The applicants were Nigerian nationals whose asylum claims had been refused and who had made applications for subsidiary protection in the State and also applied to the Minister for permission to remain in the State for humanitarian reasons (“leave to remain”). The minor applicant was four years of age and was born in Ireland. He was not an Irish citizen. Their applications were refused and the Minister made deportation orders in respect of them. They challenged these decisions and, in the interim, when no undertaking was given by the Minister not to deport them pending the hearing of the proceedings, they applied for an interlocutory injunction to restrain their deportation pending the trial of the action. This was refused by the High Court. They appealed the refusal to grant the injunction to the Supreme Court.
By the time the appeal came before the Supreme Court the issue had become moot but because the issue arose in a significant number of cases the Supreme Court heard the appeal on the basis of it being in the nature of a test case.
The Supreme Court considered the criteria which should be applied to the granting of injunctions generally, and the immigration field in particular, and whether the criteria to be applied were the same as in private law proceedings or whether there were some different criteria to be applied in the public law field.
The Court considered the proper test for the granting of a stay or an injunction which has the effect of preventing an otherwise valid measure or order from having effect pending trial, while the court is also attempting to determine a regime which is necessary to properly protect the interests of all parties pending the full trial. Clarke J considered that the underlying principle must be that the court should put in place a regime which minimises the overall risk of injustice and that underlying principle remains the same whether or not the court is considering whether to place a stay on a measure or to grant an injunction. The court must act in all cases so as to minimise the risk of injustice and that same underlying principle applied in any application in the context of judicial review.
The Court held that, as an overall test, a court should apply the following considerations in considering whether to grant a stay or an interlocutory injunction in judicial review proceedings:
- Whether the applicant has established an arguable case; if not, the application must be refused, if so, then:
- The court should consider where the greatest risk of injustice would lie; in doing so the court should:
- Give all appropriate weight to the orderly implementation of measure (eg deportation orders) which are prima facie valid;
- Give such weight as may be appropriate to any public interest in the orderly application of the particular scheme under which the measure under challenge was made; and
- Give appropriate weight to any additional factors arising on the facts of the individual case which would heighten the risk to the public interest of the specific measure under challenge not being implemented pending the resolution of the proceedings;
- Give all due weight to the consequence for the applicant of being required to comply with the measure under challenge in circumstances where it may be found to be unlawful.
- The court should also, in the limited cases where it is relevant, have regard to whether damages are an adequate remedy, and also whether damages could be an adequate remedy arising from an undertaking as to damages;
- The court can also, and subject to the issues arising in the judicial review not involving detailed investigation of facts or complex issues of law, place all due weight on the strength or weakness of the applicant’s case.
The Court first made general observations in relation to the application of those principles to immigration cases generally. It stated that given that the entitlement of a country to exercise a significant measure of control, within the law, of its borders was an important aspect of public interest of any state. Therefore, a significant weight needed to be attached to the implementation of decisions made in the immigration process which are prima facie valid and a high weight should be placed on the need to respect orders and decisions in the immigration process unless and until they are found to be unlawful.
However, the Court considered that it was also clear that a person who asserts an entitlement to remain in the State or to have consideration given to their being allowed to remain in the State in circumstances where they argue that the consideration previously given was not in accordance with law, will suffer some injustice if the person were to be removed from the State pending the result of the challenge to the legality of the decision to deport them, but where the court ultimately found in their favour. The possible injustice to an applicant is a factor which must also be given weight, independent of any additional consequences which may be said to flow from deportation on the facts of an individual case.
However, in the absence of any additional factors on either side, the Court considered that, if faced simply with an assertion by the Minister that he wishes to enforce a deportation order, pending a finding that it is or is not invalid, and an assertion by an applicant that they do not wish to risk deportation only to be readmitted if the proceedings are successful, then the position of the Minister would win out. Therefore, the default position was that an applicant will not be entitled to a stay or an injunction. However, it may be, the Court found, that on the facts on any individual case, there are further factors that can properly be taken into account on either side. Such factors could include for example, on the Minister’s side, a serious risk of criminality of an applicant, or on the applicant’s side the practical consequences of being deported pending conclusion of the judicial review process such as the conditions in the country to which they are to be deported. It may be that the presence of an applicant is necessary for the hearing of the judicial review proceedings and where an applicant would suffer material prejudice in the presentation of their case at trial, great weight would need to be given to that fact.
The Court also found that if an applicant could demonstrate that a deportation, even on a temporary basis, would cause more than the ordinary disruption in being removed from a country, such as a particular risk to the individual or a specific risk of irremediable damage then such facts, if they were sufficiently weighty, could readily tilt the balance in favour of the injunction or a stay. Where, as is frequently the case, an applicant has had the facts underlying their claim to face such a risk analysed by a series of administrative bodies, the High Court was in a much better position to form a judgment as to whether there is a real risk of serious harm should a deportation order be implemented. The Court considered that where, on an arguable basis, the High Court was faced with a situation where there was a credible basis for suggesting a real risk of significant harm to the applicant if they were to be deported, and it would require very weighty considerations indeed to displace the balance of justice on the facts of that case.
The Court also held that in the context of deciding what is to happen on a temporary basis pending trial a disruption of family life which has been established in Ireland for a significant period of time is a material consideration. It had, the Court considered, to be taken into account that part of the problem giving rise to the risk of disruption of family life stems from the highly complicated structure of the statutory regime in respect of applications for asylum, subsidiary protection and permission to remain in the State on other grounds, with the consequent prolongation of the process. That is a factor in the State’s control and often leads to situations where parties, especially children have put down roots. Clarke J held that all due weight needed to be attached to the undesirability of disrupting family life involving children, where after a successful judicial review or any other process, the children might be allowed to remain in or return to Ireland.
The Court emphasised that there was a distinction between the considerations appropriate where the court is deciding on whether or not to grant a stay or an injunction, or deciding on the substantive rights of the parties. At the stage of deciding on whether to grant a stay or an injunction the court has to decide on where the least risk of injustice lies, in formulating a temporary measure which will apply until the determination of the substantive legal rights. The weight to be attached to any such difficulties will necessarily depend on the facts of the case and such difficulties are not necessarily decisive, but are one factor to be taken into account. Finally, the Court held that the strength of the case can be taken into account provided that the assessment of the strength of the case does not involve analysing disputed facts or dealing with complex issues of law.
On the facts of the case before it, the Court held that the question was whether there was any sufficient countervailing factor to alter the default position that the deportation order should be implemented. The Court found that even without a serious risk of harm, deportation albeit on a possibly temporary basis is not compensable in damages, and it was necessary to consider the balance of justice. As the minor applicant was a four year old child who had resided in the State who knew no country other than Ireland, the Court considered that the disruption to family life was sufficient to tilt the balance of justice in favour of the grant of the injunction.