PO v Minister for Justice and Equality

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Humphreys
Judgment Date03 October 2016
Neutral Citation[2016] IEHC 543
Date03 October 2016
Docket Number[2016 No. 640 J.R.]

[2016] IEHC 543

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2016 No. 640 J.R.]

BETWEEN
P.O.

AND

G.E. (A MINOR SUIING BY HER MOTHER AND NEXT FRIEND P.O.)
APPLICANTS
AND
MINISTER FOR JUSTICE AND EQUALITY
RESPONDENT

Asylum, Immigration & Nationality – S. 3(11) of the Immigration Act 1999 – Expired limitation period – Unchallenged deportation orders – Injunction – Balance of justice and convenience – History of evasion

Facts: The first named applicant had applied for injunction restraining the respondent from deporting her along with the second named applicant/minor following the dismissal of the first named applicant's application for inquiry under art. 40 of the Constitution against her arrest and detention. The real issue in the present application was whether the applicants were entitled for injunction against the background that they had failed to challenge the original deportation orders and challenged the refusal of an application for the revocation order. The respondent argued that the history of evasion of the first named applicant was a massive factor that was to be weighed in the balance against the first named applicant, which even led to physical resistance while executing lawful deportation. The respondent also submitted that the grant of injunction would be contrary to the immigration policies of the State.

Mr. Justice Humphreys refused to grant injunction to the applicants. The Court stated that the balance of justice and convenience had strongly militated against the grant of any injunction in the present case. The Court observed that the original deportation orders of 2008 remained unchallenged and, moreover, the failed claim for persecution was also not brought up. The Court held that although there would be disorientation in the family life of the applicants as the second named applicant was eight years old; yet, it could not be said that the second named applicant was incapable of making suitable adaptation.

JUDGMENT of Mr. Justice Humphreys delivered on the 3rd day of October, 2016
1

The applicants are a mother and child, the mother having arrived in the State from Nigeria on 13th August, 2007, and having claimed asylum on that date. The second named applicant was born in the State on 11th September, 2007, and an asylum claim was lodged on her behalf on 1st October, 2007. Both of the asylum applications were rejected in due course and deportation orders were made for both applicants on 25th November, 2008.

2

The first named applicant then evaded the Garda National Immigration Bureau for a period of six and a half years and was apprehended on 20th July, 2015. The State claimed in correspondence that she was apprehended on entry from Northern Ireland. She has rejected that position in other proceedings and in correspondence that is exhibited in these proceedings. In view of the somewhat indirect route chosen to address this point I do not find that she has adequately adduced evidence in these proceedings to enable me to make a finding on this point.

3

The applicants then on 20th July, 2015 made applications for revocation of the deportation orders under s. 3(11) of the Immigration Act 1999.

4

On 25th July, 2015, Eagar J. directed the release of the first named applicant in the first Article 40 application P.O. v. Governor of the Dochas Centre [2015 No. 110 S.S.]. That was appealed to the Court of Appeal by the State but the appeal was withdrawn.

5

On 27th June, 2016, the Minister made a decision to affirm the deportation orders. The 28 day period for bringing judicial review of that decision expired on 25th July, 2016, but prior to its expiry, solicitors for the applicant had written on 29th June, 2016, threatening to bring a judicial review application within the limitation period. However no such application was brought.

6

After the expiry of the limitation period for judicial review the applicants were taken into custody. The first named applicant was arrested at 7:10pm on 27th July, 2016, and the second named applicant was put into the custody of the Child and Family Agency. The first named applicant physically resisted her deportation on 27th July, 2016, thereby frustrating her removal on that date.

7

On 28th July, 2016, the day after the detention, solicitors for the applicant wrote to INIS, threatening an injunction application, and the day after that, 29th July, 2016, they applied for an inquiry under Article 40, the second Article 40 inquiry. I granted that application for an inquiry, in proceedings entitled P.O. v. Governor of Dochas Centre (No. 2) [2016 No. 846 S.S.]. That inquiry then proceeded. In the meantime on 2nd August, 2016, the present action was commenced by the filing of a statement of grounds, over a week out of time.

8

On 10th August, 2016, at approximately 2:30pm, Barton J. delivered judgment dismissing the Article 40 application which had come before him and which had resulted in an inter partes hearing: See P.O. v. Governor of the Dóchas Centre [2016] IEHC 557 (Unreported, Barton J., 10th August, 2016). Ms. Rosario Boyle, S.C. and Mr. Anthony Lowry, B.L. appeared for the applicants; Mr. Colm Smyth, S.C. and Ms. Cindy Carroll, B.L. for the Governor; and Ms. Sarah McKechnie, B.L. for the Child and Family Agency.

9

An ex parte application for an injunction brought in the judicial review proceedings (the applicants' third set of proceedings) came before me later in the day on 10th August, 2016. At that time I heard a very able submission from Mr. Lowry on behalf of the applicant. At approximately 7.50 pm on that date I gave an ex tempore ruling refusing the injunction and I now take the opportunity to set out more formal written reasons for having done so. I should also note by way of postscript to that that after circulation of the unapproved version of this judgment, Mr. Lowry very helpfully drew my attention to some further authority and this final version of the judgment has regard to that material.

10

It appeared to be suggested at one stage that an applicant had an entitlement not to be deported prior to the determination of his or her proceedings (based on Okunade v Minister for Justice [2012] 3 I.R..152, Conka v Belgium (Application No. 51564/99), N.A. v The United Kingdom (Application No. 25904/07) and Abdolkhani and Karimnia v Turkey (Application No. 30471/08). That is not so. The entitlement is to a hearing prior to deportation, not to determination of the proceedings.Whether that court hearing is procedurally a leave application or an application for a stay or an injunction does not alter the fact that the applicant has access to the court to seek to have a temporary restraint placed on the deportation order. It is deportation before such access is provided that infringes the ECHR’ (para. 9.40 of Okunade).

11

In terms of the criteria for granting an injunction as set out in the judgment of Clarke J. in Okunade, and on ordinary equitable principles, I assume in favour of the applicants that there is an arguable case and that damages are an inadequate remedy. The real issue in this application is therefore the balance of justice and convenience, and there are a number of factors that need to be considered in relation to that question, which I will address as follows. While I have taken into account all the circumstances, it seems to me in the present case that there are eight factors of particular noteworthiness and of potentially more general application, seven of which militate against granting an injunction to one or both of the applicants.

(1) The need for orderly implementation of the immigration system and of decisions lawful on their face militates in favour of refusing an injunction

12

A primary factor here, as in all immigration cases, is the need for an orderly implementation of the immigration system and orders that are lawful on their face as referred to by Clarke J. at para. 9.42 of Okunade. Such a consideration strongly weighs against injunctive...

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2 cases
  • D.E (infant) v Minister for Justice and Equality (No.3)
    • Ireland
    • High Court
    • 26 June 2017
    ...Minister for Justice [2013] IEHC 566, and I took a similar view in my own decision in P.O. & G.E. v. Minister for Justice and Equality [2016] IEHC 543 (Unreported, High Court, 3rd October, 2016). I also noted that L.C. did not appear to have been open to the Supreme Court in Okunade, and wh......
  • DE v Minister for Justice and Equality
    • Ireland
    • High Court
    • 9 May 2017
    ...Equality [2016] IECA 383. 4 It is also consistent with the decision of the Supreme Court in P.O. v. Minister for Justice and Equality [2016] IEHC 543 where it was stated by MacMenamin J. (at paras. 13 to 16) that the task of the Minister in making decisions of this type did not require the ......

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