A.B. (Albania) v Minister for Justice and Equality No.2
 IEHC 36
THE HIGH COURT
[2017 No. 603 J.R.]
Asylum, Immigration & Nationality - S. 3(11) of the Immigration Act 1999 - Deportation order - Review of order - Consideration of changed circumstances - Exceptional circumstances - Leave to appeal
Facts: The applicant filed an application for leave to appeal to the Court of Appeal against the decision of the High Court in which the Court had declined to grant an order of certiorari against the decision of the respondent/Minister for refusing to revoke an unchallenged deportation order. The key issues formulated for certification pertained to the requirement on the Minister to hear and review the s. 3 issues at the revocation stage and whether it was mandatory for the Minister to identify the potential changes in circumstances while considering the 3(11) application.
Mr. Justice Richard Humphreys refused to grant leave to the applicant. The Court held that the questions formulated by the applicant had already been decided by the Supreme Court in various judgments to the effect that the respondent need not have reviewed the s. 3 issues at the revocation stage and that the s. 3(11) decision should have been quashed only in exceptional circumstances.
In (21st December, 2017) I declined to grant certiorari of a decision refusing to revoke an unchallenged deportation order. Mr. Michael Conlon S.C. (with Mr. Mel Christle S.C. and Mr. Ray Walsh B.L.) now applies for leave to appeal that decision to the Court of Appeal, and I have received submissions from him and from Ms. Gráinne Mullan B.L. for the respondent. I considered the law in relation to leave to appeal as set out in as well as , and .
The first question relates to an alleged conflict in Supreme Court jurisprudence. But it is possible to read the jurisprudence in a way that avoids any such conflict. It is not contradictory to say, as I do here, that an applicant can make a s. 3(11) submission on any basis he or she wishes including points that were there originally (which is how I read ), but that the Minister is entitled to refuse the application unless it amounts to something significantly new (which is how I read and ). But in any event, having further considered the matter, Mr. Conlon accepts that this point may not arise because it was not determinative in the sense that I accepted his entitlement to make submissions under s. 3(11) by way of further elaboration of points that were there originally; and accordingly he did not particularly press this issue.
The second question is ' where s. 3(6) reasoning on family life has proceeded on a particular - potentially mistaken - factual basis in relation to family relationships, 'There was no evidence that the Applicant was receiving support from his brother or indeed is in contact with him', which is contradicted by materials submitted for the 3(11) application ('Our client is residing with his brother') and 'I confirm that the above patient attended with his most supportive brother', is the new contradictory material sufficient to require the 3(11) decision maker to look de novo at the...
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