The Supreme Court allowed an appeal by Oluwaseun Comfort Okunade and her son against the refusal of an interim injunction to restrain their deportation while the High Court considered whether to grant leave for judicial review. It made no replacement order because events had overtaken the need for one.
The court’s ruling addressed the temporary position before the leave hearing. It did not decide the underlying challenges to the refusal of subsidiary protection or the deportation orders, nor did it express a view on what should happen after leave was refused.
The Okunades, Nigerian nationals, had been refused refugee status and subsidiary protection. The Minister for Justice made deportation orders in July 2011. They began judicial review proceedings in August 2011, challenging the subsidiary protection refusal and the deportation orders. The Minister undertook not to deport them until the initial return date but declined to extend that undertaking. The Okunades then sought an injunction.
The High Court refused the injunction. It considered the application on the assumption, without deciding, that a fair issue had been raised in relation to at least one challenge. It later refused leave to seek judicial review, finding no arguable grounds against the subsidiary protection decision and no arguable or substantial grounds against the deportation decision. That later ruling included a restraint on deportation pending an appeal against the refusal of leave.
The Supreme Court rejected the argument that applicants were automatically entitled to a stay while a leave application was pending. It said courts deciding whether to grant interim relief in judicial review must first consider whether there is an arguable case, then weigh the risk of injustice, including the impact of implementing a measure that may later be found unlawful and the public interest in giving effect to measures that appear valid.
On the Okunades’ circumstances, the court found no significant basis for concluding that deportation would expose them to a real risk of harm beyond the ordinary risk of an unjustified removal. But their son was four and had known no country other than Ireland. The court held that the disruption to family life was a sufficient countervailing factor and that the High Court had given it insufficient weight. The appeal was allowed, but no order was substituted because the leave application had since been decided and the question before the court had become moot.