The High Court refused a father’s request for a declaration that he could not be deported until his Irish citizen son reached adulthood. The court said the Minister had not yet considered the circumstances now being relied on, and that deciding whether the father could remain in Ireland was for the Minister.
The judicial review proceedings concerned a deportation order made in 2009 against the father, a Nigerian national whose asylum claim had been refused. He was deported in 2010 and later re-entered Ireland unlawfully. The order remained in force and the father had not challenged the Minister’s refusal to revoke it in these proceedings.
The father initially sought to stop deportation while he pursued access to his son through the District Court. In June 2012, that court made an access order by consent. The High Court later granted an interlocutory injunction and leave to seek a declaration based on the child’s constitutional and European Convention rights to the care and company of his father.
During the High Court case, the father applied in February 2013 under section 3(11) of the Immigration Act 1999 to have the deportation order revoked. He submitted information about his court-ordered access, family in Ireland and a possible job. The Minister was still considering queries about his account when the judicial review hearing concluded in June 2013. No decision on that application was before the High Court.
The court refused the declaration, finding that the facts had not been established with sufficient certainty and that granting the requested relief would intrude on the Minister’s role in immigration decisions. It said a declaration in the terms sought could effectively prevent the Minister from deciding whether the father should be allowed to stay, even though the deportation order itself had not been challenged.
The court also rejected the applicants’ arguments that recent case law had displaced the principles in earlier decisions on deportation of parents of Irish citizen children. It said the child’s rights were important but not absolute, and that the Minister must assess the relevant circumstances; a court could review that decision if challenged on legal grounds.
The application therefore failed, and the respondents were awarded their costs. The court’s refusal of the declaration did not decide the pending revocation application. It noted that an undertaking not to deport the father while that application was determined would have preserved the child’s interests.