O (S) and O (O) v Minister for Justice, Equality and Law Reform

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 28 October 2010
• Neutral Citation: [2010] IEHC 374
• Date: 28 October 2010
• Court: High Court

[2010] IEHC 374

HIGH COURT

[No. 93 J.R./2010]

O (S) & Ors v Min for Justice (No 2)

JUDICIAL REVIEW

MR JUSTICE COOKE

APPROVED TEXT

BETWEEN

S.O. & O. O. AND 5 MINORS (No.2)

APPLICANTS

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(3)(A)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)(B)

R (I) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP COOKE 26.11.2009 2009 IEHC 510

MEADOWS v MIN FOR JUSTICE & ORS UNREP SUPREME 21.1.2010 2010 IESC 3

RYANAIR LTD v FLYNN & MCAULEY 2000 3 IR 240 2001 1 ILRM 283 2000 ELR 161 1999/22/7306

T (AM) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE 2004 2 IR 607 2004/49/11175 2004 IEHC 219

MCNAMARA v BORD PLEANALA (NO 1) 1995 2 ILRM 125

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

PRACTICE & PROCEDURE

Appeal

Certificate to appeal - Point of law - Exceptional public importance - Public interest - Judicial review - Material error - Substantial grounds - Whether point of law of exceptional public importance rendering appeal desirable in public interest- Whether permissible for court to determine error not material at leave stage - R(I) v Minister for Justice, Equality and Law Reform [2009] IEHC 510 (Unrep, Cooke J, 26/11/2009) and Ryanair Ltd v Flynn [2000] 3 IR 240 followed; Meadows v Minister for Justice, Equality and Law Reform [2010] IESC 3 (Unrep, Sc, 21/1/2010)and T(AM) v RAT [2004] 2 IR 607 considered - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5(3)(a) - Certificate refused (2010/93JR - Cooke J - 28/10/2010) [2010] IEHC 374

O (S) v Minister for Justice, Equality and Law Reform

Facts: The first named applicant sought leave for judicial review of a deportation order and an injunction was sought to restrain implementation of the order. The application was decided on by Cooke J on 1 October 2010 where he refused the application as well as the application for an injunction.

The background was that the applicant was from Nigeria and was married to the second named applicant, a native of South Africa and they had five children, the three eldest being Irish citizens. The first named applicant had changed his legal representative teams on a number of occasions. The File Note associated with the Deportation Order indicate inter alia public policy concerns as to the first named applicant and poor employment prospects as well as issues relating to his relationship with his wife. He alleged that the Minister had failed to have regard to the differing countries from which the husband and wife came from and the impact of deportation on the children. He alleged inter alia that the determinations of the Minister were false and incorrectly determined, that there was no public policy issue arising to warrant the termination of his residency and that the Minister had breached the European Convention on Human Rights Act 2003.

On the application before the court on the second occasion the applicants sought for a certificate for leave to appeal under by Cooke J. on 28 October 2010 section 5 (3) of the Illegal Immigrants (trafficking) Act, 2000. The applicant grounded its fresh application on points of law on the interruption the tribunal made on "substantial grounds" and whether the tribunal was correct in law in construing the term "substantial grounds" as used in the 2000 Act.

Held by Cooke J in refusing the application the points of law could not be interrupted as of public importance yet alone of exceptional importance.

Reporter: BD

1 JUDGMENT of Mr. Justice Cooke delivered the 28th day of October, 2010.

2 1. This Court having given its judgment in this case on 1 ^st October, 2010, the applicants now apply under s. 5 (3) (a) of the Illegal Immigrants (Trafficking) Act for a certificate of leave to appeal.

3 2. The Court has therefore been exposed to the inevitable discomfort of having its own judgment analysed and explained to it as having two diametrically opposed effects. Counsel for the applicant, Mr. Kelly, generously emphasised the importance and thoughtfulness of the judgment while diplomatically explaining that it was in the public interest to have it overturned on appeal Mr. O'Reilly, on the other hand, on behalf of the respondent, acknowledged the soundness and correctness of the judgment while necessarily suggesting that it was so devoid of controversy or innovation as to be deprived of any need for reconsideration on appeal in the public interest.

4 3. When the application was first before the Court Counsel for the applicant put forward a number of proposed points of law or grounds for the appeal certificate. With a view to concentrating the argument before the Court, the Court modified those proposals and the two grounds which it put forward were accepted as the basis for proceeding with the argument and were as follows:

5 (i) Where it is established or conceded that the respondent decision maker has erred in a matter of fact in the course of making an assessment which requires the balancing or proportionality of opposing interests, is it permissible at the leave stage or at any other...