B.S (India) v The Minister for Justice and Equality (No.3)

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 12 October 2020
• Neutral Citation: [2020] IEHC 485
• Docket Number: [2019 No. 267 JR]
• Court: High Court
• Date: 12 October 2020

BETWEEN

B.S. (INDIA), A.A.D.

AND

Z.S.S. (AN INFANT SUING BY HIS MOTHER AND NEXT FRIEND A.A.D.)

APPLICANTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

NO. 3

[2020] IEHC 485

Richard Humphreys

[2019 No. 267 JR]

THE HIGH COURT

JUDICIAL REVIEW

Leave to appeal – Extension of time – Points of law of exceptional public importance – Respondents seeking leave to appeal – Whether it was desirable in the public interest that an appeal should be taken to the Court of Appeal

Facts: In B.S. (India) v Minister for Justice and Equality (No. 1) [2019] IEHC 367, the High Court (Humphreys J) granted an interlocutory injunction restraining the deportation of the first applicant, and partially dismissed the proceedings. In B.S. (India) v Minister for Justice Equality (No. 2) [2020] IEHC 401, Humphreys J granted a substantive injunction in fairly limited terms in favour of the applicants, and dismissed the balance of the remaining reliefs sought. The respondents, the Minister for Justice and Equality, Ireland and the Attorney General, sought leave to appeal. On 19th August, 2020, having heard the matter, Humphreys J informed the parties of the order being made and indicated that reasons would be given later.

Held by Humphreys J that the proposed first question related to the circumstances in which a substantive injunction as a final order can be granted to restrain deportation and was a composite question, packing together the various points in para. 54 of the (No. 2) judgment. It seemed to him that there was a point of importance here, but it would help the Court of Appeal if he enumerated those issues separately rather than in a kind of a rolling omnibus form as proposed by the State. He noted that an express articulation of the issues was in essence set out in para. 54. The only real difference Mr Gallagher for the respondent could point to was that Humphreys J did not specifically say at para. 54 that the deportation order was unchallenged, but that was implicit in saying very clearly that the grounds for this challenge did not exist originally. Mr O’Shea for the applicants also pointed out that the State submissions were predicated on the assumption that the applicants do not have any legally enforceable right, but that was not the case and the judgment found otherwise. Humphreys J indicated that there were two possible routes to arriving at jurisdiction to grant the injunction: firstly, because it was just or convenient to do so or alternatively because the applicants had a derivative enforceable right on any one of the bases set out in the (No. 2) judgment and that, therefore, an injunction was appropriate to enforce such rights. If the applicants had relevant rights, Humphreys J thought an injunction was appropriate to give effect to those rights and even if not he considered it to be just or convenient to grant the order in the particular circumstances.

The order Humphreys J made on 19th August, 2020 was as follows: (i) insofar as it was necessary, he granted an extension of time for the making of the application for leave to appeal; (ii) he certified that the decision of the court involved points of law of exceptional public importance (being the points of law referred to in para. 54 of the (No. 2) judgment) and that it was desirable in the public interest that an appeal should be taken to the Court of Appeal; (iii) he granted leave to appeal to the Court of Appeal under s. 5 of the Illegal Immigrants (Trafficking) Act 2000 against the order of 30th July, 2020 including insofar as that order relied on reasoning in the (No. 1) judgment; (iv) it was agreed by the parties that the leave to appeal would include any decision as to costs which may be made in due course; (v) he varied the injunction granted by virtue of the order of 30th July, 2020 so that it would be conditional on the applicants providing an update to the respondents at least every 14 days as to progress with the DNA test; and (vi) as regards costs and as regards the respondents’ application for the DAR in relation to preparing for costs hearing, by consent in accordance with the established approach, the respondents should file their notice of appeal to the Court of Appeal first as against the order of 30th July, 2020 and once that had been done, the respondents could notify the court and arrangements could be made then for a formal application for the DAR.

Leave to appeal granted.

JUDGMENT of Mr. Justice Richard Humphreys delivered on Monday the 12th day of October, 2020

1 In B.S. (India) v. Minister for Justice and Equality (No. 1) [2019] IEHC 367, [2019] 5 JIC 1011 (Unreported, High Court, 10th May, 2019), I granted an interlocutory injunction restraining the deportation of the first-named applicant, and partially dismissed the proceedings.

2 In B.S. (India) v. Minister for Justice Equality (No. 2) [2020] IEHC 401, [2020] 8 JIC 1701 (Unreported, High Court, 17th August, 2020), I granted a substantive injunction in fairly limited terms in favour of the applicants, and dismissed the balance of the remaining reliefs sought.

3 The respondent now seeks leave to appeal, and in that regard I have considered the relevant caselaw, in particular Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250 (Unreported, High Court, MacMenamin J., 13th July, 2006); S.F.A. (a minor) v. Minister for Justice Equality and Law Reform [2016] IEHC 222 (Unreported, High Court, Mac Eochaidh J., 25th April, 2016); Luximon v. The Minister for Justice, Equality & Law Reform [2015] IEHC 383 (Unreported, High Court, Barr J., 17th June, 2015); I.R v. Minister for Justice Equality and Law Reform [2009] IEHC 510, [2015] 4 I.R. 144; S.A. v. Minister for Justice and Equality (No. 2) [2016] IEHC 646, [2016] 11 JIC 1404 (Unreported, High Court, 14th November, 2016); and S.T.E. v. Minister for Justice and Equality [2016] IEHC 544, [2016] 10 JIC 1401 (Unreported, High Court, 3rd October, 2016). I have received helpful submissions from Mr. John P. Gallagher B.L. (with Ms. Siobhán Stack S.C.) for the respondents and in reply from Mr. Paul O'Shea B.L. for the applicants. On 19th August, 2020, having heard the matter, I informed the parties of the order being made and indicated that reasons would be given later.

Applicants' objections in principle to leave to appeal

4 The main objections made by the applicants are that the questions are too general and academic, don't arise from the judgment and will be moot fairly shortly. The objection as to generality can probably be best answered by saying that there is definitive appellate clarification in relation to the grant of interlocutory injunctions, but not to the same extent in relation to injunctions as a substantive relief, so accordingly there is a discrete point here that merits being teased out in an appellate context. Indeed, the mootness of the case might actually be a positive advantage in terms of considering the jurisdictional question relating to substantive injunctions in a more leisurely way. Mr. Gallagher makes the valid point that the short-term nature of an order of the kind made here would render any similar case moot by the time it got to the appeal stage, so the only way that the point could really be dealt with would be on the basis of an exception to the doctrine of mootness. As regards the specific questions proposed for certification, it makes sense to start first with questions 2 and 3.

Proposed question 2

5 In this question, the State is yet again complaining about an order allowing an amendment to pleadings. Welcome to Groundhog Day.

6 Question 2 is about whether one can seek an amendment based on matters that subsequently arise including new reliefs not pleaded when the proceedings commenced. There is nothing to that objection for a host of reasons. While Ms. Stack did complain about “rolling amendments”, she didn't argue at the hearing that I didn't have jurisdiction to grant the amendment, or as question 2 puts it, the court “wasn't entitled” to allow the amendment. So it can't be constitutionally proper to ventilate such a point for the first time on appeal.

7 I have already been through this very point in Habte v. The Minister for Justice and Equality [2019] IEHC 47, [2019] 2 JIC 0405 (Unreported, High Court, 4th February, 2019), at para. 30, where I pointed out that the Supreme Court in Y.Y. v. Minister for Justice and Equality [2017] IESC 61, [2018] 1 I.L.R.M. 109 noted without adverse comment at (para. 22) that I had allowed the applicant to amend judicial review proceedings to challenge a decision that had been made in the course of the proceedings themselves by way of a new relief. But even more fundamentally, the Supreme Court went on (at para. 84) to envisage an application to make yet a further amendment to the proceedings following a further hypothetical decision that was at that point yet to be made. That can only be regarded as approval for a procedure of incorporating challenges to subsequent, but related, decisions into the one set of proceedings where, of course, it is appropriate to do so. Often it is appropriate because it saves the costs of a whole second set of fresh proceedings. The respondent argues at para. 12 of written submissions here that allowing the amendment “to some extent supplants the normal administrative process by which Treaty rights/Chen rights are determined whereby the relevant facts and pleadings are firmly brought to the relevant decision maker in the required format and within the requisite time limits and replaces it with one which is supervised by the court”. But it doesn't do any such thing. It just saves the expense of a second set of proceedings to challenge the later, related, decision.

8 Mr. Gallagher also...