M v Minister for Justice & Equality and anor

• Jurisdiction: Ireland
• Judge: O'Donnell J.,MacMenamin J.,Charleton J.
• Judgment Date: 30 October 2018
• Neutral Citation: [2018] IESCDET 159
• Docket Number: 2018 No. 469 JR
• Court: Supreme Court
• Date: 30 October 2018

[2018] IESCDET 159

THE SUPREME COURT

DETERMINATION

O'Donnell J.

MacMenamin J.

Charleton J.

2018 No. 469 JR

BETWEEN

K J M

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

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

RESULT: The Court grants leave to the Applicant to appeal to this Court from the decision of the High Court.

ORDER SOUGHT TO BE APPEALED

COURT: High Court

DATE OF JUDGMENT OR RULING: 16 th July, 2018

DATE OF ORDER: 27 th July, 2018

DATE OF PERFECTION OF ORDER: 27 th July, 2018

THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 1 st August, 2018 AND WAS IN TIME.

REASONS GIVEN:

General Considerations

1 As is clear from the terms of the Constitution and many determinations made by this Court since the enactment of the 33rd Amendment it is necessary in order for this Court to grant leave that it be established that the decision sought to be appealed either involves a matter of general public importance or that it is otherwise in the interests of justice necessary that there be an appeal to this Court. In the case of an application under Article 34.5.4°, it is also necessary to set out exceptional grounds justifying a direct appeal to this Court. This is such a case.

2 The general principles applied by this Court in determining whether to grant or refuse leave in such cases is now reasonably well established. Accordingly it is not necessary to address those principles here save insofar as it is necessary for the purposes of determining this application.

3 The Court considers it desirable to point out that a determination of the Court on an application for leave, while it is final and conclusive so far as the parties are concerned, is a decision in relation to that application only. The issue is whether the questions raised and the facts underpinning them meet the constitutional criteria for leave. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, any issue canvassed in the application will, in due course, be disposed of in the substantive decision of the Court.

The Proceedings

4 This case was heard with another case (PMS (Cameroon)) which raised the same issues. A separate application for leave to appeal is made in that case, and a determination is issued today. The proceedings themselves sought in essence, a declaration that the applicant could not be removed from the State until he had received a "decision" from the first respondent pursuant to s. 22(15) of the International Protection Act 2015 ('the 2015 Act'), and in consequence an injunction restraining the removal of the applicant pending the said decision.

5 It is necessary to identify briefly the circumstances in which this argument arises. The applicant in this case is a native of the DRC, born in 1972. He first applied for asylum in the Netherlands on the 21st of January 2004, and again in February 2005. These applications were rejected and he was subject of a decision to remove him to South Africa. He resisted this, but was escorted to South Africa in May 2005. On the 31st of May 2011 (six years later) he applied for asylum in Ireland. That application involved false statements that he had been removed to the Congo rather than to South Africa. The applicant's Irish claim was processed and refused by the Refugee Applications Commissioner (RAC). An appeal to the Refugee Appeals Tribunal...