The High Court has granted leave for a judicial review challenge to a deportation order on three family rights grounds, while refusing leave on two other grounds. It also restrained the man’s deportation until the proceedings are determined or the court makes a further order.
Mr Justice Richard Humphreys delivered the ruling on 7 December 2016, revising an initial decision made on 14 November before the order was perfected. The proceedings were brought by a married couple and their child against the Minister for Justice and Equality. The child sued through his father, who was also the first named applicant.
The deportation order against the father was made on 15 August 2016. The judgment says the mother arrived in Ireland in 2002 while pregnant and was permitted to remain because the child, on birth, became an Irish citizen. The father had remained in Nigeria before entering Ireland through the United Kingdom in May 2015. The judge described his entry as unlawful and clandestine and his presence in Ireland as recent.
The court refused leave on grounds E(ii) and E(iii). One challenged the Minister’s reference to “insurmountable obstacles” in considering family life. The judge said this was a factor the Minister could consider, rather than an all-or-nothing test, provided the circumstances were considered as a whole. The other ground challenged the reasoning given for finding humanitarian considerations insufficient to prevent deportation. The judge said extensive reasons were not required for a broadly discretionary humanitarian decision.
On both refused grounds, the judge also noted that the father had made no submission to the Minister under section 3, which the court said left the basis for those arguments lacking. The judgment does not determine the underlying validity of the deportation order.
Leave was granted on grounds E(i), E(iv) and E(v), which the judge said related essentially to the applicants’ family rights. In deciding the interim injunction application, he weighed the grant of leave and the mother’s permission to remain, which had been based solely on her parentage of the child, against the father’s short time in Ireland and manner of entry. Applying the approach in Okunade, he restrained deportation pending determination of the proceedings or further order, with liberty to apply.