The applicant sought leave to judicially review, inter alia, the decision by the Minister to refuse her application for residency based on her parentage of an Irish born child. The proceedings also dealt with an Article 40 Inquiry concerning the applicant’s detention at Mountjoy women’s prison in Dublin. The applicant was a Nigerian national who arrived in Ireland with her young child. She applied for asylum and while her application was pending she moved from the reception centre at Mosney to stay with a friend. The applicant later moved again and neglected to inform the Minister of her new address, as required under the Refugee Act 1996. The applicant then gave birth to a son and with assistance from the Refugee Legal Service, applied for residency based on her Irish born child. The applicant subsequently presented herself and her son at Waterford Garda Station to supply her new address. A garda arrested her and transferred her, with her child, to prison in Dublin. The arresting garda stated that the applicant was on record as having a deportation order issued against her and had failed to present for deportation.
In regard to the Article 40 inquiry, the High Court found that the applicant could not have been deported from the State due to a pending Court decision on the Irish born child issue. The court also found that the power of detention under the Immigration Act 1999 is exercisable only for the purpose of ensuring deportation. While the Minister claimed that it was permissible to detain the applicant in the circumstances, the court concluded that there must be a “final or concluded intention to deport” an individual before they could be detained and therefore ordered the applicant’s release.
The court quashed the Minister’s decision to refuse the application for residency, finding that the procedure by which that decision was taken could not objectively be considered to have been fair. The court based this conclusion, inter alia, on the fact that the applicant had made the application under the administrative system in force before the decision was given in Lobe and Osayande v Minister for Justice and had been deprived of a chance to make representations in light of that important new development, partly because she had been imprisoned.
