P.O. and Another v Minister for Justice and Equality and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 29 January 2015
• Neutral Citation: [2014] IESC 5
• Court: Supreme Court
• Docket Number: [S.C. No. 38 of 2013],[Appeal No. 166/2014]
• Date: 29 January 2015

BETWEEN:

P.O. AND S.O. (AN INFANT SUING BY HIS MOTHER AND NEXT FRIEND P.O.)

APPELLANTS

AND

THE MINISTER FOR JUSTICE & EQUALITY, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

[2014] IESC 5

[Appeal No. 166/2014]

THE SUPREME COURT

Immigration and asylum – Refugee status – Deportation – Appellant seeking refugee status due to fear of persecution – Whether there was a breach of fair procedures

Facts: The appellants, P.O. and S.O., are Nigerian nationals. P.O., arrived in Ireland with a false passport in 2006, one month before giving birth to S.O. She claimed to have left Nigeria because of fear of persecution. After S.O.’s birth, both appellants applied to the Refugee Applications Commissioner (RAC) for a recommendation that they should be granted refugee status. The application was refused and they initiated judicial review application in respect of the decision. Three years later, their case was discontinued. In May, 2012 they received a letter from the Minister for Justice indicating that he had decided to deport them. In February, 2013 the respondent affirmed the order and gave reasons for refusing to amend or revoke that order. The appellants were granted leave to apply for judicial review of the decision in April, 2013. The matter was heard by the High Court, which refused to make an order of certiorari quashing the Minister’s decision. This High Court decision was appealed to the Supreme Court. In lodging the appeal the appellants applied, by way of Notice of Motion, to the Supreme Court for an injunction restraining their deportation pending the appeal. The Supreme Court determined that the matter should be listed for further hearing in October, 2014. The respondents submitted that the appeal had nothing to do with EU law. The Supreme Court indicated that it would proceed only with the interlocutory application and not the substantive issue. The appellants contended that the Minister’s decision was in breach of fair procedures, the applicants’ right to be heard, and the principle of audi alteram partem.

Held by MacMenamin J that the only function of the Supreme Court in regard to an application for an interlocutory injunction, generally, was to consider the principles applicable to the grant of an interlocutory injunction. MacMenamin J noted that as matters evolved, the application for a reference was made, without any prior warning to the Court, in circumstances where, prima facie, the appropriate course of action would have been to deal with the interlocutory application and later address the application for a reference at the hearing of the substantive appeal; only then would it be possible to determine whether the point is necessary for the determination of the appeal. It was observed by MacMenamin J that a consequence of the appellants’ action was that in October, 2014 the respondents delivered written submissions, yet the appellants did not have an opportunity to comment on these or to make submissions , inter alia, in relation to the judgment of Case C-40/11 Lida v Stadt Ulm (Third Chamber, 8th November, 2012). No explanation as to why the issue of the reference was not raised before was given. MacMenamin J held that if unfairness had arisen it would not have been as a consequence of the respondents’ actions, nor the court’s procedure. The Court was presented with a highly unsatisfactory situation which, according to MacMenamin J, should not have arisen. The Court realised that counsel for the appellants, in engaging in an application on behalf of persons who have been living in Ireland for a significant period, will want to take such legal points as may properly arise, and are properly raised. MacMenamin J held that this must be done in a manner which is consistent with both the letter and the spirit of the Rules of the Superior Courts, procedural fairness, and which allows matters to be addressed in an orderly fashion.

MacMenamin J held that, as a matter of justice to both sides, the application for a reference would be heard only as part of the substantive appeal, rather than in the course of an interlocutory motion. In those exceptional circumstances, therefore, the Court directed that an expeditious appeal be heard and an early date be fixed. The Court would hear submissions as to the time limits for any ancillary matter arising. The Court emphasised that the matter would be dealt with on an urgent basis, in order to obviate any risk of any further delay.

Judgment approved.

Mr. Justice John MacMenamin

JUDGMENT of Mr. Justice John MacMenamin delivered the 29th day of January, 2015

1 This matter first came before the Court by way of a Friday motion heard on the 25th July, 2014.

2 The appellants are Nigerian nationals. S.O., a minor, was born on the 20th October, 2006 in Ireland. He has now been in Ireland for more than 8 years. S.O.’s mother, P.O., arrived in Ireland on the 11th September, 2006. This was just one month before S.O.’s birth. The mother claimed to have left Nigeria because of fear of persecution. She stated she had been helped out of the country by her husband. The husband, however, remained in Nigeria. P.O. came to Ireland with a false passport.

3 On the 26th September, 2006, that is, a fortnight after S.O.’s birth, both appellants applied to the Refugee Applications Commissioner (R.A.C.) for a recommendation that they should be granted refugee status. It is a regrettable commentary on the manner in which the asylum system operates that now, eight years later, there is still litigation pending as to their status.

4 The R.A.C. application brought on behalf of P.O. and S.O. was refused. They did not appeal to the Refugee Appeals Tribunal. Instead, they initiated judicial review application in respect of the R.A.C. decision. Three years later, their case was discontinued.

5 On the 20th January, 2010 the Minister for Justice sent the appellants what is known as a “three options” letter. Under s.3(6) of the Immigration Act, 1999, in determining whether or not to make a deportation order, the Minister may have regard to a series of criteria, including duration of residence in the State, family and domestic circumstances and connection with the State. The Minister must have regard to employment records and prospects, character and conduct,...