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Cite as: [2020] IEHC 69

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THE HIGH COURT

JUDICIAL REVIEW

[2020] IEHC 69

[ 2019 No. 955 J.R.]

BETWEEN

F.R. A.K.A. J.S. (PAKISTAN)

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

(NO. 1)

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 3rd day of February,

2020

Introduction

1. The applicant is an illegal immigrant. She endeavoured to defraud the UK immigration

system by using a false name on a visitor application, hence her alias in the title of the

proceedings. After that was refused, she arrived in the State without permission and has

remained here without such permission ever since, apart from having the purely legal

entitlement to not be removed pending determination of a protection claim. During the

course of her asylum claim she falsely claimed to have never applied for a visa anywhere.

Her asylum and subsidiary protection claims have been rejected in every instance as have

all of her immigration applications. Her presence here is entirely unlawful. She now seeks

an injunction restraining the State from implementing a prima facie valid deportation

order dating from 2017 that was unchallenged then, although the applicant has now

belatedly indicated an intention to seek an extension of time to challenge it now. Her

protection and refoulement points have been considered and at all times been rejected.

The factors relevant to injunctive relief weigh massively against the applicant.

Factual Background

2. The applicant claims to have been born in Pakistan in 1977. As noted above, she claimed

on her asylum questionnaire never to have applied for a visa of any kind. In fact she had

applied for a visa to the UK with a false name. That was refused on 13th June, 2007. She

did not appeal the visa refusal. The Refugee Appeals Tribunal found her failure to appeal

was a factor rendering her account implausible, given that she was claiming persecution

at that point. The applicant told the Refugee Applications Commissioner that she left

Pakistan on 9th April, 2013 with the help of a people-trafficker, euphemistically and

inappropriately referred to as an “agent”.

3. She arrived in the State and claimed asylum on 11th April, 2013. That claim was rejected

by the Commissioner on 16th September, 2013. An appeal to the Refugee Appeals

Tribunal was rejected on 24th July, 2014. The Tribunal found her account incredible and

her explanations vague and unreasonable, and held that she had not made a genuine

effort to substantiate her claim but instead had failed to furnish documentation in respect

of “any aspect of her claim”.

4. A subsidiary protection application was subsequently made, and rejected on 6th

November, 2015. An appeal to the Refugee Appeals Tribunal was rejected on 8th

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September, 2016 after an oral hearing at which Mr. Ciarán Doherty B.L. and Ms. Margaux

Daxhelet appeared for the applicant. The Tribunal member concluded that: “nothing I

have heard and considered has convinced me that the appellant was being truthful”.

When contradictions were put to the applicant she “was unable to give any or any

reasonable explanation”.

5. Representations were made under s. 3 of the Immigration Act, 1999 on 14th December,

2016. She was refused permission to remain on 24th January, 2017 and a deportation

order was made against her on 17th February, 2017.

6. On 7th June, 2017 she applied under s. 3(11) of the Immigration Act, 1999 Act for

revocation of that order. An N.G.O. made submissions on her behalf on 18th September,

2017. The applicant then changed solicitors, and her current solicitors made further

submissions on 10th April, 2018 and subsequent dates. On 30th July, 2019, the 1999 Act

was amended by s. 95 of the Withdrawal of the United Kingdom from the European Union

(Consequential Provisions) Act, 2019 by the addition of a new s. 3A of the 1999 Act,

embodying a new refoulement test as opposed to that in the repealed s. 5 of the Refugee

Act, 1996. In addition, previous deportation orders made under the 1999 Act were

confirmed by the 2019 Act.

7. On 4th September, 2019, the s. 3(11) application was refused. Instead, an order was

made amending the deportation order dated 9th September, 2019 that simply added the

applicant’s alias. The order did not expressly address the issue of refoulement on the

basis of s. 3A of the 1999 Act or s. 5 of the 1996 Act. The applicant was notified of these

decisions on 27th November, 2019.

8. The present proceedings were filed on 20th December, 2019 challenging the refusal of the

section 3(11) application and the amended deportation order also made under s. 3(11).

The applicant also wishes to seek an extension of time to apply to amend the proceedings

challenging the original 2017 order. She states that she has an explanation regarding

time and I have adjourned the substantive matter with directions regarding that

amendment.

9. Before the court now is the applicant’s application for an interlocutory injunction

preventing deportation pending the determination of the proceedings, and I have heard

helpful submissions in that regard from Mr. Eamonn Dornan B.L. for the applicant, and

from Ms. Sarah K.M. Cooney B.L. for the respondent. I was due to hear the substantive

action at this time, but at the last minute Mr. Dornan B.L. asked for an adjournment to

amend his statement of grounds, which I (perhaps erroneously) granted, so this

judgment is limited to the question of an injunction only.

Criteria for an Injunction

10. The test for an injunction in such circumstances was set out in Okunade v. Minister for

Justice, Equality and Law Reform [2012] 3 IR 152 per Clarke J. (as he then was) at page

193.

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11. On the first issue of whether the applicant has an arguable case, it is clear that the

applicant has overcome that hurdle, but it is not a point in her favour; rather the removal

of a negative.

12. The next issue is where the greatest risk of injustice could lie, and in assessing that, the

court should “give all appropriate weight to the orderly implementation of measures which

are prima facie valid”. That certainly militates against an injunction, particularly as the

deportation order is not as yet challenged.

13. Next the court should give such weight as may be appropriate to any public interest in the

orderly operation of the particular scheme in which the measure under challenge was

made; and again, that weighs against an injunction.

14. Next, the court should attach any appropriate weight onto additional factors which could

heighten the risk of the public interest of the measure under challenge not being

implemented. That is relatively neutral as there is nothing particularly striking that

distinguishes the applicant from other failed protection seekers, other than perhaps the

deception that occurred in her case. However, I do not attach any particularly strong

weight to that for present purposes.

15. The next criterion involves balancing the consequences for the applicant which flow from

“being required to comply with the measure under challenge in circumstances where that

measure may be found to be unlawful”. An important point to note here is that the

deportation order is not, as of yet, a measure under challenge. Any adverse

consequences to the applicant, if there are any, arise from that decision and not the s.

3(11) decision.

16. In any event, one can assume it is inconvenient to the applicant to be deported, but

whether that has serious consequences for her must be weighed in the context of the

previous protection findings and immigration decisions and the adverse findings against

the applicant in that regard. The applicant can be brought back should the court

ultimately so order, but when weighing up this particular heading, it is important to

emphasise again that her protection complaints and her refoulement complaints have

been rejected at all times.

17. The category of cases where damages might be an adequate remedy is not particularly

relevant here.

18. As regards the final heading as to the strengths or weaknesses of the applicant’s case, it

is not necessary to get into that and I will assume for present purposes that Mr. Dornan

B.L. has points of substance that he wishes to make at the substantive hearing.

Nonetheless, at the interlocutory stage, it is clear that the balance of justice is firmly

against the applicant.

Order

19. The injunction is refused.

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20. As noted above I am giving liberty on a de bene esse basis to the applicant to file an

amended statement of grounds to seek an extension of time to challenge the 2017

deportation order, but that is very much without prejudice to the issue of time which I am

reserving to the substantive hearing and in no way prejudging.

Result: Injunction refused