Specifying deportation order criteria would lead to ‘gaming the system’

Requiring the Minister for Justice to specify criteria for making or revoking deportation orders would result in attempts to "game the system", a High Court judge has said.

If a rigid time limit was put forward as a threshold for allowing someone to remain in the State, that would result in "undesirable conduct" such as creating an incentive to delay matters by legal proceedings or otherwise, Mr Justice Richard Humphreys said.

He made the comments when refusing a judicial review aimed at revoking a deportation order against a seven-year old boy born here to Nigerian parents. The child suffers from a severe form of sickle cell disease, a blood disorder.

The boy was born in Ireland two months after his mother arrived here in 2009. In 2011, she initiated the first of three legal challenges to a deportation order made against him earlier that year.

The High Court refused the first application after finding that no substantial grounds were advanced to support claims the child needed to remain in Ireland for medical treatment.

Mr Justice Humphreys said the mother, after that decision, evaded the Garda National Immigration Bureau (GNIB).

A second case was brought after the Minister for Justice refused to revoke the deportation order.

In November 2014, the court struck out that case on grounds it was moot because an up-to-date medical report on the boy had been submitted which meant the Department of Justice treated it as a second application.

Further refusal

The third case, dealt with by Mr Justice Humphreys, was taken over a further refusal by the Minister to revoke deportation.

The boy’s lawyers argued an informal process had been put in place by the State aimed at giving permission to remain to large numbers of undocumented migrants in the State for more than five years.

Mr Justice Humphreys said the recommendation of that ‘Working Group on the Protection Process’ was encumbered with various conditions, including that a person seeking permission to remain had not been evading the authorities.

While the boy’s lawyers relied on a 2012 English case stating the rule of law required the authorities to provide a transparent statement of the broad criteria for detention of people, there were many “obvious” reasons why there can be no enforceable requirement for the Minister to provide a full statement of the deportation policy being adopted, he said.

A requirement that the Minister specify criteria for making or revoking deportation orders would result in attempts to “game the system” and have a distorting effect on how people interact with that system, he said.

The issue of the boy availing of the working group recommendation on regularising illegals was also relevant, he said.

While the mother said she was not aware of the exception preventing people who evaded the GNIB qualifying to remain, he was satisfied there was a significant degree of notice in this case that the regularising policy was available.

The judge also rejected claims of failure to adequately consider access by the boy to medical services in Nigeria or of breach of his rights to private and family life.

Exceptional circumstances are required for a finding that expulsion of a person to a country with an inferior health system would be contrary to European Convention rights, he said.

While a medical report of 2014 stated the boy’s condition was “really quite severe”, it was not apparent that this represented a substantial ground for contending the exceptional circumstances threshold had been met.

Evaluation of medical material was a matter for the Minister in the first instance, he said.

The fact this was the third judicial review also did not assist, he added.