The Minister for Justice has lost his Supreme Court appeal against a decision to allow a South African mother and her two children take proceedings challenging the making of deportation orders against them.
Judicial proceedings challenging deportation orders have to be brought within 14 days of the making of such orders, and the appeal centred on whether the woman was entitled to more time to bring her proceedings.
Notice of the making of the order was posted on September 25th, 2003, and her proceedings were initiated on October 28th, 2003.
In the High Court in November 2003, Mr Justice O'Sullivan granted an extension of time, and granted leave to the applicants to seek a declaration that the Immigration Act 1999 (Deportation) Regulations 2002 were made in excess of the powers of the Act and are null and void.
The judge also granted leave to take proceedings seeking to quash the deportation orders purportedly made by the Minister on August 7th, 2003, and notified to the applicants not earlier than September 28th, 2003.
As part of the challenge the applicants are claiming that, insofar as the Deportation Regulations 2002 determine the form of a deportation order, and because the deportation order in their case does not state to which place they are to be deported, the regulations are void.
A stay on the implementation of the deportation orders was placed pending the outcome of the action.
The Minister for Justice secured leave from the High Court to appeal its decision to the Supreme Court.
Ms Justice McGuinness dismissed the appeal yesterday. The applicants may now proceed with their challenge to the making of the deportation orders.
In her decision, the judge said the main question was the issue of the extension of time to bring the proceedings.
The notice of the making of the orders was sent to the woman on September 25th, 2003, but it was not stated when she had received that notice.
As a result of various matters, she found herself without legal representation for a period.
Ms Justice McGuinness said the evidence regarding legal representation was contradictory and confusing and, in considering the circumstances of the delay in bringing the leave application, the court was handicapped by the state of the evidence.
A great deal of the blame for the state of the affidavits must fall on the applicant's legal advisers, she said.
However, the judge said, it was going too far to argue, as the Minister urged, that the woman was personally to blame for the delay.
While the woman had sought further legal and other advice when the Refugee Legal Services withdrew its services from her, it would be going too far to categorise her actions as personally blameworthy.
She added that, given an absence of evidence, she was reluctant to agree with the High Court judge in attributing to the Refugee Legal Service blameworthiness for delay in forwarding certain papers.
Taking into account all the circumstances, including that two of the applicants were infants who could not be blamed for any delay, there was good reason to extend the 14-day limit.
The delay was a matter of about two weeks, and the woman had shown reasonable diligence in bringing the matter to court.