The High Court has refused Haq Nawaz’s application for an interlocutory injunction that would have restrained the Minister for Justice from making a deportation order while his constitutional and European Convention on Human Rights challenge proceeds.
In a judgment delivered on 7 July 2011, Miss Justice Laffoy found there was a fair issue to be tried over Nawaz’s challenge to section 3 of the Immigration Act 1999. The challenge alleges that the section disproportionately interferes with constitutional rights and the right to respect for private life under Article 8 of the Convention. Those are allegations in the underlying proceedings, not findings on their merits.
The case concerns the statutory process after a person receives notice of a proposal to deport and makes representations to the Minister. Nawaz’s case is that, if the Minister rejects those representations, the person should have an opportunity to leave the State voluntarily before a deportation order is made. He seeks declaratory relief in the main action; he is not seeking a permanent injunction there.
The Minister had issued a fresh proposal notice, copied to Nawaz’s solicitors on 3 March 2011, and Nawaz made representations on 23 March. At the time of the injunction application, the Minister had not decided those representations and no deportation order had been made. The defendants submitted that the constitutional challenge did not prevent a decision on deportation and that any resulting order could be challenged by judicial review.
The court considered the established criteria for an interlocutory injunction. It accepted that there was a fair issue to be tried and considered that damages would probably not adequately compensate for the alleged permanent stigma and reputational harm of a deportation order. But it concluded that the balance of convenience did not favour restraining the Minister. A decision by the Minister could address concerns about whether the main case was premature, and any deportation order could be challenged or an application made to revoke it. The court said that the availability of such a challenge meant the status quo would not effectively be altered.
The court therefore refused the injunction. It did not decide the constitutional or Convention challenge, and no deportation order had been made at the time of the judgment.