Jaimee Middelkamp v The Minister for Justice and Equality (No. 2)

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 30 November 2021
• Neutral Citation: [2021] IEHC 766
• Court: High Court
• Docket Number: [2020 No. 182 JR]

Between:

Jaimee Middelkamp

Applicant

and

The Minister for Justice and Equality (No. 2)

Respondent

[2021] IEHC 766

[2020 No. 182 JR]

THE HIGH COURT

Judicial review – Variation of visa – Point of law of exceptional public importance – Respondent seeking to appeal the High Court’s principal judgment to the Court of Appeal – Whether the High Court’s decision involved a point of law of exceptional public importance

Facts: The High Court, in Middelkamp v Minister for Justice and Equality [2021] IEHC 521, decided to grant an order of certiorari in respect of the decision of the respondent, the Minister for Justice and Equality, of 2nd January 2020 to refuse an application made by the applicant, Ms Middelkamp, under s. 4(7) of the Immigration Act 2004 for a variation of the permission (visa) pursuant to which she resided lawfully in Ireland. The Minister wanted to appeal the court’s decision to the Court of Appeal. The Minister contended that one point of law of exceptional public importance arose from the court’s judgment which the Minister had posited in the form of the following question: “Following the judgment of the Supreme Court in Luximon and Balchand v Minister for Justice, Equality and Law Reform, is the Minister obliged to consider rights alleged to arise under Article 8(1) ECHR, as given fuller effect by the European Convention on Human Rights Act 2003, in applications made under s. 4(7) of the Immigration Act 2004 by or on behalf of short-term entrants to the State where such rights must be considered by the Minister where the Minister is considering whether or not to make a deportation order in respect of the person concerned in the deportation process under s. 3 of the Immigration Act 1999?”

Held by Barrett J that the question posited by the Minister required the court to accept that a person admitted to Ireland for 2 years in the first instance is, to use the language of the question, a “short-term” entrant to Ireland. Barrett J held that it offends against meaning to suggest that a 2-year period can properly be described as “short-term” and so the question posed disregarded the facts of (and hence could not arise from the principal judgment in) the case. Barrett J held that it was clear from case-law (Chen v Minister for Justice and Equality [2021] IECA 99) that the judgment of the Supreme Court in Luximon and Balchand does not apply to short-term visitors to Ireland. Barrett J held that the question, as formulated by the Minister, rested on a foundation of fact – the confident expectation of the commencement of a deportation process – which simply did not present in the case. Barrett J held that there was no evidence before the court to suggest that this confident expectation would ever be realised in fact; indeed, the evidence in the case pointed to the likelihood that it would never be realised in fact.

Barrett J held that the court could not properly certify that its decision involved the posited “point of law of exceptional public importance” (s. 5(3)(a) of the Illegal Immigrants (Trafficking) Act 2000).

Application refused.

Summary

The Minister wishes to appeal the court's principal judgment in these proceedings to the Court of Appeal. Pursuant to s.5(3)(a) of the Illegal Immigrants (Trafficking) Act 2000, the Minister can only do so if 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 should be taken to the [Court of Appeal]”. To this end, the Minister has contended that a particular point of law of exceptional public importance presents. The court does not see that point of law to present. So no certificate can issue.

JUDGMENT of Mr Justice Max Barrett delivered on 30 ^th November 2021 .

I

Introduction

1 . This judgment follows on the decision of the court last July in Middelkamp v. Minister for Justice and Equality [2021] IEHC 521 in which, for the reasons set out in its judgment, the court granted an order of certiorari in respect of the Minister's decision of 2 ^nd January 2020 to refuse an application made by Ms Middelkamp under s.4(7) of the Immigration Act 2004 for a variation of the permission (visa) pursuant to which she presently resides lawfully in Ireland.

2 . The Minister wants to appeal the court's decision to the Court of Appeal. Pursuant to s.5(3)(a) of the Illegal Immigrants (Trafficking) Act 2000, the Minister can only do so if 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 should be taken to the [Court of Appeal]”.

3 . In its judgment, the court identified various criticisms that could be levelled at the Minister's bland and uninformative decision concerning Ms Middelkamp's application for a variation of her visa (permission) under s.4(7) of the Immigration Act 2004. Those criticisms included but were not limited to the following. (1) The decision was so broad as to be meaningless. (2) The Minister, at the hearing of the application, had sought impermissibly to add to her initial reasoning. (3) Although the impugned decision refers to “ all rights arising” it gives no indication as to what rights were considered and how they were weighted. (4) Notwithstanding that Ms Middelkamp's near-200 page application put Article 8 ECHR rights in issue, the Minister made no express mention of same in her decision (notwithstanding the clear spousal separation issue presenting and presented).

II

The Point of Law Contended For

4 . The Minister contends that one point of law of exceptional public importance arises from the court's judgment which the Minister has posited in the form of the following question:

“ Following the judgment of the Supreme Court in Luximon and Balchand v. Minister for Justice, Equality...