The Supreme Court has dismissed an appeal by an anonymised child against the refusal of leave to seek judicial review of a decision not to revoke a deportation order. The Court stressed that it was deciding only whether there were substantial grounds to allow the judicial review challenge to proceed, not finally determining the child’s entitlement to remain in Ireland.
The child, identified as D.E. in the judgment, was born in Ireland in 2009 to Nigerian parents and has sickle cell disease. The Minister for Justice refused on 28 July 2016 to revoke a deportation order made against D.E. in 2011. The High Court refused leave to challenge that decision. D.E. then appealed directly to the Supreme Court.
D.E. argued that an unpublished practice or “de facto policy” could grant residency to people who had been in Ireland for at least five years, subject to conditions. The Supreme Court said it was arguable that decision makers may have to make available criteria or guidance they have actually adopted. But it found no substantial grounds to argue that D.E. and his advisers were unaware of the alleged practice: their submissions to the Minister had referred to recommendations in a report by the Working Group on the Protection Process, including an exception relevant to the case.
The appeal also concerned the medical evidence about the treatment D.E. might receive in Nigeria. The Court considered the European Court of Human Rights’ 2016 judgment in Paposhvili, which clarified the threshold for an Article 3 claim involving removal of a seriously ill person. The evidence before the Minister predated that judgment and, the Supreme Court said, was not directed to whether D.E. faced a real risk of a serious, rapid and irreversible decline in health, intense suffering or a significant reduction in life expectancy. The Court therefore found no substantial grounds for judicial review of the Minister’s decision on that evidence.
The Court did not decide that D.E. could not establish a legal right to avoid deportation. It said a fresh application could present medical evidence focused on the Paposhvili criteria. It also noted that the Minister retained discretion to grant leave on humanitarian grounds, but said that decision belonged to the Minister, not the courts. The Supreme Court dismissed the appeal and upheld the High Court’s refusal of leave.