S.T.E. v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 14 October 2016
• Neutral Citation: [2016] IEHC 544
• Court: High Court
• Docket Number: [2015 No. 188 J.R.]
• Date: 14 October 2016

[2016] IEHC 544

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2015 No. 188 J.R.]

BETWEEN

S.T.E., A.A.

AND

Z.N.T. (A MINOR SUING BY HIS FATHER AND NEXT FRIEND S.T.E.)

APPLICANT

AND

MINISTER FOR JUSTICE AND EQUALITY

AND

THE ATTORNEY GENERAL

RESPONDENTS

(No. 2)

Asylum, Immigration & Nationality – S. 5 of the Illegal Immigrants (Trafficking) Act 2000 – Leave to appeal to the Court of Appeal – Revocation of deportation – Family – Holistic view – Exceptional public importance

Facts: Following the grant of an order of certiorari for quashing the decision of the first named respondent refusing to revoke a deportation order made against the first named applicant, the first named respondent/Minister now applied for leave to appeal to the Court of Appeal under s. 5 of the Illegal Immigrants (Trafficking) Act 2000. The essence of the question raised by the respondents was whether the Minster was required to take a holistic view of the family and not to direct one member to leave while permitting the other to remain in State without compelling justification on an application for revocation of deportation made by a member of a family having no entitlement to be in the state.

Mr. Justice Richard Humphreys granted leave to appeal to the Court of Appeal under s. 5 of the 2000 Act to the respondents. The Court held that the question raised by the respondents was of exceptional public importance and it was in the interest of the justice that the question be brought to the Court of Appeal. The Court while referring the similar issue raised in K.R.A. and anor. v. The Minister for Justice and Equality [2016] IEHC 289 held that it was in the interest of the larger public that the Court of Appeal should decide the issue pertaining to the extent to which the position of the family members should be considered collectively in discretionary immigration cases.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 3rd day of October, 2016

1 In the substantive judgment in this case, S.T.E. v. Minister for Justice and Equality (No. 1) [2016] IEHC 379, I granted an order of certiorari quashing a decision of the Minister refusing to revoke a deportation order against the first named applicant. The Minister now applies for leave to appeal subject to s. 5 of the Illegal Immigrants (Trafficking) Act 2000. In considering this application, I have had full regard to the caselaw on leave to appeal, including as set out in Glancré Teo v. An Bord Pleanála [2004] 3 I.R. 401 (MacMenamin J.); Kenny v. An Bord Pleanala (No. 2) [2001] 1 I.R. 704 (McKechnie J.) and U. (M.A.) v. Minister for Justice, Equality and Law Reform (No. 3) [2011] IEHC 59 at para. 6.

2 The respondents, somewhat confusingly, set out two alternative versions of the questions of law which they say ought to be certified. The primary formulation of the proposed question is ‘ what criteria in law govern the consideration by the respondent of an application for the revocation of a deportation order made by a person whose immediately family members have already been granted permission to remain in the State prior to the application for revocation being made and where the relevant family relationship is founded at a time when none of the family members concerned had a legal entitlement to reside in the State’.

3 However, further in their legal submissions they set out a series of seven additional issues that arise from the judgment, although these are not stated as being points of law of exceptional public importance such that it is in the public interest that an appeal be brought to the Court of Appeal.

4 In my view, the question as formulated does not comply with the requirements of s. 5 of the 2000 Act because it is insufficiently specific. A question that invites the court to set out, on an almost abstract basis, the criteria at law governing the consideration of an application for a revocation in particular circumstances it seems to me to lack the specificity that is required by virtue of the principle that the question of law must arise from the judgment itself. It effectively, and inappropriately, invites an appellate court to ‘write an essay’ on the subject rather than to answer a focused, precise, question of law. This objection is even stronger in relation to the further list of seven issues identified, which Mr. Mark de Blacam S.C., for the applicant, describes as being ‘ in the nature of “quiz” questions about cases which are similar, but not identical, to that of the applicants’.

5 In particular, it is of some concern that the question identified fails to come to grips with the essential feature of the present case, which was that the Minister selected between two equally precarious applicants who constituted a family (albeit not based on marriage) by giving one permission to stay and requiring the other to leave. The fact that the family (to use the term in its European and demotic, rather than its traditionally and restrictively Irish, sense) was formed at a time when neither parent had a legal entitlement to reside in the State is an important part of the context but is not a full description of the issue.

6 Mr. David Conlan Smyth S.C. for the respondents submits that there are practical problems in interpreting and applying the judgment, of which, perhaps, the most practical is that raised in his first issue (at para. 19(a) of the written legal...