P.J. and Others v Minister for Justice, Equality and Law Reform

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 19 October 2011
• Neutral Citation: [2011] IEHC 443
• Court: High Court
• Date: 19 October 2011

[2011] IEHC 443

THE HIGH COURT

[No. 806 J.R./2011]

J (P) & Ors v Min for Justice

IN THE MATTER OF THE IMMIGRATION ACT 1999 AND ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 AND STATUTORY INSTRUMENT NO. 518 2006

BETWEEN /

P.J., O.A.O.J. (A MINOR), O.O.M.J. (A MINOR) AND O.C.P.J. (A MINOR) ALL SUING THROUGH THEIR MOTHER AND FRIEND P.J.

APPLICANTS

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)

CAMPUS OIL LTD v MIN FOR ENERGY (NO.2) 1983 IR 86

RSC O.84

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

IMMIGRATION ACT 1999 S3

RSC O.84 r20(7)

RSC O.84 r20(7)(B)

RSC O.84 r20(7)(A)

RSC O.53 r10(A)(UK

CIVIL PROCEDURE r54.10

R v SECRETARY OF STATE FOR EDUCATION & SCIENCE (EX PARTE AVON CC) 1991 1 QB 558

MIN FOR FOREIGN AFFAIRS TRADE & INDUSTRY v VEHICLE & SUPPLIES LTD 1991 1 WLR 550

R (H) v ASHWORTH HOSPITAL AUTHORITY 2003 1 WLR 127

BANK OF IRELAND v PURCELL 1989 IR 327

CONSTITUTION ART 40.3.2

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

EFE v MIN FOR JUSTICE 2011 1 ILRM 411

ADEBAYO v GARDA COMMISSIONER 2006 2 IR 298

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

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

STATE (GOERTZ) v MIN FOR JUSTICE 1948 IR 45

AGBONLAHOR v MIN FOR JUSTICE 2007 4 IR 309

O (M E) v MIN FOR JUSTICE UNREP HOGAN 20.9.2011

T (J M) v MIN FOR JUSTICE UNREP 7.10.2011 (TRANSCRIPT NOT AVAILABLE)

ALLI (A MINOR) v MIN FOR JUSTICE 2010 4 IR 45

CONSTITUTION ART 41

IMMIGRATION ACT 1999 S3(6)(H)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)

INJUNCTIONS

Interlocutory injunction

Immigration - Deportation - Pending judicial review - Appropriate principles to be applied - Interpretation of Ord 84 r 20 - Whether Ord 84 r 20 applied to applications to quash administrative decisions - Whether Campus Oil principles applied to grant of stay under Ord 84 - Whether special circumstances to refuse stay - Finding of respondent medical treatment available in Nigeria challenged - Whether proceedings unsustainable - Campus Oil v Minister for Energy (No. 2) [1983] IR 88; Bank of Ireland v Purcell [1989] IR 327; Adebayo v Commissioner of An Garda Síochána [2006] IESC 8, [2006] 2 IR 298 and The State (Goertz) v Minister for Justice [1948] IR 45 applied - Reg. v Education Sec., Ex p. Avon C.C. [1991] 1 Q.B. 558; R(H) v Ashworth Hospital Authority [2002] EWCA Civ 923, [2003] 1 W.L.R. 127; Efe v Minister for Justice [2011] IEHC 214, [2011] 2 IR 798; A(L) v Minister for Justice, Equality and Law Reform [2010] IEHC 523, (Unrep, Hogan J, 21/12/2010) December, 201; Agbonlahor v Minister for Justice [2007] IEHC 166, [2007] 4 IR 309; O(ME) v Minister for Justice, Equality and Law Reform, (Unrep, High Court, 20/9/2011); T(JM) v Minister for Justice, Equality and Law Reform (Unrep, Hogan J, 7/10/2011) and Alli (a minor) v Minister for Justice [2009] IEHC 595, [2010] 4 IR 45 approved - Min. of Foreign Affairs v Vehicle & Supplies Ltd. [1991] 1 W.L.R. 550 and A(PA) v Minister for Justice, Equality and Law Reform [2010] IEHC 297, (Unrep, Cooke J, 20/7/2010) distinguished - The Rules of the Superior Courts 1986 (SI 15/1986), O 84 r 20 - Aliens Act 1935 (No 14), s 5 - Immigration Act 1999 (No 22), s 3 - Illegal Immigrants (Trafficking) Act 2000, (No 29), s 5 - European Convention on Human Rights 1950, arts 3 and 13 - Constitution of Ireland 1937, arts 40.3.2 and 41 - Stay pending outcome of leave application granted (2011/806JR - Hogan J - 19/10/2011) [2011] IEHC 443

J(P) v Minister for Justice, Equality and Law Reform

Facts The applicants sought leave pursuant to s. 5(2) of the Illegal Immigrants (Trafficking) Act 2000 ("the 2000 Act") to challenge the validity of deportation orders made by the Minister. The first applicant (a Nigerian national) had arrived in the State and had a number of children. Two of the children had serious intellectual difficulties. Evidence was submitted that the facilities that were available in Nigeria for the treatment of children with such disabilities were haphazard. The main issue was whether the applicants were entitled to an interlocutory injunction pending the determination of the leave application and, if so, whether the standard Campus Oil principles (Campus Oil Ltd. v. Minister for Energy (No.2) [1983] I.R. 86) applied.

Held by Hogan J in granting the stay sought. The country of origin information presented a picture of a State with little real facilities for children with certain disabilities. The phrase "stay of proceedings" should be interpreted to ensure that an order could be made with suspensive effect in respect of both administrative as well as judicial decisions. A purely administrative decision such as a deportation order was capable of being stayed by an order made under Order 84, rule 20(7)(a). The fact that the application for leave had yet to be determined and given that it could not be said that the application was unsustainable, the applicants should not be disadvantaged by the fact that their leave application has yet to be determined.

Reporter: R.F.

1 1. In these proceedings the applicants seek leave pursuant to s. 5(2) of the Illegal Immigrants (Trafficking) Act 2000 ("the 2000 Act") to challenge the validity of a deportation order made by the Minister on 18 ^th August, 2011. The proceedings were commenced on 5 ^th September, 2011, and the first return date for the motion was 3 ^rd October, 2011. The respondents agreed to give an undertaking not to deport until 3 ^rd October, 2011, but declined to give any undertaking beyond that date.

2 2. The applicants then initially sought an interlocutory injunction restraining their deportation pending the outcome of the present judicial review proceedings. Matters have now moved to the point where the only real issue presently before the court is whether the applicants are entitled to an interlocutory injunction pending the determination of the leave of the application and, if so, whether the standard Campus Oil principles (Campus Oil Ltd. v. Minister for Energy (No.2) [1983] I.R. 86) which govern the grant of an interlocutory injunction (fair question to be tried, adequacy of damages and balance of convenience) apply to a case of this nature.

3 3. The only reason why the present case might present a special circumstance taking the case outside of the ordinary Campus Oil principles is because of the interaction between Ord. 84 and s. 5 of the 2000 Act. Of course, s. 5(1) of the 2000 Act provides that a challenge to the validity of a deportation decision cannot be brought otherwise than "than by way of an application for judicial review under Ord. 84 of the Rules of the Superior Courts".

4 4. So far as applications under Ord. 84 are concerned, if it be the case that applicants for certiorari are entitled more or less as of right to a stay (which I will treat for present purposes as the equivalent of an injunction) following the grant of leave and absent special circumstances, then it cannot be right in principle that they are deprived of that entitlement simply because their application for leave has yet to be heard and determined by the Court. Unlike the situation which obtains in the case of conventional applications for leave under Ord. 84 where there is no (or, at least, almost no) hiatus between the commencement of proceedings and the application for leave itself, in practice the delays in immigration cases between the commencement of proceedings and the determination of the leave application are usually measured in months, if not years.

5 5. What is critical, therefore, is to determine whether the standard Campus Oil principles apply to the grant of a stay following the grant of leave to apply for judicial review in cases where certiorari has been sought. If the answer to that question is in the affirmative, then the Campus Oil principles apply to the present (pre-leave) application. If, on the other hand, the question is in the negative, so that applicants for certiorari obtain a stay more or less as of right or by reason of a quasi-entitlement absent special circumstances, then the special rules must be applied by analogy to the pre-leave cases as well. This present case turns, therefore, on that very question.

6 6. Before turning to a consideration of this question, it is appropriate to say something about the facts of the case. The first applicant (whom I shall describe as "the mother") is a Nigerian national who arrived here in December, 2004. During her stay here she met and had a relationship with a man as a result of which she had the second, third and fourth applicants ("the children"). The children were born here, but they are not Irish citizens. Two of the children have serious intellectual difficulties. One of them, OAOJ, has been diagnosed as being on the autistic spectrum and the other, OOMJ, has serious speech and language problems. Judged by the supporting document exhibited in the affidavit, it is only fair to record that the mother has striven valiantly, along with the social services, to provide the very best care and attention for these two children.

7 7. So far as OAOJ is concerned, his condition has been summarised thus by Grace Connor, a family support co-ordinator in a letter of July, 2010:-

"[OAOJ] was diagnosed with autistic spectrum disorder in the presence of a mild intellectual disability. Such a child with this diagnosis reacts very badly to changes in routine, structure or when presented with new environments. [OAOJ] condition is complicated by a diagnosed severe speech and language delay. He reacts very seriously to new situations and they cause him distress, upset and...