KRA v Minister for Justice and Equality (No. 2)

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 24 June 2016
• Neutral Citation: [2016] IEHC 421
• Docket Number: [2015 No. 299 J.R.]
• Court: High Court
• Date: 24 June 2016

BETWEEN

K.R.A.

AND

B.M.A.

(A MINOR SUING BY HER MOTHER AND NEXT FRIEND K.R.A.)

APPLICANTS

AND

MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

(No. 2)

[2016] IEHC 421

[2015 No. 299 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Asylum, Immigration & Nationality – S.5 of the Illegal Immigrants (Trafficking) Act 2000 – Leave to appeal to the Court of Appeal – Point of law of exceptional public important – Award of costs – Restraint on deportation

Facts: The applicants sought leave to appeal to the Court of Appeal against the substantive order of the Court along with an order of costs in their favour alleging that the questions raised needed immediate redressal despite being the dismissal of the substantive application in the present case on the basis that they were points of law of exceptional public importance. The applicants raised the questions namely, whether s. 5 of the Illegal Immigrants (Trafficking) Act 2000 applied to a refusal to revoke a deportation order; whether art. 42A.1 of the Constitution made any difference to the entitlement of the State to deport children who were unlawfully present in the State and whether the respondent was under a duty to consider the position of the minor separately from the first named applicant.

Mr. Justice Richard Humphreys granted certificate to appeal to the Court of Appeal on two issues namely, whether s. 5 of the Illegal Immigrants (Trafficking) Act 2000 applied to refuse to revoke a deportation order and whether the respondent was under a duty to consider the position of the minor separately than that of the first named applicant. The Court held that those issues needed redressal as there existed different opinion on that point in various High Court judgments given the opacity that existed in the decision in C.O.O. (Nigeria) v. Minister for Justice and Equality (No. 2) [2015] IEHC 329. The Court held that since the applicants were not entirely unsuccessful coupled with the opacity of the legislation and conduct of the respondent, it was appropriate that the Court should exercise its discretion under. O. 99 of the Rules of the Superior Court Rules to depart from the normal rule that 'costs should follow the event.'

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 24th day of June, 2016

1 In K.R.A. v. Minister for Justice and Equality (No. 1) [2016] IEHC 289 (Unreported, High Court, 12th May, 2016), I dismissed the substantive application in this case and held that leave to appeal under s. 5 of the Illegal Immigrants (Trafficking) Act 2000 was required. I now deal with the questions of leave to appeal, the injunction, and costs.

Leave to appeal

2 In considering this issue I have had regard to the well-established principles for leave to appeal as set out in Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250 (Unreported, High Court, MacMenamin J., 13th July, 2006) and Clarke J. in Arklow Holidays Ltd. v. An Bord Pleanála [2008] IEHC 2 (Unreported, High Court, 11th January, 2008), and later considered in the asylum and immigration law context by Cooke J. in I.R. v. Refugee Appeals Tribunal [2009] IEHC 510 (Unreported, High Court, 26th November, 2009) and by Hanna J. in Ugbo v. Minister for Justice, Equality and Law Reform [2010] IEHC 355 (Unreported, High Court, 27th July, 2010).

3 The applicants have identified three issues which they say meet the test for the ground of leave to appeal.

The first question

4 The first question is whether s. 5 of the 2000 Act applies to a refusal to revoke a deportation order. That may well be a point of exceptional public importance but Mr. Rosario Boyle S.C. (with Mr. Anthony Lowry B.L.) for the applicants accepts that this is not a point that would justify leave to appeal in itself, as the public interest limb of the test would not be satisfied if that was the only point in the case; but it could be an appropriate question in the event of one of her other points being found to meet the appropriate test. I agree with that approach, and therefore the certification or otherwise of this point will depend on whether one of her other points meets the statutory test.

The second question

5 The second point is whether Article 42A.1 of the Constitution makes any, or any significant, difference to the entitlement of the State to deport children who are unlawfully present in the State.

6 Ms. Boyle submits that this is ' the first occasion in which this important constitutional question has been addressed by the Superior Courts'. However, that in and of itself does not make it a point of law of exceptional public importance where such an appeal would be desirable in the public interest. The contention that the proposed question of law ' would potentially impact upon the position of many children whom the State seeks to deport whilst in receipt of education' is more to the point. But is that contention correct?

7 The question here only arises because these applicants did not rely on the constitutional right to education at the deportation order stage. They therefore sought to argue that they were entitled to do so at the s. 3(11) stage because Article 42A made a significant difference. That is not a point that applies to child or parent applicants generally. It only applies to applicants who failed to rely on constitutional educational rights at the deportation order stage prior to the enactment of Article 42A of the Constitution. That will be a limited category. There is no point of general, still less exceptional, public importance. Another way to look at this matter is to ask what difference would it make if my original decision was wrong. The only difference it would make is to the limited category of applicants I have referred to. Everyone else can simply rely on their educational rights at the deportation order stage, whether they arise under Articles 40, 41, 42 or 42A. Refusal of leave to appeal will not make any significant difference to applicants generally. The question does not meet the statutory test because it does not significantly transcend the facts of the present case.

The third question

8 The third question in respect of which leave to appeal is sought is whether the respondent was under a duty to consider the position of the second named applicant separately from that of the first named applicant. In answering this question in the negative, I took the view that I was not bound to follow the decision of Eagar J. in C.O.O. (Nigeria) v. Minister for Justice and Equality (No. 1) [2015] IEHC 139 (Unreported, High Court, 4th March, 2015). In R.A. v. Refugee Appeals Tribunal (No. 2) [2015] IEHC 830 (Unreported, High Court, 21st December, 2015) at para. 9, I commented that a divergence between High Court judgments is a ' potential' point of law of exceptional public importance.

9 A consideration of leave to appeal by the judge who has decided a point against the proposed appellant cannot, it seems to me, fairly begin with an assumption that the decision which it is proposed to appeal is undoubtedly correct. Humility is to that extent an essential component of the judicial personality and if it cannot be achieved it must at least be simulated by way of an assumption that one's perspective could be differed from.

10 I did comment in the substantive judgment that there was a certain opacity in the C.O.O. (No. 1) decision in that it was not entirely clear from that decision as to what the Minister did wrong. However in C.O.O. (Nigeria) v. Minister for Justice and Equality (No. 2) [2015] IEHC 329 (Unreported, High Court, Eagar J., 21st May, 2015), it is noted that the respondent's concern was that the decision had implications for considering parent and child in the one memorandum (para. 5) and if Eagar J. had considered that that was not what C.O.O. (No. 1) meant, perhaps that might have been the place, par excellence, to dispel such a misconception. But that proposition was not dispelled at all; rather reference was made to the fact that other children were ' examined separately' with the inference that that was to be a legal requirement.

11 If anything, since considering the matter further after giving the substantive decision in this case, my own view on this subject has been reinforced, to the extent that I would consider it generally irrational for the Minister to fail to consider family members' positions in conjunction with each other. The humanitarian position of one member of a nuclear family simply cannot be divorced from that of other members. That is not to say that there is an iron rule that the same decision must be arrived at for all members of a family, but rather that such members are entitled to a holistic appraisal of the situation of the family as a unit rather than an atomised view of its individual members independently.

12 At the end of the day, there remains at least a potential differing perspective on this issue at High Court level, depending on how one construes the C.O.O. decision, and that seems to me to satisfy the statutory test in the circumstances of the present case. Having regard to that finding it seems to me that the first question also satisfies that test.

Costs

13 By way of preliminary to the discussion of costs it is necessary to refer to the question of whether the existence or otherwise of a point of exceptional public importance is relevant to costs.

14 On this point, my attention has been drawn to the judgment of Eagar J. in Balc (No. 2) v. Minister for Justice and Equality (Unreported, High Court, 16th February, 2016), in which he considered my previous judgment in R.A. v. Minister for Justice and Equality (No. 2) [2015] IEHC 830 (Unreported, High Court, 21st December, 2015) regarding the question of costs when leave to appeal is being granted.

15 Balc (No. 2) was a decision allowing leave to appeal, following from an earlier judgment, Balc (No. 1) v. Minister for Justice and...