M L v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: McKechnie J.,O'Donnell J.
• Judgment Date: 15 May 2018
• Neutral Citation: [2018] IESCDET 68
• Docket Number: 2011 No. 856 JR
• Court: Supreme Court
• Date: 15 May 2018

BETWEEN

M L

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

[2018] IESCDET 68

2011 No. 856 JR

THE SUPREME COURT

DETERMINATION

Extension of time – Leave to appeal – Case management – Applicants seeking leave to appeal – Whether leave was preliminary

Facts: The applicants, the Minister for Justice and Equality, Ireland and the Attorney General, applied to the Supreme Court seeking leave to appeal pursuant to Article 34.5.4° of the Constitution permitting leapfrog appeal direct from the High Court to the Court from the judgment of the High Court (McDermott J) delivered on the 28th of June 2017, and the order perfected on the 22nd of November 2017. The application for leave to appeal was lodged on the 22nd of December 2017, and accordingly the Minister sought an extension of time within which to make the application.

Held by O’Donnell J, McKechnie J and Finlay Geoghegan J that the Court was not satisfied that the decision of the High Court from which the Minister wished to appeal involved a matter of general public importance meriting an appeal to the Court. The Court concluded that it was in principle desirable to grant to the Minister leave to appeal to the Court on the grounds set out at s. 6 of the application for leave. However, the Court considered it appropriate to indicate that the respondent should be entitled to cross appeal against all or some of the decision of the High Court insomuch as the High Court judge dismissed the other grounds upon which leave had been granted.

O’Donnell J, McKechnie J and Finlay Geoghegan J held that the leave granted was preliminary and subject to refinement in the course of case management.

Application granted.

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.4° OF THE CONSTITUTION APPLIES

RESULT: The Court extends time for the bringing of this application and grants leave to the Respondents to appeal to this Court from the High Court.

REASONS GIVEN:

ORDER SOUGHT TO BE APPEALED

COURT: High Court

DATE OF JUDGMENT OR RULING: 20 th of June 2017

DATE OF ORDER: 21 st of July 2017

DATE OF PERFECTION OF ORDER: 22 nd of November 2017

THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON THE 22 ND OF DECEMBER 2017 AND WAS NOT IN TIME.

General Considerations

1 The general principles applied by this Court in determining whether to grant or refuse leave to appeal having regard to the criteria incorporated into the Constitution as a result of the 33rd Amendment are now well known. The issue and related cases is, in any event, quite distinct. The determination in this case should be read together with the companion cases of JCM v The Minister for Justice Equality and Law Reform, Ireland and the Attorney General [2018] IESCDET 70 and VJ v The Minister for Justice and Equality, Ireland and the Attorney General [2018] IESCDET 69.

2 The Minister for Justice and Equality, Ireland and the Attorney General (hereafter the ‘State parties’) seek leave to appeal pursuant to Article 34.5.4° of the Constitution permitting leapfrog appeal direct from the High Court to this Court from the judgment of the High Court (McDermott J) delivered on the 28th of June 2017, and the order perfected on the 22nd of November 2017. The application for leave to appeal was lodged on the 22nd of December 2017, and accordingly the applicant Minister seeks an extension of time within which to make this application. The application was two days out of time, and it is contended that there was a difficulty about lodging the form in the office in a format which was acceptable.

3 The procedural background to this case is particularly complex. M L, the respondent to the application and the original applicant for judicial review (hereafter ‘the respondent’) had come to Ireland in or around September 2008. Having failed to obtain asylum, an application was made for subsidiary protection. This was refused in a letter dated the 25th of July 2011. Subsequently a deportation order was made. An application for leave to seek judicial review was made by the applicant on the 30th of September 2011. Relief was sought on 14 grounds set out in the original statement of grounds. The proceedings now only concern the challenge to the refusal of subsidiary protection.

4 On the 12th of October 2012 Clark J delivered judgment on the application for leave to seek judicial review. In the event Clark J granted leave on six grounds and refused leave to seek judicial review on the balance. That refusal of leave in respect...