The Court of Appeal has allowed an appeal in part by an anonymised Nigerian national challenging the process behind a deportation order, granting him leave to seek judicial review on reformulated grounds concerning his partner’s pending residence application and their family circumstances.
The judgment, delivered by Ms Justice Faherty on 22 February 2021, does not determine whether the deportation decision was unlawful. It finds that the appellant has substantial grounds to pursue a judicial review challenge, the procedural threshold at this stage.
The appellant arrived in Ireland in February 2013 after a failed asylum application. He applied for leave to remain in October 2016. His partner, a Zimbabwean national, and her daughter had applied some months earlier. The Minister refused his application and made a deportation order on 17 February 2017, notifying him on 1 March. About nine months later, his partner and her daughter were granted leave to remain.
The appellant argued that the Minister should have decided his partner’s application before, or alongside, his own. He said the decision-maker acknowledged that the three formed a family unit but considered the possibility of his partner receiving permission mainly in terms of whether it could lead to a future family reunification application. The Minister’s position was that the appellant’s family circumstances had been considered and that separate applications could be decided separately.
The High Court had refused leave on several grounds, including the arguments about treating the family collectively and deciding the applications together. It granted leave on a separate ground concerning the test applied to the family’s rights. In the Court of Appeal, the appellant did not pursue the “compelling justification” argument, and the court found no substantial grounds on that point. It also rejected an unpleaded discrimination argument raised on appeal.
Justice Faherty said the appellant had not identified legal authority requiring the applications to be decided together. But she found it arguable that fairness and good administration required the partner’s application to be decided first, given the information before the Minister and the prospect that the partner and her daughter might receive permission to remain. That outcome would not determine the appellant’s own application, but could be a material factor for the Minister to weigh.
The court also found it arguable that, having considered the possibility that the partner would receive permission, the Minister should have assessed the appellant’s case against that possibility in the context of the existing family unit. The judgment said the decision appeared to consider the possible positive outcome mainly through the lens of future family reunification, without weighing that the family might be separated if the appellant were deported while his partner and her daughter remained.
The appeal was allowed to that extent, and the Statement of Grounds must be amended to reflect the two reformulated grounds. The court proposed that the appellant receive his costs, subject to either party requesting a different costs order within 21 days of receiving the electronic judgment.