Supreme Court gives key ruling on deportation

In an important judgment with implications for the handling of deportations, the Supreme Court has ruled that six Nigerian people deported from Ireland in controversial circumstances are not entitled to return here - or to have the State pay the costs of their return - pending the outcome of legal challenges to their deportation orders.

The five-judge court yesterday unanimously upheld an appeal by the Garda Commissioner and the State against a High Court decision requiring the State to pay the reasonable costs of return by the applicants to pursue their legal challenges and to permit re-entry pending the final decision on their cases. The court also overturned a High Court finding that the State cannot, in the cases of persons who have applied outside the 14-day legal time limit for leave to bring judicial review challenges to their deportations, deport those persons pending the outcome of their cases. If the High Court decision in relation to leave applications brought outside the 14-day limit was allowed stand, this would give an unworkable and "absurd" interpretation to the Illegal Immigrants Trafficking Act 2000, Mr Justice Hugh Geoghegan said.

He ruled that, if the 14-day period has expired, the State is entitled to proceed with deportations even if there is an application for leave to bring judicial review proceedings with an accompanying application for extension of time. However, affected persons could apply for interim injunctions restraining deportation pending their seeking an extension of time to bring leave for judicial review.

Many persons would be unaware of their entitlement to seek such orders as the right to apply for injunctions was not expressly provided for in the 2000 Act, the judge noted.

Mr Justice Geoghegan and Ms Justice Catherine McGuinness expressed a "tentative" view that a person who brought judicial review proceedings challenging a deportation order within the 14-day limit could not be deported pending the determination of those proceedings. However, two other judges - Ms Justice Susan Denham and Mr Justice Adrian Hardiman - reserved their position on that issue for a suitable case. Mr Justice Nial Fennelly said he was "unpersuaded" by the view that there could be no deportation of a person who brought within 14 days an application for leave to challenge the deportation order.

While the points made by Mr Justice Geoghegan strongly suggested there should be such a stay, the problem was that there was "simply no statutory provision for it", Mr Justice Fennelly said.

It was an "unfortunate" feature of the 2000 Act that its requirement that applications for leave be made on notice and on "substantial grounds" had slowed the entire process. The normal system for applying for judicial review had operated as "a perfectly effective filter" of unmeritorious applications and certainly led to quicker decisions, he said.

Yesterday's Supreme Court decisions arose from a High Court decision of October 2004 in relation to six Nigerians.

Some of the applicants were deported at night in controversial circumstances. Some claimed that, prior to their deportations, their right of access to a solicitor was breached as a result of alleged confiscation by gardaí of their mobile phones during periods while they were in detention.

There were also claims the deportations should not have been effected as judicial review challenges to the deportations had been initiated prior to the deportations taking effect.

In his judgment on the main issues in the appeal yesterday, with which the other four Supreme Court judges agreed, Mr Justice Hugh Geoghegan upheld the High Court decision that the deportations did not amount to contempt of court orders and that there was no deliberate disobedience of the court orders by the gardaí or State.

In this case, the Garda behaviour appeared to have been in good faith and the right of access to the courts was not interfered with, Mr Justice Geoghegan said.