SE, BZE, Bhuse (A Minor) Suing by Her Father and Next Friend SE and Bhase (A Minor) Suing by Her Father and Next Friend SE v The Minister for Justice and Equality
| Jurisdiction | Ireland |
| Judge | Mr. Justice Heslin |
| Judgment Date | 11 February 2022 |
| Neutral Citation | [2022] IEHC 138 |
| Court | High Court |
| Docket Number | [2019 No. 762 JR] |
[2022] IEHC 138
[2019 No. 762 JR]
THE HIGH COURT
JUDICIAL REVIEW
Judicial review – Permission to remain – Constitutional justice – Applicant seeking an order of certiorari quashing the decision of the respondent – Whether the respondent breached constitutional justice
Facts: The applicants applied to the High Court seeking an order of certiorari quashing the decision of the respondent, the Minister for Justice and Equality, under s. 49 (7) of the International Protection Act 2015 as notified by letter dated 26 September 2019 to refuse to review the decision of the Minister under s. 49 (4) (b) refusing the first applicant permission to remain in the State. On 11 November 2019, the court (Humphreys J) made the relevant order granting leave for the relief set out at para. (d) on the grounds set out at para. (e) in the applicant’s statement of grounds. It was not in dispute that on or about 12 June 2020 leave was granted to amend para. (e) of the applicant’s statement of grounds which, as amended, stated as follows: “(e) Grounds upon which such reliefs are sought: (i) In considering whether refusing permission to remain to the first applicant would breach the applicant’s rights under Articles 40.3 and 41 of the Constitution, the Minister failed to consider the desirability of enabling the applicants to remain together in the State, given that the second to fourth applicants have been granted permission to remain in the State and given the second applicant’s epilepsy and diabetes for which she is in receipt of disability allowance and the fact she has suffered from a depressive illness. (ii) Refusing permission to remain to the first applicant despite having earlier granted such permission to the other applicants constituted unjustified discrimination as between the parents and contravened Article 40.1 of the Constitution and s. 3 (1) of the European Convention on Human Rights Act 2003 by breaching the State’s obligations under Article 14 of the ECHR (taken in conjunction with Article 8). (iii) The Minister’s decision refusing permission to remain to the first applicant was disproportionate and contravened the substantive rights of the applicants under Articles 40.3 and 42A of the Constitution and Article 8 of the ECHR. (iv) The Minister breached constitutional justice, s. 49 (2) (a) as applied by s. 49 (8) of the 2015 Act, and failed to consider relevant materials by failing to consider the applicant’s solicitor’s letter dated 3 April 2018 and the documents enclosed with it.”
Held by Heslin J that the manner in which the relevant decision was made breached the obligation on the respondent pursuant to s. 49 (2) (a) of the 2015 Act due to her failure to consider relevant materials submitted by means of the letter from the applicants’ solicitors dated 3 April 2018, particularly having regard to the provisions of s. 49 (3). Heslin J held that in circumstances where the court could not take the view that a consideration of the missing submission would have made no difference, the relief sought must be granted. Heslin J held that the failure to consider the missing submissions constituted an innocent error on the respondent’s part, but the court could not take the view that it was immaterial to what might have been the outcome, had the submission been considered. Heslin J summarised the submissions made on behalf of the respondent as the contention that an admitted defect in the process by which the relevant decision was made did not mean that the decision-making process was other than perfectly fair and the court should hold that the outcome of the decision was utterly unaffected by the error. Heslin J could not agree and the court made an order of certiorari quashing the decision notified by letter of 26 September 2019.
Heslin J’s preliminary view was that there were no facts or circumstances which would justify a departure from the ‘normal rule’ that costs should ‘follow the event’.
Application granted.
JUDGMENT of Mr. Justice Heslin delivered on the 11th day of February, 2022
In the present proceedings the applicants seek an order of certiorari quashing the decision of the respondent (“the Minister”) under s. 49 (7) of the International Protection Act, 2015 (“the 2015 Act”) as notified by letter dated 26 September 2019 to refuse to review the decision of the Minister under s. 49 (4) (b) refusing the first applicant permission to remain in the State (“the decision”). On 11 November 2019 this court (Humphreys J.) made the relevant order granting leave for the relief set out at para. (d) on the grounds set out at para. (e) in the applicant's statement of grounds. It is not in dispute that on or about 12 June 2020 leave was granted to amend para. (e) of the applicant's statement of grounds which, as amended, states as follows, with para. (e) (iv) being of most relevance to these proceedings:
“(e) Grounds upon which such reliefs are sought:
(i) In considering whether refusing permission to remain to the first applicant would breach the applicant's rights under Articles 40.3 and 41 of the Constitution, the Minister failed to consider the desirability of enabling the applicants to remain together in the State, given that the second to fourth applicants have been granted permission to remain in the State and given the second applicant's epilepsy and diabetes for which she is in receipt of disability allowance and the fact she has suffered from a depressive illness.
(ii) Refusing permission to remain to the first applicant despite having earlier granted such permission to the other applicants constituted unjustified discrimination as between the parents and contravened Article 40.1 of the Constitution and s. 3 (1) of the European Convention on Human Rights Act 2003 by breaching the State's obligations under Article 14 of the ECHR (taken in conjunction with Article 8).
(iii) The Minister's decision refusing permission to remain to the first applicant was disproportionate and contravened the substantive rights of the applicants under Articles 40.3 and 42A of the Constitution and Article 8 of the ECHR.
(iv) The Minister breached constitutional justice, s. 49 (2) (a) as applied by s. 49 (8) of the 2015 Act, and failed to consider relevant materials by failing to consider the applicant's solicitor's letter dated 3 April 2018 and the documents enclosed with it.”
The first and second named applicants, who are nationals of Mauritius are husband and wife, respectively. The third named applicant is their child who was born in Mauritius and the fourth named applicant is their child who was born in Ireland in 2014. The first three applicants came to Ireland, without permission, exactly ten years prior to the hearing of this matter which took place on 9 December 2021.
The applicants applied for International Protection and their applications were unsuccessful. The first named applicant's application of 6 August 2014 was refused by the office of the Commissioner for Refugee Applications (“ORAC”) on 10 February 2015 and, later, by the International Protection Office (“IPO”) on 16 June 2017. Correspondence of 16 June 2017 notifying the first named applicant of the failure of his application for protection included a decision which set out the reasons for a refusal of his application for permission to remain in the State, dated 2 June 2017 (“the first-instance decision”). Following adverse first-instance decisions, the applicants sought permission to remain in the State under s. 49 of the 2015 Act and the first named applicant's wife and children were granted permission to remain for three years, the terms of which are recorded in a letter dated 29 March 2018. Once the second named applicant obtained this permission, she did not pursue her asylum claim any further by way of an appeal against the first-instance refusal. Thus, it concluded with international protection being refused to her.
The first named applicant proceeded with an appeal in respect of the first-instance decision and the refusal of the first named applicant's claim for international protection was upheld on appeal by a decision of the International Protection Appeals Tribunal (“IPAT” or “the Tribunal”) dated 27 February 2018. The first named applicant then sought a review of the earlier decision to refuse him permission to remain. He did so by letter dated 12 March 2018. Over eighteen months later, on 26 September 2019, a negative decision was given in respect of the said review.
Of particular significance to the dispute between the parties in the present proceedings is that the 26 September 2019 decision was made in circumstances where the respondent did not consider a letter from the applicant's solicitors dated 3 April 2018 and the documents enclosed with it. It is not in dispute that the aforesaid letter, with enclosures, was sent and received. Nor is it in dispute that it appears to have gone missing at some point thereafter. Moreover, the fact that the foregoing correspondence and enclosures were not considered by the respondent Minister in the context of making the decision which is challenged in the present proceedings is not in dispute.
I have carefully considered the contents of all pleadings, affidavits and the exhibits thereto. It is not necessary to comment on the affidavits on a paragraph by paragraph basis particularly in circumstances where the applicants' claim has been distilled to an application for certiorari of the decision based on the grounds pleaded at para. (e) (iv) to which I have referred. It is, however, appropriate to note that the first named applicant has made inter alia the following averments in his...
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