I.R.M. (No 1) v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Colm Mac Eochaidh
• Judgment Date: 01 August 2015
• Neutral Citation: [2015] IEHC 873
• Docket Number: [2015/436 J.R.]
• Court: High Court
• Date: 01 August 2015

[2015] IEHC 873

THE HIGH COURT

JUDICIAL REVIEW

Mac Eochaidh J.

[2015/436 J.R.]

BETWEEN

I. R. M.

&

S. J. R. (No 1)

APPLICANTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

Asylum, Immigration & Nationality – Interlocutory injunction to prevent the order of deportation – Infringement of rights – Pregnancy and unborn child – Special care – Intervention of Court – Establishment of arguable and fair case

Facts: The applicants sought an interlocutory injunction to restrain the deportation of the first named applicant pending the determination of the outcome of the applicants' application for the revocation of the deportation order and in the absence of an undertaking not to deport. The applicants argued that deporting the first named applicant would infringe the rights of the second named applicant owing to her pregnancy and dependence on the first named applicant. The applicants further argued that the deportation of the first named applicant would further infringe the rights of the unborn child. The key issue for consideration in the present case was whether the applicants had raised an arguable and fair issue to be tried.

Mr. Justice Colm Mac Eochaidh granted interlocutory injunction to the applicants restraining the deportation of the first named applicant until further order of the Court. The Court found that the applicants had established an arguable case that deporting the first named applicant would infringe the rights of the second named applicant. The Court held that the second named applicant required special protection owing to her pregnancy. The Court, after taking into account the extent of the dependency of the second named applicant on the first named applicant, held that an order of deportation would be disproportionate and unlawful. The Court further found that the applicants had made out an arguable case that the implementation of the deportation order at that particular stage would likely interfere with the rights of the unborn child when acquired at birth.

Ex Tempore Judgment of Mr. Justice Colm Mac Eochaidh delivered on the 1st day of August 2015.

Introduction:

1 This is an application for an interlocutory injunction to restrain the deportation on foot of an order which is of some vintage.

Background:

2 The first named applicant is thirty-two years of age and has been in a relationship with the second named applicant, who is twenty-five years of age, for approximately twelve months. The second named applicant is pregnant and is due to give birth on the 29th August, in approximately four weeks time. The first named applicant is the father of the child. They live together in Dublin and they plan to marry. The second named applicant says she is of limited means. Her mother lives in Scotland with her husband and her father lives in Cork with his wife and children. In evidence which was not contradicted she describes her poor psychological history having suffered from depression and having engaged in some acts of self harm in the past. The narrative of the absence of family support and psychological fragility suggests a high degree of dependence on the first named applicant at this late stage of her pregnancy. She says that she will not travel to Nigeria if the first named applicant is deported there, partly because of the difficult security situation which currently exists in Nigeria and, she notes, in that regard, that the Irish government has issued a travel warning for Nigeria.

3 It would appear that the first named applicant has been in Ireland for many years and, to put it mildly, has a poor immigration history. He has been classified as an evader and it would appear that since 2008 he has only reported on one occasion to the Garda National Immigration Bureau and that was recently on the 20th July, 2015.

4 In May of this year an application was made for revocation of the deportation order. It is based upon a change in the first named applicant's circumstances, namely his relationship with the second named applicant and the fact that she is expecting their baby. No decision has issued yet on the application for revocation pursuant to s. 3 (11) of the Immigration Act 1999.

5 On the 18th June, solicitors for the first named applicant requested an undertaking that he not be deported prior to the decision on the revocation application. The reply received was a direction that he present himself to the G.N.I.B. and his solicitors understood that to be a refusal by the G.N.I.B. to give an undertaking not to deport.

6 The first named applicant duly reported to the G.N.I.B. on the 20th July when he was asked to present himself five days from now on the 6th August, 2015 and in the absence of an undertaking not to deport, his solicitors have sought the temporary protection of an injunction pending the outcome of the revocation application.

Submissions:

7 The first named respondent, in reply today, has said that the deportation is not imminent but counsel was careful to express this in neutral terms. There was certainly no indication that the first named applicant would not be deported in five days time on the 6th August. I accept that it is a real possibility that this may happen. A valid deportation order exists and the State is entitled to deport the first named applicant at any moment, including at any moment prior to the 6th August, 2015.

8 An interim injunction was granted by this Court on Monday of last week and the Court directed that an application for leave and an application for interlocutory relief be returned for hearing in the course of that week and the application was commenced yesterday, on Friday the 31st July and continued today on Saturday the 1st August. The application for leave to seek judicial review seeks:-

‘a) A Declaration that the implementation of the Deportation Order issued in respect of the first Applicant prior to a determination being made in respect of his application to revoke the deportation order made in respect of him would be unlawful’

And further seeks:-

‘b) A Declaration that the practice or policy of the first named Respondent of deporting persons the subject of deportation orders without providing them with a reasonable period of notice of the actual proposed date of deportation is unconstitutional and/or in breach of European Law and/or unlawful.’

9 Two matters are before the Court today: an application for leave to seek judicial review and an application for an interlocutory injunction. The Court has decided to accede to an application by counsel for the applicant to adjourn the application for leave and this judgment, therefore, will deal only with the application for a pre-leave interlocutory injunction. The reason I have done this is that I do not reagrd the leave application as urgent. Self evidently, the application for the injunction is urgent and requires immediate determination.

The application for leave:

10 In respect of the application for leave, I direct that it be adjourned to be heard on notice on the first motion day of the new term with liberty to the respondents to seek to have the matter heard at any time during the vacation. I direct that the respondents not be required to seek further permission from a vacation court if it is desired to bring the matter for hearing during the vacation. I am accepting that it is urgent and suitable for a vacation hearing if that is what the respondents request.

The interlocutory injunction:

11 In respect of the application for an interlocutory injunction to restrain deportation, the principles which govern these applications were set out by the Supreme Court in its decision in Okunade v. The Minister for Justice, Equality and Law Reform [2012] I.E.S.C. 49. The judgment of Clarke J. deals extensively with the principles which apply in cases such as this.

12 A neat summary of the correct approach was recently expressed by Hogan J. in the decision in Chigaru v Minister for Justice, Equality and Law Reform [2015] I.E.C.A. 167 delivered in the Court of Appeal on the 27th July, 2015. Hogan J. says:-

‘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 interlocutory injunction, it is, as Clarke J. recognised in Okunade, of somewhat lesser importance is a case of this kind (sic)’.

13 The approach adopted by Hogan J. was to examine, first, whether there was a fair, arguable case to be tried and, second, where the balance of convenience might lie. In that case Hogan J. granted an interlocutory injunction to restrain deportation notwithstanding the extremely poor immigration history of the parents in the case. He did so on the basis of the interests of the children, who were seven and eight years of age and knew no country except Ireland, and, therefore, whose rights would be...