Okunade v Min for Justice and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 16 October 2012
• Neutral Citation: [2012] IESC 49
• Court: Supreme Court
• Docket Number: [S.C. No. 481 of 2011]
• Date: 16 October 2012

Okunade v Min for Justice & Ors

Between/

Oluwaseun Comfort Okunade and Daniel Temiloluva Okunade (an infant suing by his mother and next friend Oluwaseun Comfort Okunade)

Applicants/Appellants

and

The Minister for Justice Equality and Law Reform, Ireland and The Attorney General

Respondents

[2012] IESC 49

Denham C.J.

Hardiman J.

Fennelly J.

O'Donnell J.

Clarke J.

[Appeal No: 481/11]

THE SUPREME COURT

COURTS

Supreme Court

Appeal - Mootness - Whether Supreme Court should hear appeal which had become moot - Whether issues raised in appeal relevant to significant number of other cases - Condon v Minister for Labour [1981] IR 62 and O'Brien v Personal Injuries Assessment Board (No 2) [2006] IESC 62, [2007] 1 IR 328 followed - Applicants' appeal allowed (481/2011 - SC - 16/10/2012) [2012] IESC 49

Okunade v Minister for Justice, Equality and Law Reform

IMMIGRATION LAW

Injunctions

Stay - Interlocutory relief - Public law - Test to be applied - Whether distinction in criteria to be applied to stay and injunction - Whether distinction in form of relief only - Whether "Campus Oil" test for interlocutory injunctions appropriate in judicial review proceedings - Whether arguable case established - Whether risk of injustice - Whether weight should be afforded to measures which were prima facie valid - Whether public interest in orderly operation of statutory scheme - Whether weight should be afforded to particular circumstances of individual case - Whether weight should be afforded to consequences of compliance with measure which might be found invalid - Whether adequacy of damages relevant to interlocutory relied in public law proceedings - Whether judicial review involved investigation of issues of fact - Whether weight should be placed on strength or weakness of substantive proceedings - Whether importance should be attached to exercise by state of its right to control its borders and implement an orderly immigration policy - Whether default position that applicant not entitled to injunction restraining deportation pending hearing of leave to seek judicial review - Whether due weight should be afforded to disruption of family life involving children - PJ v Minister for Justice [2011] IEHC 443, (Unrep, Hogan J, 19/10/2011) overruled; B & S Ltd v Irish Auto Trader Ltd. [1995] 2 IR 142, Campus Oil v Minister for Industry (No 2) [1983] IR 88, Maha Lingam v HSE [2005] IESC 89, (2005) 17 ELR 137, Allied Irish Banks plc v Diamond [2011] IEHC 505, (Unrep, Clarke J, 14/10/2011), Shepherd Homes Ltd v Sandham [1971] Ch 340, American Cyanamid v Ethicon Ltd [1975] AC 396 and Meadows v Minister for Justice [2010] IESC 3, [2010] 2 IR 701 considered - Rules of the Superior Courts 1986 (SI 15/1986), O 84 - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006) - Refugee Act 1996 (No 17) - Immigration Act 1999 (No 22) - Illegal Immigrants (Trafficking) Act 2000 (No 29) - Council Directive 2004/83/EC - Applicants' appeal allowed (481/2011 - SC - 16/10/2012) [2012] IESC 49

Okunade v Minister for Justice, Equality and Law Reform

Facts: The applicants, a mother and son, arrived in Ireland from Nigeria and applied for refugee status on the grounds of international protection from persecution. They claimed that the first named applicant's father and mother had been murdered for political reasons, and as family members, they were at risk to the same persecution. The application and a subsequent claim for subsidiary protection and were rejected. In similar cases, the respondent had provided an undertaking not to deport until the conclusion of all proceedings but did not do so in this case despite the applicants seeking to leave to review. The applicants applied to the High Court challenging this course of action. This was refused. The applicants subsequently sought leave for judicial review of that decision which forms the basis of this motion.

Before judgment was delivered in the present case and after the appeal was made, leave for judicial review for the initial refusal of asylum and subsidiary protection was ultimately rejected. As such, it was contended by the respondent that the current proceedings were moot.

Held by Clarke J that the appeal was indeed moot. However, in the interests of clarity it was deemed advantageous to deal with the general issue of deportation when there was a pending judicial review. The Court considered an applicant had no "quasi-automatic" right of stay whilst proceedings were on-going and the matter depended on whether certain criteria were met. These were largely derived from Campus Oil v. Minister for Energy (No.2) [1983] IR 88. Firstly, the matter must involve a fair and arguable issue. The deciding court also has to balance the fact a competent government authority has made a decision and the public interest in following the decision, against the possibility of an injustice to the applicant if the eventual hearing was to establish that that decision was unlawful. Finally, the court should consider the strength of the case in regards to well-established legal principles. Campus Oil v. Minister for Energy (No.2) [1983] IR 88 considered.

In the instant case, the facts of the case did not suggest an injustice to the applicants. However, as the second applicant was a four year old child who had lived his whole life in the State, the disruption to the applicant's family life should have been given more weight by the trial judge. If it had, an interlocutory injunction against deportation would have been granted.

The other Justices concurred in the decision and the appeal was granted.

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006

EEC DIR 2004/83

IMMIGRATION ACT 1999 S3(6)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

REFUGEE ACT 1996 S17(1)(A)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

RSC O.84

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(1)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)(B)

CONDON & ORS v MIN FOR LABOUR & AG 1981 IR 62 1980/1/44

O'BRIEN v PERSONAL INJURIES ASSESSMENT BOARD (NO 2) 2007 1 IR 328 2007 1 ILRM 304 2006/44/9395 2006 IESC 62

ADEBAYO & ORS v CMSR OF AN GARDA SIOCHANA 2006 2 IR 298 2006/1/163 2006 IESC 8

A (L) v MIN FOR JUSTICE UNREP HOGAN 21.12.2010 2011/1/118 2010 IEHC 523

J (P) & ORS v MIN FOR JUSTICE UNREP HOGAN 19.10.2011 2011/27/7305 2011 IEHC 443

RSC O.84 r20(7)

RSC O.53 r10(A) (UK)

R v SECRETARY OF STATE FOR EDUCATION, EX PARTE AVON CO COUNCIL 1991 1 QB 558 1991 2 WLR 702 1991 1 AER 282

MIN OF FOREIGN AFFAIRS TRADE & INDUSTRY v VEHICLES & SUPPLIERS LTD & ANOR 1991 1 WLR 550 1991 4 AER 65

R (H) v ASHWORTH HOSPITAL AUTHORITY 2003 1 WLR 127 2002 ACD 102 70 BMLR 40

RSC O.84 r20(7)(A)

RSC O.84 r20(7)(B)

LEWIS JUDICIAL REMEDIES IN PUBLIC LAW 3ED 2004 PARA 6.027

M, IN RE 1994 1 AC 377 1993 3 WLR 433 1993 3 AER 537

BYRNE v IRELAND & AG 1972 IR 241

CAMPUS OIL LTD & ORS v MIN FOR INDUSTRY & ORS (NO 2) 1983 IR 88

B & S LTD v IRISH AUTO TRADER LTD 1995 2 IR 142 1995 2 ILRM 152 1995/1/201

SYMONDS CIDER & ENGLISH WINE CO LTD v SHOWERINGS (IRL) LTD 1997 1 ILRM 481 1997/6/2344

CLANE HOSPITAL LTD & ORS v VOLUNTARY HEALTH INSURANCE BOARD UNREP QUIRKE 22.5.1998 1998/14/4736

SHEPHERD HOMES LTD v SANDHAM (NO 1) 1971 CH 340 1970 3 WLR 348 1970 3 AER 402 1970 21 P & CR 863

BERGIN v GALWAY CLINIC DOUGHISKA LTD 2008 2 IR 205 2007/5/956 2007 IEHC 386

GIBLIN v IRISH LIFE & PERMANENT PLC 2010 ELR 173 2010/20/4990 2010 IEHC 36

LINGHAM v HEALTH SERVICE EXECUTIVE 2006 17 ELR 137 2005/36/7565 2005 IESC 89

NWL LTD v WOODS (NO 2) 1979 1 WLR 1294 1979 3 AER 614 1979 ICR 867 1979 IRLR 478

ALLIED IRISH BANK PLC & ORS v DIAMOND & ORS UNREP CLARKE 14.10.2011 2011/3/547 2011 IEHC 505

AMERICAN CYANAMID CO v ETHICON LTD (NO 1) 1975 AC 396 1975 2 WLR 316 1975 1 AER 504 1975 FSR 101

KENNEDY T/A GILES J KENNEDY & CO v LAW SOCIETY OF IRELAND & ORS 2005 3 IR 255 2005/34/7011 2005 IESC 23

GLENCAR EXPLORATION PLC & ANDAMAN RESOURCES PLC v MAYO CO COUNCIL 2002 1 IR 112 2002 1 ILRM 481 2003/24/5479

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 47

FARRELL v BANK OF IRELAND & ORS UNREP SUPREME 10.7.2012 2012 IESC 42

CONKA v BELGIUM 2002 34 EHRR 54 11 BHRC 555

A (N) v UNITED KINGDOM 2009 48 EHRR 15

ABDOLKHANI & KARIMNIA v TURKEY UNREP ECHR 22.9.2009 2009 ECHR 1336

MEADOWS v MIN FOR JUSTICE & ORS 2010 2 IR 701 2011 2 ILRM 157 2010 IESC 3

O (A) & ORS v MIN FOR JUSTICE 2003 1 IR 1 2003/31/7267

CHEN & ANOR v SECRETARY OF STATE FOR THE HOME DEPT 2005 QB 325 2004 3 WLR 1453 2005 AER (EC) 129 2004 ECRI-9925 2004 3 CMLR 48

ZAMBRANO v OFFICE NATIONAL DE L'EMPLOI (ONEM) 2012 QB 265 2012 2 WLR 886 2011 AER (EC) 491 2011 2 CMLR 46 2011 2 FCR 491

DERECI & ORS v BUNDESMINISTERIUM FUR INNERES 2012 AER (EC) 373 2012 1 CMLR 45

1. Introduction

2 1.1 It hardly needs to be stated that there has been a significant growth, over the last decade or so, in the number of persons coming to Ireland seeking international protection under the various legal schemes which apply in such cases. That growth in numbers has, in turn, led to a very significant expansion in the volume of immigration cases which have come before the courts. Decisions of statutory bodies connected with that immigration process or related decisions made by the first named respondent ("the Minister") are frequently challenged injudicial review applications. It also does need to be noted, and will be addressed further in the course of this judgment, that the statutory regime for the consideration of applications involving international protection and the statutory regime which governs any challenges in the courts against adverse decisions made in that process, are...