N.M. (Georgia) v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 31 July 2018
• Neutral Citation: [2018] IEHC 494
• Docket Number: [2018 No. 486 J.R.]
• Court: High Court
• Date: 31 July 2018

[2018] IEHC 494

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2018 No. 486 J.R.]

BETWEEN

N.M. (GEORGIA)

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENT

(No. 2)

Deportation – Injunction – Residency – Applicant seeking an injunction restraining her deportation – Whether there was a basis for an injunction

Facts: The applicant applied to the High Court seeking an injunction restraining her deportation from the State pending a decision being made on her application for residency or the application to revoke the deportation order issued in respect of her on the 26th September, 2011.

Held by Humphreys J that she had not been refused permission under the McMahon report; a decision was awaited and to that extent the proceedings were essentially precautionary. Humphreys J held that the proceedings sought an injunction as a substantive relief; thus the caselaw on interlocutory injunctions such as Okunade v Minister for Justice and Equality [2012] 3 IR 152 was not relevant in the context of a substantive type of application. Humphreys J held that there was no basis for an injunction because the McMahon report did not confer any rights on applicants. Humphreys J held that the fact that delay resulted from the use of the court process was not a factor favouring an injunction.

Humphreys J held that the proceedings would be dismissed.

Relief refused.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 31st day of July, 2018

1 This is the applicant's fifth set of High Court proceedings, which have essentially allowed her to prolong her stay in Ireland by anything up to six years by continuously litigating. However, it is not the law that as long as you can keep litigating, you can remain in the State. Some of that litigation was part of the lengthy fallout from the M.M. v. Minister for Justice and Equality [2018] IESC 10 [2018] 1 I.L.R.M. 361 proceedings, so at one level the present case can be seen as possibly the first outrider of a new campaign by unsuccessful M.M. applicants to stay in Ireland on the rather thin basis that they have been here for years pursuing ultimately groundless proceedings.

2 The applicant is a native of Georgia who arrived in Ireland in August, 2005. Her application for asylum was refused and an appeal was dismissed by the Refugee Appeals Tribunal. An application was made for subsidiary protection, which was refused. In the applicant's first set of judicial review proceedings [2011 No. 984 J.R.], certiorari was granted on 22nd March, 2012 quashing the refusal of subsidiary protection. A previous deportation order of 9th August, 2011 had been made but was then revoked following that outcome. A subsequent subsidiary protection application was refused on 20th November, 2012. The applicant then brought a second set of judicial review proceedings [2012 No. 1013 J.R.] challenging the subsidiary protection refusal. That was dismissed in my judgment in N.M. (Georgia) v. Minister for Justice and Equality (No. 1) [2018] IEHC 186 (Unreported, High Court, 27th February, 2018). In the meantime, mandamus proceedings seeking a decision under s. 3 of the Immigration Act 1999 had been brought [2014 No. 635 J.R.]. Those proceedings were struck out by consent on 26th January, 2015. A new deportation order was made on 10th April, 2015 and a fourth set of judicial review proceedings [2015 No. 262 J.R.] challenging the deportation order was issued. Those proceedings were struck out on consent on 1st February, 2016, so the present action is the fifth High Court action by this applicant.

3 The applicant then sought permission to work in the State. That was rejected on 28th February, 2018. She also applied for residency on the basis of the McMahon report. She requested an undertaking that she would not be deported pending that application, which was refused. The Minister indicated on 9th July, 2018 that that the applicant's correspondence of 14th June, 2018 and 28th February, 2018 seeking residency would be treated as an application for revocation of the order under s. 3(11) of the Immigration Act 1999.

4 Leave was granted in the present proceedings on 25th June, 2018.

5 I have received helpful submissions from Mr. Paul O'Shea B.L. for the applicant and from Ms. Fiona O'Sullivan B.L. for the respondents.

Relief sought

6 The primary relief sought in these proceedings is an injunction restraining the deportation of the applicant from the State pending a decision being made on her application for residency or the application...