The High Court granted a stay of deportation orders against a mother and her three children while it considers whether to give them leave to pursue a judicial review challenge. The court did not decide whether the deportation orders were valid or grant leave to bring the challenge.
Mr Justice Gerard Hogan’s judgment, delivered on 19 October 2011, concerned deportation orders made on 18 August 2011. The family began proceedings on 5 September and sought an injunction to prevent deportation. The Minister had undertaken not to deport them until 3 October, but gave no undertaking beyond that date.
The central issue was whether the ordinary test for an interlocutory injunction, known as the Campus Oil principles, applied before the leave application was decided. The judge held that under Order 84, rule 20(7)(a), a stay following leave to seek certiorari should generally be granted unless special circumstances justified otherwise. He reasoned that applicants should not be put at a disadvantage because their leave application had not yet been heard.
The judgment described the first applicant as a Nigerian national who arrived in Ireland in December 2004. Her three children were born in Ireland and were not Irish citizens. Two had significant intellectual or developmental needs: one had been diagnosed as being on the autistic spectrum, and the other had serious speech and language problems. The judgment recounted material suggesting that specialist care in Nigeria was limited, while also noting that the availability of poorer medical resources alone would not justify court intervention.
The judge considered whether the family’s challenge was obviously doomed to fail, a circumstance that could defeat a stay. He said the applicants could argue at the leave hearing that the Minister had not fairly assessed the humanitarian considerations required by section 3 of the Immigration Act 1999. At this stage, he could not say the challenge was unsustainable or that it had no realistic prospect of meeting the substantial grounds test.
The court therefore stayed the deportation orders pending the outcome of the leave application. The judgment left the leave decision and the underlying challenge to the orders unresolved.