P.N.S. and anor v The Minister for Justice & Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice William M. McKechnie
• Judgment Date: 31 March 2020
• Neutral Citation: [2020] IESC 11
• Date: 31 March 2020
• Court: Supreme Court
• Docket Number: Supreme Court Record No: S:AP:IE:2018:000118

BETWEEN

P.N.S (CAMEROON)

Applicant/Appellant

AND

THE MINISTER FOR JUSTICE & EQUALITY,

IRELAND

AND

THE ATTORNEY GENERAL

Respondents

AND

BETWEEN

K.J.M. (D.R. CONGO)

Applicant/Appellant

AND

THE MINISTER FOR JUSTICE & EQUALITY,

IRELAND

AND

THE ATTORNEY GENERAL

Respondents

[2020] IESC 11

O'Donnell J.

McKechnie J.

O'Donnell J.

Dunne J.

Charleton J.

Supreme Court Record No: S:AP:IE:2018:000118

High Court Record No: 2018/469 JR

THE SUPREME COURT

International protection – Right to remain in the State – Deportation – Appellant seeking judicial review – Whether the court has jurisdiction to dismiss an application for judicial review under the International Protection Act 2015 for abusive conduct

Facts: The appellant, in the second action listed, brought an application for judicial review in the High Court seeking various declarations as to his legal position in the State, pending a “decision...at first instance”, made by the first respondent, the Minister for Justice and Equality, on his request for consent to re-enter, for a second time, the international protection process, pursuant to s. 22 of the International Protection Act 2015. He asserted a right to remain in the State until such decision had been made and further, he also sought an injunction preventing his removal pending that decision. Humphreys J, in a judgment delivered on the 16th July, 2018, dismissed the proceedings and ordered that the injunction which he had previously granted, be discharged. The legal issue arising involved a consideration of certain provisions of the 2015 Act, as well as ‘Council Directive 2005/85/EC of 1st December, 2005, on Minimum Standards on Procedures in Member States for the Granting and Withdrawing of Refugee Status’. The judge also refused, in a later judgment dated the 27th July, 2018, to grant a Certificate of Leave to Appeal his decision to the Court of Appeal. By a Determination dated the 30th October, 2018, a further appeal to the Supreme Court was permitted. Leave was granted to appeal on the following grounds: (i) the trial judge erred in holding that “the entitlement to remain in the State pending refusal of a s. 22 application does not apply after an [international protection officer (IPO)] recommendation has been made”; (ii) the trial judge erred in finding that “given the automatic nature of the Minister’s approval of the recommendation under s. 22, the protection view [sic] is in substance, a decision”; (iii) the trial judge erred in departing from the literal meaning of a “recommendation” in circumstances where the designation of the function of the IPO as the making of a recommendation was not absurd nor did it fail to reflect the plain intention of the Oireachtas, as gleaned from the 2015 Act as a whole; (iv) the trial judge erred in holding that the appellant’s plenary proceedings were governed by s. 5 of the 2000 Act; (v) the trial judge erred in refusing an injunction; (vi) the trial judge erred in indicating that he would refuse relief on discretionary grounds. These grounds were structured into raising three issues: (i) Do these proceedings amount, in substance, to a collateral attack on the validity of the deportation order, with the result that they are captured by s. 5 of the 2000 Act and subject to its procedural requirements? (ii) Can a recommendation made by the IPO under s. 22 be regarded as a “decision at first instance”, within the meaning of Article 2(e) and for the purposes of Article 7(1) of the Directive? (iii) In circumstances where the appellant has asserted a right to remain in the State under and by virtue of EU law, in what circumstances is a court seized of judicial review proceedings entitled to refuse relief on a discretionary basis?

Held by McKechnie J that: (i) the first issue did not strictly arise in this appeal; (ii) the right to remain ceases once the IPO has made a recommendation under s. 22(5) of the 2015 Act; and (iii) the court has jurisdiction to dismiss an application for judicial review under the 2015 Act for abusive conduct but the same must be exercised sparingly and only where that conduct can be considered serious and significant in the context of the system as a whole.

McKechnie J held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 31 ^st day of March, 2020

Introduction:

1 The appellant, Mr. K.J.M. in the second action listed (para. 9 below), brought an application for judicial review in the High Court seeking various declarations as to his legal position in the State, pending a “decision … at first instance,” made by the first named respondent on his request for consent to re-enter, for a second time, the international protection process, pursuant to s. 22 of the International Protection Act 2015 (“the 2015 Act”). In essence, he asserts a right to remain in this State until such decision has been made and further, he also seeks an injunction preventing his removal pending that decision. Humphreys J., in a judgment delivered on the 16 ^th July, 2018, dismissed the proceedings and ordered that the injunction which he had previously granted, be discharged. The factual circumstances which gave rise to this decision will be explained in further detail in a moment. The legal issue arising involves a consideration of certain provisions of the 2015 Act, as well as ‘ Council Directive 2005/85/EC of 1 ^st December, 2005, on Minimum Standards on Procedures in Member States for the Granting and Withdrawing of Refugee Status’ (“the Procedures Directive” or “the Directive”). The learned judge also refused, in a later judgment dated the 27 ^th of July, 2018, to grant a Certificate of Leave to Appeal his decision to the Court of Appeal. By a Determination dated the 30 ^th October, 2018 ( [2018] IESCDET 159), a further appeal to this Court was permitted.

Factual Background

2 The appellant was born in the Democratic Republic of Congo (“DRC”) in 1972. He travelled from South Africa to the Netherlands in 2005, having deserted from the Congolese Defence Forces. He made two asylum applications there, based on an asserted fear of persecution due to his desertion, one on the 24 ^th January, 2005 and another on the 10 ^th February, 2005, both of which were rejected. The immigration authorities in that country attempted to have him removed on the 27 ^th April, 2005: however he resisted such attempts, with the result that his removal did not take place until the 17 ^th May, 2005. He was sent to Cape Town in South Africa, because it was there whence he had travelled to the Netherlands. Upon returning to South Africa, he successfully applied for asylum and was granted a permit which allowed him to stay for two years: however, he used a false name in the course of that application. The permit expired in 2010 and he did not apply to have it renewed.

3 It appears, based on the documents exhibited by Mr. K.J.M., in his affidavit of the 8 ^th June, 2018, that he returned to the DRC at some point between the expiry date of his South African permit and May 2011, which is when he arrived in Ireland. In this jurisdiction he applied for asylum on the 31 ^st May, 2011 to the Office of the Refugee Applications Commissioner (“ORAC”). As part of his application he falsely stated that he had previously been returned to the Congo, whereas in fact it was to South Africa. On the 9 ^th June, 2011, the Irish authorities requested the Netherlands to take the appellant back: this was refused. K.J.M.'s asylum claim was rejected by ORAC on the 12 ^th September, 2011, a decision which he appealed: however the appeal was also rejected by the Refugee Appeals Tribunal on the 12 ^th December, 2011. He then sought judicial review of this decision on the 23 ^rd January, 2012 ( K.J.M. v Minister for Justice and Equality 2012 No. 45 JR); however, this was struck out with no order on the 15 ^th December, 2014.

4 While those applications and proceedings were in being, the appellant, having once more travelled to the Netherlands, was again refused entry into that country on the 31 ^st January, 2013: however, he proceeded to make a further application for asylum there. During his subsequent period of detention, the Dutch authorities sent a “take-back” request to Ireland under Article 16(1)(c) of the Dublin II Regulation, which was acceded to and the appellant thereafter re-entered the State. Mr. K.J.M. then applied for subsidiary protection on the 5 ^th May, 2015, which was refused on the 20 ^th September, 2016, with an appeal from that decision being withdrawn on the 17 ^th October, 2016. He had by then a partner, a Ms. C.M. and two children with that partner: all three were granted Stamp 4 residency here as of the 25 ^th August, 2016, having been in the asylum application system for 5 years.

5 In accordance with s. 3(3)(a) of the Immigration Act 1999 (“the 1999 Act”), the appellant was notified of a proposal to make a deportation order in respect of him, to which he responded by way of written submissions on the 5 ^th December, 2016. On the 13 ^th January, 2017, a deportation order was made under s. 3(1) of that Act. He applied to revoke this order in August of that year, under s.3(11) of 1999 Act; an application which remained outstanding at the time of the first High Court judgment. On the 10 ^th October, 2017 he took steps to be readmitted to the protection process by making an application for the Minister's consent to that end, as required under s. 22 of the 2015 Act. On the 26 ^th October, 2017, a letter issued notifying him that a recommendation had been made to the Minister by the international protection officer (or “IPO”) that this request be denied. It is this recommendation and its legal consequences which are, amongst other matters, the subject of these proceedings. Attached to the letter was the report of the IPO who had carried out the preliminary examination of Mr. K.J.M.'s application. He...