KRA [No 4] v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 28 November 2016
• Neutral Citation: [2016] IEHC 703
• Docket Number: [2015 No. 299 J.R.]
• Court: High Court
• Date: 28 November 2016

[2016] IEHC 703

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2015 No. 299 J.R.]

BETWEEN

K.R.A.

AND

B.M.A.

(A MINOR SUING BY HER MOTHER AND NEXT FRIEND K.R.A.)

APPLICANTS

AND

MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

(No. 4)

Asylum, Immigration & Nationality – S. 5 of the Illegal Immigrants (Trafficking) Act 2000 – S. 3(11) Illegal Immigrants (Trafficking) Act 2000 – Application for injunction – Unchallenged deportation order – Illegal stay in the State.

Facts: The issue in the present case concerned the injunction granted to the applicants following the dismissal of the judicial review application. The applicant had filed an appeal to the Court of Appeal against that dismissal order. The first named applicant was evading the concerned immigration bureau for several years. The first named applicant contended that the second named applicant, being a child, was entitled to the benefit of the constitutional right to free primary education and thus, should not be deported to a country with an inferior educational system. The first named applicant stated that the respondents should have considered the second named applicant's application separately. The respondents submitted that the deportation orders were unchallenged and remained in force. The respondents claimed that the position of the applicants was wholly illegal and irregular and would continue to remain the same.

Mr. Justice Richard Humphreys discharged the existing application of the injunction, which was to be stayed until January 20, 2017. The Court applied the test laid down in Okunade v. Minister for Justice Equality and Law Reform [2012] 3 I.R. 152 to the effect that it would be inappropriate to grant a stay in a case where the underlying deportation order remained unchallenged and the applicant possessed the ability to challenge the same without being present in the State. The Court held that the child could not be indentified separately when the parental misconduct was inconsistent. The Court stated that it was not unjust to deport the applicants because they had no right or title to remain in the State.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 28th day of November, 2016

1 In K.R.A. v. Minister for Justice and Equality (No. 1) [2016] IEHC 289 (Unreported, High Court, 12th May, 2016), I dismissed the applicant's judicial review proceedings challenging a refusal to revoke deportation orders. In K.R.A. v. Minister for Justice and Equality (No. 2) [2016] IEHC 421 (Unreported, High Court, 24th June, 2016), I granted leave to appeal that decision and awarded costs to the applicants in the particular circumstances of the case. In K.R.A. v. Minister for Justice and Equality (No. 3) (Unreported, High Court, 3rd October, 2016), I refused the respondent leave to appeal the costs order. I now deal with the issue of whether, and if so for how long, the deportation of the applicants should be enjoined.

2 The first named applicant has been present in the State for approximately eight and a half years, of which she spent five years 'on the run' from the GNIB. The second named applicant is eight and a half years old, and has been in the State throughout that period.

Whether Chigaru has modified the Okunade test

3 Ms. Rosario Boyle S.C. (with Mr. Anthony Lowry B.L.) in a very able and interesting submission for the applicant argued that the Court of Appeal decision in Chigaru v. Minister for Justice and Equality [2015] IECA 167 (Unreported, Court of Appeal, (Hogan J.), 27th July, 2015) has simplified the previous test for an injunction of this kind as set out in Okunade v. Minister for Justice Equality and Law Reform [2012] 3 I.R. 152.

4 However there are two fundamental reasons why this is not the case. Firstly and most obviously, it would be up to the Supreme Court to modify the law as laid down by that court in Okunade (save by reference to factors (which did not arise in Chigaru) such as some other Supreme Court decision not taken into account in that case or some other recognised exception to stare decisis); and secondly, and unsurprisingly having regard to the first reason, the Court of Appeal did not purport to do so, and indeed expressed itself very clearly in Chigaru as simply applying Okunade. Accordingly, I reject the submission that there is now some more simplified test for deportation injunctions involving children.

The Okunade test

5 As set out by the Supreme Court in Okunade, the first question is whether there is an arguable case, which I accept is the case here because I granted leave to appeal to the appellants.

6 The real issue is where the greatest risk of injustice would lie. It is interesting that the Supreme Court speaks in terms of both the balance of justice and the balance of convenience, although only the latter is the expression used in Chigaru at paras. 23 to 39. I would respectfully suggest that the expression ' balance of justice' as used by Clarke J. at paras. 107, 112 and 121 of Okunade is possibly a more illuminating one, particularly in the present case, for reasons which I will set out further.

Implementation of a valid decision

7 The first issue in the balance of justice test is the need to give all appropriate weight to the orderly implementation of measures which are prima facie valid. In the present case this clearly strongly militates in favour of refusing a stay to the applicants.

The orderly operation of the relevant scheme

8 The second criterion is to give such weight as is appropriate to any public interest in the orderly operation of the particular scheme in which the measure under challenge was made. Insofar as one can consider the operation of the immigration regime as a whole under this heading, this again militates in favour of refusal of a stay.

Public interest in the measure being implemented pending challenge

9 Thirdly the court must give appropriate weight to any additional factors which arise on the facts of the individual case which would heighten the risk to the public interest of the specific measure under challenge not being implemented pending the determination of the proceedings. Under this heading, I am particularly conscious that this is not a challenge to the protection process, and not even a challenge to a deportation order, but it is the sort of final throw of the dice that applicants can avail of, namely a challenge to a refusal to revoke a deportation order which itself was either unchallenged or unsuccessfully challenged at the appropriate time.

10 The fact that an injunction is sought in proceedings challenging a refusal to reopen a historic decision strongly militates in favour of refusal of an injunction (see P.O. v. Minister for Justice and Equality (Unreported, High Court, 3rd October, 2016) (which to avoid confusion with a Supreme Court decision of the same name I will refer to as my decision in P.O.). I will return to this issue under the heading of the strength of the applicants' case below.

Evasion or misconduct by the parent and whether this can be held against the child

11 A further factor is the applicants' conduct in evading the GNIB, which strongly militates in favour of refusing an injunction, unquestionably so as regards the first named applicant.

12 What are the implications of this evasion for her child? Chigaru says effectively that the child should not be identified with the mother in this context. However in the decision of the European Court of Human Rights in Butt v. Norway (Application No. 47017/09, 4th December, 2013), it is said that ' the Court has noted the general approach of the Borgarting High Court that strong immigration policy considerations would in principle militate in favour of identifying children with the conduct of their parents, failing which there would be a great risk that parents exploited the situation of their children in order to secure a residence permit for themselves and for the children ... The Court, seeing no reason for disagreeing with this general approach, observes that during a police interview on 15 November 1996 the applicants' mother conceded that she had previously given incorrect information to the police and other institutions about her own and her children's stay in Pakistan during this period' (para. 79).

13 Thus what in Oslo and Strasbourg are considered to be ' strong immigration policy considerations' are categorised as ' entirely unjust' in Chigaru: the children ' are completely innocent of the various deceptions which their parents have practised and it would be entirely unjust to visit them with the consequences of their parents' wrongdoing' (para. 24).

14 In view of the fact that ss. 2(1) and 4(a) of the European Convention on Human Rights Act 2003 are not referred to in Chigaru, it seems to me that the implications of those provisions in the context of a judgment of the Strasbourg court upholding a particular approach, are something which I now must consider as a matter that is effectively res integra. On that basis, and bearing in mind that I am required to give effect to the 2003 Act, I would conclude that it would not generally be open to me to exercise a common law or in this case equitable jurisdiction in such a way as to categorise an approach approved by Strasbourg as ' entirely unjust'; or indeed to transfer to the judicial branch matters that are legitimately characterised by Strasbourg as ' immigration policy considerations'. The court cannot adopt or operate its own immigration policy, a point I sought to make in O.O.A. v. Minister for Justice and Equality [2016] IEHC 468 (Unreported, High Court, 29th July, 2016).

15 Mr. David Conlan Smyth S.C. (with Mr. Anthony Moore B.L.) for the respondent has made available to me the relevant pages of the State's written submission to the Court of Appeal in Chigaru which contains the following passage at p. 11: ' The Applicants argue in...