The Applicant sought a stay on the implementation of his deportation order. The Court had vacated an earlier interim injunction that the Court had granted after it transpired that the Applicant had failed to disclose a material fact, (i.e., that he had already applied, unsuccessfully, to the High Court for injunction).
The Applicant presented himself to immigration officials as Mr X, with a Nigerian passport and Austrian identity card, which were later revealed as being stolen, and the Applicant was subsequently charged with handling stolen property, an offence to which he pleaded guilty, and in respect of which he received a six months sentence. The Applicant also sought asylum in the State on the basis of a fear of persecution in his country of origin, Nigeria, under his true name, which claim was refused by the Refugee Applications Commissioner, and, on appeal, by the Refugee Appeals Tribunal, who did not find the Applicant’s account to be credible. The Applicant also applied for, and was refused, subsidiary protection, and was issued with a deportation order. The Applicant sought to revoke the deportation order, and this was refused too. This latter claim was based, inter alia, on his parentage of two Irish citizen children.
One of the children now resided in the UK, from which country the Applicant was excluded, and the Court found that child could be excluded so far as the injunction application was concerned. The mother of the second child claimed that she was deceived by the Applicant, who, she said, led her to believe he was working for a UK property firm, and did not disclose his criminal record or true immigration status. She claimed that the Applicant’s request for access in respect of the child was a ploy on his part for immigration purposes. The Applicant’s application for access and guardianship was outstanding. The Court assumed that if the Applicant was deported, his child would have no contact with him, and may well never meet him.
The application was pursuant to the then new provisions under Order 84, rule 20(8) of the Rules of the Superior Courts. The Court stated that it is clear from the terms of O. 84, r(20)(8)(a) that the new rules apply standard Campus Oil principles (Campus Oil Ltd. v Minister for Industry and Commerce No. 2 [1983] IR 88 cited. PI v Minister for Justice and Law Reform, High Court 11 January 2012 noted). The Court stated that is was therefore necessary for the Applicant to first establish that he has an arguable case so that there is a fair question to be tried. The Court considered, inter alia, whether the Applicant raised a fair question re
(1) a Zambrano type argument;
(2) an effective remedy argument; and
(3) re access to the Courts, guardianship and rights of the child.
Re (1), the Court found that in contrast to the facts in Zambrano, the situation in the Applicant’s case was entirely internal to the State, and there was no prospect that the Child would be obliged to leave the territory of the EU, even if the Applicant was to be deported to Nigeria, and the Court held that the Applicant could not raise a fair question so far as Zambrano was concerned (Case C -34/08 Zambrano [2011] ECR I-000, and Case C-256/11 Dereci [2011 ECR I-000 considered)
Re (2), the Court held that a claim that the Applicant had been denied an effective remedy to challenge the refusal of subsidiary protection was unsustainable (Efe v Minister for Justice, Equality and Law Reform [2011] IEHC 214, [2011] 2 ILRM 411 followed).
Re (3), the Court opined that while the case would be doomed to fail in limine if looked at from the perspective of the Applicant, the Court could not look at the matter from the point of view of the Applicant, but had to look at it from the perspective of the child (Oboh v Minister for Justice, Equality and Law Reform [2011] IEHC 102 noted). The Court held that Article 41.2 of the Constitution of Ireland implied that all children, irrespective of the marital status of their parents, have the same equal rights to that which the Constitution postulates as representing the fundamental rights of children in a family setting, (Nottinghamshire CC v B [2011] IESC 48; North Western Health Board v HW [2001] 3 IR 622; In re Baby AB: Children’s University Hospital Temple Street v DC [2011] 2 ILRM 262; Baby AB ([2011] 2 ILRM 262; The State (Nicolaou) v An Bord Uchtála [1966] IR 567; Re M an Infant [1946 IR 334; G v An Bord Uchtála [1980] IR 32, all considered) any other conclusion being contrary to equality under Article 40.1 of the Constitution (An Blascaod Mor Teo v Commissioners of Public Works (No. 2) [2000] 1 IR 6 noted).
The Court held that the constitutional premise meant that non marital children must be deemed to have an unenumerated personal right by virtue of Article 40.3.1 to have the same rights as children whose parents are married, and that one of those rights is the presumptive right of the child to the care and company of his parents. Conscious that the child would probably have no contact with her father if he was deported, and that the Applicant would find it difficult to advance his case re guardianship if he was not present before the District Court, the Court stayed the enforcement of the Applicant’s deportation order pending the outcome of the District Court application for access and guardianship.
