High Court of Ireland, Judgement of 3 March 2012, [2012] IEHC 113

EU asylum law

Mr Smith and his wife fled Nigeria in 2002 with one of their children. A child was born to the couple in Ireland in January 2002 and was as a consequence an Irish (and EU) citizen. They applied for and were refused asylum. Mr Smith fled to the United Kingdom and was there arrested for drug related offences. He served a custodial sentence and was deported to Nigeria. In 2005 his wife obtained leave to remain as a parent of an Irish born citizen following the introduction of a scheme by the Department of Justice (the Irish Born Child 05 scheme IBC 05). Mr Smith returned to Ireland illegally with another child. A deportation order was issued against him. He fled to the United Kingdom illegally but later returned to Ireland and in October 2011 sought a revocation of the deportation order following the Court of Justice decision in Zambrano. He was refused and was supplied with a memorandum outlining the reasons for the decision and in particular why his child would not be denied the genuine enjoyment of the substance of his rights as a Union citizen given the continued presence of his mother and the absence of a relationship of dependence between Mr Smith and his Union citizen child. He made a further application to have the deportation order revoked in November 2011 and was again refused. He sought leave to review the second application to revoke the deportation order.

Mr Smith failed to present a statable legal case and hence his application for leave to apply for judicial review was denied without a full hearing taking place. A secondary argument based on fundamental rights found in the ECHR and the EU Charter was considered and rejected by the High Court. 

The judgment provides confirmation that deportation as a matter falls outside the scope of Union law.