The High Court refused a family’s application for leave to seek judicial review of a deportation order against a Nigerian father, holding that the Immigration Act 1999 required a person subject to such an order to remain outside the State indefinitely, subject to the possibility of revocation.
Mr Justice Hogan delivered judgment on 13 December 2010. The proceedings concerned a husband and wife and their four children. The judgment said two children were Irish citizens and four of the six applicants were Nigerian citizens. The mother and the Nigerian children had permission to remain under the IBC 05 Scheme. The two Irish citizen children had the right to reside in the State.
The father arrived in Ireland in August 2007 and claimed asylum. His claim was refused in January 2008, and his subsequent application for subsidiary protection was refused in July 2008. In June 2009, he made further submissions about family unity. A deportation order was made on 10 July 2009, requiring him to leave the State by a date to be specified in a notice and to remain outside it. The family challenged the order.
The applicants argued that the Minister had adopted a fixed policy of imposing a permanent bar, without considering a shorter exclusion period such as five years. The Minister’s side did not dispute that no shorter period had been considered, but argued that the legislation gave the Minister no discretion to set one.
The court agreed with the Minister’s interpretation. It distinguished the Minister’s discretion to set the time allowed for a person to arrange their affairs before leaving from the consequences of the order once it took effect. Justice Hogan read “thereafter” in section 3(1) as requiring the person to remain outside the State from the time they were required to leave. He said the exclusion was lifelong, subject to the mitigating effect of section 3(11), which allows for revocation.
The judge acknowledged that deportation would seriously affect the children’s constitutional rights to their father’s care and company. But he concluded that the statutory wording could not be given the alternative interpretation sought. Because the Minister had no power to specify a shorter exclusion period, the claim that he had unlawfully followed a fixed policy did not arise. The court refused leave to apply for judicial review; it did not grant leave or make a separate order setting a deportation date.