Chigaru and Others v Minister for Justice and Others.

adminLeave a Comment

Respondent/Defendant:Minister for Justice, Equality and Law Reform, Ireland and the Attorney General
Citation/s:[2015] IECA 167
Nature of Proceedings:Appeal
Judgment Date/s:27 Jul 2015
Judge:Kelly, Irvine and Hogan JJ.
Category:Deportation
Keywords:Child, Deportation, Deportation Order, Family Life (Right to), Minor
Country of Origin:Malawi
URL:https://www.courts.ie/acc/alfresco/078d46e5-2d49-4cf1-9ca0-09f4535fb87e/2015_IECA_167_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts:
The applicants were a father, a mother and their two children. They were all nationals of Malawi who unsuccessfully sought asylum and subsidiary protection in Ireland, following which deportation orders were made against them in 2011. They unsuccessfully sought leave from the High Court to challenge the orders and appealed its decision, following which they evaded deportation, with the Minister only becoming aware of their whereabouts in 2015 following correspondence with their solicitor. They then applied to the Court of Appeal for an injunction to enjoin their deportation.

The Court of Appeal granted the injunction sought.

Reasoning:
It considered that they had shown an arguable case by reference to the decision of the High Court in MM v. Minister for Justice (No. 3) [2013] IEHC 9 on account of the Minister’s having adopted a finding of the Refugee Appeals Tribunal on their asylum application when refusing their applications for subsidiary protection, a practice which was held to have been unlawful in MM. This was notwithstanding that it held that their notice of appeal did not refer to that matter.

Turning to the balance of convenience, it noted that the parents’ conduct had little to commend it to the court, given their evasion of their obligations under the immigration system. However, their conduct could not be considered in isolation from their children. They were eight and a half and seven years of age. They had known no country but Ireland and were blameless in respect of their parents’ conduct. The dislocation caused by their deportation would be significant. The balance of convenience favoured enjoining their deportation. Under Articles 41, 42 and 42A of the Constitution, they were entitled to the company and care of their parents, who had fully attended to their education and welfare needs. It followed, therefore, that it was necessary to enjoin their deportation too.

Decision:
The Court of Appeal granted the appellants an interlocutory injunction enjoining their deportation.

Principles:

Where a family of non Irish-nationals, comprising parents and children of tender years, who are subject to deportation orders have evaded deportation, the parents’ conduct cannot be considered in isolation from their children, who are blameless in respect of their parents’ conduct. The balance of convenience may not favour enjoining the parents’ deportation but it will favour enjoining their children’s deportation. Under Articles 41, 42 and 42A of the Constitution, the children are entitled to the company and care of their parents and, assuming the parents are properly caring for their children, it is likely that it will be necessary to enjoin their deportation too.

Go Back

Leave a Reply

Your email address will not be published. Required fields are marked *