The High Court has granted leave for a limited judicial review challenge concerning the implementation of a deportation order against Q. L., but refused to require the Minister for Justice to decide a request to revoke the order immediately and declined to suspend deportation while the case proceeds.
In a judgment delivered on 15 June 2010, Mr Justice Cooke said the application to revoke the order was only completed on 24 May, when the applicants added a claim that they faced persecution in China because of their involvement in Falun Gong. Proceedings began on 2 June, nine days later.
The judge found no arguable case that the Minister had refused to decide the revocation application, either expressly or through unreasonable delay. He said the Minister could reasonably need months to make inquiries, including about Q. L.’s whereabouts and activities during the years he had been missing from the authorities’ knowledge.
The court did grant leave for a declaration concerning whether deportation could proceed in light of alleged changes in circumstances since the order was made. Those changes included the applicants’ marriage in 2009 and the birth of their daughter later that year, as well as the newly raised Falun Gong claim. The court stressed that the validity of the 2006 deportation order was not being challenged and could not be challenged in these proceedings at this stage. It said, in principle, courts may in exceptional cases delay implementation of a valid order while a serious legal issue arising from changed circumstances is resolved.
The judge said the threshold for leave on the proposed declaratory claim had been met, despite his scepticism about the plausibility of the persecution threat at that stage. Leave was confined to the grounds identified in the judgment, including an alleged breach of the European Convention on Human Rights Act 2003 and alleged disproportionate interference with Q. L.’s constitutional and Convention rights.
However, the court refused an interlocutory injunction preventing deportation pending the substantive judicial review. It found the balance of convenience strongly favoured the Minister and said it was not satisfied Q. L. had come to court in good faith with clean hands and full disclosure. The judge also noted that the daughter was in China with her grandparents, while the second applicant’s permission to remain in Ireland was due to expire at the end of 2010.
The refusal of an injunction did not mean Q. L. would or must be deported, the court said. The decision on whether to revoke the order remained with the Minister. The final order granted leave on the limited declaratory claim, refused leave for mandamus, and refused interim injunctive relief.