The applicant, a national of the Democratic Republic of Congo (“DRC”), was the subject of a deportation order and she sought unsuccessfully to re-enter the asylum process by making an application pursuant to Section 17(7) of the Refugee Act 1996.
Her application was refused and she issued judicial review proceedings seeking leave to challenge the refusal, contending that the Minister for Justice had erred in refusing consent. She also sought an interlocutory injunction to enjoin her deportation pending the hearing of those proceedings.
In her injunction application, she relied on a report from the United Kingdom about treatment of returnees to the DRC, as constituting a new element that ought to be taken into account by the Minister, as it appeared to suggest that it was unsafe for failed asylum seekers to be returned to the DRC.
The High Court (Clark J.), however, disagreed, saying it was essentially similar to the information put before the Minister during her subsidiary protection and leave to remain applications, the decisions on which the applicant had never challenged. It also cast doubts on its objectivity.
Accordingly, the High Court refused the applicant an injunction, whereupon she appealed to the Supreme Court.
The Supreme Court allowed the appeal and, applying the test for the grant of a stay or injunction set out in its earlier decision in Okunade v. Minister for Justice  IESC 49, held that the applicant had made out an arguable case for the granting of an injunction. It then turned to consider where the greatest risk of injustice lay in the event of its refusing or granting the injunction. It decided that the balance of convenience favoured enjoining the applicant’s deportation pending the hearing of the leave application on the ground that there was a credible basis on the evidence presented to it for suggesting that there was a real risk of significant harm to her if she were returned.
The Supreme Court also found that the evidential conflicts raised on the documents considered by the administrative bodies and exhibited in the course of the application, including the report which was subject to criticism from Clark J., and which concerned the fundamental right to be protected from serious risk of harm, were such that it was not the function of the court to attempt to resolve them on an interlocutory application. That was a matter for the High Court at the hearing of the application for leave, and was not a matter upon which the Supreme Court felt it proper to express a view.
The Supreme Court accordingly allowed the appeal and granted an injunction.