J.W. v The Minister for Justice and Equality (No.2)

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 16 December 2020
• Neutral Citation: [2020] IEHC 643
• Docket Number: [2019 No. 382 JR]
• Court: High Court
• Date: 16 December 2020

BETWEEN

J.W., H.G., E.W. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND J.W.), P.W. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND J.W.), E.W. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND J.W.), J.W. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND J.W.)

AND

P.W. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND J.W.)

APPLICANTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

(NO. 2)

[2020] IEHC 643

Richard Humphreys

[2019 No. 382 JR]

THE HIGH COURT

JUDICIAL REVIEW

Deportation – Disproportionality – Family and private life rights – Applicant challenging deportation order – Whether the respondent’s decision was disproportionate

Facts: The High Court (Humphreys J), in J.W. v Minister for Justice and Equality (No. 1) [2020] IEHC 500, dismissed an application for judicial review of a deportation order against the second applicant. Humphreys J delivered that ruling ex tempore on 31st July, 2020 and published a formal written judgment on 15th October, 2020. The applicants sought leave to appeal. The applicants’ first proposed question was: “[w]hether in applying the test or principle reaffirmed by the Supreme Court in the case of Meadows v. Minister for Justice, Equality and Law Reform [2010] IESC 3 to an application to quash a decision made by the respondent to deport a non-EU national who is the parent of a minor children (sic) lawfully resident in the State, the High Court was correct in law in exercising its jurisdiction in judicial review on the basis that: (a). 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 proportionality and/or reasonableness as between the interests of the State and the rights and interests of the applicants; (b) The Court is entitled to require the applicant to identify the particular error, omission or other flaw in the respondent’s reasons or assessment of the case which is claimed to render the decision irrational, unreasonable or disproportionate?” The applicants’ second proposed question was: “[w]hether Irish law recognises the same or an appropriately adapted principle such as that identified by the Supreme Court of the United Kingdom in [R. (Lumba) v. Secretary of State for the Home Department [2011] UKSC 12] 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”.

Held by Humphreys J that there was inadequate basis for concluding that there was any point of law warranting further appellate clarification.

Humphreys J held that the application for leave to appeal would be refused.

Application refused.

JUDGMENT of Mr. Justice Richard Humphreys delivered on Wednesday the 16th day of December, 2020

1 In J.W. v. Minister for Justice and Equality (No. 1) [2020] IEHC 500, [2020] 10 JIC 1501 (Unreported, High Court, 15th October, 2020), I dismissed an application for judicial review of a deportation order against the second-named applicant. I delivered that ruling ex tempore on 31st July, 2020 and published a formal written judgment on 15th October, 2020.

2 The applicants now seek leave to appeal and I have considered the relevant caselaw, including Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250 (Unreported, High Court, MacMenamin J., 13th July, 2006) and Arklow Holidays Ltd. v. An Bord Pleanála [2008] IEHC 2 (Unreported, High Court, Clarke J., 11th January, 2008). I have heard helpful submissions from Mr. Paul O'Shea B.L. for the applicants and from Mr. Anthony Moore S.C. for the respondents.

Applicants' first proposed question

3 The applicants' first question is “[w]hether in applying the test or principle reaffirmed by the Supreme Court in the case of Meadows v. Minister for Justice, Equality and Law Reform [2010] IESC 3 to an application to quash a decision made by the respondent to deport a non-EU national who is the parent of a minor children (sic) lawfully resident in the State, the High Court was correct in law in exercising its jurisdiction in judicial review on the basis that:

(a). 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 proportionality and / or reasonableness as between the interests of the State and the rights and interests of the applicants;

(b). The Court is entitled to require the applicant to identify the particular error, omission or other flaw in the respondent's reasons or assessment of the case which is claimed to render the decision irrational, unreasonable or disproportionate?”

4 The main problem for the applicants under this heading is that the questions of proportionality and the limits of judicial review in...