Lofinmakin (an Infant) and Others v Minister for Justice and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 25 March 2011
• Neutral Citation: [2011] IEHC 116
• Court: High Court
• Date: 25 March 2011

[2011] IEHC 116

THE HIGH COURT

[No. 946 J.R./2009]

Lofinmakin (An Infant) & Ors v Minister For Justice & Ors

JUDICIAL REVIEW

MR JUSTICE COOKE

APPROVED TEXT

BETWEEN

OREOLU OLUWABUANMI SEMILORE JEDIDIAH LOFINMAKIN (AN INFANT ACTING BY HER FATHER AND NEXT FRIEND AKINTOLA LOFINMAKIN) AND EGEBUN-OLUWAMOTUNOLA PEACE OREOLUWA LOFINMAKIN (AN INFANT ACTING BY HER FATHER AND NEXT FRIEND AKINTOLA LOFINMAKIN) AND AKINTOLA LOFINMAKIN AND RACHEL YINKA AMONUSI

APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

AND

THE HUMAN RIGHTS COMMISSION

NOTICE PARTY

IMMIGRATION

Judicial review

Leave for appeal from High Court - Deportation order - Leave to appeal to Supreme Court -Point of law of exceptional public importance - Public interest - Deportation of third country national illegally present in State - Third country national parent of minor Irish and Union citizen resident in the State - Whether Charter of Fundamental Rights of the European Union substantial ground for purposes of s 5(2)(b) of Illegal Immigrants (Trafficking) Act 2000 - Whether court had jurisdiction and obligation to examine merits of decision -Whether court entitled to require applicant to identify error, omission or flaw in respondent's reasons or assessment of case which claimed to render the decision irrational, unreasonable or disproportionate - Obligation on the State under TFEU, article 267 - Meadows v Minister for Justice [2010] IESC 3 [2010] 2 IR 701 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5(3)(a) - Amended certificate for leave to appeal granted (2009/946JR - Cooke J - 25/3/2011) [2011] IEHC 116

Lofinmakin (an infant) v Minister for Justice

Facts The court had already given judgment in this case regarding an application for leave to seek judicial review of a deportation order made by the respondent in respect of the third-named applicant. The Court had found that no substantial ground in the sense of s.5 (2) (b) of the Illegal Immigrants (Trafficking) Act 2000 had been made out as to why the decision in question ought to be quashed and refused to grant leave. The applicants sought leave to appeal that judgment to the Supreme Court in accordance with s. 5 (3) (a) of the 2000 Act. The issues concerned whether the ground invoked by reference to Article 24 of the Charter of Fundamental Rights of the European Union was not a substantial ground for the purposes of s. 5 (2) (b) of the Act of 2000. In addition the applicants took issue with a finding of the court that it was not sufficient that the court be invited to re-evaluate the substantive decision which was challenged and, in effect, to substitute its own view of the merits of the application which the contested decision determined.

Held by Cooke J in granting the leave sought. Leave could not be granted unless the court certified that a point of law of exceptional public importance had been raised and that it was desirable in the public interest that an appeal be taken. In relation to the first ground the court was effectively obliged to grant the certificate as it would otherwise have delivered a judgment against which no appeal was available in the sense of Article 267 of the Treaty on the Functioning of the EU. The Court did not consider that it was necessary to refer the issue as a question for preliminary ruling under Article 267. If it was necessary, it was preferable that this be done after the issues had been fully argued before the Supreme Court in the light of the Zambrano judgment. A number of cases were currently pending before the courts where it was asserted that the Meadows judgment was authority for the proposition that the High Court had jurisdiction and an obligation to examine the substantive merits of the challenged decision of the respondent and, where appropriate, to...