M A K v Minister for Justice and Equality
| Jurisdiction | Ireland |
| Judge | Clarke C.J.,MacMenamin J.,Dunne J. |
| Judgment Date | 04 December 2017 |
| Neutral Citation | [2017] IESCDET 132 |
| Court | Supreme Court |
| Date | 04 December 2017 |
[2017] IESCDET 132
THE SUPREME COURT
DETERMINATION
Clarke C.J.
MacMenamin J.
Dunne J.
IN THE MATTER OF SECTION 5 OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 (AS AMENDED BY SECTION 34 OF THE EMPLOYMENT PERMITS (AMENDMENT) ACT 2014)
RESULT: The Court grants leave to appeal to this Court under Article 34.5.4 of the Constitution, from the order of the High Court made herein on the 22 nd May, 2017.
This determination relates to an application of the applicant in the underlying proceedings, M A K, to appeal under Article 34.5.4 of the Constitution from a judgment of the High Court, (O'Regan J.), delivered on the 8 th May, 2017.
As is clear from the terms of the Constitution, and many determinations made by this Court since the enactment of the 33rd Amendment, it is necessary, in order for this Court to grant leave, that it be established that the decision sought to be appealed either involves a matter of general public importance or that it is otherwise in the interest of justice necessary that there should be an appeal to this Court.
The Court considers it desirable to point out that a determination of the Court on an application for leave, while it is final and conclusive so far as the parties are concerned, is a decision in relation to that application only. The issue is whether the questions raised, and the facts underpinning them, meet the constitutional criteria for leave. 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.
The application and responses are placed in the Courts Website. The applicant in the above matter sought leave from the High Court (O'Regan J.) to certify a point of law of exceptional public importance, pursuant to the provisions of s.5(3)(a) of the Illegal Immigrants (Trafficking) Act, 2000. The application concerned the issue: ' Is a deportation order valid when it fails to specify on its face the date by which the subject must leave the State, and remain thereafter out of the State'. The issue arose out of a judgment delivered by O'Regan J. on the 30 th March, 2017, when the applicant unsuccessfully sought leave to apply for judicial review in respect of deportation orders made against him, by reason of the fact that the date by which the applicant was to leave the State was not mentioned on the face of the deportation order itself, but rather in an accompanying notice.
In her ruling, the High Court judge set out the circumstances in which the court might certify a point of exceptional public importance for an appeal on a point of law, as identified in Glancre v. An Bord Pleanala [2006] IEHC 250. (See also I.R. v. Minister for Justice, Equality & Law Reform [2009] IEHC 510, where Cooke J. identified the principles in asylum issues).
In the course of the hearing to certify before the High Court, the question arose as to whether the decisions of the High Court were consistent on the issue (see Parvaiz v. An Garda Commissioner [2016] IEHC 772; Lin Qing v. Governor of Cloverhill Prison [2016] IEHC 710; and, apparently, per contra, Kumar v. Minister for Justice, Equality & Law Reform [2016] IEHC 677; SAAE v. Minister for Justice, Equality & Law Reform [2016] IEHC 573).
In the High Court, O'Regan J. distinguishing the Parvaiz and Lin Qing decisions, held that no there was no inconsistency in the jurisprudence on the facts of the case before her. In so finding, she relied on two High Court authorities, viz. OGAAF Limited v. An Bord Pleanala [2015] IEHC 205; Ahearne & Others v. An Bord Pleanala [2016] IEHC 536; and IR, cited earlier. These were to the effect that it is unnecessary to grant a certificate when there is no uncertainty in the law.
The applicant's case is that the putative order in his case failed to comply with the provisions of s.3(1)...
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...aware that leave to appeal to the Supreme Court has been granted on a similar issue in M.A.K. v. Minister for Justice and Equality [2017] IESCDET 132. It is clear from that determination that the earlier determination to permit leave to appeal in S.E. v. Minister for Justice and Equality [2......
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