A.B. (Albania) v Minister for Justice and Equality No.2

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 25 January 2018
• Neutral Citation: [2018] IEHC 36
• Docket Number: [2017 No. 603 J.R.]
• Court: High Court
• Date: 25 January 2018

[2018] IEHC 36

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2017 No. 603 J.R.]

BETWEEN

A.B. (ALBANIA)

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

(No. 2)

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.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 25th day of January, 2018

1 In A.B. v. Minister for Justice and Equality (No. 1) (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 Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250 as well as S.A. v. Minister for Justice and Equality (No. 2) [2016] IEHC 646 [2016] 11 JIC 1404 para. 2, and Y.Y. v. Minister for Justice and Equality (No. 2) [2017] IEHC 185 [2017] 3 JIC 2405 at para. 72.

First question - alleged conflict in jurisprudence

2 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 Sivsivadze v. Minister for Justice, Equality and Law Reform [2016] 2 I.R. 403 (see para. 52)), but that the Minister is entitled to refuse the application unless it amounts to something significantly new (which is how I read C.R.A. v. Minister for Justice, Equality and Law Reform [2007] 3 I.R. 603 and Smith v. Minister for Justice, Equality and Law Reform [2013] IESC 4). 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.

Second question - alleged requirement on the Minister to revisit s. 3 matters at the revocation stage

3 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...