K.I. v Minister for Justice (No 2)

JurisdictionIreland
JudgeMr. Justice Hogan
Judgment Date09 May 2012
Neutral Citation[2012] IEHC 501
CourtHigh Court
Date09 May 2012

[2012] IEHC 501

THE HIGH COURT

[No. 548 J.R./2010]
I (K) v Min for Justice (No 2)

BETWEEN

K.I.
APPLICANT

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM (No.2)
RESPONDENT

I v MIN FOR JUSTICE UNREP HOGAN 22.2.2011 2011/26/6999 2011 IEHC 66

L & O v MIN FOR JUSTICE & ORS 2003 1 IR 1

ALLI v MIN FOR JUSTICE & ORS 2010 4 IR 45 2009

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(3)(A)

ZAMBRANO v OFFICE NATIONAL DE L'EMPLOI (ONEM) 2012 QB 265 2012 2 WLR 886 2011 AER (EC) 491 2011 2 CMLR 46 2011 2 FCR 491

RESIDENTIAL TENANCIES ACT 2004 S123(4)

RESIDENTIAL TENANCIES ACT 2000 S5

CANTY v PRIVATE RESIDENTIAL TENNANCIES BOARD 2008 4 IR 592

U v MIN FOR JUSTICE (NO 3) UNREP HOGAN 22.2.2011 2011/48/13546 2011 IEHC 59

Asylum & Immigration - Minister's decision - Judicial review sought of decision - Application for review refused - Costs awarded to Minister - Leave to appeal sought in relation to costs order

Facts: The applicant had been refused leave to apply for judicial review in an earlier hearing (see I v Minister for Justice, Equality and Law Reform [2011] IEHC 66). A limited costs order had been made in favour of the respondent minister.

The minister had agreed to reconsider the applicant's case, together with all other cases relating to the parents of children born in the State in the light of the CJEU's decision in Ruiz Zambrano v Office National de l'Emploi (ONEm) (Case C-34/09) [2012] QB 265. The applicant now sought leave to appeal to the Supreme Court in respect of the costs order made at the earlier hearing.

Held by Hogan J, refusing the application for leave to appeal, that a certificate for leave to appeal was necessary in the case but the applicant had failed to meet the requirements for the granting of a certificate. Notwithstanding the Court's sympathy for the applicant, the application would be refused. U v Minister for Justice, Equality and Law Reform (No.2) [2011] IEHC 59 considered.

1

1. These judicial review proceedings have been substantially resolved, save for the issue as to whether I should grant a certificate of leave to appeal to the Supreme Court against the limited costs order I made in favour of the Minister. The underlying issue arises in the following fashion. The applicant, Mr. I., is a Nigerian asylum seeker who arrived in Ireland in December, 2008. He is the father of four young children, two of whom are Irish citizens. His wife has permission to remain in the State by virtue of what has come to be known as the Irish Born Child Scheme 05.

2

2. Mr. I applied for asylum upon his arrival, but this was refused by the Office of Refugee Applications Commissioner in December, 2008. This decision was affirmed by the Refugee Appeals Tribunal in February, 2009. An application for subsidiary protection was refused by the Minister in March, 2010. The Minister subsequently made a deportation order on 1 st April, 2010. It ass the validity of this order which was under challenge in these proceedings. In a reserved judgment delivered on 21 st February 2011 I concluded that I should refuse Mr. I. leave to apply for judicial review: see I. v. Minister for Justice, Equality and Law Reform [2011] IEHC 66.

3

3. In the course of my judgment I expressed the view that if the matter had been res Integra I would have granted the applicant leave to apply for judicial review on the ground that it was not clear to me that this type of case was squarely within the parameters of the Supreme Court's decision in L & O. v. Minister for Justice, Equality and Law Reform [2003] 1 I.R. 1. After all, in that case the parents had indicated that if the validity of the deportation order were to be upheld, they would have taken their children with them with the result that the entire family would have left the State. The present case was (and is) different in that the remaining family members were established in the State and the mother was lawfully residing here.

4

4. I nevertheless concluded that the matter was not res Integra since there had been "numerous judgments of this Court dealing with cases which present broadly similar facts to the present one and which point firmly in the opposite direction." I specifically felt compelled to follow the decision of Clark J. in Alli v. Minister for Justice, Equality and Law Reform [2009] IEHC 595 and to find against the applicants in view of this established case-law.

5

5. In the aftermath of that judgment, counsel for the applicant applied to me for a certificate pursuant to s. 5(3)(a) of the Illegal Immigrants (Trafficking) Act 2000 for leave to appeal to the Supreme Court. As I indicated in the course of this hearing, had no new matters intervened, I would have granted a certificate of leave to appeal, since the matters raised were of profound importance, clearly meriting consideration by the Supreme Court.

6

6. A new matter did, however, intervene, in that on the 8 th March 2011 the Courtof Justice delivered its judgment in Case C-34/09 Ruiz-Zambrano [2011] ECR I-000.In that case the Court indicated that:-

"Article 20 TFEU is to be interpreted as meaning that it precludes a Member State from refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such...

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1 cases
  • KRA [No 3] v Minister for Justice and Equality
    • Ireland
    • High Court
    • 3 Octubre 2016
    ...leave to appeal is required. Firstly, both parties are agreed that leave to cross-appeal is required. 7 K.I. v. Minister for Justice [2012] IEHC 501 (Unreported, High Court, 9th May, 2012) appears to be the only case where this precise question has appeared for judicial consideration. In t......

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