High Court Grants Injunction Preventing Deportation to Malawi

On the 27th July, Mr Justice Gerard Hogan granted the application for interlocutory relief preventing the deportation of a family of four to Malawi. The injunction was granted to restrain their deportation pending the outcome of an appeal of the orders refusing subsidiary protection and issuance of a deportation order.

The applicants; Mr Clement Chigaru and his wife Ms Angela Peters, both Malawian nationals and parents of Chloe Chigaru and Clarke Chigaru left Malawi in 2007. Ms Peters father, a HIV sufferer, had consulted a witchdoctor and been informed that “in order to be cured he needed to have sexual intercourse with a virgin from his own bloodline. The father then threatened to violate his granddaughter for the purpose” Ms Peters, who was pregnant at the time, together with her husband, Mr Chigaru, and their then 1 year old daughter, fled Malawi in fear of the safety of their infant daughter.

The applicants applied for asylum in Ireland on the above basis, and were rejected in November 2009. Their applications for subsidiary protection were rejected in May 2011. The Minister made deportation orders in respect of all four applicants in August 2011.

The Refugee Appeals Tribunal refused their asylum applications on the basis that the claim regarding Ms Peters’ father lacked credibility. In the court’s view the subsequent subsidiary protection application was rejected based on the findings in respect of the asylum application. Judge Hogan quoted the executive officer who prepared the memorandum of Ms Peters subsidiary protection application as saying “because of the many doubts surrounding her credibility the applicant does not warrant the benefit of the doubt”.

Mr Justice Hogan referred to his own judgement of MM v Minister for Justice and Equality (No.3) [2013] “subsidiary protection must be evaluated separately and distinctly from the determination on the asylum application.”

Mr Justice Hogan was very critical of the fact that both the father and mother had deliberately evaded the immigration authorities and abused the asylum system stating that that had the parents applications for injunctive relief been viewed separately, they would not have succeeded. However, the court continued that the children have known no other home than Ireland and that although they are not Irish citizens their constitutional rights under Articles 41, Article 42, and Article 42A would be compromised were their parents to be deported.
The interlocutory injunction was granted restraining the deportation of the four family members pending the outcome of the appeal.

Anna Butler

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