A (M) (A Minor) and Others v Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice E. Smyth
• Judgment Date: 27 July 2011
• Neutral Citation: [2011] IEHC 323
• Court: High Court
• Date: 27 July 2011

[2011] IEHC 323

THE HIGH COURT

[No. 1102 J.R./2010]

A (M) (A Minor) v Min for Justice

JUDICIAL REVIEW

BETWEEN

M.A. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND M.T.J.)

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

A (M) (A MINOR) v MIN FOR JUSTICE UNREP SMYTH 15.4.2011 (EX TEMPORE)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(3)(A)

J (MT) v MIN FOR JUSTICE UNREP HIGH (CASE NO 2010/1103JR)

REFUGEE ACT 1996 S17(7)

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 24(2)

GLANCRE TEORANTA v BORD PLEANALA UNREP MACMENAMIN 13.7.2006 2006/26/5686 2006 IEHC 250

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 267

TREATY OF ROME ART 234

CRIMINAL PROCEEDINGS AGAINST LYCKESKOG 2003 1 WLR 9 2002 ECR I-4839 2004 3 CMLR 29

CHIRON CORP v MUREX DIAGNOSTICS LTD (NO 8) 1995 AER (EC) 88 1995 FSR 309

CILFIT SRL & ORS v MIN FOR HEALTH 1982 ECR 3415 1983 1 CMLR 472

FIRMA RHEINMUHLEN-DUSSELDORF v EINFUHRUND VORRATSSTELLE FUR GETREIDE & FUTTERMITTEL 1974 ECR 33 1974 1 CMLR 523

EEC DIR 2005/85 ART 20

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 18

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(3)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(1)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, IN RE 2000 2 IR 360 2000/11/4122

ARKLOW HOLIDAYS LTD v BORD PLEANALA & ORS (NO 2) 2007 4 IR 124 2006/3/451 2006 IEHC 280

PLANNING & DEVELOPMENT ACT 2000 S50(4)(F)(i)

N (BN) v MIN FOR JUSTICE & REFUGEE APPLICATIONS CMSR 2009 1 IR 719 2008/45/9749 2008 IEHC 308

R (I) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP COOKE 26.11.2009 2009/47/11883 2009 IEHC 510

S (FK) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP COOKE 26.3.2010 2010/46/11494 2010 IEHC 136

KENNY v BORD PLEANALA (NO 2) 2001 1 IR 704 2002 1 ILRM 68 2001/13/3736

LANCEFORD LTD v BORD PLEANALA & ORS 1998 2 IR 511 1998/8/2345

AG, PEOPLE v GILES 1974 IR 422

COURTS OF JUSTICE ACT 1924 S29

KELLY v NATIONAL UNIVERSITY OF IRELAND (AKA UNIVERSITY COLLEGE DUBLIN) UNREP MCKECHNIE 14.3.2008 2009/30/7479 2008 IEHC 464

SINGH v SECRETARY OF STATE FOR THE HOME DEPT UNREP EWCA CIV 8.12.1995

S (EM) v MIN FOR JUSTICE UNREP CLARKE 21.12.2004 2004/45/10370 2004 IEHC 398

A (A) v MIN FOR JUSTICE 2010 4 IR 197 2009/1/1 2009 IEHC 436

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006

IMMIGRATION ACT 1999 S3(1)

MCNAMARA v BORD PLEANALA 1998 3 IR 453

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82(3)(A)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S19(3)

TREATY OF ROME ART 177

IMMIGRATION ACT 1999 S3(3)(B)

REFUGEE ACT 1996 S5

PRACTICE & PROCEDURE

Leave to appeal

Judicial review - Immigration - Asylum - Refusal to readmit applicant to asylum process - Refusal of leave to seek judicial review - Point of law of exceptional public important - Public interest in appeal - Jurisdiction - Test to be applied - Whether point of law of exceptional public important - Whether jurisdiction should be applied sparingly - Whether law in state of uncertainty - Whether where leave to apply for judicial review refused same material could constitute point of law of exceptional public important - Whether point of law arose of out of decision of High Court - Whether requirements cumulative - Whether point of law transcended facts of case - Whether affirmative public benefit from appeal likely to resolve other cases - Whether applicant delayed in seeking leave to appeal - European Union law - Preliminary reference to European Court of Justice - Charter of Fundamental Rights - Whether respondent under duty to consider best interests of child in considering application to readmit to asylum process - Whether court one against whose decision there was no judicial remedy under national law - Whether reference necessary to enable court to give judgment - Whether discretion to make reference should be exercised - Acte clair doctrine - Whether opinion of European Court of Justice would have utility in case - Whether case pending - Whether respondent aware that interests under consideration were those of a child - Whether respondent applied correct test - Whether question of European Union law raised prior to refusal of leave - Glancré Teoranta v An Bord Pleanála [2006] IEHC 250 (Unrep, MacMenamin J, 13/7/2006), IR v Minister for Justice [2009] IEHC 510 (Unrep, Cooke J, 26/11/2009), FKS v Refugee Appeals Tribunal [2010] IEHC 136 (Unrep, Cooke J, 26/3/2010), Lancefort Ltd v An Bord Pleanála [1998]2 IR 511, Kelly v National University of Ireland [2008] IEHC 464 (Unrep, McKechnie J, 14/3/2008) followed - McNamara v An Bord Pleanála [1998] 3 IR 453 applied - EMS v Minister for Justice [2004] IEHC 398 (Unrep, Clarke J, 21/12/2004) considered - Application refused (2010/1102JR - Smyth J - 27/7/2011) [2011] IEHC 323

A(M) v Minister for Justice, Equality and Law Reform

1 JUDGMENT of Mr. Justice E. Smyth delivered on the 27th day of July 2011

2 1. This Court delivered judgment in the within matter on a previous occasion and refused to grant the applicant leave to apply for judicial review ( M.A. v Minister for Justice, Unreported, High Court, Smyth J., 15 April 2011). The applicant now seeks a certificate of appeal to the Supreme Court pursuant to s.5(3)(a) of the Illegal Immigrants Trafficking Act, 2000 and/or, if necessary, a reference to the Court of Justice of the European Union (ECJ).

3 2. It is to be noted that the applicant in the related matter of M.T.J. v Minister for Justice, [Record No. 2010 JR 1103] also sought the said reliefs, however, this was not pursued before the Court at hearing.

Background

4 3. In the context of the current application, it may be useful to recall briefly the main facts in the matter. The applicant, a minor child, made an application for refugee status to the Office of the Refugee Applications Commissioner (ORAC) through her mother, M.T.J. Her mother was unable to attend for interview on the allotted day and submitted a medical certificate to that effect to her legal representatives. Due to an administrative error, this certificate was not passed on to ORAC and the application for refugee status was deemed withdrawn due to the failure of the mother to attend the interview and subsequent failure to provide a reason for this absence within the required time-limit of three days. The Minister subsequently refused an application for re-admittance to the asylum process under s.17(7), Refugee Act, 1996. On 15 April 2011, this Court refused an application for leave to apply for judicial review of that decision.

Submissions

5 4. The applicant now seeks a certificate of appeal to the Supreme Court. It is claimed that there is a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court. The question concerned is whether the Minister has a duty to consider the best interests of the child pursuant to Article 24.2 of the Charter of Fundamental Rights of the European Union when deciding whether to re-admit a minor applicant to the asylum process. The applicant refers to the case of Glancré Teoranta v An Bord Pleanála (Unreported, High Court, MacMenamin J. 13 July 2006) where MacMenamin J. set out a number of principles applicable when considering the test of 'exceptional public importance' in the context of deciding whether a certificate to appeal from the High Court should be granted in the area of planning. These can be summarised as follows:

6 i i. The requirement goes substantially further than that a point of law emerges in or from the case. It must be one of exceptional importance being a clear and significant additional requirement;

7 ii ii. The jurisdiction to certify must be exercised sparingly;

8 iii iii. The law in question stands in a state of uncertainty;

9 iv iv. Where leave to apply for judicial review is refused, a question may arise as to whether, logically, the same material can constitute a point of law of exceptional public importance;

10 v v. The point of law must arise out of the decision of the High Court;

11 vi vi. The requirements regarding 'exceptional public importance' and 'desirable in the public interest' are cumulative requirements which, to some extent, require separate consideration by the court;

12 vii vii. The appropriate test is not simply whether the point of law transcends the individual facts of the case;

13 viii viii. Normal statutory rules of construction apply which mean, inter alia, that 'exceptional' must be given its normal meaning;

14 ix ix. 'uncertainty' cannot be imputed to the law by an applicant simply by raising a question as to the point of law.

15 x x. Some affirmative public benefit from an appeal must be identified. This would suggest a requirement that a point to be certified be such that it is likely to resolve other cases.

16 The applicant claims that the instant case satisfies these principles such that a certificate of appeal should be granted.

17 5. It was submitted that in order to determine whether to certify a point of law to the Supreme Court, this Court should seek a preliminary opinion from the Court of Justice by making a reference to the said court under Article 267 (formerly Art. 234 EC) of the Treaty on the Functioning of the European Union (TFEU). The applicant submits under the third paragraph of Article 267 TFEU, this Court may be obliged to bring the matter before the ECJ because in considering the issue of leave to appeal to the Supreme Court, the Court is now one "against whose decisions there is no judicial remedy under national law" (Case C-99/00, Lyckeskog [2002] ECR I-4839). The applicant submits that the Lyckeskog case is directly relevant as it recognises that a reference to the ECJ...