Judgment: 2005-12-14 · Court archive

High Court grants limited leave to challenge immediate deportation on Article 8 grounds

The court allowed a judicial review challenge to proceed only on whether deporting a Bulgarian couple immediately after their son’s death and burial in Ireland would disproportionately interfere with their family-life rights.

High Court · [2004] IEHC 424

Who, what, where, when and why

Who
  • Ireland
  • Eleanor Jenkins
What

The court allowed a judicial review challenge to proceed only on whether deporting a Bulgarian couple immediately after their son’s death and burial in Ireland would disproportionately interfere with their family-life rights.

Where

Places mentioned in the report

  • Bulgaria
  • Ireland
  • Refugee Applications Commissioner
  • Refugee Appeals Tribunal
  • Limerick
  • Glasnevin
When

Judgment:

Why

Reasons reported in the judgment

The couple had arrived in Ireland in October 2002 and applied for refugee status, saying they feared persecution in Bulgaria because they were Roma. Their applications were rejected by the Refugee Applications Commissioner and, on appeal, by the Refugee Appeals Tribunal. Deportation orders were later made after the Minister considered their cases under immigration legislation. The couple asked the Minister to revoke the orders, relying principally on their family circumstances.

The High Court has granted a Bulgarian couple leave to challenge their deportation orders, but limited the case to whether immediate deportation would disproportionately interfere with their rights under Article 8 of the European Convention on Human Rights.

Mr Justice Clarke’s judgment, delivered on 14 December 2005, concerned a judicial review application brought by the couple and their minor child. The judge did not decide whether deportation would breach Article 8, nor did he quash the deportation orders or refusal to revoke them. He ruled only that the couple had an arguable case sufficient to proceed to a substantive hearing, and restricted the grounds of that challenge.

The couple had arrived in Ireland in October 2002 and applied for refugee status, saying they feared persecution in Bulgaria because they were Roma. Their applications were rejected by the Refugee Applications Commissioner and, on appeal, by the Refugee Appeals Tribunal. Deportation orders were later made after the Minister considered their cases under immigration legislation. The couple asked the Minister to revoke the orders, relying principally on their family circumstances.

Their son Donald was born in Limerick in July 2003 with multiple congenital malformations linked to a chromosome anomaly. He died in December that year and was buried at Glasnevin Cemetery. Medical social worker Eleanor Jenkins described the parents’ efforts to care for him and said access to his grave, people who had known him, and bereavement support were important to their grieving. The court recorded that the couple remained distressed and traumatised and that the prospect of return to Bulgaria had exacerbated this. A second child, the third applicant, was born in Ireland after the earlier representations.

The judgment recounts differing recommendations within the Minister’s department: one official recommended leave to remain for a year, while a senior official recommended signing the deportation orders, referring to Bulgaria’s designation as a safe country for refoulement purposes and the integrity of the asylum process. The Minister subsequently made the orders, and a request to revoke them was made in March 2005.

The judge held that, in an appropriate case, a deportation decision or refusal to revoke could be challenged on independent Convention grounds. Applying that threshold to the unusual circumstances presented, he found it arguable that a temporary right to remain might make immediate deportation disproportionate, even if the couple did not claim a right to remain indefinitely. The leave was confined to that Article 8 proportionality issue; the other grounds were excluded as unsustainable or repetitious.

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