PJ & Ors v Minister for Justice, Equality and Law Reform

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Respondent/Defendant:Minister for Justice, Equality and Law Reform
Court/s:High Court
Citation/s:19 October 2011, 2011 IEHC 433, Unreported
Nature of Proceedings:Judicial Review
Judgment Date/s:19 Oct 2011
Judge:Hogan J.
Category:Deportation
Keywords:Child, Deportation, Deportation Order, Family Life (Right to), Protection (Humanitarian), Removal, Removal Order, Third-Country national found to be illegally present
URL:http://www.courts.ie/judgments.nsf/6681dee4565ecf2c80256e7e0052005b/c639b2992f99484c8025798800520265
Geographic Focus:Ireland

The applicants had sought leave to challenge their deportation orders, and the respondent refused to undertake not to deport them beyond a certain date. The applicants sought an interlocutory injunction restraining their deportation. The issues before the Court were

  1. whether the applicants were entitled to an interlocutory injunction pending the determination of the leave application, and, if so,
  2. whether the standard Campus Oil principles apply to a case of this nature.

The applicants were a Nigerian national and her three Irish born, but non Irish national, children. Two of the children have serious intellectual difficulties, one is autistic, and one has serious speech and language problems. The decision on which the deportation order was based stated, inter alia, that according to country information, treatment for the child with autism was available in Nigeria. The Court noted, obiter, that these comments could give a false picture of the treatment available in Nigeria, and that the Court thought it would be more accurate to state that while a tiny minority of the children requiring such treatment can access such treatment in Nigeria, so far as the majority of children is concerned, such treatment is in practice unavailable.

The  respondent’s decision also stated that having considered the humanitarian information on file there was nothing to suggest that the child with autism should not be returned to Nigeria. The Court commented, obiter, that this might be thought to be a surprising statement in light of the information on file.

The first question was whether the phrase ‘stay of proceedings’ in Order 85, rule 20(7)(a) includes an administrative decision such as a deportation order. The Court held that the phrase ‘stay of proceedings’ should be interpreted by reference to its basic underlying purpose, namely, to ensure that the High Court can make an order with suspensive effect in respect of both administrative, including deportation, as well as judicial decisions (Rashworth Hospital Authority [2003] 1 WLR 127Minister of Foreign Affairs, Trade and Industry v Vehicle and Supplies Ltd. [1991] 1 WLR 550, and R v Secretary of State for Education and Science, ex p Avon CC [1991] 1 QB 558, Bank of Ireland v Purcell [1989] IR 327 considered). The Court stated that given that Order 84, rule 20(7(a) is essentially a remedial provision designed to protect the rights of litigants, it is appropriate that it should be interpreted as widely and liberally as can fairly be done. The Court stated that other interpretations would have implications for, inter alia, the right of access to the courts (Efe v Minister for Justice, Equality and Law Reform [2011] IEHC 214 noted).

The second question was whether the grant of a stay under r. 20(7(a) should be governed by Campus Oil principles (see Campus Oil Ltd. v Minister for Energy (No. 2) [1983] IR 86). The Court stated that while Order 84, rule 20(7(a), when read in isolation, appeared to provide that the grant of a stay is dependent on the court actually exercising its discretion in that behalf, the provision must be read in conjunction with rule (20(7)(b), that it is clear that the latter subrule empowered the Court to grant interim or interlocutory injunctions by applying the standard Campus Oil principles in cases to which that subrule applied. In such circumstances, the Court held that it must strive to ascribe a separate and distinct meaning to rule 20(7)(a) as distinct from rule 20(7)(b) as any other conclusion would do violence to the structure of subrule 7, and infringe the presumption against surplusage (e.g., The State (Goertz) v Minister for Justice [1948] IR 59).

The Court held that an applicant is entitled to a stay pending the outcome of a leave application, absent special circumstances. The Court opined that one of those special circumstances might be where the proceedings are doomed to fail or where there was no reasonable prospect that leave would be granted.

In respect of whether the applicants’ case was unsustainable, the Court stated that while the mere fact that the medical resources in an applicant’s country of origin being significantly worse than those available in Ireland will not in itself justify intervention, absent special circumstances, (see Agbonlahor v Minister for Justice, Equality and Law Reform [2007] 4 IR 268; MEO v Minister for Justice, Equality and Law Reform, High Court, 20 September 2011; and JMT v Minister for Justice, Equality and Law Reform, High Court, 7 October 2011), s. 3 of the Immigration Act 1999 presupposes that all relevant considerations, including humanitarian considerations, will be fairly examined prior to the making of a deportation order. In these circumstances, the Court could not say that the case was unsustainable in law, and it granted a stay pending the outcome of the application for leave.

Principles:

The phrase ‘stay of proceedings’ in Order 84 rule 20(7)(a) of the (N.B., pre 2012) Rules of the Superior Courts should be interpreted by reference to its basic underlying purpose, namely, to ensure that the High Court can make an order with suspensive effect in respect of both administrative, including deportation, as well as judicial decisions. The grant of a stay under r. 20(7(a) of the (N.B., pre 2012) Rules of the Superior Court is not governed by Campus Oil principles. Rather, an applicant is entitled to a stay pending the outcome of a leave application, absent special circumstances.

Special circumstances may include where the proceedings are doomed to fail or where there was no reasonable prospect that leave would be granted. While the mere fact that of medical resources in an applicant’s country of origin being significantly worse than those available in Ireland will not in itself justify judicial intervention, s. 3 of the Immigration Act 1999 presupposes that all relevant considerations, including humanitarian considerations, will be fairly examined prior to the making of a deportation order.

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