M. B. v Minister for Justice and Equality

JudgeO'Donnell J.,McKechnie J.,O'Malley J.
Judgment Date13 December 2017
Neutral Citation[2017] IESCDET 144
CourtSupreme Court
Date13 December 2017

[2017] IESCDET 144



O'Donnell J.

McKechnie J.

O'Malley J.

M. B.


RESULT: The Court does not grant leave to the applicant to appeal to this Court from the judgment and order of the Court of Appeal

This Determination relates to an application for leave to appeal to the Supreme Court from a judgment of the Court of Appeal (Ryan P., Irvine and Binchy JJ.) delivered on the 22nd May, 2017, and from the resulting order of that Court made on the same date and perfected on the 25th May, 2017.


Mr. B. is referred to as the 'applicant' throughout this Determination, with the Minister for Justice and Equality, the Refugee Applications Commissioner, Ireland and the Attorney General, all of whom oppose the application, being collectively referred to as 'the respondents'.


The jurisdiction of the Supreme Court to hear appeals is set out in the Constitution. As is clear from the terms of Article 34.5.3° thereof and the many determinations made by this Court since the enactment of the Thirty-third Amendment, it is necessary, in order for this Court to grant leave to appeal from a decision of the Court of Appeal, that it be established by the applicant that the decision sought to be appealed involves a matter of general public importance, or that it is otherwise necessary in the interests of justice that there be an appeal to this Court.


Any ruling in a determination is between the parties. It is final and conclusive as far as the parties are concerned, and is a decision in relation to that application only. The issue determined on the application for leave is whether the facts and legal issues meet the constitutional criteria to enable this Court to hear an appeal. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, any issue canvassed in the application will in due course be disposed of in the substantive decision of the Court.

Background and Procedural History

Prior to enacting the Regulations next mentioned, Ireland operated what can be described as a bifurcated system to deal with applications for asylum and thereafter with applications for subsidiary protection. It was the only country in the European Union in which both applications were procedurally separated, which gave rise to considerable difficulty and resulted in unnecessary delays in the processing of persons who sought international protection. This matter was addressed by the passing of the European Union (Subsidiary Protection) Regulations 2013 ('the 2013 Regulations'). Thereafter, the office of the Minister for Justice was no longer involved in the process; its former role was transferred to the Office of the Refugee Applications Commissioner ('ORAC'), with an appeal being provided for, to the Refugee Appeals Tribunal ('RAT'), before which an oral hearing could be obtained. It was those Regulations which Mr. M.B. challenged in the substantive judicial review proceedings, which I will further refer to in a moment.

The High Court


On the 29th January, 2009, one week after he had arrived in Ireland, Mr. M.B. made an application for asylum. This application received a negative recommendation from ORAC on the 15th May, 2009, which included the making of negative credibility findings against him. His appeal to the RAT was unsuccessful, and so by application dated the 20th April, 2010, he applied for subsidiary protection and for leave to remain in the State. Subsequently, on the 30th September, 2013, the applicant married a British-born national with dual citizenship of the United Kingdom and Ireland. As a result, whilst his formal application for residency based on his wife's status was being progressed, he was given permission to remain in the state.


Following the making of the 2013 Regulations, the applicant was invited to present himself for interview at ORAC on the 11th April, 2014. By way of response, his solicitors outlined a series of objections which their client had to this body hearing the pending application for subsidiary protection, and threatened judicial review proceedings. The reason was that the self-same entity had previously dealt with his application for asylum and had made negative credibility findings against him. Notwithstanding this, but without prejudice and under protest, Mr. M.B. duly attended for interview before ORAC: the outcome was that a Mr. Donal Horgan endorsed a negative recommendation in respect of his application. Such was signed by Mr. Horgan on the 27th June, 2014, and was said to be 'For the Refugee Applications Commissioner'.


In the judicial review proceedings which followed, the applicant made a wide-ranging and extensive challenge to the validity of the said Regulations. Essentially, he claimed that such were ultra vires section 3 of the European Communities Act 1972, and thereby were repugnant to Article 15.2.1° of the Constitution, and/or breached his rights under Article 40.3 of the Constitution, Articles 6 and 13 of the European Convention on Human Rights, and Articles 41 and 47 of the EU Charter of Fundamental Rights. Following a telescoped application, Mac Eochaidh J. delivered a judgment on the 6th March, 2015, in which he rejected all grounds of challenge and dismissed the proceedings in their entirety. Apart from how the result of the proceedings fed into the question of costs, which is the point of the current application, nothing as such turns on the substance of this challenge.


In due course the learned trial judge came to deal with the costs issue. In his ex tempore judgment of the 18th December, 2015, he granted the applicant costs, including reserved costs based on a three day hearing, with the same to be taxed in default of agreement. Notwithstanding the ultimate outcome, the judge justified this approach on the basis that:

• There was a degree of inevitability that someone would challenge the new regime;

• There was no personal gain for Mr. M.B. as his primary challenge related simply to the method by which the substance of the Regulations could be implemented into domestic law;

• The case was one of public importance;

• The judgment as given 'bedded down' the legality of the new regime;

• The case conferred a benefit on the system generally; and, finally,

• The challenge raised an issue about the delegation of power within the legislative arm of government.

In these circumstances the learned judge felt justified in departing from the normal rule as to costs.

Court of Appeal


On the 22nd May, 2017, the Court of Appeal, via an ex tempore judgment of Irvine J., set aside the High Court order in relation to costs and, having heard further submissions on the respondents' application for costs, the Court in effect reversed the order and directed the applicant to pay the respondents the costs of the...

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