The Court of Appeal struck out an appeal concerning a deportation order, holding that it had no jurisdiction to hear it because the applicants had not obtained the certificate required for an appeal under the statutory procedure.
The appeal was brought by BSS, an infant acting through his father and next friend AS, and AS, against the Minister for Justice and Equality, Ireland and the Attorney General. The judgment, delivered by Mr Justice Gerard Hogan on 31 July 2017, concerned the jurisdictional question of whether the proceedings were governed by section 5 of the Illegal Immigrants (Trafficking) Act 2000.
AS, an Indian national, arrived in Ireland in March 2016 and claimed asylum. After he did not attend an interview, his application was treated as withdrawn. A deportation order was made on 24 October 2016 and notified to him on 29 November. He did not leave by the specified date of 30 December 2016.
After AS was arrested at his Dublin home in April 2017, he raised his relationship with a Polish national, Ms J.M., and the birth of their son, BSS, on 30 September 2016. The judgment said DNA tests confirmed AS was the child’s father. His solicitors argued that deporting him could deprive the child of the right to live in the European Union. AS also sought to prevent enforcement of the deportation order while the Minister considered his application to revoke it under section 3(11) of the Immigration Act 1999.
The High Court had held that the proceedings were a collateral attack on the deportation order’s validity. It found the application was outside the 28-day limit under section 5 and refused to extend time. No application was made to the High Court for a certificate permitting an appeal.
The Court of Appeal held that seeking to restrain enforcement of the order, even for a limited period, was in substance a challenge to its validity and therefore fell within section 5(1)(c). As the High Court had not granted the certificate required by section 5(6), the Court of Appeal lacked jurisdiction. It struck out the appeal for want of jurisdiction; it did not determine the merits of the family-related argument or the application to revoke the order.