Judgment: 2011-02-18 · Court archive

High Court grants leave to challenge Ghanaian father’s deportation order

The court extended time for the judicial review and found substantial grounds to argue that the Minister gave disproportionate and irrational weight to the father’s criminal record. It did not decide whether the order should ultimately be quashed.

High Court · [2011] IEHC 150

Who, what, where, when and why

Who
  • E. Smyth (Judge)
What

The court extended time for the judicial review and found substantial grounds to argue that the Minister gave disproportionate and irrational weight to the father’s criminal record. It did not decide whether the order should ultimately be quashed.

Where

Places mentioned in the report

  • Ireland
  • Ghana
When

Judgment:

Other dates in the report
  • 15 October 2009

    The ruling was delivered by Mr Justice E. Smyth on 25 February 2011. It concerned a deportation order signed on 15 October 2009 and notified to the father on 29 October that year. The court’s order granted leave to apply for certiorari to quash the deportation order; it did not determine the substantive judicial review or rule that the order must be quashed.

Why

Reasons reported in the judgment

The High Court granted a Ghanaian father and his three Irish citizen children leave to seek judicial review of a deportation order, after extending the time for bringing the case. The court found substantial grounds to argue that the Minister’s decision gave mistaken and irrational weight to the father’s criminal record when balancing the effect of deportation on the children and family.

The High Court granted a Ghanaian father and his three Irish citizen children leave to seek judicial review of a deportation order, after extending the time for bringing the case. The court found substantial grounds to argue that the Minister’s decision gave mistaken and irrational weight to the father’s criminal record when balancing the effect of deportation on the children and family.

The ruling was delivered by Mr Justice E. Smyth on 25 February 2011. It concerned a deportation order signed on 15 October 2009 and notified to the father on 29 October that year. The court’s order granted leave to apply for certiorari to quash the deportation order; it did not determine the substantive judicial review or rule that the order must be quashed.

The father arrived in Ireland in 2000 and was granted permission to remain in 2001 as the parent of an Irish citizen child. That child died in October 2000. The father later had three children with an Irish citizen, who were the first three applicants. The judgment records that he shared guardianship of them and that a District Court order said they lived with their mother.

The Minister’s file identified preventing disorder and crime and protecting the country’s economic well-being as reasons for deportation. The father’s 2005 convictions included road traffic offences, assault and threatening or abusive behaviour. He received prison sentences for assault and public order offences. The judgment noted no evidence that he had been in further trouble with the criminal law after 2005.

The judge found that the department’s assessment had considered the family’s rights and the information supplied about the children, Ghana and the family’s circumstances. But he said the central issue was proportionality. The file appeared to show that the convictions were the real reason for revoking the father’s permission, yet the analysis did not clearly assess their seriousness or the time that had passed without further offending. The court also observed that sexual assault and indecency charges appeared on a list of convictions despite no record of a conviction; if those charges had influenced the decision, that could raise a presumption-of-innocence issue. The judgment did not decide that this had occurred.

The court initially sought a further affidavit explaining delay in the legal process. After considering the solicitor’s affidavit on an adjourned date, it granted an extension of time. It then granted leave on the ground that the conclusion reached in balancing deportation’s impact on the children’s rights, interests and welfare was disproportionate and unreasonable in law because mistaken and irrational weight had been given to the father’s criminal record. The court expressly made no comment on the applicants’ likelihood of success at a substantive hearing.

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