O (OC) & O (DT) (an Infant) [Nigeria] v Min for Justice and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 22 November 2011
• Neutral Citation: [2011] IEHC 441
• Court: High Court
• Date: 22 November 2011

[2011] IEHC 441

THE HIGH COURT

[No. 739 J.R./2011]

O (OC) & O (DT) (An Infant) [Nigeria] v Min For Justice & Ors

MR JUSTICE COOKE

APPROVED TEXT

JUDICIAL REVIEW

BETWEEN

O. C. O. AND D. T. O. (AN INFANT SUING BY HIS MOTHER AND NEXT FRIEND, O. C. O.) [Nigeria]

APPLICANTS

AND

MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

ADEBAYO v COMMISSIONER OF AN GARDA SIOCHÁNA 2006 2 IR 298

A (L) v MIN FOR JUSTICE UNREP HOGAN 21.12.2010 2010 IEHC 523

A (A P)(A MINOR) & ORS v MIN FOR JUSTICE & ORS UNREP COOKE 20.7.2010 2010/1/66 2010 IEHC 297

CAMPUS OIL v MINISTER FOR INDUSTRY & COMMERCE (NO.2) 1983 IR 88

RSC O.84

RSC O.84 r20(7)(A)

IMMIGRATION ACT 1999 S3

G v DPP 1994 1 IR 374

EEC DIR 2004/83

EEC DIR 2004/83 ART 4.1

A (B J S)[SIERRA LEONE] v MIN FOR JUSTICE UNREP COOKE 12.10.2011 2011 IEHC 381

IMMIGRATION ACT 1999 S3(2)

IMMIGRATION LAW

Interlocutory injunctions

Leave to apply for judicial review - Subsidiary protection - Deportation order - Test for granting of interlocutory injunction - Whether applicant seeking leave to apply for certiorari of deportation order entitled as of right to interlocutory injunction restraining deportation until application for leave determined - Whether applicants raising fair issue to entitlement to obtain leave to apply for order quashing refusal to grant subsidiary protection - Whether applicants raising fair issue of substantial ground for quashing of deportation order - Whether applicants facing risk or likelihood of irreversible change of circumstances if deported - Whether applicants entitled to interlocutory injunction restraining deportation - Campus Oil v Ministry for Industry (No 2) [1983] IR 88 applied - A(AP) (A Minor) v Minister for Justice, Equality and Law Reform [2010] IEHC 297 (Unrep, HC, Cooke J, 20/7/2010); J(P) v Minister for Justice, Equality and Law Reform [2011] IEHC 443 (Unrep, HC, Hogan J, 19/10/2011) considered - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Applications refused (2011/739JR - Cooke J - 22/11/2011 & 2/12/2011) [2011] IEHC 441

O(OC) v Minister for Justice and Equality

Facts: The applicants sought leave to quash a decision refusing subsidiary protection and deportation orders issued in respect of then. The Court considered whether an applicant for judicial review who was seeking to quash a deportation order could be entitled to an interlocutory injunction restraisning implementation of the order until the application for leave could be determined. The Court had to consider the application of usual injunctive relief principles or whether they were entitled to a stay absent special circumstances.

Held by Cooke J. that no fair issue had been raised in the case as to the entitlement of the applicant to seek leave to quash the determination refusing subsidiary protection. No interlocutory injunction could therefore be granted. The Court had not been addressed on the issue of whether an interlocutory injunction to restrain deportation could be maintained on the basis of the challenge proposed to be made to the deportation order itself.

Reporter: E.F.

1 1. In this application for judicial review the applicants seek leave to apply for orders of certiorari to quash, first, a decision of the first named respondent refusing an application for subsidiary protection dated the 7 ^th April, 2011; and secondly, deportation orders issued in respect of them dated the 15 ^th July, 2011. The notice of motion of application for leave included notice of an intention to apply for an interlocutory injunction to restrain deportation of the applicants pending the determination of the proceedings. When the proceedings were commenced on the 16 ^th August, 2011, the respondent Minister gave an undertaking not to implement the deportation orders prior to the return date of the notice of motion on the 3 ^rd October, 2011, but has since refused to continue that undertaking. It is in these circumstances that the applicants now apply for interlocutory orders restraining their deportation pending, at least, the determination of their applications for leave to apply for judicial review.

2 2. The first argument raised on behalf of the applicants is one which goes to the approach which should be adopted by the Court in these particular circumstances, that is, in cases where it is sought to restrain deportation when the application for judicial review has been commenced within the fourteen day time limit imposed by s. 5 of the Illegal Immigrants (Trafficking) Act 2000, and the application for leave has yet to be determined.

3 3. It is submitted that, as a matter of law, an applicant for judicial review who is seeking leave to apply for an order of certiorari to quash a deportation order is entitled, as of right, to an interlocutory injunction restraining implementation of the order until the application for leave can be determined.

4 4. This argument relies particularly on observations made, obiter in the judgment of Geoghegan J. in the Supreme Court in Adebayo v. Commissioner of An Garda Síochána [2006] 2 I.R. 298, and on the approach of Hogan J. in his judgments in L.A. v. Minister for Justice, Equality and Law Reform and P.J & Ors v Minister for Justice Equality & Law Reform [Unreported, Hogan J, 19 ^th October 2011.] This proposition is argued to be at variance with the view expressed in Adebayo by Fennelly J. and, to some extent at least, with the view expressed by this Court in its judgment in A.P.A. and Others v. Minister for Justice, Equality and Law Reform and Others (Unreported, High Court, Cooke J. 20 ^th July, 2010).

5 5. The essential question which arises on that argument is this; in these cases where it is sought to restrain deportation pending the hearing of the leave application, is the applicant, as Hogan J. concluded "entitled to a stay absent special circumstances" or is there some criterion, principle or test which the High Court should apply, and, if so, is that test the Campus Oil test or some other one? It is appropriate, however, to deal first with the more particular circumstances of the present application for injunctive relief.

6 6. This case is one of a large number in which the Minister has declined to continue an undertaking not to deport beyond the return date of the motion for leave under s. 5, of the Illegal Immigrants (Trafficking) Act in which no separate ex parte application for leave has been made in respect of the proposed challenge to the refusal of subsidiary protection. Instead, because the deportation order has been made before the expiry of the six month time limit for seeking an order of certiorari in accordance with O. 84 of the Rules of the Superior Courts, a single judicial review proceeding has been commenced in which relief in respect of both decisions is sought on notice to the respondents. Because there have been a large number of these cases, the Court has been unable to hear separate ex parte applications for leave on the return date of that motion. It has been necessary to treat the application for leave to challenge the subsidiary protection determination as having been moved and then adjourned with the motion so that, in the interests of economy of time and procedure both applications for leave can be heard together at an adjourned date.

7 7. The present case differs from those considered in the A.P.A. and P.J. judgments in that it has been argued primarily (at the suggestion of the Court,) by reference to the pending challenge to the subsidiary protection determination. In effect, a valid refusal of an application for subsidiary protection is a necessary precondition to the making of a valid deportation order. Furthermore, the application for leave to seek an order of certiorari quashing the refusal of subsidiary protection does not come within the scope of s. 5 of the Act of 2000 and is thus made ex parte and then assessed by reference to the lower threshold for leave under O. 84, rather than that of demonstrating "substantial grounds" under s. 5 of the Act of 2000.

8 8. This then is a judicial review proceeding, in which relief by way of certiorari is sought quashing the Minister's refusal of subsidiary protection. Accordingly, if, upon the hearing of the application, leave is granted, the Court will be entitled under O. 84, r. 20(7(a) to direct that the order will operate as a stay of proceedings. By contrast with the situation considered in the A.P.A. and P.J. cases, however, there is no procedure which can be stayed in the circumstances of the present case. The Minister has refused the application, so that consideration of the applicants' position under the European Communities (Eligibility for Protection) Regulations 2006, (the "2006 Regulations") is at an end. Where leave is granted to apply to quash a deportation order, there is at least in being an administrative process for removal of the applicant from the State which is under the continuing control of the Minister and which can, therefore, be interrupted and restrained. There is no equivalent underlying and continuing process in the case of a subsidiary protection application once it is refused. There cannot, accordingly, be any automatic stay of any proceeding. The only continuing process which can be the subject of restraint is the distinct procedure under s. 3 of the Immigration Act 1999 namely, the deportation procedure.

9 9. It follows in the view of the Court that where...