F.E. (A Minor) and Others v Minister for Justice and Law Reform

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 14 February 2014
• Neutral Citation: [2014] IEHC 62
• Court: High Court
• Docket Number: [2009 No. 966 J.R.]
• Date: 14 February 2014

BETWEEN

F.E. (A MINOR ACTING BY HER FATHER AND NEXT FRIEND M.E.) AND, B.E. (A MINOR ACTING BY HIS FATHER AND NEXT FRIEND M.E.) AND, M.A.E. (A MINOR ACTING BY HIS FATHER NEXT FRIEND M.E.) AND M.E. AND E.E.

APPLICANTS

AND

THE MINISTER FOR JUSTICE AND LAW REFORM

RESPONDENT

[2014] IEHC 62

[2009 No. 966 J.R.]

THE HIGH COURT JUDICIAL REVIEW

Judicial review of administrative decision - Deportation order - Leave to appeal - Exceptional public importance - Public interest - Proportionality - Constitutional rights - Article 13 ECHR

The first consideration made by McDermott J. was that the Court had already given its judgment on this application to quash the deportation order issued against M.E., the fourth named applicant. In the judgment, a declaration was also sought that the legal and constitutional rights of the applicants and their Article 8 rights under the European Convention on Human Rights were infringed. Leave to apply for judicial review was granted in February 2009 on the basis that the decision to make a deportation order against M.E. was, given the nature of the conviction against him, disproportionate in all the circumstances and infringed upon his constitutional and ‘Convention rights’. The application was refused for reasons set out in the judgment.

In these proceedings, the applicants sought leave to appeal this judgment to the Supreme Court under section 5 (3) (a) of the Illegal Immigrants (Trafficking) Act 2000 (the 2000 Act). This section provided that the determination of the High Court in judicial review was final and that no appeal could be made to the Supreme Court except where the High Court certified that its decision involved a point of law of ‘exceptional public importance’ and that an appeal to the Supreme Court was ‘desirable in the public interest’. A certificate was sought on the following point: whether in applying the test reaffirmed by the Supreme Court in Meadows v The Minister for Justice, Equality and Law Reform, the High Court was correct in law by exercising its jurisdiction in judicial review on the basis that; it was not sufficient that an application asserted that the decision was ‘irrational, unreasonable and disproportionate’; and that the applicant was required to identify ‘the particular error’ or ‘omission’ which rendered the decision ‘irrational, unreasonable or disproportionate.’

It was submitted that the judgment approached the question of proportionality incorrectly. The applicants claimed that they should not have been required to identify ‘particular or specific errors’ in the proportionality consideration. Held by Mc Dermott J., this Court applied the Meadows principles in what was acknowledged as the ‘repeated and consistent’ interpretation by the High Court of that decision. Moreover, the Court held that the authorities confirmed that proportionality was well established and that there was no element of uncertainty. It was found that the argument of the applicants in this regard was incorrect, did not give rise to a point of law of exceptional public importance, and that an appeal was not in the public interest. The applicants also asserted that they were entitled to an effective remedy under Article 13 of the European Convention on Human Rights and that judicial review failed to provide this remedy due to ‘common law constraints’. This argument was also rejected as the Court held that the common law rules were not uncertain as to the adequacy of judicial review as a remedy under Article 13.

Certification under section 5 (3) (a) of the 2000 Act was therefore refused.

Mr. Justice McDermott

JUDGMENT of Mr. Justice McDermott delivered on 14th day of February, 2014

1 The court has already given its judgment on this application for an order of certiorari by way of judicial review quashing the deportation order issued against M.E. on 27th August, 2009. A declaration was also sought that the legal and/or constitutional rights of the applicants and/or their family rights under the European Convention on Human Rights had been infringed. Leave to apply for judicial review had been granted on 16th February, 2011 (Hogan J.) on a single ground that:-

‘The decision of the respondent to make a deportation order against the fourth named applicant on the basis that the legitimate aim of the state to prevent crime and disorder constituted a substantial reason associated with the common good which required his deportation, having regard to the conviction recorded against him, was disproportionate in the all the circumstances, in that it infringed the applicants” constitutional and Convention rights.’

2 The circumstances and background to the case are fully set out in the judgment of the court and the application was refused for the reasons set out in the judgment.

3 The applicants now seek leave to appeal this judgment to the Supreme Court pursuant to the provisions of s. 5(3)(a) of the Illegal Immigrants (Trafficking) Act 2000, which provides that leave cannot be granted unless the court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal be taken.

4 Written submissions were furnished by both parties on this application for a certificate, and were elaborated upon in oral argument, but the court is not persuaded that the test laid down under s. 5(3)(a) has been met.

5 The point upon which a certificate is sought is as follows:-

‘1. Whether in applying the test or principle reaffirmed by the Supreme Court in the case of Meadows v. the Minister for Justice, Equality and Law Reform in an application to quash a decision made by the respondent to deport a non-EU national who was the parent of minor Irish citizens, the High Court was correct in law in exercising its jurisdiction in judicial review on the basis that:-

• It is not sufficient that an application merely asserts that the decision is irrational, unreasonable and disproportionate and invites the court to reassess the balance of reasonableness as between the interests of the state and the rights and interests of the applicant and the child or family concerned;

• The court is entitled to require the applicant to identify the particular error, omission or other flaw in the Respondents” reasons or assessment of the case which is claimed to render the decision irrational, unreasonable or disproportionate.’

This point is the same as a point of law certified under s. 5(3)(a) in the case of Lofinmakin (An infant acting by her father and next friend Akintola Lofinmakin) & Ors (Applicants) v. the Minister for Justice, Equality and Law Reform & Ors (Respondents) [2011] IEHC 116 by Cooke J. following a refusal of leave to apply for judicial review in that case.

6 Section 5(3)(a) of the Illegal Immigrants (Trafficking) Act 2000, provides:-

‘The determination of the High Court of an application for leave to apply for judicial review…or of an application for such judicial review shall be final and no appeal shall lie from the decision of the High Court to the Supreme Court in either case except with the leave of the High Court which leave shall only be granted where the High Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.’

7 McMenamin J. in Glancre Teoranta v. An Bord Pleanála [2006] IEHC 205 in considering the principles to be applied to a consideration of an application for a certificate stated:-

‘1. The requirement goes substantially further than that a point of law emerges in or from the case. It must be one of exceptional importance being a clear and significant additional requirement.

2. The jurisdiction to certify such a case must be exercised sparingly.

3. The law in question stands in a state of uncertainty. It is for the common good that such law be clarified so as enable the courts to administer that law not only in the instant, but in future such cases.

5. The point of law must arise out of the decision of the High Court and not from discussion or consideration of a point of law during the hearing.

6. The requirements regarding ‘exceptional public importance’ and ‘desirable in the public interest’ are cumulative requirements which although they may overlap to some extent require separate consideration by the court ( Raiu).

7. The appropriate test is not simply whether the point of law transcends the individual facts of the case since such an interpretation would not take into account the use of the word ‘exceptional’.

8. Normal statutory rules of construction apply which mean, inter alia, that ‘exceptional’ must be given its normal meaning.

9. ‘Uncertainty’ cannot be ‘imputed’ to the law by an applicant simply by raising a question as to the point of law. Rather the authorities appear to indicate that the uncertainty must arise over and above this, for example in the daily operation of the law in question.

10. Some affirmative public benefit from an appeal must be identified. This would suggest a requirement that a point to be certified be such that it is likely to resolve other cases.’

8 It is now submitted that this Court in its judgment approached the question of proportionality incorrectly by requiring the applicants to show that important matters were not considered at all in the respondent”s determination, or that the decision was irrational or unreasonable. It is claimed that the applicants should not be required to identify particular or specific errors in the proportionality determination and that a decision to deport may be found to be disproportionate in circumstances other than where the decision is deemed to be irrational or unreasonable according to the principles set out in The State...