P.N.S. v The Minister for Justice

JurisdictionIreland
CourtSupreme Court
JudgeO'Donnell J.,McKechnie J.,Charleton J.
Judgment Date20 Apr 2020
Neutral Citation[2020] IESCDET 53
Docket NumberSupreme Court record no: S:AP:IE:2018:000130

[2020] IESCDET 53

THE SUPREME COURT

DETERMINATION

O'Donnell J.

McKechnie J.

Charleton J.

Supreme Court record no: S:AP:IE:2018:000130

High Court record no: 2017 No. 767 JR

BETWEEN
P.N.S.
APPLICANT
AND
THE MINISTER FOR JUSTICE AND EQUALITY
IRELAND

AND

THE ATTORNEY GENERAL
RESPONDENTS
APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.4° OF THE CONSTITUTION APPLIES

RESULT: The Court does not grant leave to the Applicant to appeal to this Court directly from the High Court.

REASONS GIVEN:

ORDER SOUGHT TO BE APPEALED

COURT: High Court
DATE OF JUDGMENT OR RULING: 16th July, 2018
DATE OF ORDER: 27th July, 2018
DATE OF PERFECTION OF ORDER: 27th July, 2018
THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 23rd August, 2018 AND WAS IN TIME.
Introduction
1

This determination relates to an application for leave to appeal a judgment of Humphreys J., delivered on the 16th July, 2018, in which he dismissed the judicial review proceedings of Mr. P.N.S., the applicant ( [2018] IEHC 504). The resulting order was made and perfected on the 27th July, 2018, following a refusal by the learned trial judge to grant the applicant a Certificate of Leave to Appeal to the Court of Appeal ( [2018 IEHC 508).

General Considerations
2

The jurisdiction of the Supreme Court to hear appeals is set out in the Constitution. What is sought in this application is what is colloquially known as a ‘leapfrog’ appeal directly from the High Court to the Supreme Court. The threshold for such an appeal is higher than that in respect of an appeal from the Court of Appeal. As is clear from the terms of Article 34.5.4° of the Constitution, it is necessary, in order for this Court to grant leave to appeal directly from a decision of the High Court, that the Court is satisfied that there are exceptional circumstances warranting a direct appeal, in addition to which is the presence of either or both of the following factors: i) that the decision sought to be appealed involves a matter of general public importance, or ii) the interests of justice.

3

The general principles applied by this Court in determining whether to grant or refuse leave to appeal having regard to the criteria incorporated into the Constitution as a result of the 33rd Amendment have now been considered in a large number of determinations and are fully addressed in both a determination issued by a panel consisting of all of the members of this Court in B.5. v Director of Public Prosecutions [2017] IESCDET 134 and in a unanimous judgment of a full Court delivered by O'Donnell J. in Price Waterhouse Coopers (A Firm) v Quinn Insurance Ltd. (Under Administration) [2017] IESC 73. The additional criteria required to be met in order that a so-called ‘leapfrog appeal’ direct from the High Court to this Court can be permitted were addressed by a full panel of the Court in Wansboro v Director of Public Prosecutions [2017] IESCDET 115. It follows that it is unnecessary to revisit the new constitutional architecture for the purposes of this determination.

4

4. It should be noted that any ruling in a determination is between the parties. It is final and conclusive as far as the parties are concerned and is a decision in relation to that application only. The issue determined on the application for leave is whether the facts and legal issues meet the constitutional criteria to enable this Court to hear an appeal. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, any issue canvassed in the application will in due course be disposed of in the substantive decision of the Court.

5

Furthermore, the application for leave filed and the respondents’ notice are published along with this determination (subject only to any redaction required by law) and it is therefore unnecessary to fully set out the position of the parties.

6

In that context it should be noted that the respondents do oppose the grant of leave. Neither party has requested an extension of time, however the applicant has requested that a preliminary reference be made to the Court of Justice of the European Union, pursuant to Article 267 TFEU.

Background and Procedural History
7

There is a matter of procedural importance to note before the background facts to this application can be explained. Mr. P.N.S.'s application for judicial review was heard in conjunction with that of Mr. K.J.M. in the High Court, due to the extremely similar issues raised by both of them. Both applications were dismissed by Humphreys J. ( [2018] IEHC 504) as were the follow-on applications for a Certificate of Leave to Appeal to the Court of Appeal ( [2018] IEHC 508). Both men then applied to this Court for leave to appeal the substantive decision of Humphreys J., Leave to appeal was granted to Mr. K.J.M., in a determination dated 30th October, 2018 ( [2018] IESCDET 159) and in a separate determination, the decision was made to defer consideration of Mr. P.N.S's application until such time as the appeal of Mr. K.J.M. had been heard and decided upon. That judgment has now been delivered ( K.J.M. v. Minister for Justice and Equality & anor [2020] IESC 11) ( “K.J.M.”): thus the application of Mr. P.N.S. can be properly determined.

8

The applicant was born in Cameroon in 1974, and having arrived in Ireland, he applied for asylum in 2006. He has had a lengthy history in the asylum and international protection system since then: his application for asylum was refused in November, 2009 and he then applied for subsidiary protection, which was also refused, on the 17th May, 2010. A deportation order was made in respect of him on the 8th June, 2010. Humphreys J. found that he then evaded the Garda National Immigration Bureau (GNIB) for a period of approximately seven years, during which time he also became the father of an Irish citizen child. He applied for permission to remain the State on the basis of this parentage, on the 8th September, 2016.

9

He then applied, on the 19th August, 2017, for permission to re-enter the international protection process, pursuant to s. 22 of the International Protection Act 2015 (“the 2015 Act”). The proceedings in the High Court were commenced on the 9th October, 2017 and shortly thereafter, a negative recommendation, pursuant to s. 22(5), was made by the International Protection Office, (“IPO”), on the 24th November, 2017. The applicant appealed the recommendation of the IPO to the International Protection Appeals Tribunal (“IPAT”) and received a negative decision in respect of his appeal on the 23rd April, 2018. Following this, the next step in the legislative scheme was a final decision from the Minister pursuant to s.22(15), refusing consent to re-enter the international protection process, which the applicant awaited.

Judgment of the High Court
10

What was sought before the High Court was a variety of injunctive and declaratory reliefs, which centred around an asserted right to remain in the State pending a “decision” of the Minister under s. 22(15) of the 2015 Act, refusing consent to re-enter the international protection process, if that be his decision. 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 Directive”) provides for a right to remain under Article 7(1), pending the making of a “first-instance decision” by a “determining authority”, the definition of which appears in Article 2(e). This right exists for first time applications as well as subsequent applications, the latter being the category which a s. 22 application would fall into.

11

Humphreys J. held however, that when making a subsequent application, an applicant's right to remain under the Directive ceased...

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