The Court of Appeal dismissed an appeal by an anonymised mother and her minor daughter against the refusal of an injunction to prevent their deportation. The court also dismissed their substantive appeal. In a separate judgment addressing the injunction issue, Ms Justice Irvine said the High Court judge was right to refuse relief on the facts, while correcting his general approach to how children’s interests should be considered in such applications.
The mother, identified as K.R.A., came to Ireland from Nigeria in 2008 while pregnant and sought asylum. Her daughter, B.M.A., was born four days later. Their asylum and subsidiary protection applications were refused, and deportation orders were made in November 2009. The mother did not report to immigration authorities as directed and remained in hiding for almost five years. In October 2014, she applied to the Minister for Justice to revoke the orders. The Minister refused in May 2015.
The applicants’ judicial review challenge concerned that refusal to revoke the orders. They did not challenge the deportation orders themselves or the refusal of subsidiary protection. The High Court refused an injunction pending appeal. By the time the Court of Appeal considered the injunction appeal, it was technically moot because the substantive appeal had already been heard.
Justice Irvine said applications to restrain deportation must be assessed under the principles in *Okunade*: the court first considers whether there is an arguable case, then where the greatest risk of injustice lies, including the public interest in implementing immigration decisions and the consequences for family life. She said children generally should not be treated as responsible for a parent’s failure to comply with a deportation order at this interim stage, particularly where they might ultimately be allowed to remain in Ireland. That approach, she said, follows the Court of Appeal’s earlier decision in *Chigaru*.
But she concluded the applicants’ circumstances did not warrant an injunction. Because the deportation orders and protection decisions had not been challenged, the orders remained valid. Even if the applicants succeeded in their appeal, they would only be entitled to have the Minister reconsider the refusal to revoke the orders, not to remain in Ireland as of right. Justice Irvine found no exceptional circumstances and said the daughter could not be shown to be a child who might be permitted to remain at the end of the process. She also cited the mother’s delay in seeking revocation and the modest prospects of the substantive appeal.
The court therefore upheld the High Court’s refusal of the injunction, while holding that the High Court judge was wrong to conclude that *Chigaru* had been incorrectly decided. Justice Irvine’s judgment addressed the injunction appeal; it did not itself determine a new application to revoke the deportation orders.