S.A.A.E. v Minister for Justice and Equality (No. 3)

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 20 March 2017
• Neutral Citation: [2017] IEHC 335
• Docket Number: [2016 No. 777 JR]
• Court: High Court
• Date: 20 March 2017

[2017] IEHC 335

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2016 No. 777 JR]

BETWEEN

S.A.A.E.

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

(No. 3)

Asylum, Immigration & Nationality – S. 6(1) of the Immigration Act, 1999 as amended – Leave to appeal to the Court of Appeal – Points of law of exceptional public importance

Facts: The applicant sought leave to appeal to the Court of Appeal in relation to a question. The question formulated by the applicant for certification related to the power of the Minister to preclude from making a deportation order against the applicant who failed to furnish an address of service.

Mr. Justice Richard Humphreys refused to grant leave to the applicant. The Court held that the question formulated by the applicant had adequately been dealt in prior decision of the High Court and there was no legal uncertainty in that regard. The Court noted that the issue raised by the applicant was not a point of law of exceptional public importance.

EX TEMPORE JUDGMENT of Mr. Justice Richard Humphreys delivered on the 20th day of March, 2017

1 In S.A.A.E. v. The Minister for Justice and Equality (No. 1) [2016] IEHC 573 I refused the applicant's application for leave to apply for judicial review. Mr. Conor Power S.C. for the applicant sought leave to appeal in relation to two questions which he has identified in written submissions. One of those questions was the subject of a judgment in S.A.A.E. v. The Minister for Justice and Equality (No. 2) [2017] IEHC 72, where I refused leave to appeal on that issue. I am now dealing with the other question, and I have heard from Mr. Power and from Mr. Dermot Manning B.L. for the respondent.

2 The question to which this application relates is: where an applicant fails to furnish an address at which he can be served, is the Minister thereby precluded from proceeding to make a deportation order against him? I have had regard to the law in relation to leave to appeal as set out in Glancré v. An Bord Pleanala [2006] IEHC 250 and S.A. v. The Minister for Justice & Equality (No. 2) [2016] IEHC 646.

Principles applying to leave to appeal from a leave refusal

3 The general approach in relation to a leave application must be that if there is a point of substance in an application then in the absence of other reason such as the discretion of the court, leave would be granted. Thus refusal of leave means either that there is no point of substance, or alternatively for discretionary or other reasons it is appropriate to refuse leave to apply; or possibly both - and in this case both applied.

4 4. I considered firstly that the law does not require the court to paralyse the Minister from dealing with persons who abuse the system by failing to furnish an address and secondly, in any event, I would refuse the application for discretionary reasons. In Kenny v. An Bord Pleanála (No. 2) [2001] 1 I.R. 704 McKechnie J. said ‘ I ask how logically can it then be said, that within the same decision, one can have, on the one hand, a failure to establish substantial grounds and yet, on the other, on the same material, whether this be fact, inference or law, have a point of law of exceptional public importance?’ and he went on to say ‘I have in the circumstance some trouble in seeing how at the same time, leave can be refused and yet certification follow.’

5 It seems to me the situation is that while a certificate permitting leave to appeal a leave refusal is clearly not impossible, there would only be very limited circumstances in which it could arise. Mr. Power naturally enough relies on Meadows v. Minister for Justice Equality and Law Reform [2010] 2 I.R. 701 as one example and makes the point that the statute has been amended since the Kenny decision and continues to allow a jurisdiction for appeal against a leave refusal. While that is the case, the Meadows decision does not detract from the general point made by McKechnie J. and which I have set out above, that realistically it is only in very limited circumstances that refusal of leave to apply for judicial review could form the basis of a successful application for a leave to appeal.

6 I turn then to the two issues that need to be established: a point of law of exceptional public importance, and that it is in the public interest that there will be an appeal to the Court of Appeal.

The alleged point of exceptional public importance

7 The issue here is the interpretation of s. 6(1) of the Immigration Act, 1999 as amended by the Illegal Immigrants (Trafficking) Act, 2000. Mr. Power relies on the Supreme Court decision in A.B. v. The Governor of the Training Unit [2002] IESC 16. That is a decision that is...