Here, the Supreme Cort held that the same test applies for a temporary injunction against deportation both before the judicial review trial and post-trial pending appeal. The Court rejected the State’s case that a refined test should apply where the High Court has held that there is a valid deportation order.

Background

After an unsuccessful application for refugee status in 2008, Charles (and his wife and their two children) submitted an application for subsidiary protection. Charles did not challenge the decision to refuse refugee status. In 2011, the Minister refused Charles’ application for subsidiary protection and issued deportation orders. In 2012, the High Court refused leave for judicial review of the Minister’s decision as Charles could show no stateable grounds for quashing the decision. He appealed that decision to the Supreme Court. That case was transferred to the Court of Appeal after the creation of that court (he did not appeal the decision to issue deportation orders). After the adverse High Court decision, however, Charles changed address to avoid deportation. He did not present himself to the Garda National Immigration Bureau and remained in the State, working illegally.

In 2015, Charles sought an undertaking from the State that he would not be deported pending the hearing of his appeal. When the State refused to give that undertaking, he applied to the Court of Appeal for an injunction prohibiting his deportation pending the outcome of the appeal.

Court of Appeal

The Court of Appeal (here) found that he had an arguable case regarding their application for subsidiary protection. (The Court of Appeal judgment names Charles as Chigaru). It held that looking at the parents case in isolation, there was little to commend granting the injunction: they were not at risk of serious harm if deported, and they had evaded their obligations under immigration law. However, citing the authority of  Okunade v Minister for Justice and Equality (here), the court accepted that the children were innocent of their parents’ deceptions and it would be an unjust to burden them with the consequences by allowing their deportation to proceed. And in order to protect the childrens’ constitutional right to the company and care of their parents, the court granted an injunction against deportation for their parents, also.

The State (Minister for Justice and Equality, Ireland and the Attorney General) applied for leave to appeal the Court of Appeal’s decision to the Supreme Court. The State argued that the Court of Appeal had misapplied a number of Supreme Court judgments, including Okunade, PBN v MJE (post) and PO v MJE (post). It had extended the Supreme Court’s decision in Okunade: that case concerned an application for an injunction against deportation before a High Court decision in the case, whereas the High Court had found in this case that there was no merit to Chigaru’s case. The State argued that the test from Okunade is not the appropriate test to be applied after the High Court has made a determination in a case.

The Okunade test, as set out by Clarke J, writing for a five judge panel of the Supreme Court, is:

(a)     the court should first determine whether the applicant has established an arguable case; if not the application must be refused, but if so then;

(b)     the court should consider where the greatest risk of injustice would lie. But in doing so the court should:-

(i)     give all appropriate weight to the orderly implementation of measures which are prima facie valid;

(ii)     give such weight as may be appropriate (if any) to any public interest in the orderly operation of the particular scheme in which the measure under challenge was made; and,

(iii)     give appropriate weight (if any) to any additional factors arising 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 resolution of the proceedings;

but also,

(iv)     give all due weight to the consequences for the applicant of being required to comply with the measure under challenge in circumstances where that measure may be found to be unlawful.(c)     in addition the court should, in those limited cases where it may be relevant, have regard to whether damages are available and would be an adequate remedy and also whether damages could be an adequate remedy arising from an undertaking as to damages; and,

(d)     in addition, and subject to the issues arising on the judicial review not involving detailed investigation of fact or complex questions of law, the court can place all due weight on the strength or weakness of the applicant’s case.

This appeal was heard by a seven judge panel of the Court. Clarke J, writing the Court’s judgment in this case also, dismissed the State’s appeal, stating:

5.3 What is the logic of applying a different standard to the assessment of the strength or weakness of a party’s case pre-trial or post-trial and pending appeal. In principle, the risk of injustice is just the same if one grants or rejects an application for a stay or injunction pending trial or if one grants or rejects an application for a stay or injunction post-trial and pending appeal. The risk is that the case will ultimately turn out in such a way that, with the benefit of hindsight, a party will have had its rights interfered with by the presence or absence of an order. In one case what may confer that hindsight may be the result of a trial. In the other case hindsight may be conferred by the result of an appeal. But there is no difference in principle. The party may suffer an injustice by being deprived, at least for the time being, of a remedy which a subsequent stage in the process (trial or appeal) may determine them to have always been entitled to. Of course, as in all cases, the Court also has to put into the balance the risk of injustice to the other side which may result from intervening in favour of the applicant in circumstances where the ultimate result (again, whether trial or appeal) demonstrates that the intervention was, with the benefit of hindsight, inappropriate. But likewise that situation applies just as much in the context of a potential measure sought pending appeal as it does in respect of a measure sought pending trial.

Denham CJ, O’Donnell Donal J, MacMenamin J, Dunne J, Charleton J and O’Malley J all concurred. MacMenamin J wrote a concurring judgment (here) criticising the State’s asylum process as not fit for purpose.