The High Court has deferred implementation of an order to transfer an Irish child’s father to the United Kingdom, pending consideration of the child’s application for him to remain in Ireland.
In a judicial review judgment delivered on 17 October 2007, Mr Justice Paul Butler granted relief after the parties agreed the application could be treated as the substantial hearing if successful or partly successful. The court granted leave to seek a declaration that implementation of the transfer order be deferred and then granted that relief.
The applicant, identified as D.U., was born in Ireland in 2001 and lived with her mother, a Nigerian citizen who had permission to remain in the State. Her father, identified as C.I. and acting as her next friend, applied for asylum in Ireland in March 2007. The judgment said he lied in that application and had previously made an unsuccessful asylum application in the United Kingdom.
Through solicitors, the child applied by letter dated 24 July 2007 for her father to be allowed to remain and work in Ireland. There was evidence the letter had been sent by fax, but the Minister had no record of receiving it and did not know its contents until the proceedings.
Before then, the Minister had issued a transfer order to the United Kingdom under Council Regulation 243/2003. The judge said the order was valid when made and that the Minister had acted properly and within his powers. He also said the father had no merits in his favour, noting he had lived with the child for only seven months of her life and expressing suspicion that he was using her to try to remain in Ireland.
The Minister agreed the child was entitled to have her application properly considered. The remaining issue was whether her father could stay pending that consideration. The judge found it substantially arguable that transferring him first could deprive the child of family law rights if he were later found entitled to return. Balancing the Minister’s rights against those of the child, whom he described as entirely innocent, the judge considered interim relief merited.
The order defers implementation of the transfer pending consideration of the application in the 24 July letter. The judgment does not determine that the father is entitled to remain in Ireland.