Charles v The Minister for Justice and Equality
| Jurisdiction | Ireland |
| Judge | Denham C.J.,Dunne J.,Charleton J. |
| Judgment Date | 20 January 2016 |
| Neutral Citation | [2016] IESCDET 8 |
| Court | Supreme Court |
| Date | 20 January 2016 |
[2016] IESCDET 8
THE SUPREME COURT
DETERMINATION
Denham C.J.
Dunne J.
Charleton J.
AND
This determination concerns an appeal brought by the Minister for Justice and Equality, Ireland and the Attorney General hereinafter referred to as ‘the applicants’ from the judgment of the Court of Appeal delivered on the 27th day of July, 2015 ( [2015] IECA 167) and the order of the 27th July, 2015 which was perfected on the 29th July, 2015.
The Court of Appeal granted an interlocutory injunction restraining the deportation of the respondents pending the determination of the appeal.
This Court has jurisdiction to hear an appeal from the Court of Appeal, in the circumstances described in Article 34.5.3° of the Constitution, which states:
‘The Supreme Court shall, subject to such regulations as may be prescribed by law, have appellate jurisdiction from a decision of the Court of Appeal, if the Supreme Court is satisfied that:
(i) the decision involves a matter of general public importance, or
(ii) in the interests of justice it is necessary that there be an appeal to the Supreme Court.’
The decision of the Supreme Court under Article 34.5.6° is, in all cases, ‘final and conclusive’.
The constitutional framework established by the Thirty Third Amendment to the Constitution thus requires, that in order for a party to be entitled to appeal to this Court from a decision of the Court of Appeal it has to be demonstrated that either a ‘matter of general public importance’ arises, or that ‘in the interests of justice it is necessary that there be an appeal to this Court’.
The statutory framework for the exercise of the right to appeal to this Court is to be found in the Court of Appeal Act 2014, and, in particular, in the provisions of s. 44 of that Act, which inserts a new s. 7 into the Courts (Supplemental Provisions) Act 1961.
The Rules of Court are set out in the amended Order 58 of the Rules of the Superior Courts.
The Constitution has retained the entitlement to have one appeal as a right from the High Court to the Court of Appeal, subject to express exclusions or regulation by statute. What is sought here is a second appeal. The jurisdiction to bring an appeal to this Court is confined, principally, to cases where, as a result of the determination of the Court of Appeal, the decision of that Court is such that the issues raised on a proposed appeal would involve a matter of general public importance, or would be such that it is in the interests of justice that there should be a further appeal to this Court.
In these proceedings the respondents brought an application for leave to apply for judicial review of the decisions determining that they are not eligible for subsidiary protection and of the decisions to make deportation orders in respect of the respondents. The High Court, in a judgment delivered on the 19th April, 2012, refused to grant leave to apply for judicial review of the decisions determining that they are not eligible for subsidiary protection and of the decisions to make the deportation orders. The respondents then appealed to the Court of Appeal, which, in a judgment delivered on the 27th July, 2015 pursuant to a notice of motion seeking an injunction restraining the deportation of the respondents pending the determination of the appeal which was filed by the respondents on the 9th May, 2012 against the judgment and order of the High Court (Mr. Justice Cooke) made on the 19th April, 2012 refusing the respondents' application for leave to apply for various reliefs by way of judicial review, allowed the application and granted an interlocutory injunction restraining the deportation of the respondents pending the determination of the appeal.
The applicants have applied for leave to appeal to this Court against the entire decision of the Court of Appeal to grant the respondents the interlocutory injunction restraining their deportation.
The respondents in the application for leave to appeal are a father, mother and their two minor children. They are all Malawian nationals. The first named respondent applied for a declaration of refugee status in 2008. He claimed that he had to flee his country of origin, Malawi, because his father-in-law, who has HIV, wanted to have sexual intercourse with his daughter in the belief that it would cure him of his condition. His application was unsuccessful. His wife, the second named respondent, also applied for asylum in 2008. She included the third named respondent who was born in Malawi in 2007 in her application which was, in substance, the same as her husband's. Her application was unsuccessful as was an application for asylum made on behalf of the fourth named respondent who was born in the State in 2008. Thereafter, applications for subsidiary protection and leave to remain were made by or on behalf of the respondents in which they relied upon the assertions which had underpinned their unsuccessful applications for declarations of refugee status. In refusing these applications and in making deportation orders against the respondents in 2011, the first named applicant noted that State protection and internal relocation would be available to the respondents in Malawi.
The respondents issued judicial review proceedings seeking to quash those decisions of the first name applicant. The inter partes leave hearing took place in 2012 and Cooke J. having reserved judgment, subsequently refused leave, holding that no stateable grounds existed for quashing the decisions. The respondents appealed the High Court's upholding of the validity of the subsidiary protection decisions to the Supreme Court. They did not apply for a certificate of leave to appeal against the upholding of the deportation orders. They subsequently left their address, failed to notify the authorities of their whereabouts, and failed to present to the Garda National Immigration Bureau (‘GNIB’) for the purpose of making arrangements for their deportation from the State, thereby evading deportation for a number of years, during which the adult respondents worked illegally in the State. They presented again in 2015 and sought an undertaking not to deport them given their appeal, which in the meantime had been transferred to the Court of Appeal. The undertaking requested by them not being forthcoming, they applied to the Court of Appeal for an injunction to enjoin their deportation and were granted it pursuant to the decision of the Court of Appeal of the 27th July, 2015.
The Court of Appeal found that the respondents had a fair and arguable case on appeal by reference to the decision of Hogan J. in M.M. v. Minister for Justice [2013] 1 I.R. 370 and by reference to the ruling of the CJEU to C - 277/11MM v. Minister for Justice [2012] E.C.R. I-000. This was on account of the fact that the decisions to refuse subsidiary protection were partly based on the adoption of a negative credibility finding made by the first named applicant when refusing the respondents' declarations of refugee status. The Court of Appeal held, relying upon the decision of Okunade v. Minister for Justice and Equality & Ors [2012] 3 I.R. 152 ( Okunade), that the balance of convenience lay in favour of granting the injunction sought. The Court of Appeal applied the same test that would be applied at an inter partes application for an injunction at first instance notwithstanding that the High Court had already determined that there was no fair or arguable case to be tried insofar as it had refused to grant leave.
The Court of Appeal also held that, if the adult respondents were looked at in isolation, their applications for such relief would have little to commend them given their evasion of their obligations under immigration law. It held, however, that their position had to be considered in conjunction with that of their children. The children were innocent of the parents' deceptions and it would be unjust to visit them with the consequences thereof. It held that their deportation would occasion them significant dislocation. It held that they had a right to the company and care of their parents under Articles 41, 42 and 42A of the Constitution. It held that the balance of convenience favoured granting them an injunction and that it was, in consequence, also necessary to enjoin the deportation of their parents in order to protect the children's constitutional rights.
On the 26th August, 2015, the applicants lodged an application for leave to appeal to the Supreme Court. The respondents' notice was received on the 10th September, 2015.
The applicants have stated that the proposed appeal raises two important matters of law of general public importance warranting an appeal being granted in the interests of justice namely:
(a) Where the High Court refused leave by way of judicial review to challenge inter alia decisions of the first named applicant to make deportation orders in respect of the non-national respondents and where they sought an interlocutory injunction from the Court of Appeal to enjoin their deportation from the State pending the outcome of the appeal, did the Court of Appeal err in determining the issue on the basis of whether or not there was a fair issue to be tried?
(b) In assessing where the balance of convenience lay, did the Court of Appeal err in failing to acknowledge that the respondents' children were to be identified with the conduct of their parents,...
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C.C. v Minister for Justice
...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 applicab......