O (O) & O (B) (A Minor) v Min for Justice and Others

JurisdictionIreland
JudgeMr. Justice Cooke
Judgment Date04 May 2011
Neutral Citation[2011] IEHC 175
CourtHigh Court
Date04 May 2011

[2011] IEHC 175

THE HIGH COURT

[No. 1336 J.R./2010]
O (O) & O (B) (A minor) v Min for Justice & Ors
JUDICIAL REVIEW
MR JUSTICE COOKE
APPROVED TEXT

BETWEEN

O. O. AND B. O. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND O. O.)
APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, ATTORNEY GENERAL AND IRELAND
RESPONDENTS

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(3)(A)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 4(5)

GLANCRE TEORANTA v BORD PLEANALA UNREP MACMENAMIN 13.7.2006 2006/26/5686 2006 IEHC 250

ARKLOW HOLIDAYS LTD v BORD PLEANALA & ORS UNREP CLARKE 11.1.2008 2008/2/340 2008 IEHC 2

R (I) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP COOKE 26.11.2009 2009/47/11883 2009 IEHC 510

KENNY v BORD PLEANALA (NO 2) 2001 1 IR 704 2002 1 ILRM 68 2001/13/3736

O (S) & ORS v MIN FOR JUSTICE UNREP COOKE 1.10.2010 2010 IEHC 343

MCNAMARA (KILL RESIDENTS GROUP) v BORD PLEANALA (NO 1) 1995 2 ILRM 125 1995/3/1122

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(3)

IMMIGRATION ACT 1999 S3(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

DEVANNEY v JUDGE SHIELDS & ORS 1998 1 IR 230

IMMIGRATION LAW

Deportation

Appeal - Leave to appeal - Test - Desirable point of law be resolved by appeal - Refusal of leave to seek judicial review - Interpretation of âÇÿsubstantial ground' - Interpretation of âÇÿCarltona doctrine' - Whether interpretation of "proceed to consider" of exceptional importance - Status of work done by executive officer - Devanney v Sheils [1998] 1 IR 230 applied; Glancré Teo v An Bord Pleanála [2006] IEHC 250, (Unrep, MacMenamin J, 13/7/2006); Arklow Holidays Ltd v Bord Pleanála (No 1) [2006] IEHC 102, (Unrep, Clarke J, 29/3/2006); R(I) v Minister for Justice [2009] IEHC 510, (Unrep, Cooke J, 26/11/2009); O(S)v Minister for Justice [2010] IEHC 343, (Unrep, Cooke J, 1/10/2010); McNamara v An Bord Pleanála [1995] 2 ILRM 125 approved; Kenny v An Bord Pleanála (No 2) [2001] 1 IR 704 considered - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006), r 4 - Immigration Act 1999 (No 22), s 3 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - European Convention on Human Rights 1950, art 8 - Constitution of Ireland 1937 - Application refused (2010/1336JR - Cooke J - 4/5/2011) [2011] IEHC 175

O(O) v Minister for Justice, Equality and Law Reform

Facts: The Court had delivered its main judgment and a further application had been made for certification of an appeal to the Supreme Court pursuant to s. 5(3)(a) Illegal Immigrants (Trafficking) Act 2000, as amended. The point of law sought to be certified was as to "whether the correct interpretation of Regulation 4(5) European Communities (Eligibility for Protection) Regulations 2006 precluded any consideration by the Minister of matters relating to a proposed deportation before a determination had been made in respect of an application for subsidiary protection?" The question arose as to whether the appeal involved a point of law of exceptional public importance. The work of a civil servant, an Executive Officer, was impugned as having taken place on a deportation prior to the subsidiary protection application being considered.

Held by Cooke J. that this was not an appropriate case to grant leave to appeal. The work done at the outset by an Executive Officer carried no weight or authority until a later point in time and after other input.

Reporter: E.F.

1

JUDGMENT No. 2 of Mr. Justice Cooke delivered the 4th day of May 2011

2

1. The Court delivered its judgment on the main issues raised in this judicial review application on the 16 th March, 2011. At the conclusion of the judgment it indicated that it would hear the parties further as to the issues outstanding in the application arising out of the applicant's motion of 1 st March, 2010, to amend the statement of grounds with a view to introducing additional reliefs and grounds directed at a claim that the rules governing the remedy of judicial review are incompatible with the Constitution. (See paras. 2 and 3 of that judgment).

3

2. At the resumed hearing counsel for the applicants indicated that the remiander of the motion to amend would not be proceeded with. Instead the applicants applied to the Court for leave to appeal the judgment to the Supreme Court and for the necessary certificate under s. 5 (3)(a) of the Illegal Immigrants (Trafficking) Act 2000, for that purpose. The point of law proposed as the basis of the application for leave to appeal is put in the form of a question as follows:

"Whether the correct interpretation of Regulation 4(5) of the European Communities (Eligibility for Protection) Regulations 2006 precludes any consideration by the Minister or any official in his Department, of matters relating to a proposed deportation before a determination had been made in respect of an application for subsidiary protection?"

4

3. The test established by s. 5 (3)(a) for the grant of leave to appeal is that the High Court must certify that "its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court".

5

4. The criteria to be applied in deciding if that test is met have been well settled in the case law. In the context of the same test as applied under the Planning Acts, the principles were identified by MacMenamin J. in Glancré Teoranta v. An Bord Pleanála (Unreported, High Court, 13 th July, 2006). They were also considered by Clarke J. in Arklow Holidays v. An Bord Pleanála and Others [2008] I.E.H.C. 2 and this Court endeavoured to summarise some of the relevant principles in its judgment in I.R. v. Minister for Justice, Equality and Law Reform [2009] I.E.H.C. 510. So far as relevant to present purposes the principles or criteria include:

6

· - The point of law must arise out of the Court's decision in the case and not out of arguments or discussions at the hearing;

7

· - The point of law must transcend the circumstances of the particular case so as to have a more general significance;

8

· - The point of law must not be merely important but of exceptional importance from the public perspective;

9

· - In addition to raising a point of exceptional public importance, the Court must be satisfied that the appeal itself in the particular case is desirable as a matter of public interest.

10

5. In applying those principles, two preliminary observations may be appropriate. The first relates...

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