Gayle v Governor of the Dóchas Centre
| Jurisdiction | Ireland |
| Court | High Court |
| Judge | Mr. Justice Richard Humphreys |
| Judgment Date | 07 December 2017 |
| Neutral Citation | [2017] IEHC 753 |
| Date | 07 December 2017 |
| Docket Number | [2017 No. 1071 S.S.] [2017 No. 743 J.R.] |
[2017] IEHC 753
THE HIGH COURT
JUDICIAL REVIEW
Humphreys J.
[2017 No. 1071 S.S.]
[2017 No. 743 J.R.]
IN THE MATTER OF AN APPLICATION UNDER ARTICLE 40.4.2° OF THE CONSTITUTION
(No. 2)
Constitution - Art. 40.4.2 of the Constitution - Asylum, Immigration & Nationality - Deportation order - Practice and Procedure - Restriction on leave to appeal - S. 5(6)(a) of the Illegal Immigrants Trafficking Act, 2000 - Right of access to appellate court
Facts: The applicant filed an application to amend the judicial review proceedings and sought a declaration of unconstitutionality for s. 5(6)(a) of the Illegal Immigrants Trafficking Act, 2000. The applicant also sought leave to appeal against the refusal of the Court to grant an order of certiorari for quashing the deportation order made against the applicant. The applicant contended that s. 5(6)(a) of the 2000 Act restricted his right for leave to appeal in the event of refusal of certiorari of the deportation order.
Mr. Justice Richard Humphreys refused to grant the leave to appeal. The Court held that s. 5(6)(a) was not unconstitutional as appropriate procedures had been prescribed under s. 5 to challenge the deportation order. The Court pointed out that the failure to challenge the deportation order or failure to take judicial review would be a bar for an applicant to succeed in an art. 40 application. The Court also refused leave to appeal to the Court of Appeal. The Court noted that none of the points raised by the applicant was of exceptional public importance.
In Gayle v. Governor of the Dóchas Centre (No. 1) [2017] IEHC 718 (Unreported, 27th October, 2017) I declined to order the release of the applicant under Article 40 of the Constitution and refused relief in the judicial review as it stood at that point. Mr. Michael Forde S.C. (with Mr. Paul O'Shea B.L.) on behalf of the applicant subsequently applied to amend the judicial review proceedings to seek an additional declaration of unconstitutionality in respect of s. 5(6)(a) of the Illegal Immigrants Trafficking Act, 2000 (which restricts leave to appeal to the Court of Appeal) and also (in effect without prejudice to the new constitutional challenge) applied for leave to appeal in respect of my refusal of certiorari of the deportation order relating to the applicant dated 19th May, 2017.
It is clear that proceedings can be amended even after the reliefs as originally formulated have been refused (see para. 5-211, p. 306 of Delany and McGrath, Civil Procedure in the Superior Courts, 3rd ed. (Dublin, 2012)). I allowed the amendment for essentially three reasons; firstly, it was more convenient to deal with the matter in these judicial review proceedings in order to keep everything together rather than have separate, possibly plenary, constitutional proceedings at a later stage. Secondly, there was no strenuous objection from the respondents, and indeed they seemed to prefer an amendment now to the spectre of separate proceedings. Thirdly, here the additional reliefs arose out of the leave to appeal application and were not particularly relevant or appropriate prior to that which is a further reason to have allowed the amendment in this case.
The leave to appeal application and the new reliefs are intertwined and I will deal now with both in this judgment. I have heard submissions from Mr. Forde for the applicant and from Mr. Robert Barron S.C. (with Ms. Eilis Brennan B.L.) for the respondents. In addition to oral submissions I have had a superabundance of written submissions;
(i). Applicant's submissions in support of the leave application in the judicial review dated 2nd October, 2017.
(ii). Applicant's submissions for the substantive hearing entitled 'Applicant's Submissions' dated 18th October, 2017.
(iii). Respondent's submissions for the substantive hearing entitled 'Written legal submissions on behalf of respondent' dated 23rd October, 2017.
(iv). Applicant's submissions on leave to appeal entitled 'Application for cert ( sic) to appeal Illegal Immigrants (Trafficking) Act 2000 s. 5(3)(a)' dated 2nd November, 2017.
(v). Undated respondent's replying submissions on leave to appeal with a fax date stamp of 7th November, 2017.
(vi). Applicant's submissions in support of the further constitutional contentions and further support of the leave to appeal application entitled 'Applicant's (Ms. Gayle) case outline' dated 23rd November, 2017.
(vii). Respondent's reply in submissions entitled 'Written legal submissions on behalf of respondents on amended statement of grounds' dated 4th December, 2017.
(viii). Applicant's submissions replying to the State submissions on leave to appeal entitled 'Outline response to State's case' dated 6th December, 2017.
Despite the embarrassment of written submissions a further overlay of additional points was made at the hearing, so overall the case is certainly a tribute to the ingenuity of counsel.
Two points of law in which leave to appeal are sought are set out in the submissions dated 2nd November, 2017. A third question is raised (without a wording being precisely formulated) in the eighth set of submissions mentioned above. Reliance is placed on Minister for Justice and Equality v. Tokarski [2012] IESC 61, where Murray C.J. says that the High Court judge in that case had ' it would seem, in my view correctly, taken a broad approach to the interpretation of [the statutory provisions regarding leave to appeal]'. He adverted to the fact that the extradition or EAW context was unlike the asylum and planning and development system, where there was a ' prior independent administrative process'. The broad point emerging from that case is that the extent to which an applicant has already been through a process could, depending on the circumstances, be one of the overall circumstances to be taken into account in whether to grant leave to appeal, and I certainly have regard to that fact here.
Mr. Forde launched complaints about the procedure whereby a judge was asked to give leave to appeal against his or her own decision. He suggested, somewhat in passing, that such a procedure might be either unconstitutional or contrary to the ECHR. The conception that one has to apply for leave to appeal to the High Court itself was upheld in In Re Illegal Immigrants (Trafficking) Bill 1999 [2000] IESC 19 [2000] 2 I.R. 360. The issue that one applies to the judge in question is not spelled out in the legislation, but Mr. Forde accepted in submissions that an alternative procedure was impracticable because another judge would essentially have to rehear the case. He relied on the English practice that in the first instance the High Court judge can grant leave to appeal in civil cases but one can then seek leave from the Court of Appeal if that is refused, and submits that it is 'exceptional internationally' for a first instance judge to have a ' lock on an appeal'. However, since the 33rd Amendment of the Constitution, refusal of leave in a certificate case cannot be regarded as an absolute lock in every case. There certainly have been some cases where leave to appeal to the Supreme Court has been granted by that court where leave to appeal to the Court of Appeal has been refused by the High Court: see Grace and Anor. v. An Bord Pleanála [2016] IESCDET 29 and Grace and Anor. v. An Bord Pleanála [2017] IESC 10. There are other cases where such a leapfrog appeal after refusal of a certificate for appeal to the Court of Appeal has been refused by the Supreme Court: see O.M.R. v. Minister for Justice and Equality [2017] IESCDET 14, McDonnell v. An Bord Pleanála [2017] IESCDET 128, Ó Grianna v. An Bord Pleanála [2017] IESCDET 101, J.N.E. v. Minister for Justice and Equality [2017] IESCDET 86, Minister for Justice and Equality v. Poleliunas [2017] IESCDET 70, Sweetman v. An Bord Pleanála [2016] IESCDET 133. A variety of reasons have been given for refusing leave to appeal to the Supreme Court in cases where leave to appeal to the Court of Appeal has been refused, and to some extent criteria are emerging and developing in this respect. The fact that leave to appeal to both the Court of Appeal and the Supreme Court has been refused in some certificate cases demonstrates that there is no absolute right of access to an appellate court in such cases above and beyond the right of access inherent in the procedure that applies in every case to seek leave to appeal from the Supreme Court itself. Certainly what Mr. Forde calls an 'absolute lock' no longer exists. Mr. Forde submits that I have...
To continue reading
Request your trial
-
V.D. (Zimbabwe) v Minister for Justice and Equality
...relief sought by the applicant and dismissed the proceedings. The Court also referred the case of Gayle v. Governor of the Dóchas Centre [2017] IEHC 753 to the effect that if the applicant wanted to avail the benefit under family reunification, he could apply from outside the State. The Co......