A.A v The Minister for Children, Equality, Disability, Integration and Youth and Another

• Jurisdiction: Ireland
• Judge: Ms Justice Power
• Judgment Date: 24 June 2024
• Neutral Citation: [2024] IECA 163
• Docket Number: Court of Appeal No. 2023/130
• Court: Court of Appeal (Ireland)

Between:

A.A.

Appellant

and

The Minister for Children, Equality, Disability, Integration and Youth and The Minister for Justice

Respondents

[2024] IECA 163

Ní Raifeartaigh J.

Power J.

Meenan J.

Court of Appeal No. 2023/130

High Court No. 2022/248 JR

THE COURT OF APPEAL

CIVIL

Judicial review – Damages – Mootness – Appellant appealing against a judgment refusing her reliefs sought by way of judicial review in respect of a decision taken by the first respondent – Whether the trial judge erred in finding that the proceedings were moot

Facts: The appellant appealed to the Court of Appeal against the judgment of the High Court refusing the appellant several reliefs sought, by way of judicial review, in respect of a decision taken by the first respondent, the Minister for Children, Equality, Disability, Integration and Youth (the Minister), to transfer her from a Reception Centre in Dublin (Balseskin) to an accommodation centre in Athlone. The High Court (Hyland J) found that the proceedings were moot. Lest she had erred in that regard, the trial judge proceeded to consider and, thereafter, refuse the substantive application for judicial review. The appellant submitted that the trial judge erred in finding that the proceedings were moot and relied upon MC v The Clinical Director of the Central Mental Hospital [2021] 2 IR 166 as authority for the proposition that a claim in respect of fundamental rights does not become moot unless and until there is a determination as to whether the rights in question have been breached. The appellant also relied on the fact that the European Court of Human Rights considered the finding of a breach of rights to be an important remedy in itself. In circumstances where she had claimed before the court below that her ‘right to dignity and to respect for her private life’ were breached by the Minister and had sought declaratory relief to that effect, together with a claim for damages, the appellant’s case was that there remained a ‘live issue’ within the proceedings which required a determination. The appellant also claimed that the trial judge erred in concluding that none of the conditions for damages had been identified or pleaded.

Held by Power J that the trial judge was correct in her determination that the proceedings were moot by the time they came on for hearing in the court below; the foundation of the action had disappeared. Power J noted that whilst the appellant was permitted to remain in accommodation provided by the Minister even after her grant of refugee status, this was entirely an act of goodwill on the Minister’s part; thereafter, the appellant achieved her desire to be accommodated in Dublin where she could be close to her extended family. There was, in Power J’s view, no ‘real question of substance’ to be decided such as would have allowed the court below to consider the question of granting declaratory relief; any such grant would not have had a material impact in the case. Whilst the Strasbourg court considered that declaratory relief, even without compensation, may constitute an effective remedy, Power J held that the finding of a violation is always a prerequisite to the grant of such a remedy. Power J was satisfied that the proceedings disclosed nothing to substantiate a breach of the appellant’s ‘private rights’ or ‘health rights’ for which the Minister ought to be held responsible, such as would warrant an award of damages.

Power J held that the appeal would be dismissed.

Appeal dismissed.

Unapproved

JUDGMENT of Ms Justice Power delivered on the 24 ^th day of June 2024

Introduction

1 . This is an appeal against the judgment of the High Court refusing the appellant several reliefs sought, by way of judicial review, in respect of a decision taken by the first named respondent (‘the Minister’) to transfer her from a Reception Centre in Dublin (‘Balseskin’) to an accommodation centre in Athlone.

2 . The High Court (Hyland J.) found that the proceedings were moot. Lest she had erred in this regard, the trial judge proceeded to consider and, thereafter, refuse the substantive application for judicial review.

Background

3 . A brief summary of the background to the appeal is sufficient as a comprehensive account of the facts is to be found in the judgment of the High Court ( [2023] IEHC 208). The appellant and her son applied for international protection on 16 June 2021 having arrived in the State one month earlier. Pending the determination of their application, they were placed in Balseskin, a unit operated by the International Protection Accommodation Services (‘IPAS’), which is a division within the Department of Children, Equality, Disability, Integration and Youth.

4 . As an applicant for international protection, the conditions governing the appellant's reception fell within the provisions of the European Communities (Reception Conditions) Regulations 2018 ( S.I. 230/2018), (‘the 2018 Regulations’). 1 The 2018 Regulations transpose into Irish law Directive 2013/33/EU (‘the Directive’) which lays down minimum standards for the reception of persons seeking international protection. 2

5 . On 17 August 2021, the 67-year-old appellant, assisted by an interpreter, underwent a ‘ Stage One Vulnerability Assessment’, conducted by IPAS in accordance with Regulation 8 of the 2018 Regulations. It is clear from the answers the appellant gave during that assessment that she indicated that she had no physical disability such as being unable to move freely, to walk, to wash or to climb stairs unaided. The following is an extract from that assessment:

“

Stage One Vulnerability Assessment	Answer
1. Is the applicant aged 18 years of age or more?	YES
2. If under 18 years of age, is the applicant accompanied by a parent, guardian or other legally responsible person over the age of 18?	N/A
3. Does the applicant indicate they have a physical disability? Such as being unable to move freely, walk, dress, wash or climb stairs unaided etc. If yes, provide further information:	NO
4. Does the applicant indicate they have a non-physical or other disability? Such as intellectual disability, or vision or hearing loss: are they registered as having disability in home country, are they unable to speak, self-care, or understand questions etc. If yes, provide further information:	NO
5. Is the applicant aged 65 years or more?	YES
6. Is the applicant pregnant, recently pregnant and/or breastfeeding? If pregnant what is the due date.	NO
7. Is the applicant a single parent or guardian? (i.e. providing care on their own for one or more children under the age of 18?)	NO
8. Does the applicant indicate that they may be a victim of human trafficking or have been brought to the State against their will?	NO
9. Does the applicant indicate that they suffer from an illness such as cancer, diabetes, COPD, heart disease HIV, hepatitis, or any other chronic or acute illnesses which may affect their quality of life? 10. If yes, has the applicant been prescribed medication or receiving treatment for their condition?	NO
11. Are there indications of, or does the person admit to a serious mental health condition or degenerative brain condition or have they been professionally diagnosed with a condition such as chronic depression, schizophrenia or dementia?	NO
12. Has the person given an indication that they have experienced torture or inhumane treatment, including psychological or sexual violence?	NO
13. Has the person indicated that they have been affected by, or directly experienced, physical, psychological or sexual violence due to their sexual orientation or gender?	NO
14. Has the person given any indications other than above about vulnerabilities which they may have?	NO

Next Steps: Deemed not vulnerable

Further information	Yes/No
Did the applicant state that they understand the purpose of this assessment?	YES
Did the applicant state that they understand questions 1–14 above?	YES
Did the applicant indicate that they are happy with the answers they gave?	YES
Did the applicant understand the explanation of what happens next?	YES

“

6 . It would appear that for a short time the appellant's son was accommodated in Galway and on 23 August 2021, he emailed IPAS requesting to be accommodated with his mother, claiming that she ‘ [had] a mental illness’. On 27 August 2021, he emailed IPAS again, claiming that his ‘ mother [had] Alzheimer's’. No medical evidence was tendered in support of the appellant's son's claim, nor did he identify any physical illness or mobility difficulties in respect of his mother.

7 . Among the papers before the Court was a letter of 3 September 2021 from the appellant's General Practitioner (‘GP’) to a Consultant Geriatrician in the Mater Hospital referring her for an assessment in respect of memory loss, dementia and pseudodementia. Under the section ‘Clinical Notes’, it is observed that the appellant was ‘ forgetful’ and that if she ‘ left a room she would never be able to find her way back.’ It was noted that the appellant was looking ‘ quite vague’ and had conversed with her son in ‘ short sentences’.

8 . On 10 September 2021, correspondence was sent from the Crosscare Refugee Centre (‘Crosscare’), on behalf of the appellant, to IPAS, attaching a letter from her GP which made reference to a recent referral to a Consultant Geriatrician in the Mater Hospital due to a suspicion of dementia. Crosscare stated that the appellant had ‘ a multitude of health problems’ and advocated that she and her son be dispersed to a centre in Dublin as she would ‘ benefit greatly’ from being near ‘ many members of her extended family in Dublin’. IPAS wrote to Dr...