P.N.S. (Cameroon) v The Minister for Justice and Equality ; K.J.M. (D.R Congo) v The Minster for Justice and Equality (No. 2)

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 27 July 2018
• Neutral Citation: [2018] IEHC 508
• Date: 27 July 2018
• Court: High Court
• Docket Number: [2018 No. 469 J.R.] [2017 No. 767 J.R.]

[2018] IEHC 508

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2018 No. 469 J.R.]

[2017 No. 767 J.R.]

BETWEEN

P.N.S. (CAMEROON)

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

BETWEEN

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

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

(No. 2)

Immigration and asylum – Right to remain in the State – Application for international protection – Applicants seeking a right to remain in the State – Whether the right claimed exists

Facts: Humphreys J, in P.N.S. (Cameroon) v Minister for Justice and Equality and K.J.M. v Minister for Justice and Equality (No. 1) (Unreported, High Court, 16th July, 2018), delivered a composite judgment covering both of these cases and dealing with the principal issue of whether an alleged entitlement to remain in the state after an IPO recommendation refusing to readmit an applicant to the protection process but before the finalisation of an IPAT appeal and ministerial decision can be said to exist. In seeking leave to appeal, P.N.S. offered twelve points of alleged exceptional public importance. However, at around the same time that the No. 1 judgment was being given, the applicant was given permission to remain in the State on the basis of parentage of an Irish born child and the deportation order was accordingly revoked. K.J.M. claimed that he did not need leave to appeal because he was only questioning the enforceability rather than the validity of the deportation order, a distinction rejected in B.S.S. v Minister for Justice and Equality [2017] IECA 235. The applicant's proposed questions were: 1) whether the IPO recommendation is to be regarded as a first instance decision; 2) whether the general EU law doctrine of abuse of rights allows refusal of relief without the court having up-to-date country information; 3) that Humphreys J previously held that a non- abusive first reapplication for protection confers a right to remain for the duration of the first instance procedure; 4) whether a court can refuse relief on a discretionary basis in an EU law case; 5) whether EU law requires an appeal against a summary rejection of a reapplication to have suspensive effect. K.J.M renewed the request for a CJEU reference arguing that if Humphreys J refused leave to appeal there was an obligation to make a reference.

Held by Humphreys J that the P.N.S. case as it ran was exclusively concerned with deportation; as deportation no longer arose the case was moot and no purpose would be served by allowing leave to appeal. Humphreys J held that it was clear that leave to appeal was required in K.J.M. so he considered the applicant's proposed questions. Humphreys J held that: 1) the points on the right to remain did not arise by virtue of the EU doctrine of abuse of rights; 2) this argument was not made in that form at the hearing so it could not be a matter for leave to appeal; 3) an applicant would only have standing to seek declaratory relief in relation to this point if threatened with removal pending the IPO recommendation; 4) this question ignores the general principle of EU law of national procedural autonomy; 5) this question has already been clarified in the negative by the CJEU (Case C-239/14 Tall v Centre Public D'Action Sociale de Huy ECLI:EU:C:2015:824. Humphreys J held that the fact that an application for leave to appeal raises an EU law point does not create an obligation on either the High Court or the Supreme Court to either grant leave to appeal or to make such a reference if the normal criteria for a reference suggests that the point should not be referred.

Humphreys J held that he would refuse leave to appeal in both cases and would refuse the renewed application for a reference to the CJEU under Article 267 of the TFEU

Leave to appeal refused.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 27th day of July, 2018

1 In P.N.S. (Cameroon) v. Minister for Justice and Equality and K.J.M. v. Minister for Justice and Equality (No. 1) (Unreported, High Court, 16th July, 2018) I delivered a composite judgment covering both of these cases and dealing with the principal issue of whether an alleged entitlement to remain in the state after an IPO recommendation refusing to readmit an applicant to the protection process but before the finalisation of an IPAT appeal and ministerial decision can be said to exist.

2 I have considered the caselaw in relation to leave to appeal as set out in Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250 (Unreported, MacMenamin J., 13th November, 2006), Arklow Holidays v. An Bord Pleanála [2008] IEHC 2, per Clarke J. (as he then was), S.A. v. Minister for Justice and Equality (No. 2) [2016] IEHC 646 [2016] 11 JIC 1404 (Unreported, High Court, 14th November, 2016) para. 2, Y.Y. v. Minister for Justice and Equality (No. 2) [2017] IEHC 185 [2017] 3 JIC 2405 (Unreported, High Court, 24th March, 2017) at para. 72 and I.R. v. Minister for Justice, Equality and Law Reform [2009] IEHC 510 [2015] 4 I.R. 14.

Application for leave to appeal in P.N.S.

3 In seeking leave to appeal, Mr. Paul O'Shea B.L. offers a florid set of twelve points of alleged exceptional public importance. However, at around the same time that the No. 1 judgment was being given, the applicant was given permission to remain in the State on the basis of parentage of an Irish born child and the deportation order was accordingly revoked. A letter to that effect was sent on 6th July, 2018 and arrived on 10th July, 2018, but the applicant's lawyers were not aware of it on the date on which the No. 1 judgment was given (16th July, 2018). The P.N.S. case as it ran was exclusively concerned with deportation: see para. 21 of the No. 1 judgment. Deportation no longer arises. Therefore the case is moot and no purpose would be served by allowing leave to appeal. Mr. O'Shea argues that mootness is irrelevant to leave to appeal. But it is not irrelevant. The courts system at all levels is significantly over-burdened and I would not be serving litigants in live cases if I added further to the workload of the Court of Appeal in relation to an entirely moot case. Mr. O'Shea submitted that it would be ' unjust' to deprive him of an appeal because he would not be able to challenge in the Court of Appeal any costs order made against him in this court. Unfortunately, the certification system upheld by the Supreme Court in In Re Illegal Immigrants (Trafficking) Bill 1999 [2000] IESC 19 [2000] 2 I.R. 360 means that there will be some cases where an appeal to the Court of Appeal may not lie. Being unable to appeal costs is not a basis for allowing leave to appeal on the substantive issue because that would apply to any applicant. That is also consistent with the principle that leave to appeal is required for a costs order in certificate cases: see Browne v. Kerry County Council (Unreported, Supreme Court, ex tempore, 25th March, 2014) and Rowan v. Kerry County Council [2015] IESC 99 (Unreported, Supreme Court, 18th December, 2015). Thus a moot case cannot normally (and certainly not here) be certified, as it is not in the public interest to prolong such moot proceedings further.

Whether leave to appeal is required in K.J.M.

4 Ms. Rosario Boyle S.C. claims that she does not need leave to appeal because she is only questioning the enforceability rather than the validity of the deportation order. Hogan J. rejected this distinction in B.S.S. v. Minister for Justice and Equality [2017] IECA 235 (Unreported, Court of Appeal, 31st July, 2017), holding that ' a challenge to its enforcement implies a questioning of the validity of that order within the meaning of...