Akram v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 29 January 2019
• Neutral Citation: [2019] IEHC 33
• Court: High Court
• Docket Number: 2017 No. 815 JR
• Date: 29 January 2019

Between:

MOEEN AKRAM

Applicant

– and –

THE MINISTER FOR JUSTICE AND EQUALITY

and

THE COMMISSIONER OF AN GARDA SÍOCHÁNA

Respondents

[2019] IEHC 33

Barrett J.

2017 No. 815 JR

THE HIGH COURT

Immigration – Statutory search power – Leave to appeal – Applicant seeking leave to appeal – Whether s. 7 of the Immigration Act 2004 enables an immigration officer or a member of An Garda Síochána to search the phone of a non-national landing or embarking in the State

Facts: The applicant, Mr Akram, pursuant to s. 5 of the Illegal Immigrants (Trafficking) Act 2000, sought leave to appeal the decision in Akram v Minister for Justice and anor [2018] IEHC 643. Three points of significance presented: (1) the court’s initial judgment was concerned with a statutory search power and such a power involves the State intruding forcibly upon individual freedom; (2) Mr Akram contended that the court’s judgment would impact on many people while the respondents, the Minister for Justice and Equality and the Commissioner of An Garda Síochána, contended that the requisite public importance/interest necessary for certification under s. 5 is not a ‘numbers game’; and (3) the court’s initial judgment was the first in which s. 7 of the Immigration Act 2004 had been considered by a superior court and the respondents contended that there was therefore certainty as to the law. The first proposed appeal point was the following: (a) Does s. 7 of the 2004 Act enable an immigration officer or a member of An Garda Síochána to search the phone of a non-national landing or embarking in the State? (b) Is the power prescribed by law? The second proposed appeal point was the following: If so, does that law comply with Art. 8(2) ECHR, is it ‘necessary in a democratic society’?

Held by the High Court (Barrett J) that, concerning the first proposed appeal point, question (a), for the reasons identified at (1) and (2), raised a point of law of exceptional public importance that arose out of the court’s initial judgment and which it was in the public interest should be (and it would be) certified for appeal. Barrett J held that question (b) added nothing to question (a) and would not therefore be certified.

Barrett J held that, concerning the second proposed appeal point, it was not argued in that format at hearing nor was it a point of law that arose from the court’s judgment; it was not therefore a point in respect of which the requisite...