proceedings as frivolous, vexatious or an abuse of process.
The judgment, delivered by Mr Justice Cooke on 1 February 2011, concerned an application by the father, his wife and their two minor children. The children were Irish citizens, born in Ireland in 2000 and 2003. The mother had permission to reside in the State with them under the IBCO5 scheme.
The father said he had lived and worked in Germany for more than 10 years and claimed he might still have a right to reside there. He had visited his family in Ireland on temporary permits, but remained in the State after his last permission expired on 1 June 2007. An application to extend it was refused. Following a proposal to deport him and representations made on his behalf, a deportation order was made on 20 August 2009.
The applicants argued, among other things, that judicial review did not provide an effective remedy under Article 13 of the European Convention on Human Rights because it did not allow a fresh hearing of the merits or consideration of new evidence. The judge rejected that argument. He said the High Court could examine whether a deportation decision unlawfully interfered with constitutional or Convention rights, including by assessing its reasons, factual basis and proportionality. Judicial review did not have to take the form of a rehearing in which the court substituted its own deportation decision.
The court declined to allow the applicants to amend their grounds to address a procedural obstacle to the Article 13 argument. The proposed amendment came late, after the case had been prepared for hearing, and the judge also considered that the argument lacked substance. He found that the Minister’s supporting memorandum had addressed the family circumstances and the children’s interests, and that the applicants had not established substantial grounds to challenge the reasoning or balance behind the order.
The judge noted that the father’s continued presence had been unlawful since June 2007 and that the family’s life in Ireland had developed while his residence here was temporary or precarious. He concluded that no substantial case had been made that the deportation decision was unlawful or disproportionate. Leave to apply for judicial review was refused. The court did not conduct a full judicial review hearing or quash the deportation order.