The applicants were a Nigerian husband and wife and their four children, two of whom were Irish citizen children. The mother had been granted residency pursuant to the “IBC/05” Scheme. The father had been refused residency under that scheme on the basis that he had not lived continuously in the State since the birth of the children. The father had been issued with a deportation order dated before the births of his Irish children. The father was deported to Nigeria in October 2004, returned to Ireland illegally and was arrested in June 2007 and detained under Section 5 of the Immigration Act 1999. This arrest led to a letter being written on the father’s behalf seeking residency on the basis of his family and domestic circumstances and parentage of Irish children.
The applicants sought leave by way of judicial review and an injunction to restrain the father’s deportation pending the judicial review hearing. The applicants contended that the Minister had failed to consider the family-based Constitutional and ECHR rights of the mother and children and submitted that the deportation order should not be executed until those rights had been considered and that the father should be entitled to remain in the State pending the consideration. The father’s various applications contained untruths.
The Court granted the applicants leave to apply for judicial review and held that there were arguable grounds for the contention that the Minister had not considered the constitutional and ECHR rights of the Irish children and that to remove the father in such circumstances may be in breach of the requirements under Section 3(1) of the European Convention on Human Rights Act 2003, given the State’s obligations under Article 8 of the Convention. The Court declined the application for an interlocutory injunction, however, and held that there was no evidence to show that irreparable loss would be suffered by any of the applicants should the father be deported, that the balance of convenience accordingly favoured not granting the injunction and that as the father’s conduct was egregious, it would require very compelling circumstances, which were absent, for the Court to allow equity to intervene in favour of granting interlocutory relief.
