TA & ors v Minister for Justice

EMNireland

Respondent/Defendant:Minister for Justice
Court/s:High Court
Citation/s:[2024] IEHC 694
Nature of Proceedings:Judicial review
Judgment Date/s:04 Dec 2024
Judge:O’Regan, M.
Category:Visa
Keywords:Child, Citizenship, Citizenship (Acquisition of), Family Life (Right to), Family Reunification, Family Unity (Right to), marriage
Country of Origin:Afghanistan
URL:https://www.courts.ie/acc/alfresco/fc3cb44a-854a-4eca-9224-4fb186f1cda1/2024_IEHC_694.pdf/pdf#view=fitH

Facts: The husband is an Afghan national, who fled to Ireland in 2006 and naturalised as an Irish citizen in 2021. His wife, who he married in 1998, and four children were resident in Iran and then applied for international protection in Turkey in 2021. The wife and four children applied for long stay visas to come to Ireland in … Read More

Principles:When deciding on visa applications in the context of family reunification for a married couple, due regard should be had to the rights of the applicants under Article 41 of the Constitution, the ability of the couple to cohabit and due respect should be given to the institution of marriage.
Go Back

Odum & ors v Minister for Justice and Equality (No. 2)

EMNireland

Respondent/Defendant:The Minister for Justice and Equality
Court/s:Supreme Court
Nature of Proceedings:Appeal
Judgment Date/s:14 Nov 2023
Judge:O’Donnell, D.; Charleton P.; Baker M.; Woulfe S.; Hogan G.; Murray B.; Collins M.
Category:Deportation
Keywords:Child, Deportation, Deportation Order, European Convention on Human Rights (ECHR), Family Life (Right to), Family Member, Illegal Stay, Regularisation
Country of Origin:Nigeria
URL:www.courts.ie/view/judgments/6865a1e3-8b82-44cf-83f7-5e2b97e6b881/6b637c5d-275f-4e21-9aff-0dac512ebd94/2023_IESC_26.pdf/pdf

Facts: Mr. Odum, a Nigerian national, arrived to Ireland irregularly in November 2007. He married EA, also a Nigerian national in December 2007, however, the marriage was not registered and therefore was not considered lawful. They went on to have three children. The couple separated in 2014. In that same year, Mr. Odum applied for residency, but this application refused … Read More

Principles:There are a number of circumstances in which a non-citizen who can establish a sufficient connection to the State is the same as a citizen, and where, therefore, the Article 40.1 guarantee of equality as human persons before the law, entitles them to rely on the same rights as a citizen would have. Non-citizen children, may in this regard, be entitled to the rights of the care and company of their parent. However, where the parent is in a precarious situation in the State, exceptional circumstances would be necessary to invalidate a deportation order.
Go Back

I.A.H. v Minister for Justice, Ireland and the Attorney General

EMNireland


I.A.H. v Minister for Justice, Ireland and the Attorney General
Respondent/Defendant:Minister for Justice, Ireland and the Attorney General
Court/s:High Court
Citation/s:[2023] IEHC 117
Nature of Proceedings:Judicial Review
Judgment Date/s:08 Mar 2023
Judge: Phelan S.
Category:Visa
Keywords:Country of Origin, European Convention on Human Rights (ECHR), Family Life (Right to), Family Reunification, Family Unity (Right to), Protection (Subsidiary), Visa
Country of Origin:Iraq
URL:https://courts.ie/acc/alfresco/944524e5-c5e2-4cb2-a71c-4408eff09ab5/2023_IEHC_117.pdf/pdf#view=fitH

Facts: The applicant is an Iraqi national who arrived in Ireland in 2011. She was granted subsidiary protection status in 2015 and in 2018 married an Iraqi national by proxy. She applied for a visa for him to join her in Ireland in 2019 under the Policy Document on Non-EEA Family Reunification. The Minister refused this application and the appeal … Read More

Principles:In considering an application for family reunification under the Policy Document on Non-EEA Family Reunification for a beneficiary of subsidiary protection, proper consideration must be given the impact on the applicant’s protection status and family life and ability to live together elsewhere.
Go Back

Middelkamp v Minister for Justice and Equality

EMNireland


Middelkamp v Minister for Justice and Equality
Respondent/Defendant:Jaimee Middelkamp
Court/s:Supreme Court
Citation/s:[2023] IESC 2
Nature of Proceedings:Judicial Review
Judgment Date/s:01 Feb 2023
Judge:Hogan, G. 
Category:Immigration, Residence
Keywords:European Convention on Human Rights (ECHR), Family Life (Right to), Family Unity (Right to)
URL:www.courts.ie/acc/alfresco/c0c9c765-7099-4d6d-aefa-7b84d49ba5c1/2023_IESC_%202_%20Hogan%20J).pdf/pdf#view=fitH

Facts: The respondent is a Canadian citizen and her husband is also a Canadian national. In 2018, the respondent’s husband commenced a four-year dentistry course in University College Cork and obtained a student visa. The respondent entered the State under the Working Holiday Authorisation Scheme, with a non-renewable permission valid until 2020. At the end of 2019, she applied to … Read More

Principles:The Minister’s decision engaged the respondents’ right to respect for family life under Article 8(1) ECHR, but interference with this right was justified as being necessary in a democratic society for the purposes of Article 8(2).
Go Back

T.P. v Minister for Justice and Equality

admin


T.P. v Minister for Justice and Equality
Respondent/Defendant:Minister for Justice and Equality
Court/s:Court of Appeal
Citation/s:[2021] IECA 50
Nature of Proceedings:Judicial review/appeal
Judgment Date/s:22 Feb 2021
Judge:Faherty J.
Category:International protection, Residence
Keywords:Deportation, European Convention on Human Rights (ECHR), Family Life (Right to), Family Member, Family Unity (Right to), Final Decision, Leave to Remain
Country of Origin:Nigeria
URL:www.courts.ie/view/judgments/c7b41c59-f483-4f5b-a629-77963774b876/0a282be6-4bdd-4b8a-a990-e0dac15eae1a/2021_IECA_50%20(Unapproved).pdf/pdf

Facts: The appellant, a Nigerian national, arrived in Ireland in February 2013. He applied for international protection, but this application was unsuccessful. In October 2016, the appellant applied for leave to remain pursuant to section 3 of the Immigration Act 1999, as amended. He had been in a relationship with his partner, a Zimbabwean national, since 2013. His partner’s application … Read More

Principles:The threshold for substantial grounds for judicial review of a refusal of an application for leave to remain was met where the Minister was presented with a person’s de facto family situation and the prospect that their de facto family members were likely to be granted leave to remain were not considered in the requisite weighing exercise undertaken when deciding to issue a deportation order.
Go Back

Gorry v Minister for Justice

adminLeave a Comment


Gorry v Minister for Justice
Respondent/Defendant:Minister for Justice
Court/s:Supreme Court
Citation/s:[2020] IESC 55
Nature of Proceedings:Judicial review/appeal
Judgment Date/s:23 Sep 2020
Judge:O’Donnell D
Category:Deportation
Keywords:Expulsion, Expulsion Decision, Family (Nuclear), Family Life (Right to), Immigration, Migration (Family)
Country of Origin:Nigeria
URL:https://www.courts.ie/acc/alfresco/ab9b764b-8af3-42dd-b6e4-49d07a43876b/2020_IESC_55_1%20(Unapproved).pdf/pdf#view=fitH

Facts: The first named applicant was a Nigerian woman who was refused asylum in Ireland and in respect of whom a deportation order was made in June 2005. She lived in Ireland without permission for four years. In 2006, she met the second named applicant who was an Irish citizen. After a number of years they decided to marry. The … Read More

Principles:There is no prima facie constitutionally protected right to cohabit in the State for marital couples, one of whom is a non-Irish national. However, the test under Article 8 of the ECHR should not be applied in the consideration of issues arising under the Constitution, because while the Constitution and the ECHR together provide extensive overlapping protection for families and marriage, it is necessary to recognise the different contexts.
Go Back

FB v Minister for Justice and Equality (No. 2)

emnadmin

Respondent/Defendant:Minister for Justice and Equality
Court/s:High Court
Citation/s:[2018] IEHC 716
Nature of Proceedings:Judicial Review
Judgment Date/s:13 Dec 2018
Judge:Keane D.
Category:Refugee Law
Keywords:Child, Family Life (Right to), Family Reunification, Family Unity (Right to), Refugee
Country of Origin:Nigeria
URL:https://www.courts.ie/acc/alfresco/6791ea72-531a-453a-810b-88cbad9da038/2018_IEHC_716_1.pdf/pdf#view=fitH

Facts: The applicant was a 75 year old Nigerian national who arrived in the State in 2005 and claimed asylum. She was recognised as a refugee in 2008 and in 2012 became a naturalised citizen. The applicant applied for family reunification with her granddaughters who were dependant upon her. The application was refused by the Minister and the applicant brought … Read More

Principles:It was incumbent on the Minister to consider the concrete reality of the relationship between the persons concerned and the extent to which it was one of “de facto family ties” protected by the right to family life under Article 8 of the Convention, and to set out the Minister’s reasoning on that issue expressly in the decision.
Go Back

Gorry, Ford and ABM v Minister for Justice

emnadmin

Respondent/Defendant:Minister for Justice and Equality
Court/s:Court of Appeal
Citation/s:[2017] IECA 280, 281 and 282
Nature of Proceedings:Judicial Review / Appeal
Judgment Date/s:27 Oct 2017
Judge:Finlay Geoghegan M.
Category:Residence
Keywords:Deportation Order, Family Life (Right to), Family Unity (Right to), Immigration, Non-EU National, Residence, Third-Country National, Union Citizen
Country of Origin:Nigeria/Ireland
URL:https://www.courts.ie/acc/alfresco/8c53548e-e3f1-46bd-9973-8b3f13d31f52/2017_IECA_280_1.pdf/pdf#view=fitH
Geographic Focus:Other

Facts: In each of these cases, one of the applicants was an Irish citizen and was married to the other applicant who is a foreign national. The marriages in question either took place in Ireland or Nigeria, and all three were recognised by the Minister as lawful marriages. Each application for judicial review sought an order of certiorari of an … Read More

Principles:

The Minister did not consider the constitutional rights of the applicants in accordance with law, in particular

  1. the guarantee given by the State in Art.41.1.2° to protect the family in its constitution and authority;
  2. a recognition that the applicants in each case were a family, a fundamental unit group of society possessing inalienable and imprescriptible rights which rights included a right to cohabit which was also an individual right of the citizen spouse which the State must, as far as practicable, defend and vindicate (Art.41.1 and Art.40.3.1°);
  3. a recognition that the decision that the family should live in Ireland was a decision which they had the right to take and which the State had guaranteed in Art.41.1 to protect; and
  4. a recognition of the right of the Irish citizen to live at all times in Ireland as part of what Art.2 refers to as the “birth right . . . to be part of the Irish Nation” and the absence of any right of the State (absent international obligations which do not apply) to limit that right.

Go Back

WS v Minister for Justice and Equality

Respondent/Defendant:Minister for Justice and Equality
Court/s:High Court
Citation/s:[2017] IEHC 128
Nature of Proceedings:Judicial Review
Judgment Date/s:23 Feb 2017
Judge:O'Regan M.
Category:Residence
Keywords:Deportation Order, European Convention on Human Rights (ECHR), Family Life (Right to), Immigration, Non-national, Residence, Student, Visa
Country of Origin:Malaysia
URL:http://courts.ie/Judgments.nsf/0/36BBA683D8E20E90802580F0005A4B79
Geographic Focus:Ireland

Facts:  The applicant was a Malaysian citizen who arrived initially in Ireland in 2007 with his wife. They had secured a visitors’ permission to remain for 90 days, however they outstayed this period by approximately 2 years when they returned to Malaysia in 2009. In July 2009 the applicant secured a 1 year valid student visa and his wife and … Read More

Principles:

The conditions attached to a student visa did not preclude such a person from being considered to be a settled migrant for the period for which they have permission.

Go Back

Bakare v Minister for Justice

adminLeave a Comment

Respondent/Defendant:Minister for Justice
Citation/s:[2016] IECA 292
Nature of Proceedings:Appeal/Judicial Review
Judgment Date/s:19 Oct 2016
Judge:Hogan G.
Category:Deportation
Keywords:Child, Deportation, Family Life (Right to), Third-Country National, Union Citizen
Country of Origin:Nigeria
URL:https://www.courts.ie/acc/alfresco/be94c6e9-50fc-42ee-902d-0c3d2a1b9fe1/2016_IECA_292_1.pdf/pdf#view=fitH
Geographic Focus:Other

Facts: In Bakare v Minister for Justice the Court of Appeal considered the applicability of the Zambrano case in situations where it is proposed to deport only one parent of an Irish citizen child. The applicant was a Nigerian citizen who arrived in the State in February 2002 when he applied for asylum on grounds of his ethnicity and his … Read More

Principles:

The decision of the Court of Appeal in Bakare confirmed that Zambrano is only applicable in cases where the denial of residency or similar rights to one or both third country nationals who are the parents of EU citizen children is likely to bring about a situation where those children are in practice compelled to leave the territory of the Union. The rule in Zambrano does not apply to decisions to deport one parent of an Irish citizen child where the other parent is residing in Ireland and there is no appreciable risk that the deportation of one parent will force the child to leave.

Go Back

IRM v Minister for Justice and Equality (No.2)

adminLeave a Comment

Respondent/Defendant:Minister for Justice and Equality
Court/s:High Court
Citation/s:[2016] IEHC 478
Nature of Proceedings:Judicial Review
Judgment Date/s:29 Jul 2016
Judge:Humphreys R.
Category:Deportation
Keywords:Deportation, Deportation Order, Family Life (Right to), Immigration
Country of Origin:Nigeria/Ireland
URL:https://www.courts.ie/acc/alfresco/14935597-d3bd-4551-9101-067d8a435de0/2016_IEHC_478_1.pdf/pdf#view=fitH
Geographic Focus:Other

Facts: In IRM (No.2) the High Court considered the obligation on the Minister to consider the rights of an unborn child when deciding whether to revoke a deportation order in respect of the father of the child. The applicant was a Nigerian citizen who was refused asylum; a deportation order was subsequently issued but he remained unlawfully in the State. … Read More

Principles:

The decision in IRM establishes that the prospective legal rights and (where raised in submissions) interests that a child will acquire on birth are matters that the Minister must consider when an application is made under s.3(11) by reference to an unborn child.

Go Back

STE v Minister for Justice and Equality

adminLeave a Comment

Respondent/Defendant:Minister for Justice and Equality
Court/s:High Court
Citation/s:[2016] IEHC 379
Nature of Proceedings:Judicial Review
Judgment Date/s:24 Jun 2016
Judge:Humphreys R.
Category:Deportation
Keywords:Deportation, Deportation Order, Family Life (Right to), Immigration
Country of Origin:Cameroon/Morocco
URL:https://www.courts.ie/acc/alfresco/e0aff845-0ff7-4e3d-8dd1-511b88a4f82c/2016_IEHC_379_1.pdf/pdf#view=fitH
Geographic Focus:Other

Facts: In STE v Minister for Justice and Equality the High Court considered whether the Minister for Justice, when considering whether to deport a group of family members, is entitled to make a deportation order against one family member while granting leave to remain to others, resulting in the separation of the family. The first named applicant arrived in the … Read More

Principles:

The decision of the High Court in STE (No.1) establishes that the Minister must consider the collective rights of a family when deciding whether to deport one of the members of the family, when all members of the family have an equally precarious immigration status, unless there are compelling reasons to the contrary. It is unlawful to select between two equally precarious parties to a relationship and decide that one can stay and the other must leave, without compelling justification, in circumstances where this would actively break up the family by State action.

Go Back

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 … Read More

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

AGA and Another v Minister for Justice

adminLeave a Comment

Respondent/Defendant:Minister for Justice and Equality
Court/s:High Court
Citation/s:[2015] IEHC 469
Nature of Proceedings:Judicial Review
Judgment Date/s:16 Jul 2015
Judge:Stewart J.
Category:Residence
Keywords:Child, Family Life (Right to), Minor, Residence
Country of Origin:United Kingdom and Nigeria
URL:https://www.courts.ie/acc/alfresco/bd762853-57c9-4297-bf9e-16e9066bb537/2015_IEHC_469_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts: The applicants, who were mother and daughter, sought to quash a decision of the Minister for Justice whereby she refused the first applicant’s application for residency, which was based on the decision of the Court of Justice of the European Union (CJEU) in C-200/02 Zhu and Chen. They claimed that the second applicant was a national of the United … Read More

Principles:

In deciding whether a primary carer of a minor (who is a citizen of the European Union) has sufficient resources, the Minister for Justice is entitled to investigate whether such resources exist and inquires into their amount and availability.

Go Back

Sivsivadze v Minister for Justice and Equality & ors

adminLeave a Comment

Respondent/Defendant:Minister for Justice and Equality, Attorney General and Ireland
Court/s:Supreme Court
Citation/s:[2015] IESC 53
Nature of Proceedings:Appeal
Judgment Date/s:23 Jun 2015
Judge:Murray, Hardiman, O’Donnell, Clarke and MacMenamin JJ.
Category:Deportation
Keywords:Absconding, Adult, Asylum, Deportation, Deportation Order, Family Life (Right to), Immigration, Minor, Overstay(er)
Country of Origin:Georgia
URL:https://www.courts.ie/acc/alfresco/b3fe2fb0-bb95-4883-8b4e-bec277ffaf14/2015_IESC_53_1.pdf/pdf#view=fitH
Geographic Focus:Europe

Facts: The first and fourth applicants, both Georgian nationals, were wife and husband respectively, and parents of the second and third applicants. They had both unsuccessfully applied for asylum in Ireland. The Minister for Justice had made a deportation order in respect of the fourth applicant in 2001, on foot of which he had been deported in 2011. The applicants … Read More

Principles:

A non-Irish national who has no permission to be in the State may be made the subject of a deportation order by the Minister for Justice which has the effect of requiring him or her to leave the State and remain outside of it indefinitely. On account of his or her status, such an order does not deny him or her any right to be in the State. Whether or not the making of such an order is disproportionate on account of inter alia its effect on family life, will depend on the facts of each individual case. A general charge of disproportionality cannot be levelled against the sub-sections in an effort to have them struck down as unconstitutional. Such a case can only be made in a factual context.

The indefinite nature of an order made under s. 3(1) has to be considered in the light of s. 3(11), pursuant to which the subject of it may apply for it to be amended or revoked at any time. In deciding whether or not to make or to amend or revoke an order, the Minster for Justice must act constitutionally and have regard to the facts of the particular case, including any representations made about the impact of the order on such matters as family rights.

In deciding whether or not to dismiss an appeal for abuse of process in which a constitutional provision is challenged, regard must be had to the value which the Constitution attaches to such an appeal, the right of persons not to be subject to unconstitutional laws. It may also be necessary to consider the interests of any children who are party to the proceedings, bearing in mind Article 42A of the Constitution. However, the sole fact that a blameless minor had been included in proceedings would not necessarily prevent a court exercising its discretion to dismiss an appeal on the grounds of abuse of process, particularly in judicial review proceedings.

Go Back

CA and TA (a minor) v Minister for Justice and Others

adminLeave a Comment

Respondent/Defendant:Minister for Justice and Equality, Minister for Social Protection, Attorney General and Ireland
Court/s:High Court
Nature of Proceedings:Judicial Review
Judgment Date/s:14 Nov 2014
Judge:MacEochaidh J.
Category:Refugee Law
Keywords:Asylum, Family Life (Right to), Minor, Reception Centre, Refugee
Country of Origin:Nigeria
URL:http://www.courts.ie/Judgments.nsf/0/9816BD5E4D1003F780257DB00040BA1D
Geographic Focus:Ireland

Facts:The first named applicant was a Ugandan national who arrived in Ireland in 2010 and whose son, the second named applicant, was born in Ireland in 2011. She made an application for asylum on arrival in the State. She was initially given accommodation in Dublin but was moved to Galway shortly thereafter. She was living there for more than three … Read More

Principles:

Where an applicant for asylum who is residing in direct provision makes allegations in judicial review proceedings that residing thus has caused him or her harm, if such allegations are denied by the respondents, a court will not be able to resolve the evidential conflict arising where there has been no cross-examination of witnesses or any evidence from persons appropriately qualified to give opinions as to whether harm had been suffered by the applicant, as alleged.

Rules of accommodation centres which are part of the direct provision system must comply with article 8 ECHR and analogous constitutional provisions on the right to respect for private and family life.

The Charter of Fundamental Rights does not apply to residence in the direct provision system. It is not a form of implementation of Union law and therefore, in accordance with Article 51 of the Charter, does not govern the State’s actions in the area.
The direct provision system does not need to have a legislative basis and is lawfully established by an act of the executive.

The Direct Provision Allowance, whereby cash payments are made to residents in the direct provision system, is not ultra vires the Social Welfare Consolidation Act 2005 or otherwise unlawful.

Go Back

JS and Others v Minister for Justice and Equality and the Attorney General

adminLeave a Comment

Respondent/Defendant:Minister for Justice and Equality and the Attorney General
Court/s:High Court
Citation/s:[2014] IEHC 195
Nature of Proceedings:Judicial Review
Judgment Date/s:28 Mar 2014
Judge:McDermott J.
Category:Deportation
Keywords:Charter of Fundamental Rights of the European Union, Citizenship, Deportation, Deportation Order, European Convention on Human Rights (ECHR), Family Life (Right to)
Country of Origin:Nigeria
URL:https://www.courts.ie/acc/alfresco/abd9353b-9eca-4e2e-b525-78ab8527c1f5/2014_IEHC_195_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts: The second applicant, M.A., was a Nigerian national who entered Ireland lawfully on the 17th December, 2002, having been given permission to do so. He failed to comply with the conditions of his permission to work and claimed social welfare. He also committed a series of criminal offences. His application for renewal of his permission was refused in 2004. … Read More

Principles:

A non-national in respect of whom a deportation order is made will not obtain a derivative right to remain in the State on the basis of the Treaty on the Functioning of the European Union and the decision of the Court of Justice of the European Union in  C-34/09 Zambrano by virtue of being the parent of Irish and, hence, EU citizen children, if his deportation will not oblige them to leave the State or the territory of the European Union.

Having regard to Article 51 of the Charter of Fundamental Rights, Article 7 (right to respect for private and family life) and Article 24 (best interests of children a primary consideration in actions concerning children), will not impinge on the power of the State to deport a non-national parent of Irish citizen children because that power is not part of the implementation of Union law.

Deportation of a non-national who has a medical condition will not breach article 3 ECHR in the absence of exceptional circumstances, such as a threat to life, and particularly where treatment for the condition is available in his or her country of origin.

The extent of the obligation on the Minister for Justice to consider aspects of a proposed deportee’s family life in the course of an application for revocation of the deportation order existing in respect of him or her will vary depending on the extent to which such matters have been considered in making the deportation order and in determining any previous application for revocation.

Go Back

FE and Others v Minister for Justice and Equality

adminLeave a Comment

Respondent/Defendant:Minister for Justice and Equality
Court/s:High Court
Citation/s:[2014] IEHC 62
Nature of Proceedings:Judicial Review
Judgment Date/s:14 Feb 2014
Judge:McDermott J.
Category:Deportation
Keywords:Deportation, Deportation Order, Family Life (Right to)
Country of Origin:Nigeria
URL:https://www.courts.ie/acc/alfresco/8e2cbca4-acb3-4e59-8de7-1b1a5db79a58/2014_IEHC_62_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts: The applicants sought to quash a deportation order made against the father applicant, M.E. on the basis of preventing crime and disorder. They obtained leave to do so, but at the post-leave stage, the court declined to grant the reliefs sought. They then sought leave of the court to appeal its decision to the Supreme Court pursuant to the … Read More

Principles:

When reviewing administrative decisions, a court is not entitled to substitute its own view for the administrative body whose decision is impugned. The High Court is not entitled to examine the substantive merits of an impugned decision and substitute its own decision if it considers the administrative decision to be disproportionate.

Go Back

Okunade v Minister for Justice, Equality and Law Reform

adminLeave a Comment

Respondent/Defendant:Minister for Justice, Equality and Law Reform
Court/s:Supreme Court
Citation/s:[2012] IESC 49
Nature of Proceedings:Appeal
Judgment Date/s:16 Oct 2012
Judge:Supreme Court (Clarke J delivered judgment for a unanimous Court) (Denham C.J, Hardiman J, Fennelly J, O'Donnell J)
Category:Deportation, Residence
Keywords:Deportation, Deportation Order, European Convention on Human Rights (ECHR), Family Life (Right to), Migrant (Illegally resident / staying), Minor, Non-national, Removal, Repatriation, Residence
URL:https://www.courts.ie/acc/alfresco/d25e51cd-9709-48e1-8b57-e167c5657e0d/2012_IESC_49_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts 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 … Read More

Principles:

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. 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 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 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, then the position of the Minister would win out. The default position was that an applicant will not be entitled to a stay or an injunction. It may be that on the facts on any individual case, there are further factors that can properly be taken into account on either side.

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, 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, it would require very weighty considerations indeed to displace the balance of justice on the facts of that case.

Also 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. 

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, and 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.

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.

Go Back

Scully v Minister for Justice and Equality


Scully
Respondent/Defendant:Minister for Justice and Equality
Court/s:High Court
Citation/s:[2012] IEHC 466
Nature of Proceedings:Judicial Review
Judgment Date/s:16 Apr 2012
Category:Deportation, EU Treaty Rights, Residence
Keywords:Child, Citizenship, Deportation, Deportation Order, EU Treaty Rights, Family (Nuclear), Family Life (Right to), Family Member, Family Unity (Right to), Immigrant, Migrant (Labour), Minor, Non-EU National, Non-national, Residence, Union Citizen
Country of Origin:Ireland / Nigeria
Geographic Focus:Ireland

Facts The applicants were the parents and minor children, whose husband and father, the second applicant was made the subject of a deportation order in 2009, and on foot of which he was deported. An application was made to the Minister to revoke the deportation order but the Minister refused. The applicants sought to quash the refusal to revoke the … Read More

Principles:

The Minister must construe and apply the protections afforded by Article 40.3, 41 and 42 of the Constitution of Ireland and Article 3 and 8 of the European Convention on Human Rights (ECHR) in light of the personal and family circumstances of applicants, particularly in relation to minor applicants as [Irish and] EU citizens.

The Minister must reach reasonable and proportionate conclusions, given the permanent impact of a deportation order on the personal and family circumstances of applicants, and having regard to any changed facts contained in an application to revoke a deportation order, and to circumstances where there are minor applicants who are [Irish and] EU citizens.

Go Back