D.E v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: the Chief Justice,O'Donnell J
• Judgment Date: 08 March 2018
• Neutral Citation: [2018] IESC 16
• Court: Supreme Court
• Docket Number: [S.C. No. 104 of 2017],Appeal No: 104/17
• Date: 08 March 2018

[2018] IESC 16

THE SUPREME COURT

Clarke C.J.

Clarke C.J.

O'Donnell Donal J.

McKechnie J.

MacMenamin J.

O'Malley Iseult J.

Appeal No: 104/17

Between/

D.E. (An Infant suing by his mother and next friend A.E.)

Applicant/Appellant

and

Minister for Justice and Equality, the Commission of An Garda Síochána, Ireland

and

the Attorney General

Respondents

Deportation – Judicial review – Revocation – Appellant seeking revocation of deportation order – Whether High Court was correct to refuse leave to seek judicial review

Facts: The appellant was born in Ireland but is of Nigerian parentage. A deportation order was made requiring the appellant to leave the country. On the 28th July 2016 a decision was made by the first respondent, the Minister for Justice and Equality, not to revoke that deportation order. Judicial review proceedings were commenced challenging the validity of the refusal to revoke the relevant deportation order. The High Court (Humphreys J) refused leave to seek judicial review. Furthermore, the High Court refused the certificate necessary to enable an appeal to be brought to the Court of Appeal. There was also a third judgment of the High Court in relation to an injunction. The appellant successfully applied to the Supreme Court for leapfrog leave to appeal directly from the High Court to the Supreme Court. The basis on which the Supreme Court granted leave to appeal was the following: whether the High Court was incorrect to conclude that substantial grounds justifying a grant of leave to seek judicial review had not been made out in the circumstances of this case having regard to the following issues:- (a) whether Irish law recognises the same or an appropriately adapted principle such as that identified by the UK Supreme Court in R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245 such that there is an obligation on public authorities enjoying a broad discretion to publish any policy or criteria by reference to which such discretion is likely to be exercised whether that policy has been formally adopted or represents an established practice; (b) having regard to any propositions determined to arguably represent the law under (a), it is sufficiently arguable that such principles have application in the case of the appellant so as to justify a grant of leave to seek judicial review on a substantial grounds basis; and (c) whether it was sufficiently arguable, on a substantial grounds basis, that the appellant's medical condition and requirement for treatment met the high threshold which requires to be met in order to make it unlawful to deport.

Held by Clarke CJ that, insofar as it was suggested that the decision of the Minister was not legally sound because of an alleged failure to disclose guidance or criteria by reference to which the Minister's general discretion under s. 3(11) of the Immigration Act 1999 was to be exercised, to the extent that it was arguable that any such obligation exists and that a relevant practice existed in the circumstances of this case, the appellant and his advisers were sufficiently aware of the alleged practice in question so as to be able to structure their submissions to the Minister by reference to that asserted practice; this was so not least because there was specific reference to the contended form of practice (being that recommended by the Working Group on the Protection Process) in the submissions which were actually made. Insofar as it was argued that the Minister had failed to carry out an assessment of the appellant's case in accordance with the ECHR in the manner and by reference to the criteria which have since been clarified by the decision of the ECtHR in Paposhvili v Belgium (41738/10) (European Court of Human Rights, 13th December 2016), Clarke CJ held that the evidence and materials which were presented to the Minister were not, for understandable reasons having regard to the fact that Paposhvili had not been decided at the time, sufficiently directed to the questions which the ECtHR had indicated must be assessed. On that basis Clarke CJ was not satisfied that there were arguable grounds for suggesting that the appellant complied with the initial obligation which rests on an applicant to put forward evidence of a real risk that Article 3 rights will be interfered with if deported or returned. Clarke CJ concluded that substantial grounds had not been made out for a judicial review challenge to the decision of the Minister.

Clarke CJ held that the appeal should be dismissed.

Appeal dismissed.

Judgment of the Chief Justice delivered the 8th of March 2018

1. Introduction

1.1 Statutory decision making involving the rights and obligations of individuals takes on many forms. The power to make the decision in question can be conferred on a Minister, an official or on a statutory body. However, of particular relevance to one of the sets of issues which arise on this appeal is the fact that the criteria set out in the relevant statute, to be applied by the decision maker concerned, can be expressed in very different ways. Sometimes the decision maker is charged with a very specific task in determining whether particular facts or circumstances exist. Sometimes, as here, the decision maker is given a broad adjudicative role, often involving a significant measure of true discretion. One of the sets of issues which potentially arise on this appeal is as to the extent, if any, to which there may be a duty on a decision maker who is given such a broad role to inform interested parties of any policy or criteria which it is intended would be applied in the exercise of any discretion arising. There is also a question as to the extent to which any such duty, if it exists, may have been breached in the circumstances of this case.

1.2 The second set of issues is more particular to the specifics of this case. The applicant/appellant ("D.E.") was born in Ireland but is of Nigerian parentage. In circumstances which it will be necessary to address in a little more detail, a deportation order was made requiring D.E. to leave the country. Various further legal steps were taken but ultimately on the 28th July 2016 a final decision was made by the first named respondent ('the Minister') not to revoke that deportation order. Amongst the matters which had been advanced on behalf of D.E., in an attempt to persuade the Minister to revoke the relevant deportation order, was a serious medical condition from which D.E. is suffering.

1.3 Judicial review proceedings were commenced challenging the validity of the refusal to revoke the relevant deportation order. Ultimately, the High Court (Humphreys J.) refused leave to seek judicial review ( D.E. v. Minister for Justice and others [2016] IEHC 650). Furthermore, the High Court refused the certificate necessary to enable an appeal to be brought to the Court of Appeal ( D.E. v. Minister for Justice (No. 2) [2017] IEHC 276). There was also a third judgment of the High Court in relation to an injunction ( D.E. v. Minister for Justice (No. 3) [2017] IEHC 409).

1.4 Thereafter, D.E. successfully applied to this Court for leapfrog leave to appeal directly from the High Court to this Court ( E v. Minister for Justice and Equality others [2017] IESCDET 85).

1.5 It will be necessary to turn shortly to the issues and grounds which led this Court to grant leave to appeal and which therefore formed the subject of the issues for consideration by the Court. However, in order more easily to understand those grounds and issues it is necessary to set out something of the facts and the course of these proceedings to date.

2. The facts

2.1 D.E.'s mother arrived in Ireland on the 23rd January 2009. D.E. was born on the 26th March 2009, and suffers from sickle cell disease. A deportation order was made against D.E. on the 1st July 2011, following an unsuccessful application for asylum. A judicial review application was brought challenging the validity of this order. Cross J. in the High Court ( D.O.E. v. Minister for Justice and Equality [2012] IEHC 100) refused leave to apply for judicial review on the basis that there were no substantial grounds on which to challenge the deportation order in question.

2.2 Between the 14th June 2012 and the 22nd July 2014, D.E.'s mother, who was also the subject of a deportation order, evaded the Garda National Immigration Bureau ('GNIB'). In the High Court in this case, Humphreys J. expressed the view that by necessary extension D.E. also must be taken to have evaded the GNIB, although he was obviously not personally responsible for this.

2.3 Thereafter, an application was made seeking to revoke the deportation order. This application was refused on the 8th July 2014. A second set of proceedings was then brought challenging this refusal [2014 No. 526 J.R.]. These proceedings were struck out by Mac Eochaidh J. as moot on application by the Minister. The Minister had been furnished with medical evidence which was treated as a fresh application to revoke the deportation order under s. 3(11) of the Immigration Act 1999 ('the 1999 Act'). The Minister emphasises in written submissions filed in this appeal that this decision to treat the medical evidence as a fresh s. 3(11) application should not be taken to mean that the Minister had formed a view that the medical information represented or potentially represented a change of circumstances. Rather, the Minister submits, D.E.'s insistence on continuing with the judicial review proceedings, at a time when the Minister was considering the fresh s. 3(11) application, compelled the Minister to apply to have the proceedings struck out as moot. It will be necessary to return to that medical evidence in the context of one of the issues which arises on this appeal.

2.4 In any event, on the 2nd July 2015, in the context of the Minister's consideration of the fresh application to revoke,...