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Court of Appeal allows appeal and overturns a decision of the High Court granting an order of certiorari quashing the first named appellant’s decision refusing to revoke the deportation order made in respect of the first named respondent, remitting the application to the first named appellant for fresh consideration and granting an order that an injunction restraining the deportation of the first named respondent continue until such time as the application is lawfully determined, on the grounds that: (a) the Court was entitled to hear the appeal as brought by the appellants; (b) there was no basis for the findings of the trial judge that the decision of the first named appellant was either irrational or contrary to the substantive rights of the respondents individually and/or collectively; (c) the trial judge was in error in introducing into his judgement a requirement that the Minister must identify a “compelling reason” or “compelling circumstances” before the State’s rights could outweigh those of the respondent; (d) the trial judge was in error in holding that the first and second named respondents were in an equal position and had an equally precarious status; and (e) as the first and second named respondents had an entirely different legal status, the question of discrimination did not arise and the appellants were entitled to treat them differently.
McGovern J (nem diss): Judicial review - asylum and immigration - appeal of a decision of the High Court granted an order of certiorari quashing the first named appellant’s decision of 23 February 2015 refusing to revoke the deportation order made in respect of the first named respondent, an order that the first named respondent’s application be remitted to the first named appellant for fresh consideration and an order that an injunction restraining the deportation of the first named respondent continue until such time as the application is lawfully determined - s.3 (11) of the Immigration Act 1999 - the trial judge gave leave to appeal pursuant to s.5 of the Illegal Immigrants (Trafficking) Act 2000 not on the basis of issues proposed by the appellants, but rather on a question formulated by the judge himself - whether the court had jurisdiction to consider all matters raised by the appellants or whether it is confined to hearing the appeal within the limits of the issue formulated by the trial judge - Order 86, rule 10 of the Rules of the Superior Courts - the first named respondent was from Cameroon - he failed in a claim for asylum and a deportation order was made on 5 July 2006 - he made a number of applications for revocation of the deportation order which were refused - second respondent is a national of Morocco who asserts that she arrived in the State on 6 September 2007 - her asylum claim was refused and she then applied for subsidiary protection but later withdrew her application - third named respondent is the child of the first and second named respondents born in the State on 22 March 2013 - on 21 August 2013 the second and third named respondents were granted leave to remain in the State for a two-year period and this was renewed - first and second respondent were not married - whether the Minister was entitled to assess the respondents' claims differently - whether the decision to refuse to revoke the deportation order against the first defendant was irrational or contrary to the substantive family rights of the respondents individually and/or collectively - trial judge erred in law in applying test - appeal allowed.
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