The applicant was a Nigerian national to whom the Minister had refused to grant asylum and who was the subject of a deportation order. The applicant averred that shortly before receipt of the deportation order she learned that her sister was legally resident in the State and that she had applied to the Minister for family reunification on this basis and had applied for revocation of the deportation order. There was dispute between the parties regarding whether the application for reunification was properly before the Minister at the material time. The applicant defaulted in the facilitation of her deportation was classified as an evader and was detained pending deportation. The Minister did not concede that the women in question were sisters stated that the application for reunification would be considered in due course but maintained that there was no need for the applicant to be present in the jurisdiction pending the determination of this application.
The applicant claimed that it was in breach of fair procedures for her deportation to be effected prior to the family reunification determination and sought bail. The applicant averred that there would be serious obstacles to her being able to prosecute her claim in the State if returned to Nigeria.
The Court had already granted interim relief. The High Court granted an order continuing the restraining of the deportation order until the application for leave and held that the applicant had established a serious question to be tried that if she were to be returned to Nigeria her circumstances might become such that she would be unable to continue to prosecute her application for residency.The Court held that Section 5 of the Illegal Immigrants (Trafficking) Act 2000 did not apply to a refusal to revoke a deportation order under Section 3(11) of the Immigration Act 1999. The Court noted that it was unlikely that the applicant would be a burden on the State and found that the greater risk of doing injustice lay in refusing to grant the relief sought.
The Court granted bail as while it was satisfied that there was a concluded intention to deport, it found that the minimum period likely to elapse before the application for leave could be heard was such that the applicant would not be removed in the remaining permitted weeks of detention. Bail was conditional because the applicant was an evader.