The Supreme Court’s Mr Justice Fennelly rejected the view that a deportation order is automatically stayed during the 14-day period for seeking judicial review, or while an application for leave is awaiting decision.
In a judgment delivered on 2 March 2006, he said the legislation provided no express stay at those stages. He said he was unpersuaded that one could be implied from the Illegal Immigrants (Trafficking) Act 2000 or the Rules of the Superior Courts.
Mr Justice Fennelly was addressing a point in Mr Justice Geoghegan’s judgment in proceedings brought under Article 40.4 of the Constitution and the Habeas Corpus Act 1782. The applicants were Bosun Adebayo; Peter Chinedu Igwe; Folashade Jacob, Oyeshola Jacob and Ronke Jacob; and Jide Johnson Ondukan. The Commissioner of An Garda Síochána and the Minister for Justice, Equality and Law Reform were appellants and notice parties, respectively.
Mr Justice Geoghegan had taken the view that deportation could not be implemented during the 14-day period and, if an application for leave was made within that period, could not proceed until the court decided the leave application, unless the court then ordered otherwise.
Mr Justice Fennelly said Order 84, Rule 20(7) provided for a stay where leave to seek judicial review was granted and the court directed one. In his view, that provision could not be extended by implication to the period before leave was granted. He also rejected an implied stay during the 14 days when no leave application had yet been made.
He said he agreed with Mr Justice Geoghegan on the rest of the judgment and the proposed orders, including his observations about the possibility of similar orders in other cases. The judgment describes the automatic-stay question as secondary to the principal points decided and says it probably did not strictly arise. It does not set out the proposed orders or the court’s disposition of the principal issues.