The High Court has granted a mother and her Irish-citizen son leave to seek judicial review of a decision refusing to revoke her deportation order. The ruling is an initial decision on whether their case is arguable; it does not determine the lawfulness of the refusal or the deportation order.
The judgment concerns a Brazilian citizen identified as M. S. O. F. and her son, identified as J. C. P. C. The Minister for Justice made the deportation order in September 2008. The mother later asked the Minister to revoke it, and a second request was refused on 19 May 2009. That refusal, which affirmed the order, was the focus of the leave application.
The judge refused to extend the deadline for challenging the original deportation order. The application was brought well after the statutory 14-day period, and the applicants had not provided a good and sufficient reason for an extension. The judge also said the pleadings and submissions disclosed no ground that the order had been unlawfully made or that the process leading to it was legally flawed. The order therefore had to be treated as valid for this application.
The court allowed the applicants to add a ground concerning an effective remedy to their challenge to the later refusal, but rejected a proposed additional claim that the statutory requirement for an indefinite deportation order was disproportionate. It then granted leave on four grounds: that the Minister may not have properly weighed the possibility that deporting the mother would effectively require her young, dependent Irish-citizen son to leave; may not have considered less restrictive ways to manage the mother’s presence; may not have properly considered the argument that her deportation would deprive the child’s right of residence of useful effect; and may not have adequately examined the practical consequences for the child of living in Brazil and the feasibility of his residing in Ireland if his mother chose that course.
The applicants had argued that the refusal failed to address the child’s rights and welfare, including the effect of relocation to Brazil. The Minister accepted that living conditions there were less favourable than in Ireland, while submitting there was no obligation to compare the countries’ social and political systems. The judge said the country-conditions issue was arguable. The court rejected the other grounds advanced, including arguments under Articles 8 and 13 of the European Convention on Human Rights.
The judgment records that an interim injunction restraining deportation had been granted in May 2009 because the baby had not been vaccinated against serious diseases and could not receive treatment for some time; it had continued at the time of the judgment. The court’s ruling granted leave on specified grounds only. It made no final finding on those grounds.