Igbosonu v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Clarke C.J.,Dunne J.,O'Malley J.
• Judgment Date: 10 April 2018
• Neutral Citation: [2018] IESCDET 51
• Court: Supreme Court
• Date: 10 April 2018

[2018] IESCDET 51

THE SUPREME COURT

DETERMINATION

Clarke C.J.

Dunne J.

O'Malley J.

BETWEEN:

MARS CHIDERA PETERS IGBOSONU (AN INFANT SUING BY HIS FATHER AND NEXT FRIEND MICHAEL PETERS IGBOSONU)

AND

MICHAEL IGBOSONU

APPLICANTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

Deportation – Revocation – Judicial review – Applicants seeking to appeal against High Court order – Whether when challenging a decision under s. 3 (11) of the Immigration Act 1999 on the basis of new facts the parties, including a party not previously affected by the deportation decision, can impugn the respondent’s reliance upon information considered when the original decision was made

Facts: The applicants, Messrs Igbosonu, applied to the Supreme Court seeking leave to appeal against the order of the High Court (Humphreys J) by which that court refused to grant an order of certiorari quashing the decision of the first respondent, the Minister for Justice and Equality, not to revoke a deportation order in respect of the second applicant. The trial judge subsequently refused to grant a certificate for the purposes of an appeal to the Court of Appeal. The applicant sought leave to appeal in respect of four issues arising from the judgment of Humphreys J in the substantive matter and two issues arising from the judgment refusing a certificate for an appeal: 1) Whether when challenging a decision under s. 3 (11) of the Immigration Act 1999 on the basis of new facts the parties, including a party not previously affected by the deportation decision, can impugn the Minister’s reliance upon information considered when the original decision was made; 2) Whether the Minister’s proportionality assessment enjoys a margin of appreciation such that the applicants must demonstrate the assessment to be clearly wrong so that it demonstrated that the Minister could not reasonably have come to the view; 3) Whether there was a less restrictive process; 4) Reasons and the child’s best interests; 5) Whether a child in utero could and ought to have challenged the deportation order; 6) Whether the child was insufficiently affected/lacked locus standi to challenge the decision.

Held by Clarke CJ, Dunne J and O’Malley J that, on the first issue, if the contention was that the child can reopen an old point made unsuccessfully by the parent (relating to the allegedly disproportionate reaction to his criminal conviction), in order to claim the decision to deport was unlawful, the Court did not consider that it had any merit; the decision was either lawful or unlawful at the time when it was made. If the argument was that the child’s interests were not considered, the Court held that it was not relevant to the facts of this case; the first applicant had been born when the deportation order was affirmed, and his interests were expressly taken into account in that decision. On the second issue, the Court noted that the test adopted by the trial judge was taken directly from the judgment of Clarke J in AMS v Minister for Justice and Equality [2014] IESC 65. The Court held that the applicants had not shown any good reason why the Court should reconsider the test. The Court held that the third issue was clearly a matter within the margin of appreciation accorded to the Minister. The Court held that the fourth issue was not pleaded, was not argued in the hearing and did not properly arise. The Court held that the fifth issue was covered by the decision of the Court in IRM v Minister for Justice and Equality [2018] IESC 14. On the sixth issue, the Court held that the trial judge did not hold that the child lacked standing; rather, he held that a third party may not challenge a decision, out of time, where the person to whom the decision was addressed had taken no step to challenge it. The Court noted that the second applicant had never challenged the deportation order.

Clarke CJ, Dunne J and O’Malley J held that the Court would refuse leave to appeal.

Application refused.

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.4° OF THE CONSTITUTION APPLIES

RESULT: The Court does not grant leave to the Applicants to appeal to this Court from the High Court.

ORDER SOUGHT TO BE APPEALED

COURT: High Court

DATES OF JUDGMENTS: 4th October, 2017 and 5th December, 2017

DATES OF ORDERS: 4th October, 2017 and 5th December, 2017

DATES OF PERFECTION OF ORDERS: 14th November, 2017 and 20th December, 2017

THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON THE 10th JANUARY, 2018, AND WAS THEREFORE OUT OF TIME IN RESPECT OF THE ORDER OF THE 4th OCTOBER, 2017, BUT WAS IN TIME IN REGARDS THE ORDER OF THE 5th DECEMBER, 2017.

REASONS GIVEN:

General Considerations

1 The general principles applied by this Court in determining whether to grant or refuse leave to appeal having regard to the criteria incorporated into the Constitution as a result of the 33rd Amendment have now been considered in a large...