Chigaru v Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 27 July 2015
• Neutral Citation: [2015] IECA 167
• Date: 27 July 2015
• Court: Court of Appeal (Ireland)
• Docket Number: Appeal No. 2014/445 [Article 64 Transfer]

Between/

Clement Chigaru, Angela Peters, Chloe Caroline Chigaru (An Infant Suing by her Father and Next Friend Clement Chigaru) and Clarke Chigaru (an Infant Suing by his Father and next Friend Clement Chigaru)

Applicants

and

Minister for Justice and Equality, Ireland and the Attorney General

Respondents

[2015] IECA 167

Appeal No. 2014/445

[Article 64 Transfer]

THE COURT OF APPEAL

Asylum - Malawi nationals - Unsuccessful asylum application - Unsuccessful subsidiary protection application - Deportation orders - Application for interlocutory injunction restraining deportation pending appeal - Whether fair or arguable case - Balance of convenience

Facts The first two applicants are the parents of the second and third applicants. They are Malawi nationals. They unsuccessfully sought asylum in Ireland. Their application was rejected by the Refugee Appeals Tribunal on the 19th November 2009. They subsequently made an application for subsidiary protection which was rejected by the Minister on the 12th May 2011. The Minister made deportation orders in respect of all four applicants under s.3 Immigration Act 1999. The applicants applied to the High Court challenging the validity of the orders refusing subsidiary protection and the making of the deportation orders. The applications were dismissed. They appealed to the Supreme Court yet the appeal was transferred to the Court of Appeal pursuant to Article 64 of the Constitution. The applicants managed to avoid deportation as their whereabouts was unknown. Upon discovery of their whereabouts the Minister sought to give effect to the earlier deportation orders whilst the applicants sought an interlocutory injunction restraining deportation pending their appeal.

Held The judge considered and applied the case of Okunade v. Minister for Justice and Equality[2012] IESC 49 which states “absent of special or particular features the court should not generally grant a stay restraining the enforcement of a deportation order”. In order to do so the applicant must show that he/she has established a fair or arguable case and that the balance of convenience favours granting such relief. Considering the case of MM v. Minister for Justice[2012] E.C.R. I-000 the judge concluded that the applicants had established a fair case to be tried. With regards the balance of convenience, the judge stated that if the position of the parents was taken in isolation from that of the children, he would be opposed to granting the relief sought given their wholescale abuse of the asylum system. Nevertheless, he emphasised the children were innocent of the deceptions of their parents and that it would be unjust to visit them with the consequences of their parent”s wrongdoing. The judge made reference to the distress the children would suffer if forcibly transferred to a distant country. He acknowledged that they were integrated into Irish society. He subsequently concluded that the balance of convenience supported the granting of an interlocutory injunction restraining the deportation of the children. Accordingly, it was necessary to grant it in respect of their parents otherwise the children”s constitutional right to the care and company of their parents would be compromised.

-Interlocutory injunction restraining deportation granted

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 27th day of July 2015

1 The applicants in these proceedings are all nationals of Malawi who have unsuccessfully sought asylum in this State. Applications for asylum were rejected by the Refugee Appeals Tribunal on 19th November 2009. The applicants then made applications for subsidiary protection which were rejected by the Minister for Justice by letter dated 12th May 2011. The Minister then proceeded to make deportation orders in respect of all four applicants under s. 3 of the Immigration Act 1999 on 11th August 2011.

2 The applicants then applied to the High Court seeking leave to challenge the validity of the orders refusing subsidiary protection and the making of the deportation orders. These applications were dismissed by the High Court (Cooke J.) by decision dated 19th April 2012. The applicants then appealed to the Supreme Court by a notice of appeal dated 9th May 2012. This appeal was then subsequently transferred to this Court pursuant to Article 64 of the Constitution by order of the Chief Justice (and the concurrence of the other members of the Supreme Court) dated 29th October 2014 following the establishment of this Court on that day.

3 Although deportation orders in respect of all four applicants were made by the Minister as long as August 2011, this family have managed through subterfuge on the part of the adult applicants thus far to avoid the deportation process in circumstances I will presently describe. It was only following lengthy correspondence with their solicitors that the respondents learnt in April 2015 of their present whereabouts in the State. The Minister now seeks to give effect to the earlier deportation orders, but the applicants have now issued a motion seeking an interlocutory injunction restraining their deportation pending the outcome of an appeal to this Court.

4 The first two applicants are the parents of the third and fourth applicants respectively. The third applicant, Chloe Chigaru, (‘the daughter’) was born in Malawi on 2nd March 2007 so that she is now almost eight and a half years old. The daughter arrived in Ireland with her mother in April 2008 when she was just one year old, but she has lived in the State since that date. The fourth applicant, Clarke Chigaru, (‘the son’) was born in the State on 23rd July 2008, but he is not an Irish citizen. He is now just seven years old.

The criteria regarding the grant of an interlocutory injunction in asylum cases

5 The criteria regarding the grant of interlocutory relief in immigration cases of this kind was fully explored by the Supreme Court in Okunade v. Minister for Justice and Equality [2012] IESC 49, [2012] 3 I.R. 152. It is clear from that judgment that, absent special or particular features, the courts should not generally grant a stay restraining the enforcement of a deportation order. As Clarke J. pointed out in his judgment in that case, any decision regarding the circumstances in which a foreign national should be permitted to remain in the State is, in principle, an executive decision for the purposes of Article 28.2 of the Constitution. As with any decision of this kind, there is a presumption that any such decision is regular and valid.

6 In order, therefore, for an applicant in a case of this kind to obtain a stay on a deportation order, it would be necessary to show, first, that he or she had established a fair or arguable case and, second, that the balance of convenience favoured the granting of such relief. While the issue of the adequacy of damages as a remedy is of considerable importance in many applications for an interlocutory injunction, it is, as Clarke J. recognised in Okunade, of somewhat lesser importance is a case of this kind. It is against this general background that I turn to the first question, namely, whether the applicants have established a fair, arguable case.

Whether the applicants can demonstrate the existence of a fair, arguable case

7 The issue of whether the applicants can establish a fair, arguable case is inextricably bound up with the decision of the Court of Justice in Case C-277/11MM v. Minister for Justice [2012] E.C.R. I-000. The applicant in that case was a Rwandan of Tutsi ethnicity who claimed that he would suffer persecution if he were returned to his country of origin in part by reason of the research which he carried out into the 1994 Rwandan genocide.

8 Mr. M had been originally arrived in Ireland on a student visa, but shortly after his visa had expired, he sought asylum. Although this application was refused in December 2008. Mr. M. then applied for subsidiary protection. That application was rejected by the Minister in September 2010 and in that decision the Minister relied to a large extent on the adverse credibility findings contained in earlier asylum decision of the Refugee Appeals Tribunal from 2008.

9 At that point the applicant sought judicial review of the Minister's subsidiary protection decision. As it happens, those proceedings came before me as a judge of the High Court in May 2011. That application presented a single issue of European Union law, namely, whether the requirement contained in Article 4(1) of Directive 2004/84/EC that Member States must co-operate with applicants for international protection meant that an applicant for subsidiary protection must be informed that it was minded to reject that application so that he or she was given an opportunity to respond before any final decision was taken. This was the specific question which I referred to the Court of Justice pursuant to Article 267 TFEU.

10 The Court answered that question adversely to the applicant, saying that there was no such obligation on the part of Member States: see paragraph 74 of the judgment. Critically, however, the Court of Justice continued by stating (at paragraph 75) that the case raised ‘more generally the question of the right of a foreign national to be heard’ in respect of the subsidiary protection application when that application was made following the rejection of the original refugee status application.

11 Following an analysis of the right to be heard under EU law the Court then concluded (at paragraphs 90–94) of the judgment as follows:

‘90. In that regard, the Court cannot accept the view put forward by the referring court and Ireland that, where — as in Ireland — an application for subsidiary protection is dealt with in a separate procedure, necessarily after the rejection of an...