O.M.R v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: O'Donnell J.,McKechnie J.,Dunne J.
• Judgment Date: 10 February 2017
• Neutral Citation: [2017] IESCDET 14
• Court: Supreme Court
• Date: 10 February 2017

[2017] IESCDET 14

SUPREME COURT

DETERMINATION

O'Donnell J.

McKechnie J.

Dunne J.

Between

O. M. R.

Applicant

And

The Minister for Justice and Equality

and

the Refugee Application Commissioner

and

Ireland

and

the Attorney General

Respondents

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

RESULT: The Court does not grant leave to the Applicant to appeal to this Court from the High Court.

REASONS GIVEN:

1 This is an application for leave to appeal to the Supreme Court direct from the High Court pursuant to the provisions of Article 34.5.4° of the Constitution which provides:

‘Notwithstanding section 4.1° hereof, the Supreme Court shall, subject to such regulations as may be prescribed by law, have appellate jurisdiction from a decision of the High Court if the Supreme Court is satisfied that there are exceptional circumstances warranting a direct appeal to it, and a precondition for the Supreme Court being so satisfied is the presence of either or both of the following factors:

i the decision involves a matter of general public importance;

ii the interests of justice.’

To date no regulations have been prescribed by law in relation to such appeal.

2 It is by now axiomatic that an appeal to the Supreme Court even in cases of general public importance should normally be brought from a decision of the Court of Appeal, and a ‘leapfrog’ appeal from the High Court under Art. 34.5.4° is, as the constitutional text makes clear, exceptional.

3 The application in this case arises in somewhat unusual circumstances. It occurs in the field of immigration and asylum law where there is a statutory restriction on appeal from the High Court. This is contained in s.5(3)(a) of the Illegal Immigrants (Trafficking) Act 2000 which provides:

‘The determination of the High Court of an application for leave to apply for judicial review as aforesaid or of an application for such judicial review shall be final and no appeal shall lie from the decision of the High Court to the [Court of Appeal] in either case except with the leave of the High Court which leave shall only be granted where the High Court certifies that its decision involves 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 [Court of Appeal].’

The words in square brackets were substituted for the original text by virtue of the Court of Appeal Act 2014, which substituted appeal to the Court of Appeal for the appeal to the Supreme Court which had hitherto existed. It is accepted that s.5 applies to this case.

4 In the absence of any statutory regulation of appeal, it follows that it is possible for an applicant to seek leave to appeal to this Court direct from the High Court determination pursuant to Article 34.5.4° without seeking the statutory certificate for leave to appeal to the Court of Appeal under s.5 of the 2000 Act, or indeed even if such a certificate has been applied for and refused by the High Court. This may not have been something specifically contemplated by the amendment to the Constitution, but in the absence of any regulation of appeals which are subject to the statutory restriction on appeal, it appears to be a consequence of the constitutional amendment.

5 It is apparent therefore, that the Court may have to deal with a number of such applications, and in other fields in which there is a statutory restriction on appeal to the Court of Appeal. The Court considers that it is highly desirable that an applicant seeking leave to appeal to this Court direct from the High Court in circumstances where there is a statutory restriction on appeal to the Court of Appeal, should bring and prosecute an application to the High Court for leave to appeal to the Court of Appeal. Furthermore, the Court considers that it should indicate that in the normal course it would not normally consider adjudicating on an application for leave to appeal to this Court until such application is disposed of by the High Court. There are a number of reasons for adopting this course:

(i) As already indicated the Constitution indicates that an appeal to the Court of Appeal from the High Court, and if necessary an application for leave to appeal to this Court from the Court of Appeal is the normal route by which cases should reach this Court;

(ii) Appeal to the Court of Appeal is also the form of appeal contemplated by the statutory regime (as amended);

(iii) If an application for leave to appeal to the Court of Appeal is granted by the High Court, it will be possible to prosecute the appeal in the normal way, which may indeed resolve the issue;

(iv) In any event the possibility of an appeal to this Court from any determination of the Court of Appeal would remain open;

(v) Although the statutory test set out in s.5 of the 2000 Act and the constitutional test contained in Article 34.5.4° of the Constitution use different language, they are very clearly closely related. In particular they both address the public importance of the point sought to be certified. As a matter of practicality, there must be few cases of public importance which pass one test and fail the other. Accordingly, even when a certificate is refused by the High Court, this Court will undoubtedly benefit from analysis of such issues by the judge who has heard the case and who is most familiar with the facts and issues which arise;

(vi) In the event that leave to appeal to the Court of Appeal is refused, but this Court nevertheless considers that a point of general public importance has been raised or that it is otherwise in the interests of justice that an appeal should be brought to this Court, the very fact that an appeal to the Court of Appeal has been refused, could itself be a substantial ground for contending that there are exceptional circumstances justifying an appeal direct to this Court. This cannot be stated to be an absolute proposition however, because there are other considerations such as whether the case is a suitable and appropriate vehicle for the point to be determined and whether for example the resolution of the point would in fact result in any different outcome in the appeal. Nevertheless it can be said that the fact that an appeal to the Court of Appeal has been foreclosed would itself be a weighty consideration when this Court comes to consider whether there are exceptional circumstances justifying an appeal direct to this Court.

All these factors point to the importance of pursuing the possibility of obtaining leave to appeal and the determination of that issue being available to this Court.

The Facts of this Case

6 The facts and issues in this case are set out exhaustively...