Supreme Court overturns asylum ruling

Wed, Oct 17, 2012, 01:00

THE SUPREME Court has unanimously found the High Court had wrongly refused injunctions restraining deportation of a Nigerian mother and her Irish-born son pending a decision on their court bids for leave to challenge deportation orders and refusal of subsidiary protection.

The five-judge court ruled the disruption of family life of four-year-old Daniel Okunade, who “knew no other country but Ireland” and who could not be blamed for long delays in dealing with his case, was sufficient to warrant the injunction.

The case is regarded as a test case raising broad issues affecting other cases and highlights the effects of delays extending over years in dealing with asylum cases.

With a backlog of some 1,000 cases in the asylum list, the Supreme Court said the “extremely complicated” and “cumbersome” laws relating to deportation and subsidiary protection contribute significantly to delays and add to the court’s difficulties.

Mr Justice Frank Clarke, giving the judgment, stressed the desirability of “a single and coherent structure” within which all relevant decisions were made as a result of a single process.

The anomalies in the existing structure were significantly increasing the amount of court resources that had to be allocated to asylum cases, he said. A major difficulty with the existing law was that Ireland, unlike any other EU country, had separate statutory processes for considering applications for refugee status, subsidiary protection and humanitarian leave, he pointed out.

Measures proposed in the Immigration, Residence and Protection Bill 2010, including unification of the refugee status and subsidiary protection processes, were “likely to simplify matters” and make review by the courts “significantly more straightforward”, he said. Unless and until they were adopted by the Oireachtas, the courts had to deal with the law as it stood.

While the Minister for Justice had previously usually undertaken not to deport until leave applications were heard, the Minister more recently indicated such an undertaking would not be given, at least in some cases, he noted.

The Supreme Court judges ruled the High Court had erred in failing to fully consider the position of Daniel Okunade when it refused in November 2011 to injunct deportation of himself and his mother, 34-year-old Oluwaseun Okunade. The Okunades came here in 2008 when Ms Okunade (34) was pregnant. Daniel was born here but is not an Irish citizen. Ms Okunade applied for asylum on arrival but was refused.

When deportation proposals were made in October 2009, she sought subsidiary protection and leave to remain but was refused in April 2011 after which she started judicial review proceedings. The injunctions were sought pending the hearing of their applications for leave for judicial review.

Mr Justice John Cooke had concluded no irremediable loss would be caused to the child by deporting the Okunades to Nigeria before their leave hearing but the Supreme Court disagreed.

After Mr Justice Cooke’s ruling, the Minister for Justice undertook not to deport the Okunades pending further legal proceedings.