Orelu Oluwabunmi Semilore Jedidiah Lofinmakin and Others v Minister for Justice, Equality and Law Reform and Others

JurisdictionIreland
CourtSupreme Court
JudgeMr. Justice William M. McKechnie.,Denham C.J.
Judgment Date20 November 2013
Neutral Citation[2013] IESC 49
Docket Number[S.C. No. 138 of 2011]
Date20 November 2013
Lofinmakin & Amonusi v Min for Justice & Ors
Between/
Orelu Oluwabunmi Semilore Jedidiah Lofinmakin (an infant acting by her father and next friend Akintola Lofinmakin)

and

Ebun-Oluwa Motunola Peace Ore-Oluwa Lofinmakin (an infant acting by her father and next friend Akintola Lofinmakin)

and

Akintola Lofinmakin

and

Rachel Yinka Amonusi
Applicants/Appellants

and

The Minister Justice, Equality and Law Reform, Ireland and the Attorney General
Respondents
RESPONDENTS/RESPONDENTS

and

The Human Rights Commission
Notice Party

[2013] IESC 49

Denham C.J.

Murray J.

Fennelly J.

McKechnie J.

MacMenamin J.

Appeal No. 138/2011
[S.C. No. 138 of 2011]

THE SUPREME COURT

PRACTICE AND PROCEDURE

Mootness

Appeal against refusal of leave to seek judicial review - Deportation orders - Revocation of deportation order subsequent to lodgement of appeal - Whether appeal moot - Whether exceptional case where appeal should be heard despite mootness - Discretion of court - Impact of costs order - O'Keeffe v An Bord Pleanála [1993] 1 IR 39; Zambrano v Belgium (Case C-34/09) [2011] All ER 491; Meadows v Minister for Justice, Equality and Law Reform [2010] IESC 3, [2010] 2 IR 701; Goold v Collins [2004] IESC 38, [2005] 1 ILRM 1; Borowski v Canada [1989] 1 SCR 342; O'Brien v Personal Injuries Assessment Board (No 2) [2006] IESC 62, [2007] 1 IR 328; Okunade v Minister for Justice, Equality and Law Reform [2013] IESC 49, [2013] 1 ILRM 1; Irwin v Deasy [2010] IESC 35, [2011] 2 IR 752; Caldwell v Mahon Tribunal [2011] IESC 21, (Unrep, SC, 9/6/2011); Murphy v Roche [1987] IR 106; Application of Zwann [1981] IR 395; Maloney v Member in Charge (Terenure Garda Station) (Unrep, SC, 18/5/2004); Dunne v Governor of Cloverhill Prison [2009] IESC 43, (Unrep, SC, 21/5/2009); McDonald v Bord na gCon [1964] IR 350; PV (a minor) v The Courts Service [2009] IEHC 321, [2009] 4 IR 264; Condon v Minister for Labour [1981] IR 62; City of Mesquite v Aladdin's Castle Inc (1982) 455 US 283; Cunningham v President of the Circuit Court [2012] IESC 39, [2012] 3 IR 222; Farrell v Governor and Company of Bank of Ireland [2012] IESC 42, [2013] 2 ILRM 183 and Rye Investments Ltd v The Competition Authority [2012] IESC 52, (Unrep, SC, 26/10/2012) considered - Appeal dismissed (138/2011 - SC - 20/11/2013) [2013] IESC 49

Lofinmakin v Minister for Justice, Equality and Law Reform

Facts: The proceedings related to infants who were Irish-born citizens, whose parents were Nigerian nationals and had been subject to a deportation order, which had been revoked. The High Court had dismissed the application on all grounds but had certified the proceedings on a point of law of exceptional public importance to the Supreme Court in respect to the impact of a decision of the Court of Justice and its effects. The Supreme Court considered the circumstances in which an appeal which was moot could be heard.

Held by the Supreme Court per Denham CJ (Murray, Fennelly, MacMenamin JJ.) in dismissing the appeal as moot. There was no matter left in issue between the parties and the appeal was moot and should not be heard. The grounds of appeal related to a deportation order which had been revoked. Per McKechnie J (Fennelly J concurring): it was not logically possible to continue to sustain the proceedings. It would be difficult to declare a case moot if a disputed cost order could neutralize that classification.

O'KEEFFE v BORD PLEANALA & O'BRIEN 1993 1 IR 39 1992 ILRM 237

ZAMBRANO v OFFICE NATIONAL DE L'EMPLOI (ONEM) 2012 QB 265 2012 2 WLR 886 2011 AER (EC) 491 2011 ECR I-1177 2011 2 CMLR 46 2011 2 FCR 491

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 20

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

CONSTITUTION ART 26

GOOLD v COLLINS & ORS 2005 1 ILRM 1 2004/19/4389 2004 IESC 38

BOROWSKI v CANADA (AG) 1989 1 SCR 342 57 DLR (4TH) 231

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

OKUNADE v MIN FOR JUSTICE & ORS 2012 3 IR 152 2013 1 ILRM 1 2012/37/10891 2012 IESC 49

IRWIN v DEASY UNREP SUPREME 14.5.2010 2010 IESC 35

CALDWELL v JUDGE MAHON & ORS (PLANNING TRIBUNAL) UNREP 9.6.2011 2011/7/1603 2011 IESC 21

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

IMMIGRATION ACT 1999 S3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

RSC O.84

LOFINMAKIN & AMONUSI v MIN FOR JUSTICE & ORS UNREP COOKE 1.2.2011 2011/31/8618 2011 IEHC 38

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

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(3)(A)

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 267

ZAMBRANO v OFFICE NATIONAL DE L'EMPLOI (ONEM) 2012 QB 265 2012 2 WLR 886 2011 AER (EC) 491 2011 ECR I-1177 2011 2 CMLR 46 2011 2 FCR 491

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 20

LOFINMAKIN & AMONUSI v MIN FOR JUSTICE & ORS UNREP COOKE 25.3.2011 2011/31/8648 2011 IEHC 116

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 24

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 51

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 24(3)

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 51(1)

IMMIGRATION ACT 1999 S3(1)

MURPHY v ROCHE & ORS 1987 IR 106 1986/7/1349

DE ROISTE v MIN FOR DEFENCE & ORS 2001 1 IR 190 2001 2 ILRM 241 2001 12 ELR 33 2001/6/1371

TRIBE AMERICAN CONSTITUTIONAL LAW 3ED 2000 PARAS 3-11

SALAJA v MIN FOR JUSTICE UNREP HOGAN 10.2.2011 2011/45/12823 2011 IEHC 51

ZWANN & ORS, IN RE 1981 IR 395 1981 ILRM 333 1981/12/2305

MALONEY v MEMBER IN CHARGE (TERENURE GARDA STATION) UNREP SUPREME 18.5.2004 2004/29/6848

DUNNE v GOVERNOR OF CLOVERHILL PRISON UNREP SUPREME 21.5.2009 2009/14/3214 2009 IESC 43

CONSTITUTION ART 34

CONSTITUTION OF THE UNITED STATES OF AMERICA ART III S2

MCDONALD v BORD NA GCON & AG 1964 IR 350 1966 100 ILTR 11

V (P) (A MINOR) v COURTS SERVICE & ORS 2009 4 IR 264 2009/56/14351 2009 IEHC 321

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

CITY OF MESQUITE v ALADDINS CASTLE INC 1982 455 US 283

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S11

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S7

FARRELL v BANK OF IRELAND & ORS 2013 2 ILRM 183 2012/14/4124 2012 IESC 42

CUNNINGHAM v PRESIDENT OF THE CIRCUIT COURT & DPP 2012 3 IR 222 2012 2 ILRM 449 2012/8/2202 2012 IESC 39

RYE INVESTMENTS LTD v COMPETITION AUTHORITY UNREP SUPREME 26.10.2012 2012/41/12231 2012 IESC 52

1

Judgment delivered on the 20th day of November, 2013, by Denham C.J.

2

Judgment delivered on the 20th day of November, 2013 by Mr. Justice William M. McKechnie.

3

Judgment delivered by Denham C.J. & McKechnie J.

4

1. There are two issues before the Court in this matter. The first issue is whether the appeal is moot. Secondly, if it is held that the appeal is moot, the question arises as to whether this is one of the exceptional cases where a court will hear an appeal even though the matter is moot.

5

2. The original proceedings in this appeal arose out of a deportation order, but there no longer exists a deportation order in respect of any of the appellants.

Background
6

3. The first and second named appellants are Irish citizens, the third and fourth named appellants are their parents.

7

4. Originally, there were issues as to whether the third named appellant was entitled to reside in Germany. The Minister made a deportation order on the 20 th August, 2009, which was affirmed on the 3 rd November, 2009, to deport the third named appellant.

8

5. The appellants applied to the High Court for reliefs, including leave to seek an order of certiorari of the deportation order. The appellants raised issues as to family rights and the test set out in O'Keeffe v. An Bord Pleanála [1993]1 I.R. 39.

9

6. On the 1 st February, 2011, in a reserved judgment the High Court (Cooke J.) refused leave to seek any relief. He adjourned the application for a certificate for leave to appeal.

10

7. On the 7 th March, 2011, the European Court of Justice delivered judgment in Zambrano v. Belgium ( Case C-34/09) [2011] All E.R. (E.C.) 491. The rights of citizen children of the European Union were held to derive from Article 20 of the Treaty on the European Union.

11

8. The High Court granted a certificate for leave to appeal to the Supreme Court on the 25 th March, 2011, noting that the appellants had not relied on Article 20 of the Treaty on the European Union, which was the basis for the Zambrano decision; and the High Court also granted a certificate relating to the O'Keeffe test, and the interpretation of the decision of this Court in Meadows v. Minister for Justice, Equality and Law Reform [2010] 2 I.R. 701.

12

9. The appellants appealed against the refusal of leave to apply for judicial review on the points certified by the High Court.

13

10. Thereafter, the Minister decided to revoke the deportation order made in respect of the third named appellant, and so informed him by letter of the 21 st February, 2012. The third named appellant has been granted temporary residency until the 24 th February, 2014.

14

11. Thus, there is no longer a deportation order in respect of any of the appellants. The first two appellants are Irish citizens and are entitled to reside in Ireland. The third and fourth named appellants have permission currently to reside in Ireland.

15

12. If the situation were to arise where either the third or fourth named appellant were in danger of deportation, the Minister would have to make a fresh deportation order. That could give rise to fresh proceedings with new issues arising which were not part of these proceedings.

General Policy
16

13. The current proceedings, insofar as they relate to the deportation order against the third named appellant, are moot, as that deportation...

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