M.A.M. (Somalia) v The Minister for Justice and Equality; K.N. (Uzbekistan) v The Minister for Justice and Equality; I.K. (Georgia) v The Minister for Justice and Equality No.2

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Richard Humphreys
Judgment Date13 Mar 2018
Neutral Citation[2018] IEHC 132
Docket Number[2017 No. 908 J.R.] [2017 No. 730 J.R.]

[2018] IEHC 132

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2017 No. 908 J.R.]

[2017 No. 988 J.R.]

[2017 No. 730 J.R.]

BETWEEN
M.A.M. (SOMALIA)
APPLICANT
AND
THE MINISTER FOR JUSTICE AND EQUALITY
RESPONDENT
K.N. (UZBEKISTAN), E.M., F.M. (A MINOR SUING BY HER GRANDMOTHER AND NEXT FRIEND K.N.)

and

Y.M. (A MINOR SUING BY HER GRANDMOTHER AND NEXT FRIEND K.N.)
APPLICANTS
AND
THE MINISTER FOR JUSTICE AND EQUALITY
RESPONDENT
I.K. (GEORGIA)
APPLICANT
AND
THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL,

AND

THE COMMISSIONER OF AN GARDA SÍOCHÁNA
RESPONDENTS

Asylum, Immigration & Nationality – The Refugee Act 1996 – The Illegal Immigrants (Trafficking) Act 2000 – Order for costs – Leave to appeal – Public importance.

Facts: The parties in the present proceedings sought an order for costs of the substantive proceedings. The applicants instituted three sets of different proceedings, which were clubbed together and the Court had refused to grant the reliefs sought in the substantive judgment. The applicants claimed that the proceedings initiated by them were of public interest and thus, they were entitled for an order for costs. The third applicant sought leave to appeal to file an appeal to the Court of Appeal in addition to an order for costs.

Mr. Justice Richard Humphreys dismissed the application of the second and third applicants for costs and made an order for costs in favour of the respondents. The Court made no order as to the costs up to the date of delivery of the State's written legal submissions in relation to the first applicant but held that the respondents would be entitled to the costs of the substantive hearing and the subsequent applications. The Court refused to grant leave to appeal to the third applicant on the ground that the points of law raised by that applicant were not of public importance.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 13th day of March, 2018
1

In M.A.M. (Somalia) & Ors. v. Minister for Justice and Equality (No. 1) [2018] IEHC 113 I refused these three applications for relief by way of judicial review. I am now dealing with costs, as well as an application by Ms. I.K. for leave to appeal.

The application for leave to appeal
2

Mr. Brian Leahy B.L for the applicant in I.K. and Ms. Sara Moorhead S.C. for the respondents are helpfully agreed as to the criteria for leave to appeal (see Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250 (Unreported, MacMenamin J., 13th November, 2006)). I have also discussed these criteria in a number of cases including S.A. v. Minister for Justice and Equality (No. 2) [2016] IEHC 646 [2016] 11 JIC 1404 (Unreported, High Court, 14th November, 2016) para. 2, and Y.Y. v. Minister for Justice and Equality (No. 2) [2017] IEHC 185 [2017] 3 JIC 2405 (Unreported, High Court, 24th March, 2017) at para. 72.

3

The first major difficulty for the applicant is that she was unsuccessful on four independent grounds;

(i). That the challenge was a collateral attack on a deportation order.

(ii). That it was jus tertii.

(iii). That there was no substance to her points on the merits.

(iv). That I would refuse relief on the grounds of discretion.

4

It seems to me that leave to appeal should only really normally arise where the question certified would make a difference to the outcome. Where, in this instance, the applicant's points of law would not result in the order being changed to one in her favour, it seems to me that she is in some difficulty in relation to the present application.

5

The second difficulty, although perhaps less problematic than the first, is that the applicant has not identified precise questions as such for the Court of Appeal but rather ' suggested issues'. Possibly these could be reformulated as precise questions of law, but the somewhat vague nature of the questions perhaps illustrates some of the difficulties involved for the applicant in the present application.

The proposed issues
6

Looking at the proposed issues as if they were precisely formulated questions, the first one is whether the proceedings were out of time. I did not in fact hold that the proceedings were out of time. The question was rather whether one can revisit previous decisions simply because a further decision is taken predicated on the validity of that previous decision. It is well settled law that that is not an appropriate procedure (see the Supreme Court decision in L.C. v. Minister for Justice, Equality and Law Reform [2006] IESC 44 [2007] 2 I.R. 133).

7

The second issue is whether the applicant's husband should have been an applicant in the judicial review application. While that is a point of law, it does not seem to be one of exceptional public importance.

8

The third issue is whether the decision-maker erred in the manner in which the question of the feasibility of the applicant's husband returning to Georgia was concerned, particularly by allegedly discounting the previous declaration of refugee status. It seems to me that question is predicated on a false premise in the sense that the Minister did not discount the previous declaration of refugee status. In any event, the question is very fact-specific. On these particular facts, given that the husband did return to Georgia, it seems to me the way that situation is dealt with by the Minister was not controversial and no real question arises, certainly not one of law anyway, under this heading.

9

The fourth suggested issue is the extent to which there is a loss of refugee status, by operation of law, on becoming a citizen. The applicant's submissions for leave to appeal accept that there can be a time lag between ceasing to be a refugee and the loss of a declaration (at para. 13) and then they go on to concede at para. 16 that one ceases to be a refugee upon ceasing to meet the definitional criteria. The State's view in response is that ' the applicant therefore appears to accept the pivotal ruling of the court at para. 24 of the judgment and accepts that her husband is no longer a refugee' (para. 25 of the State's submissions).

10

Insofar as the applicant in this case has raised an issue about the loss of either refugee status or the condition of ceasing to be a refugee upon acquiring Irish nationality, it seems to me that not only is this a very simple point but on examination it is a point without any substance whatsoever. There is a unanimity of opinion, Irish, in the U.K., at European level, and internationally, as to the position, and there is no doubt that needs to be resolved by recourse to the appellate courts. The mere fact that this point affects a lot of people does not make it a point about which there is any doubt once one actually looks into it.

11

The fifth suggested issue is my comment that there was no need to interpret the qualification directive ( Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted) as being more extensive than the Geneva Convention. The applicant seizing on that comment is probably characteristic of a scramble by applicants when looking for points for appeal to seize on any language in a judgment that can be regarded as of a general nature, and it seems to me the comment has been somewhat inflated by the applicants. The context of that comment was that there was no reason to interpret the qualification directive as being more extensive than the Geneva Convention unless the text otherwise clearly required, which it does not do here, and the comment is no more controversial than that. Again, no overarching point of law arises, as suggested by the applicant.

12

The sixth point is that the Minister, on the analysis in the substantive judgment, failed to conduct a pointless exercise of revoking the declaration of refugee status of the applicant's husband. I did not accept that there was an obligation to expressly revoke the declaration. The cessation of that declaration seems to be a necessary consequence of the applicant's husband ceasing to be a refugee and it does not seem that there could be anything that could be said by him or on his behalf to the contrary, so even with the benefit of the submissions on leave to appeal it is very hard to see how that can be anything other than a pointless exercise...

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