MH and SH (A minor suing by her mother and next friend MH) v Minister for Justice and Equality (No.2)
| Jurisdiction | Ireland |
| Judge | Mr Justice Max Barrett |
| Judgment Date | 02 September 2020 |
| Neutral Citation | [2020] IEHC 431 |
| Docket Number | [2018 No. 788 JR] |
| Court | High Court |
| Date | 02 September 2020 |
[2020] IEHC 431
Max Barrett J.
[2018 No. 788 JR]
THE HIGH COURT
Deportation orders – Orders of certiorari – Illegal Immigrants (Trafficking) Act 2000 s. 5(6) – Respondent seeking a certificate of the court pursuant to s. 5(6) of the Illegal Immigrants (Trafficking) Act 2000 – Whether the respondent rested proposed points of appeal on a mistaken factual and/or legal basis
Facts: The applicants sought orders of certiorari in respect of deportation orders. The High Court (Barrett J) granted the orders sought: [2020] IEHC 360 (the previous judgment). The respondent, the Minister for Justice and Equality, applied to the court for a certificate of the court pursuant to s. 5(6) of the Illegal Immigrants (Trafficking) Act 2000, as amended. Such a certificate was necessary if the respondent was to appeal the previous judgment to the Court of Appeal. A number of points of law of exceptional public importance were contended for.
Held by Barrett J that the proposed points of appeal were rooted in an erroneous reading of the previous judgment and/or in erroneous assertions concerning the previous judgment.
Barrett J held that the certificate sought would be refused.
Application refused.
This is an application for a certificate of the court pursuant to s.5(6) of the Illegal Immigrants (Trafficking) Act 2000, as amended. Such a certificate is necessary if the respondent is to appeal the court's judgment in MH and SH v. Minister for Justice and Equality [2020] IEHC 360 (‘the previous judgment’) to the Court of Appeal.
It is useful to recall in summary form the background facts which underpinned the previous judgment. (The applicable facts are more comprehensively addressed in the previous judgment).
Ms MH is a Pakistani national. She lived in Pakistan until 2009. She married her husband in 1999. They had a daughter (Ms SH). Unfortunately, Ms MH's husband died in 2009. Previously, Ms MH's blood-brother had emigrated to the United Kingdom in or about 2001, and at some point became a UK national. As a widowed mother, Ms MH was in a precarious position until her brother stepped in to help her. He brought her first to the United Kingdom to live with him there. In July 2014, when Ms MH's blood-brother got a job here in Ireland, she came here with him and has remained settled since then in County Offaly, getting a maths-related qualification and putting her daughter through school (the daughter having now proceeded, the court understands, to further studies). An EU treaty rights application took place on or about 1 May 2015. In the verifying affidavit filed in support of the EU treaty rights application, there are circa. 150 pieces of documentation relating to the familial arrangements in the United Kingdom, including the financial support situation. On 26 November 2015, the respondent refused the EU treaty rights application on the basis that insufficient evidence of dependency on the EU national had been provided.
On 14 December 2015, a review of the just-mentioned decision was sought. The letter seeking this review described the dependent relationship outlined above, both as it existed in the UK and also in Ireland. A number of requests followed from the respondent seeking further information, which information was provided, some of it for the second time. In the course of this to-ing and fro-ing, the applicants issued an offer to obtain DNA evidence at their expense. Surprisingly, in a context in which a DNA test result that was favourable to the applicants would essentially favour the version of events that they had recounted from the outset and in a context where, at least implicitly, the State was dubious as to the existence of the claimed relationship, and where the applicants (not wealthy people) were prepared to pay for the test themselves, the respondent did not welcome the offer and await the outcome of that test.
On 23 February 2017, the respondent wrote to Ms MH to indicate that the review had been unsuccessful, stating, inter alia, that “[Y] ou do not fulfil the criteria in respect of permitted family member as set out in Regulation 3(5) of the [EC (Free Movement of Persons) Regulations 2015]”. Regulation 3(5) has nothing to do with those criteria (it addresses who is a “qualifying family member”), so there was a clear error of law presenting in this regard; that said, that decision is not the subject of these proceedings. Also on 23 February 2017, the respondent indicated that a deportation process would ensue. Thereafter, by way of letter of 16 March 2017, submissions were made by the applicants' solicitors pursuant to s.3 of the Immigration Act and also concerning the applications that had been made pursuant to the free movement regulations seeking that the applicants be treated as permitted family members. These latter submissions were made on foot of the wording of the confirmation of refusal and the failure to have regard to the correct legal provision in reaching that confirmatory decision. No response has yet been received to the letter of 16 March, save for a letter of acknowledgement.
On 5 September 2018, the respondent wrote to the applicants to inform them that it had been decided to deport them. No reason has ever been offered for the appallingly protracted near 18-month period that it took to reach the decision to deport. The court can think of no other walk in life in which a party would take nearly 18 months to make a decision, offer no explanation for why the decision-making process was so protracted, and come to court expecting that that would be considered appropriate. The court heard the within leave application on 27 August 2020 and is giving judgment six days later; it can only imagine what the look on the face of counsel would have been if at the close of the hearing of the application which preceded this judgment, the court had said ‘Thanks for those submissions. I'll be back with a judgment sometime in February 2022’, without offering any good reason for such a protracted decision-making period - and in the example just given, the court would at least have put a timeframe on when its decision would be forthcoming; the applicants were left ‘dangling’ with no idea as to when a decision would be forthcoming; we now know that it took almost 18 months to reach the decision to deport, but that is with the benefit of hindsight; the applicants had no way of looking into the future and identifying how long the decision whether or not to deport would take. Just to put a human perspective on matters, during that near 18-month period, the applicants had to wake up every morning thinking that this might be the day when there was a call or a letter from their solicitors bringing them the bad news of a deportation order, and with no idea as to when the ordeal of waiting would end. As the court indicated in the previous judgment, though the point is worth repeating, leaving people in the lurch like that for such a protracted period, without any explanation, is no way to treat people.
The respondent considers, as is its entitlement, that this is a case in which an appeal to the Court of Appeal is desirable. The applicants disagree. Both sides agree that there is a high hurdle that the respondent must vault before it can bring such an appeal. That high hurdle exists under s.5(6) of the Act of 2000, as amended. The court was not provided with a copy of the current text of that provision by the respondent in an application that is its to make; however, a perusal of www.irishstatutebook.ie suggests that the correct version of s.5(6) remains that inserted by s.34 of the Employment Permits (Amendment) Act 2014, which provides, inter alia, that:
“[N] o appeal shall lie from the decision of the High Court to the Supreme Court [now the Court of Appeal] [in a matter such as that constituted by the within proceedings] …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 Supreme Court.” [Emphasis added].
Following on the 33rd Amendment of the Constitution, the reference to the Supreme Court falls now to be read as a reference to the Court of Appeal.
If the respondent is to be believed, in the 7½ double-spaced pages of the previous judgment that appears on the courts.ie website the court managed to raise no fewer than 5 points of law of exceptional public importance. In truth, given that about 3½ pages of that judgment are devoted to the facts and closing remarks, it would seem that the court managed, again if the respondent is to be believed, to raise these 5 points in 4 pages of double-spaced text, so one every ⅘ of a double-spaced page. That would be remarkable if true, but of course nothing of the sort occurred - it would be something of a miracle if it did - and it reflects poorly on the respondent that it has sought to advance such a farfetched proposition. The respondent is respectfully reminded that, as Lord Donaldson MR astutely observed in his renowned judgment in R. v. Lancashire CC, ex parte Huddleston [1986] 2 All ER 941, at p. 945:
“Notwithstanding that the courts have for centuries exercised a limited supervisory jurisdiction by means of the prerogative writes, the wider remedy of judicial review and the evolution of what is, in effect, a specialist administrative or public law court is a post-war development. This development has created a new relationship between the courts and those...
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