M & ors -v- Minister for Justice and Equality & ors, [2018] IESC 14 (2018)

Docket Number:61/17
Party Name:M & ors, Minister for Justice and Equality & ors

THE SUPREME COURTRecord No. 2017 No. 61

Clarke C. J.

O’Donnell J.

McKechnie J.

MacMenamin J.

Dunne J.

O’Malley J.

Finlay Geoghegan J.


I.R.M, S.J.R. and S.O.M. (A minor suing by her Mother and Next Friend S.J.R.)Applicants/Respondentsand

The Minister for Justice and Equality, Ireland and the Attorney GeneralRespondents/Appellants

Judgment of the Court delivered by the Chief Justice on the 7


March, 2018

1. Introduction

1.1 The issues with which this judgment is concerned have evolved very significantly since this case started. The legal context in which these proceedings were commenced arose from a deportation order made against the first named applicant/respondent (“Mr. M.”) in 2008. In 2015, an application was made to the first named respondent/appellant (“the Minister”) seeking to revoke that deportation order. The basis on which it was asserted that there was a sufficient change in circumstances to warrant the Minister taking a different view on deportation stemmed from the relationship between Mr. M. and the second named applicant/respondent (“Ms. R.”) and in particular the fact that she and Mr. M. were due to have a child. The child concerned has since been born and is the third named applicant/respondent (“the third respondent”). The applicants/respondents will for convenience collectively be referred to as the respondents.

1.2 The Minister in fact made no decision regarding the application to revoke. In the absence of an undertaking on the part of the Minister not to deport Mr. M. pending the outcome of the revocation application, Mr. M. sought an injunction preventing his deportation, which injunction was granted by the High Court (Mac Eochaidh J.) (I.R.M. and anor v. Minister for Justice and Equality and ors (No. 1) [2015] IEHC 873). A contemporaneous application for leave to apply for judicial review was adjourned to be considered at a later date. It is the subsequent decision of the High Court and the declarations made after a so-called “ telescoped” hearing which is the subject of this appeal. The case is, therefore, an immigration case. However, having regard to the approach of the trial judge, wider issues concerning the constitutional status of the unborn have come into particular focus. The High Court (Humphreys J.) (I.R.M. and ors v. Minister for Justice and Equality and ors (No. 2) [2016] IEHC 478) importantly made a declaration that the Minister was obliged to consider, as part of the application to revoke, the prospective position of the third respondent. An appeal was brought to the Court of Appeal raising a number of grounds. However, placing reliance on s. 9 of the Court of Appeal Act 2014, (“the 2014 Act”), the Minister and the other respondents/appellants (collectively “the State”) sought leave to bring a leapfrog appeal to this Court in respect of some of the broader issues which had been the subject of the judgment of Humphreys J. in the High Court. It was said that those issues were of particular importance and urgency. Leave was granted on a basis which will shortly be described which involved some but not all of the grounds of appeal which were put before the Court of Appeal.

1.3 However, in the course of case management of this appeal, it was indicated on behalf of the State that it was not intended to pursue any grounds of appeal other than those in respect of which leave to appeal had been granted. Thus the issues which fall for determination by this Court are confined to the issues in respect of which this Court granted leave. In that context it is appropriate to set out a very brief account of the proceedings and the important questions which they raise.

2. The Proceedings

2.1 The facts and the procedural history together with the judgment of the High Court will be set out and analysed in more detail later in this judgment. However in simple terms this case involves a contention on the part of Mr. M. concerning the factors or considerations which the Minister was required to take into account in deciding on the application which he had made seeking the revocation of the deportation order which had previously been made against him.

2.2 In the course of the proceedings before the High Court, a wide range of issues relating to the constitutional status of the third named respondent came into sharp focus. She was unborn at the time of the application which Mr. M. made to revoke the relevant deportation order and at the time of the commencement of the proceedings. She was later joined as a party when born. The trial judge made a range of significant findings as to the constitutional status of the unborn child.

2.3 It will be necessary to address in greater detail the issues which have thereby arisen for determination by this Court on this appeal. However in summary form they are the following:-

(i) Whether the Minister was required, as a matter of law, to have regard to the position of the third respondent while unborn as a factor to be taken into account in the deportation revocation application under consideration;

(ii) whether, in addition, the undoubted constitutional rights which the third respondent would enjoy as an Irish born citizen child when born were also matters which required to be taken into account;

(iii) whether, as the trial judge in effect determined, the unborn enjoy a wide range of constitutional and other rights independent of the right to life guaranteed by Article 40.3.3 of the Constitution as inserted by the Eighth Amendment;

(iv) whether, as again the trial judge determined, the term “any children” to be found in Article 42A of the Constitution includes the unborn; and

(v) whether it is necessary, as found by the trial judge, to reassess the constitutional rights of families not based on marriage.

2.4 While many of these matters were dealt with in a relatively brief way in the judgment of the trial judge, they do undoubtedly raise issues of very particular importance which have the potential to affect rights and obligations going well beyond the scope of these proceedings and, indeed, having potential impact well beyond the scope of immigration law. It is for that reason necessary to consider the findings of the High Court in a careful, detailed but robust manner. This is both for the purposes of examining whether it is necessary for this Court to reach its own conclusions on some or all of those issues in order to determine these proceedings but also, where it is so necessary, to determine the proper interpretation of the constitutional and other rights relied on and their implications for the proper resolution of this case.

2.5 This judgment is a judgment of the Court. Each of the members of the Court who sat on this appeal have contributed to the content of this judgment.

2.6 It is next necessary to turn to the determination by reference to which leave to appeal to this Court was granted.

3. The Leave to Appeal

3.1 As noted above the State applied to this Court for leapfrog leave. In its determination (I.R.M. and S.J.R. and S.O.M. v. Minister for Justice and Equality & anor [2017] IESCDET 147), this Court noted the unusual procedural history of this case. Not least, the Court noted that the case was in fact moot even when it was before the High Court. The respondents sought to resist the application for leave to appeal on grounds of mootness. However, this Court stated in that regard that:-

“… it is plain that the case does involve matters of general public importance, and therefore meets the general threshold for appeal to this Court. Furthermore, the issue of law is one which is unlikely to appear significantly different after a determination of the Court of Appeal. There is also clear advantage in seeking to address those issues sooner rather than later, given the systemic importance of the matters debated, not just in the field of immigration law, but more widely. While there was clear mootness in the case at the level of the High Court, the fact that the case proceeded, now means that the law is as stated in the High Court, and it appears inappropriate to now consider refusing leave to appeal to this Court on grounds of mootness, which was explicitly addressed in the High Court, and where the case proceeded effectively by agreement.”

3.2 The grounds on which the State sought leave to appeal to this Court might be divided into, first, broad substantive issues, and second, those grounds relating to alleged errors on the part of the trial judge in relation to matters of procedure.

3.3 The Court concluded that the procedural grounds raised did not meet the constitutional threshold for leave to appeal, and that, while in other circumstances it might be deemed necessary to grant leave in relation to such matters in the interests of justice, in the context of this unusual application the Court did not want to risk the possibility that the consideration of such matters could lead to the issues of general public importance not being addressed. Therefore, the Court concluded that leave to appeal should be granted in relation only to the following grounds:-

“(a) The learned Trial Judge erred in law and in fact in his determination of the matters that the Appellant Minister is obliged to take into account when considering representations involving an unborn made under s. 3 (11) of the Immigration Act 1999 (as amended) seeking to revoke a deportation order in force against a non-national prospective father of a potential Irish citizen child unborn at the date of such consideration.

(b) Without prejudice to the forgoing paragraph, the learned Trial Judge erred in finding that when the Appellant Minister is presented with an application based on the prospective parentage of an Irish child who is unborn at the date of the making of the application, the Appellant Minister must address the application on the basis that appropriate consideration should be given to rights, or interests, if same are raised in the application, which that...

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