MAK v Minister for Justice and Equality

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice O'Regan
• Judgment Date: 08 May 2017
• Neutral Citation: [2017] IEHC 281
• Date: 08 May 2017
• Docket Number: [2017 No. 123 J.R.]

[2017] IEHC 281

THE HIGH COURT

JUDICIAL REVIEW

O'Regan J.

[2017 No. 123 J.R.]

BETWEEN

M. A. K.

APPLICANT

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

Asylum, Immigration & Nationality – S.5 (3) (a) of the Illegal Immigrants (Trafficking) Act 2000 – Refusal of leave to seek judicial review – Leave to Appeal to the Court of Appeal – Point of law of exceptional public importance

Facts: The applicants sought leave to appeal to the Court of Appeal in relation to the proposed question. The proposed question was pertaining to the validity of a deportation order when it failed to specify on its face the date by which the subject must leave the State and remain thereafter out of the State.

Ms. Justice O'Regan refused to grant leave to the applicants. The Court held that the proposed questions had already been answered in a plethora of judgments and need not be raised again. The Court found that in various High Court judgments, it was made clear that the deportation orders were not rendered invalid by reason of not having the date of departure on the deportation order as opposed to the notice attached. The Court held that the applicants had failed to achieve the bar set by s. 5 (3) (a) of the Illegal Immigrants (Trafficking) Act 2000 to warrant the grant of leave.

JUDGMENT of Ms. Justice O'Regan delivered on the 8th day of May, 2017

Issues

1 The applicants in the above and three allied matters are seeking leave pursuant to the provisions of s. 5 (3) (a) of the Illegal Immigrants (Trafficking) Act (2000) to appear the final point which is asserted to be of exceptional and public importance and the public interest:-

'Is a deportation order valid when it fails to specify on its face the date by which the subject must leave the state and remain thereafter out of the state?'

2 The above query arises out of a judgment delivered by this court on 30th March 2017 when the applicant sought leave to apply for judicial review in respect of the deportation orders made against each of them by reason of the fact that the dates specified by which the applicants are to leave the State was not mentioned on the face of the deportation orders themselves but rather in the accompany notices.

Applicable legislation and jurisprudence

3 Section 5 (3) (a) of the Illegal Immigrants (Trafficking) Act (2000) 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.'

4 In the matter of Glancré v. An Bord Pleanala [2006] IEHC 250 MacMenamin J. in the High Court identified the following applicable provisions to the question of whether or not certification should be granted. Notwithstanding that the matter before MacMenamin J. was a planning issue nevertheless the principles so identified relate to comparable provisions as that contained in s. 5 (3) (a) of the 2000 Act aforesaid. These identified principles are as follows:-

'1. 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.

2. The jurisdiction to certify such a case must be exercised sparingly.

3. The law in question stands in a state of uncertainty. It is for the common good that such law be clarified so as to enable the courts to administer that law not only in the instant, but in future such cases.

4. Where leave is refused in an application for judicial review i.e. in circumstances where substantial grounds have not been established a question may arise as to whether, logically, the same material can constitute a point of law of exceptional public importance such as to justify certification for an appeal to the Supreme Court (Kenny).

5. The point of law must arise out of the decision of the High Court and not from the discussion or consideration of a point of law during the hearing.

6. The requirement regarding 'exceptional public importance' and 'desirable in the public interest' are...