Decision to deport child with serious illness was not unlawful

Clarke CJ (nem diss): Judicial review - refusal to revoke deportation order - refusal of leave to seek judicial review - child born in Ireland to Nigerian parents - child suffering from serious medical condition - sickle cell disease - child born in 2009 - deportation order in 2011 - evasion of authorities by mother - application to revoke order - whether substantial grounds to challenge order - requirement of “exceptional circumstances” which must be met in order that the expulsion of a person to a territory with an inferior health system would be contrary to the European Convention on Human Rights - policy or criteria by reference to which discretion on deportation was likely to be exercised - whether medical condition met the high threshold to be met in order to make it unlawful to deport.

"As noted earlier, I am not satisfied that there are substantial grounds for arguing that the Minister was obliged to adopt a policy or practice in relation to the exercise of the very broad residual discretion which the Minister is given to allow persons to remain in the State for humanitarian reasons. It follows that leave to seek judicial review on these grounds could only be required to be given if it could be demonstrated that there were substantial grounds for believing that there was an actual policy or practice in place which had not been disclosed or made available to interested parties so that prejudice might be said to have arisen. In the circumstances, I am not satisfied that the evidence supports the contention that any practice which existed was not sufficiently known to the solicitor acting for D.E. so as to enable that solicitor to make any representations which were considered appropriate by reference to that practice.
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... I am not satisfied that there are arguable grounds for suggesting that D.E. complied with the initial obligation which rests on an applicant to put forward evidence of a real risk that Article 3 rights will be interfered with if deported or returned. On that basis I have consequently concluded that substantial grounds have not been made out for a judicial review challenge to the decision of the Minister."

O'Donnell J (concurring): Recent case law of European Court of Human Rights - prohibition on torture or inhuman and degrading treatment or punishment - right to remain on medical grounds - comparison of Irish health service to other health services - humanitarian considerations.

"The European Court of Human Rights does not apply the strict principles of stare decisis familiar in the common law world, and it is a mistake to read decisions as if they were binding authority rather than as part of a continuum of jurisprudence. Nevertheless the traditional techniques of case law analysis can be of assistance in illustrating what has been decided, and the implication of a decision for other cases. It is important therefore to understand Paposhvili first against its own facts, and second against the existing case law which it sought to clarify."

"For my part, I have come to the conclusion that at the moment the decision in Paposhvili should be viewed as essentially procedural and clarificatory, and while an extension of the existing test, should not at this stage be interpreted without more as a dramatic change, and moreover cannot be taken as a guide to, or encouragement of, further expansion."

"Here the appellant has been more than nine years in this country, was born here, and has lived all his life here. Not only does he suffer from a serious medical condition, but he has had the benefit of committed expert medical care since birth. The Minister is entitled, indeed required, to take all that information into account, including his medical condition, prognosis, history of treatment and likely future care, as well as the degree of integration in the community and other factors in deciding either on deportation, or on the revocation of any deportation order."