Odum v Minister for Justice & Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice O'Donnell
• Judgment Date: 02 February 2023
• Neutral Citation: [2023] IESC 3
• Court: Supreme Court
• Docket Number: S:AP:IE:2022:000023

Between/

Gideon Odum and Sophie Chukwudi (An Infant Suing by Her Father and Next Friend Gideon Odum) and Richard Chukwuebuke Agbonuke Agbonhese (An Infant Suing by His Father and Next Friend Gideon Odum) and William Onyinye Agbonhese (An Infant Suing by His Father and Next Friend Gideon Odum)

Appellants

and

The Minister for Justice and Equality

Respondent

[2023] IESC 3

O'Donnell C.J.

Charleton J.

Woulfe J.

Hogan J.

Murray J.

S:AP:IE:2022:000023

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Judicial review – Deportation – Mootness – Appellants seeking an order of certiorari quashing a deportation order made by the respondent – Whether the appeal was moot

Facts: The appellants sought an order of certiorari quashing a deportation order made by the respondent, the Minister for Justice and Equality, in respect of the first appellant, Mr Odum, on 21 June, 2016. The first appellant challenged the respondent’s decision on the grounds that she did not adequately or correctly assess his family and private life rights under the Constitution and the European Convention on Human Rights. Leave to seek judicial review was granted by the High Court on 25 July, 2016. On 22 November, 2021, the High Court refused the application for judicial review and in February, 2022, refused an application for leave to appeal to the Court of Appeal. On 29 June, 2022, a panel of the Supreme Court granted leave to appeal. On 15 July, 2022, the respondent communicated with the first appellant’s solicitors, enclosing a decision on an application the first appellant had made under the Regularisation of Long Term Undocumented Migrants Scheme. The effect of that decision was to grant the first appellant permission to remain in the State for a period of two years from 15 July, 2022. Enclosed with the letter was a formal order made on 14 July, 2022 on behalf of the respondent, revoking the deportation order of 21 June, 2016. The respondent argued that the appeal was moot and should be dismissed. After hearing argument, the Supreme Court gave its decision that it would proceed to hear the appeal and would give its reasons later.

Held by O'Donnell CJ that it was an important and decisive consideration that leave to appeal to the Court had been granted, and an appeal was ready for hearing. He held that this meant that there had been a determination that the decision appealed against involved an issue of law of general public importance. He held that the purpose of an appeal is to clarify and settle the law for all such cases raising or having the potential to raise the same or similar points; if the appeal was treated as moot and dismissed, then those objectives would not be achieved, the law would remain unsettled and in a state of uncertainty. He held that a decision in the High Court could not resolve that uncertainty; instead of performing its function as the court having full and original jurisdiction to administer justice, a decision in the High Court would be merely a vehicle to bring the legal issue back to the point at which it stood, awaiting the hearing of the appeal and decision of the Supreme Court. He held that by that point, in addition to the wasted resources expended on the case, there might either be a proliferation of decisions in the High Court or cases raising the point would have to be kept in a holding pattern awaiting the final resolution of the issue. He held that this was a scenario in which the principles identified in Borowski v Canada [1989] 1 S.C.R. 342 as justifying a doctrine of mootness pointed instead towards a conclusion that the case should be heard and determined: first, there was no absence of an adversarial context; second, far from court resources being saved by dismissing the case on grounds of mootness, those scarce resources would be wasted; and finally, there was no sense in which it could be said the determination of the case would amount to or have the flavour of an advisory opinion or still less an impermissible expansion of the proper function of courts in the separation of powers.

O'Donnell CJ proceeded to hear and determine the appeal.

Appeal heard.

Judgment of Mr. Justice O'Donnell, Chief Justice delivered on the 2 ^nd day of February, 2023.

Introduction

1 . This appeal requires this Court to consider once again – this time in the light of the structure created by the Thirty-third Amendment of the Constitution in respect of the jurisdiction of this Court to entertain appeals from the Court of Appeal and High Court – the circumstances in which an appeal may be moot, and if moot, whether (and, if so when) the Court will nevertheless proceed to hear and determine the case.

2 . The issue arises in the following way. The proceedings themselves are a challenge by way of judicial review seeking an order of certiorari quashing a deportation order made by the respondent in respect of the first named applicant, Gideon Odum on 21 June, 2016.

3 . The applicant had arrived in this State unlawfully in November, 2007. He had never sought refugee status. In December, 2007 he went through a religious ceremony of marriage, such a ceremony is not recognised by the law in this jurisdiction. The couple did not go through a civil marriage ceremony and, accordingly, for the purposes of the law of this State, are not considered to be married. The couple had, however, three children, the second, third and fourth named applicants who were all born in the State. In November, 2014 the applicant and his partner/spouse separated, and at this juncture the applicant sought for the first time permission to remain in the State. That application was refused, resulting in the deportation order of 21 June, 2016, the subject matter of these proceedings.

4 . High Court proceedings were commenced in July of the same year. In essence, the applicant challenged the decision of the Minister for Justice and Equality (“the Minister”), on the grounds that she did not adequately or correctly assess his family and private life rights under the Constitution and the European Convention on Human Rights ( Odum and ors v. The Minister for Justice [2021] IEHC 747 (Unreported, High Court, Tara Burns J., 22 November, 2021)). Leave to seek judicial review was granted by the High Court on 25 July, 2016.

5 . Thereafter, the case was placed by the High Court in a so called “Gorry list” i.e., a list which was waiting the outcome of proceedings entitled Gorry v. The Minister for Justice and Equality [2020] IESC 55 (Unreported, Supreme Court, O'Donnell and McKechnie JJ., 23 September, 2020) (“ Gorry”). That case raised similar issues in the context of immigration and deportation. A number of the cases in the Gorry list were resolved in the light of the decision of the Supreme Court in that case, but the proceedings in this case were not among those cases resolved by agreement. Instead, it proceeded to a hearing. On 22 November, 2021 the High Court refused the application for judicial review and in February, 2022, refused an application for leave to appeal to the Court of Appeal.

6 . On 29 June, 2022, a panel of this Court granted leave to appeal. The panel considered that the case satisfied the provisions of Article 34.5.4° of the Constitution permitting an appeal from the High Court to this Court where the case involves a question of general public importance and there were exceptional circumstances warranting an appeal to the Supreme Court. The grounds upon which the panel were so satisfied to grant leave were explained as follows:-

“17. The judgment in Oguekwe v. Minister for Justice makes it clear that constitutional rights arise in relationships between parents and children, regardless of citizenship status. The judgment in Gorry v. Minister for Justice emphasised that constitutional family rights, if arising, ought to be considered by the Minister when making deportation orders. How those rights are affected by the absence of a “meaningful involved relationship”, and whether that is the correct test, or even a test at all, to be applied in deportation decisions are issues of general public importance.

18. A deportation order may have a very significant impact on its subject. It is in the interests of justice that the correct approach to considerations of constitutional family rights in deportation decisions be clarified, or indeed identified”.

7 . The case was admitted to case management, and the applicant delivered detailed submissions on 18 July, 2022. However, on 15 July, 2022 the respondent communicated with the applicant's solicitors, enclosing a decision on an application the applicant had made under the Regularisation of Long Term Undocumented Migrants Scheme. The effect of that decision was to grant the applicant permission to remain in the State for a period of two years from 15 July, 2022. Enclosed with the letter was a formal order made on 14 July, 2022 on behalf of the Minister, revoking the deportation order of 21 June, 2016. It was in the following terms:-

“ Immigration Act, 1999 Order for Revocation of Deportation Order. In exercise of the powers conferred on me by the Minister for Justice by section 3(11) of the Immigration Act, 1999, I hereby revoke the deportation order which was made in respect of Gideon Odum aka Gideon Chukwudi aka Gideon Chukwudi Odum on 21 June, 2016”.

8 . It should be said that the applicant's application under the Regularisation of Long Term Undocumented Migrants Scheme, and the Minister's decision in respect thereof appear to have occurred quite separately from either these proceedings or this appeal. There is no sense, therefore, in which it could be understood that either the application by the applicant, or the decision by the Minister, were prompted by the prospects of this appeal being heard, or by a desire to affect it in any way.

9 . In the circumstances, the respondent Minister argues that the appeal is now moot and should...