The High Court has refused an application to stay the deportation of a child pending an intended application for leave to appeal to the Supreme Court. The ruling, delivered by Mr Justice Richard Humphreys on 26 June 2017, concerned a challenge to a refusal to revoke an existing deportation order; it did not decide the underlying judicial review on its merits.
The child, identified in the judgment as D.E., was born in Ireland in 2009 after his mother arrived while pregnant. A deportation order was made against him in 2011. An earlier challenge to that order was dismissed at the leave stage. A later challenge to a refusal to revoke it was struck out as moot after a further revocation application was made.
The present proceedings followed a second refusal of a revocation application, issued in July 2016. The High Court refused leave to seek judicial review in November 2016 and refused leave to appeal that decision to the Court of Appeal in May 2017. Interim protection against deportation had been extended to 29 May 2017. The applicant then sought a further injunction or stay while intending to seek Supreme Court leave.
Justice Humphreys held that a court should not ordinarily restrain an unchallengeable deportation order through proceedings about a refusal to revoke it. He said any limited jurisdiction to do so would be reserved for exceptional circumstances involving a fundamental change that could not have been contemplated when the order was made. He found that threshold was not met: the child’s medical condition was known from the outset, and updated reports did not make it a new circumstance. On that basis, he dismissed the application in limine.
The judge also considered the stay application under the criteria in Okunade v Minister for Justice. He found no arguable ground for the proposed appeal, including on points that had not been raised in the earlier leave proceedings. He said the child’s birth in Ireland did not give him an additional legal entitlement to remain, and that the asserted risk of reduced medical care in Nigeria did not justify a stay in the circumstances presented.
The court’s order was limited to refusing a stay on deportation. It did not grant Supreme Court leave or determine any future appeal. The judgment noted that if the deportation order were later revoked while the child was outside Ireland, he would be free to apply to return.