E (an Infant) v Minister for Justice and Equality
| Jurisdiction | Ireland |
| Judge | Denham C.J.,Clarke J.,O'Malley J. |
| Judgment Date | 25 July 2017 |
| Neutral Citation | [2017] IESCDET 85 |
| Date | 25 July 2017 |
| Court | Supreme Court |
[2017] IESCDET 85
THE SUPREME COURT
DETERMINATION
Denham C.J.
Clarke J.
O'Malley J.
AND
This determination relates to an application by the applicant in the underlying proceedings (‘E’) for leave to appeal, under Art. 34.5.4 of the Constitution, directly from the judgments of the High Court (Humphreys J.) delivered respectively on the 14th November, 2016 and the 26th June, 2017. The orders appealed against were made on the 27th June, 2017 and perfected on the 28th June, 2018. As is clear from the terms of the Constitution and many determinations made by this Court since the enactment of the 33rd Amendment it is necessary, in order for this Court to grant leave, that it be established that the decision sought to be appealed either involves a matter of general public importance or that it is otherwise in the interest of justice necessary that there be an appeal to this Court. In addition because this is an application for leave to appeal directly from the High Court it is also necessary that it be established that there are ‘exceptional circumstances warranting a direct appeal’ to this Court.
The Court considers it desirable to point out that a determination of the Court on an application for leave, while it is final and conclusive so far as the parties are concerned, is a decision in relation to that application only. The issue is whether the questions raised, and the facts underpinning them, meet the constitutional criteria for leave. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave a having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, any issue canvassed in the application will in due course be disposed of in the substantive decision of the Court.
These proceedings were commenced on behalf of E, suing by his mother and next friend, with a view, in substance, to challenging a decision of the first named respondent (‘the Minister’), made on the 29th July, 2016, which had the effect of affirming a previous deportation order made in respect of E on the 1st July, 2011. An application for leave to seek judicial review was made ex parte and determined on the 14th November, 2016. In accordance with law it was necessary for the Court on that application to consider whether E had established substantial grounds for his contentions. The High Court refused leave to seek judicial review.
Thereafter, an application was made on behalf of E for the certificate necessary to appeal to the Court of Appeal. That application was rejected by a decision of the High Court (Humphreys J.) on the 9th May, 2017.
Finally, an application was brought on behalf of E seeking an injunction or stay designed to prevent his deportation pending an application for leave to appeal to this Court. That application was also refused on the 27th June, 2017.
Leave to appeal to this Court is sought only in respect of the first order, being the order refusing leave to seek judicial review, and the third order, being the order refusing an injunction.
The notice of application for leave to appeal together with the response is published along with this determination. It is not, in those circumstances, necessary to set out in full detail the contents of those documents. For the purposes of this determination it is sufficient to summarise the basis upon which the applicant suggests that the constitutional threshold for leave to appeal has been met.
In the respondent's notice filed on behalf of the Minister there is some criticism of the way in which the arguments in favour of grant of leave to appeal are formulated in the notice filed on behalf of E. The Court agrees that there is some substance in those criticisms. While this point has been emphasised in a number of previous determinations of this Court it is important to reiterate that the function of part 5 of the appellant's notice is to set out in clear terms why it is said that the constitutional threshold is met and not to put forward arguments as to why the appellant may have a good case in respect of any of the issues sought to be raised. It is true that the notice in this case does address the constitutional argument to some extent but it has to be said that it does so in an unfocused way by consistently going into significant detail as to the merits of the case. It should be emphasised that it is only necessary to address the merits of the case for the purposes of dispelling any risk that the Court might refuse leave either on the basis that the case was unstateable or on the basis that the issue asserted to be of general public importance did not arise in the case. It is unnecessary to go beyond that in section 5 and any tendency so to do can only run the risk of distracting the Court from the true task which the Court has to perform on an application for leave being to determine whether the issues sought to be raised meet the constitutional threshold.
That being said it is possible to distil the overly lengthy and scattergun application as indicating that three broad sets of issues are asserted to meet the constitutional threshold. These are:-
(a) The Lumba issues;
(b) The illness and medical care issues;
(c) The proportionality issues
It would be fair to characterise the Minister's response as indicating that, insofar as any issues of importance might arise in any of those general areas, those important issues do not truly arise in the circumstances of this case or involve questions on which there has been recent authoritative determination thus negativing the need for this Court to revisit any of the issues in question.
As is clear from a range of determinations made by this Court since the 33rd Amendment to the Constitution came into force, the constitutional function of this Court is no longer that of an appeal court designed to correct alleged errors by the trial court. Where it is said that the High Court has simply been in error in some material respect the constitutional regime now in place confers jurisdiction to correct any such error...
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D.E v Minister for Justice and Equality
...to this Court for leapfrog leave to appeal directly from the High Court to this Court ( E v. Minister for Justice and Equality others [2017] IESCDET 85). 1.5 It will be necessary to turn shortly to the issues and grounds which led this Court to grant leave to appeal and which therefore form......
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Bertan v Minister for Justice and Equality
...the matter adjourned. Mr. O'Dwyer's application to adjourn the matter pending the outcome of D.E. v. Minister for Justice and Equality [2017] IESCDET 85 is thus too late, but more fundamentally D.E. is only going to deal with the question of whether leave should have been granted on that is......