Rughoonauth v Minister for Justice and Equality
 IEHC 241
THE HIGH COURT
[2016 No. 668 J.R.]
Asylum, Immigration & Nationality – Refusal of leave to seek judicial review of deportation orders – Review of original decision – Exceptional circumstances
Facts: Following the refusal of the High Court to grant leave to seek judicial review of the deportation orders passed by the respondent against the applicants, the applicants now sought a relief thereby asking the Court to revisit the original decision. The applicants submitted that subsequent decisions of the Court of Appeal in and represented the correct position that the students' art. 8 under the ECHR must be subjected to proportionality assessment and therefore, the present Court should review its original decision. The applicants also asserted that in the light of the judgment of the High Court dated February 23, 2017 in , wherein it was held that the students were settled migrants, the present Court should revisit its original decision. The respondent submitted that the Court did not have any jurisdiction to revisit the judgment passed by it.
Mr. Justice Richard Humphreys refused the applicants' application. The Court held that it possessed the jurisdiction to review its decision before the perfection of the order in exceptional cases such as clarification, development or change of any law for the time being in force by any higher appellate authority. The Court held that the applicants had failed to show any error of law in the original decision by making reference to judgments in . The Court held that the applicants' rights under art. 8 were considered in detail by the respondent, which was what had stated in effect. The Court held that the ratio of the decision of the Court in was not contrary to the ruling of the present Court in its original decision. The Court held that the part of judgment in to the effect of placing lawful migrants with settled migrants was not appropriate. The Court reiterated its position that the students were not settled migrants.
In (No. 1) (Unreported, High Court, 14th December 2016) I refused leave to the applicants to seek judicial review of deportation orders. Mr. Ian Whelan B.L. now seeks relief on behalf of the applicants by way of an unusual application to revisit the original decision, the order not having yet been perfected, having regard to subsequent decisions of the Court of Appeal in The Minister for Justice and Equality and The Minister for Justice and Equality as well as the decision in The Minister for Justice and Equality (Unreported, High Court, O'Regan J., 23rd February, 2017).
Mr. Whelan submits that my decision in (No. 1) is incorrect and needs to be revisited in the light of that subsequent jurisprudence. I have also heard from Mr. David Conlan Smyth S.C. (with Mr. Alexander Caffrey B.L.) for the respondent. I refused the application ex tempore on 3rd April, 2017 and now set out more formal reasons for having done so.
The first issue is jurisdiction to make the order sought. The application arises in circumstances where the order has not been perfected. The question is whether I can reopen the judgment. The respondent submits that I do not have such jurisdiction, and that the appropriate course is simply for the order refusing leave to be perfected and for the applicant to seek leave to appeal. On a first principles basis it seems more convenient and more deferential to the appellate courts to take the view that the jurisdiction to review a decision before perfection of the order, illustrated by , is wide enough to cover this sort of application because otherwise, in this type of situation, one would be required (assuming that there was merit in the point) to refuse the application and to require the matter to go on appeal for the decision to be set aside and for the matter to be potentially reheard either on appeal or by way of remittal. That does not seem a terribly convenient procedure, and seems to add to rather than diminish the workload of the appellate courts. Thus all other things being equal I would be inclined to view the jurisdiction to review a decision before perfection of the order as wide enough to encompass the sort of application being made here, so that a ruling can be revisited if there is a submission that the law has been clarified, developed or changed by reason of an appellate decision shortly after a High Court ruling was orally pronounced but before the order was perfected. Such an approach does not open the floodgates for any and every decision to be potentially open for reargument after it is handed down. The default position remains that the normally-appropriate course is for an adverse decision to be appealed. Here there are unusual circumstances namely a submission that there is what is alleged to be a conflicting appellate authority that has come into being shortly following the decision but before perfection of the order. (Of course on one view of legal theory, court decisions do not ‘change’ the law but simply declare what it always has been, but that is perhaps best viewed as something of a legal fiction which need not concern us further here or perhaps at all.) I also emphasise that taking the view that I have jurisdiction to consider the argument that the law has developed in a material way is not to be viewed as equivalent to accepting the argument that such a development has in fact occurred, a matter to which we will now turn.
The next question is whether the Court of Appeal decisions in and mean that the rights under art. 8 of the ECHR enjoyed by those possessing student permissions must be subject to a proportionality assessment. The applicants' case is that there are substantial grounds to contend that they are settled migrants. Reliance is placed on paras. 25 and 26 of and on which state that it is not the case that persons who are residing under an express permission, such as students, do not have a right to a private life such that the Minister is not obliged to consider whether the consequences of interference with that right are of such gravity that art. 8 is engaged.
In this case the Minister did consider the art. 8 rights of the applicants and did consider the question of whether any interference with those rights was such as to produce consequences of such gravity that art. 8 was engaged. That makes the present case fundamentally different from and where the rights were not considered at all. So if one looks at the decisions in this case, taking the first named applicant as illustrative, the Minister sets out the test in (consistent with the analysis of Finlay Geoghegan J. in and ). Then the Minister accepts that if a deportation order is made ‘this has the potential to be an interference with the applicant's right to respect for private life within the meaning of art. 8 of the ECHR’. The Minister then notes that the private life of the applicant in the State was formed at a time when his permission to remain was renewable and therefore precarious, or when such permission had expired, and it is also noted that the Minister was not obliged to respect the choice of place of residence of the applicant. Finally the analysis concluded that having weighed and considered the facts of the case it was not accepted that any such potential interference would have consequences of such gravity as potentially to engage the operation of art. 8. As a result, the decision to deport the applicant did not constitute a breach of the right to respect for private life under the ECHR. A similar reason process was adopted for the second named applicant.
It is true that the Minister's decision in this case did make reference to my decision in which was reversed on this point (and, separately, upheld on the issue of whether there is a need for published guidelines) by the Court of Appeal, but the Minister's decision is not invalid on that ground alone. I had said that the art. 8 rights of precarious individuals were minimal to non–existent. The Court of Appeal did not see matters that way; but even taking that fully into account, in the present case the applicant's art. 8 rights were clearly considered. Rather than stating that non-settled migrants had minimal art. 8 rights, it would have been more appropriate to say that only in exceptional circumstances will the removal of non-settled migrants contravene art. 8. The two propositions are certainly theoretically distinct, as the Court of Appeal in effect stressed, although the practical outcomes are functionally similar, with the qualification that the Minister should consider such art. 8 rights as the non-settled migrant may have. The Razgar test clearly envisages that not every interference with private life amounts to an interference that requires justification under art. 8(2).
Mr. Whelan submits that the comments at paras. 27 and 28 of ... have the effect that a person who is lawfully present during a particular
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