The High Court refused a family’s application for leave to bring judicial review proceedings challenging the Minister’s refusal to revoke a deportation order against one of the applicants.
In a judgment delivered on 15 December 2010, Mr Justice Ryan said the applicants had not identified an irregularity or error giving rise to an arguable case for judicial review. The ruling decided only whether they could proceed with the challenge; it did not determine a new deportation order.
The fifth applicant, a Ghanaian national, arrived in Ireland in October 2003 and had an asylum application rejected. The Minister signed a deportation order against him in November 2004. After he married the fourth applicant in January 2007, his solicitor asked the Minister to revoke the order under section 3(11) of the Immigration Act 1999, citing changed family circumstances. The Minister refused in a decision communicated by letter dated 3 July 2009.
The applicants argued that the Minister’s assessment wrongly treated the first applicant as entitled to Ghanaian citizenship through her stepfather. Justice Ryan said no evidence had been produced to show she was not entitled to it. Even accepting the alleged factual error, he concluded it was not fundamental: the Minister had also considered relocation to Nigeria, so the error did not establish an arguable ground for review.
The family also argued that affirming deportation was disproportionate and that less restrictive measures under the Aliens Act 1935 could have allowed the fifth applicant to remain under limits on residence, travel or employment. Justice Ryan rejected that argument, saying it was difficult to see how those restrictions would serve the State’s interests if he were allowed to remain. He said the Minister had to balance the family’s humanitarian circumstances against the State’s interests and the applicants had not shown an arguable case of unreasonableness.
The applicants further sought leave to argue that the Immigration Act 1999 lacked an independent review mechanism required by Article 8 of the European Convention on Human Rights. Relying on a European Court of Human Rights decision about eviction proceedings, they said judicial review could not provide the required independent assessment of proportionality. Justice Ryan distinguished that case, finding that the Minister had considered the family’s rights in writing and that the High Court’s judicial review jurisdiction was an independent and flexible remedy. He was not satisfied that an arguable Article 8 case had been made out.
The court concluded that the Minister had discharged his duty to consider the revocation application and refused leave to bring judicial review proceedings.