C.C. v Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin,Mr. Justice Clarke
• Judgment Date: 28 July 2016
• Neutral Citation: [2016] IESC 48
• Court: Supreme Court
• Docket Number: [S.C. No. 54 of 2015],[Appeal No: 54/2015]
• Date: 28 July 2016

Chief Justice

O'Donnell J.

Clarke J.

MacMenamin J.

Dunne J.

Charleton J.

O'Malley J.

Between/

C.C., A.P., C.C. C. (an infant suing by her father and next friend C.C.) and C.C. (an infant suing by his father and next friend C.C.)

(for the purposes of this redacted judgment called ?Charles?)

Applicants/Respondents

and

The Minister for Justice and Equality, Ireland

and

the Attorney General

Respondents/Appellants

[2016] IESC 48

Clarke J.

MacMenamin J.

[Appeal No: 54/2015]

THE SUPREME COURT

Immigration – Deportation – Injunction – Respondents seeking an injunction restraining their deportation pending the hearing of their appeal to the Court of Appeal – Whether the Court of Appeal properly applied the test in Okunade v Minister for Justice and Equality & ors [2012] 3 IR 152

Facts: The respondents are respectively a father, mother and two minor children who are all Malawian nationals. Both the father and mother made separate applications for refugee status in 2008 with the mother including the elder of the two children (born in Malawi in 2007) in her application. Each of those applications were unsuccessful as was a similar application made on behalf of the younger minor child who was born in Ireland in 2008. Thereafter applications for subsidiary protection and leave to remain were made by each family member. Those applications were also refused. Judicial review proceedings were then commenced which sought to quash the decision to refuse subsidiary protection. In 2012 a contested leave application was heard before Cooke J. The Court was requested to consider whether to grant leave to seek judicial review of the refusal of subsidiary protection. Cooke J refused leave. An initial appeal against that decision was brought to the Supreme Court. However, that appeal was transferred to the Court of Appeal. The respondents brought an application before the Court of Appeal seeking an injunction restraining their deportation pending the hearing of their appeal to that Court. On the 27th July, 2015, the Court of Appeal (Hogan J), applying the criteria identified by the Supreme Court in Okunade v Minister for Justice and Equality & ors [2012] 3 IR 152, granted the injunction sought. The respondents, the Minister for Justice and Equality, Ireland and the Attorney General, appealed to the Supreme Court against that judgment and order.

Held by Clarke J that no legitimate basis had been put forward on behalf of the State for suggesting that the test identified by the Supreme Court in Okunade requires to be revised or refined in any way. Clarke J held that the test applies equally to an application for a stay or interlocutory injunction post first instance hearing pending an appeal. Clarke J noted that whether the test operates differently is case specific and not necessarily dependent on whether it is being applied in the context of an appeal. Clarke J therefore rejected the one ground of appeal on which leave was given to the State to contest the decision of the Court of Appeal. Clarke J held that the Court of Appeal correctly identified that the Okunade test was to be applied and that no different or refined test was required to be applied in the circumstances simply because the Court of Appeal was considering an injunction pending appeal as opposed to an injunction pending trial. Clarke J did not consider that any other questions properly arose on this appeal and he would not, therefore, propose to express any view on the question of whether it could be said that the Court of Appeal did not properly apply the Okunade test to the facts of the case.

Clarke J held that the appeal should be dismissed.

Appeal dismissed.

Judgment of Mr. Justice Clarke delivered the 28th July, 2016.

1. Introduction

1.1 On this appeal the Court is invited, once again, to revisit the question of the criteria by reference to which a court should make an order which has, in substance, the effect of restraining deportation pending the final resolution of immigration law proceedings. This Court has, relatively recently, addressed such questions in Okunade v. Minister for Justice and Equality & ors [2012] 3 I.R. 152 (? Okunade?). However, in circumstances which it will be necessary to address, the respondents/appellants (?the State?) in substance invite this Court to review Okunade insofar as it relates to the situation which may pertain pending an appeal within the courts system. It is, of course, the case that Okunade itself was concerned with the criteria by reference to which an injunction restraining deportation should be granted at a time when the relevant applicants had brought a case before the High Court but where that case had not been determined. In this case the applicants/respondents (?the Charles family?) had failed in their application before the High Court, had appealed to the Court of Appeal and had brought an application before the Court of Appeal seeking an injunction restraining their deportation pending the hearing of their appeal to that Court. The Court of Appeal, applying the criteria identified by this Court in Okunade, decided to grant the injunction sought.

1.2 The State applied to this Court for leave to appeal that decision of the Court of Appeal. The determination of this Court on that application for leave was given on the 20th January, 2016 ( C & ors v. Minister for Justice and Equality & ors [2016] IESCDET 8). This Court granted leave on the following grounds:-

?1. That the Court of Appeal erred in identifying the test in Okunade as being applicable to a post-leave decision upholding the decision determining that the respondents were not eligible for subsidiary protection and upholding the validity of the deportation orders.

2. That the Court of Appeal erred in identifying the appropriate test to be applied.?

1.3 The appeal thus permitted came on for hearing and this judgment is directed to the issues arising. To understand the precise issues which arise it is first necessary to set out a brief history of these proceedings. The Charles family are respectively a father, mother and two minor children who are all Malawian nationals. Both the father and mother made separate applications for refugee status in 2008 with the mother including the elder of the two children (born in Malawi in 2007) in her application. The grounds were essentially the same in all cases. Each of those applications was unsuccessful as was a similar application made on behalf of the younger minor child who was born in this jurisdiction in 2008.

1.4 Thereafter applications for subsidiary protection and leave to remain were made by each of the members of the Charles family relying principally on the same sort of assertions which had underpinned their unsuccessful applications for refugee status. Those applications were also refused.

1.5 These judicial review proceedings were then commenced which seek to quash the decision to refuse subsidiary protection. In 2012 a contested leave application was heard before Cooke J. at which both the Charles family and the State were represented. The Court was requested to consider whether to grant leave to seek judicial review of the refusal of subsidiary protection. Cooke J. refused leave ( C v. Minister for Justice, Equality and Law Reform (unreported, High Court, Cooke J. 19th April 2012)). An initial appeal against that decision of Cooke J. was brought to this Court. However, that appeal, along with many others, was transferred to the Court of Appeal as part of the measures put in place subsequent to the establishment of that Court under the provisions of the 33rd Amendment to the Constitution. Around this time the Charles family ?went off the radar? of the immigration authorities although, it would appear, they may have had ordinary contact with other State agencies possibly through the payment of PRSI and the claiming of social welfare. Be that as it may contact was again made with the immigration authorities in 2015. An undertaking was sought not to deport the family pending their appeal which had been, by that stage, transferred to the Court of Appeal. No such undertaking being proffered an application for an injunction was brought before the Court of Appeal.

1.6 For the reasons set out in the judgment of the Court of Appeal delivered on the 27th July, 2015 by Hogan J. ( C. & ors v. Minister for Justice and Equality & ors [2015] IECA 167), the Court of Appeal granted the injunction sought. It is as against that judgment and order that the appeal to this Court is now brought.

1.7 Against that backdrop it is necessary to identify with greater precision the issue with which this Court is concerned on this appeal.

2. The Issue

2.1 It is important to start with the terms of Art. 34.5.3 of the Constitution, as inserted by the 33rd Amendment, which requires that a minimum constitutional threshold must be met in order that an appeal can be brought to this Court. Under that provision the decision sought to be appealed must be shown either to involve a matter of general public importance or, in the alternative, that it is necessary in the interests of justice that there be an appeal to this Court.

2.2 Effect was given to the 33rd Amendment by the enactment of the Court of Appeal Act, 2014 (?the 2014 Act?) which allowed for the establishment of that court and for consequential matters. Amongst the measures adopted (see s.44 of the 2014 Act) was an amendment of s.7 of the Courts (Supplemental Provisions) Act, 1961 by the inclusion of a new subs. (14) which provides that leave to appeal to this Court from the Court of Appeal is by way of a certificate of this Court ?specifying the ground or grounds on which such appeal may be brought?. It follows that the only grounds on which an appeal ?may be brought? to this Court are the grounds specified in the determination in which this Court certifies that...