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Application to restrain deportation of Indian national adjourned to allow further submissions

By: James Cross BL

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High Court, in proceedings seeking to restrain the deportation of Indian father, adjourns the proceedings on terms to allow further submissions on the questions of European Union law arising, but refuses relief on all other grounds.

Judicial review – injunctions - asylum and immigration – European Law - Indian father, Romanian mother, and their minor child born in the State seeking to restrain the deportation of the Indian father – Indian father in the State illegally - arrested – applied for asylum but did not pursue the application – deportation order made - qualification for Irish citizenship is that the EU parent is legally present for three out of the previous four years before the birth – mother claims that she was exercising EU treaty rights - arrested on foot of the deportation order – detained in prison - application was made on his behalf to revoke the deportation order – issued proceedings seeking to restrain his deportation - preliminary objections – argued that EU treaty rights are not justiciable in these proceedings - averments have not been investigated and that the appropriate way to investigate them is the EU treaty rights procedure - not been established that rights have been breached - family have delayed and have failed to make the appropriate applications - argument based on Okunade - to obtain such substantive relief an applicant has to demonstrate an entitlement to that relief, not simply that grant of such relief is arguable or convenient or preserves the status quo – no free-standing entitlement to substantive relief based purely on the balance of convenience - alleged entitlement to a decision prior to removal – application not suspensive - disproportionality of removal where likelihood of success of a proposed EU treaty rights application may arise – Zambrano - non-statutory procedure for applying for Zambrano rights which has not been invoked - give the parties an opportunity to make more detailed submissions on those specific questions - adjournment on certain terms - whether a reference to the CJEU is necessary or appropriate.

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

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