F (ISO) and Others v Min for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 17 December 2010
• Neutral Citation: [2010] IEHC 457
• Court: High Court
• Date: 17 December 2010

F (ISO) & Ors v Min for Justice

JUDICIAL REVIEW

MR JUSTICE COOKE

APPROVED TEXT

BETWEEN

I.S.O.F. AND OTHERS

APPLICANTS

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

AND

ATTORNEY GENERAL AND HUMAN RIGHTS COMMISSION

NOTICE PARTIES

[2010] IEHC 457

[No. 396 J.R./2010]

THE HIGH COURT

IMMIGRATION

Appeal

Certificate for leave to appeal - Refusal to grant leave to apply for judicial review - Criteria to be applied - Test of unreasonableness or irrationality - Role of court in judicial review and applying test - Function and duty of court in respect of rights - Whether different approach to be applied where rights involved qualified - Whether state of law regarding test uncertain - Whether in public interest to appeal - R(1) v Minister for Justice, Equality and Law Reform [2009] IEHC 1, (Unrep, HC, Cooke J, 26/11/2009); R(SB) v Governors of Denbigh High School [2006] UKHL 15, [2007] 1 AC 100 approved - Meadows v Minister for Justice, Equality and Law Reform [2010] IESC 3, (Unrep, SC, 21/1/2010); State (Keegan) v Stardust Compensation Tribunal [1986] IR 642; O'Keeffe v An Bord Pleanála [1993] 1 IR 39; East Donegal Co-operative Livestock Mart Ltd v Attorney General [1970] IR 317 applied - Refugee Act 1996 (No 17), s 5 - Immigration Act 1999 (No 22), s 3 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - European Convention on Human Rights Act 2003 (No 20) - Human Rights Act 1998 (1998 c 42) - Rules of the Superior Courts 1986 (SI 15/1986), O 84 - Constitution of Ireland 1937, article 40.3 - European Convention on Human Rights 1950, arts 8 and 13 - Certificate refused (2010/396JR - Cooke J - 17/12/2010) [2010] IEHC 457

ISOF v Minister for Justice, Equality and Law Reform

IMMIGRATION ACT 1999 S3(6)

MEADOWS v MIN FOR JUSTICE & ORS UNREP SUPREME 21.1.2010 2010 IESC 3

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(3)(A)

CONSTITUTION ART 40.3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8.2

R (I) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP COOKE 26.11.2009 2009/47/11883 2009 IEHC 510

KEEGAN & LYSAGHT, STATE v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642 1987 ILRM 202

O'KEEFFE v BORD PLEANALA & O'BRIEN 1993 1 IR 39 1992 ILRM 237

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(3)

RSC O.84

REFUGEE ACT 1996 S5

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

IMMIGRATION ACT 1999 S3(11)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003

EAST DONEGAL CO-OPERATIVE LIVESTOCK MART LTD & ORS v AG 1970 IR 317

HUMAN RIGHTS ACT 1998 (UK)

R (SB) v GOVERNORS OF DENBIGH HIGH SCHOOL 2007 1 AC 100 2006 2 WLR 719 2006 2 AER 487

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

1 JUDGMENT of Mr. Justice Cooke delivered the 17th day of December 2010

2 1. On the 2 ^nd November, 2010, the Court delivered its judgment on an application made on behalf of the above named applicants for leave to seek judicial review of an order to deport the fifth named applicant dated the 9 ^th March, 2010, made by the respondent. As set out particularly in para. 17 of that judgment, the grounds for which leave had been sought to apply for an order of certiorari quashing the deportation order were directed at the validity and adequacy of the evaluation made of the impact of that order upon the rights of the applicants as members of the family of the fifth named applicant. The reasons for making the deportation order had been set out in a detailed memorandum entitled "Examination of File Note" in which the statutory considerations required to be taken into account under s. 3(6) of the Immigration Act 1999, were examined and a balancing exercise was carried out by way of assessment of the justification for making the order having regard to the representations that had been made on behalf of the applicants and the interference which the deportation would constitute with their family life.

3 2. In essence, the case was made that the evaluation and balancing exercise thus carried out was unlawful because it brought about a result which was clearly disproportionate thereby rendering the decision unreasonable. For the reasons set out in detail in that judgment, the Court declined to grant leave. It considered that no substantial ground had been made out to the effect that the analysis and evaluation made by the respondent leading it to its decision failed to meet the test of irrationality or unreasonableness applicable to judicial review in this context as most recently confirmed by the judgments of the Supreme Court in Meadows v. M.J.E.L.R. [2010] I.E.S.C. 3.

4 3. The applicants now apply for a certificate of leave to appeal against that judgment to the Supreme Court under s. 5(3)(a) of the Illegal Immigrants (Trafficking) Act 2000. Two issues or points of appeal are put forward as the basis for this application as follows:

5 1. In determining, on judicial review, whether an administrative decision which interferes with an individual rights, as protected by the Constitution and/or European Convention on Human Rights, is "proportionate", is the court confined to an assessment of whether the decision plainly and unambiguously flies in the face of fundamental reason and common sense" (ie. is it based on an accurate appraisal of the facts of the case) or can and/or should the court examine the competing rights involved and determine whether in its view the correct balance has been struck in respect of those rights?

6 2. If the answer to No. 1. is that the court can and/or should examine the competing rights involved and determine whether in its view the correct balance has been struck in respect of those rights, what other principles by which the correct balance should be determined. For example:

7 (a) does Article 40.3 of the Constitution require that in having due regard to the welfare of the a citizen child, the "best interests" of that child should be weighed as a paramount consideration in the balancing exercise;

8 (b) does the "correct balance" that the degree of interference with the individuals rights must be shown to be "necessary in a democratic society" (to use the words in Article 8.2 of the European Convention on Human Rights);

9 (c) is the following template an appropriate one for assessing whether an interference with a fundamental right is proportionate, ie. that the court should assess the nature and gravity of the individual's asserted right; the degree of interference with that right; the countervailing interest of the decision-maker; and, finally, whether the degree of interference with the individual's right is sufficiently limited that the measures adopted by the decision-maker can justifiably prevail; and

10 (d) should the court allow a margin of discretion of the decision-maker in determining whether the "correct balance" has been struck?

11 4. The criteria which fall to be applied to an application for a certificate are now well settled and this Court in its judgment of the 26 ^th November, 2009, in I.R. v Minister for Justice, Equality and Law Reform, endeavour to summarise the principles which have been laid down in the preceding cases mentioned therein. These include:-

12 · - The point of law proposed to be raised must be one of exceptional importance:

13 · - It must be raised in an area of law which is uncertain so that there is a public interest in resolving the uncertainty for the benefit of future cases;

14 · - The uncertainty of the point of law must be genuine and not merely a difficulty in predicting the outcome of the appeal;

15 · - The point of law must arise out of the court's judgment and not merely out of some discussion in argument at the hearing;

16 · - The requirements of public importance and the public interest in the desirability of an appeal are cumulative requirements.

17 5. In essence the case made for the grant of a certificate in this instance is based upon the proposition that the judgment of the court creates or reflects an uncertainty as to the state of the law following the judgments of the Supreme Court in Meadows v. Minister for Justice, Equality and Law Reform [2010] I.E.S.C. 3. In the judgments of the majority of the Court in that case, the test as to unreasonableness or irrationality in the judicial review of an administrative or quasi judicial decision was reaffirmed as that which had been laid down by the Supreme Court in the earlier cases of Keegan v.Stardust Tribunal and O'Keeffe v. An Bord Pleanála [1993] 1 I.R. 39. The court will not interfere with such a decision...