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

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMr. Justice McGovern
Judgment Date18 December 2019
Neutral Citation[2019] IECA 332
Docket NumberRecord No. 2017/000470
Date18 December 2019

[2019] IECA 332

THE COURT OF APPEAL

CIVIL

Whelan J.

McGovern J.

Baker J.

Record No. 2017/000470

BETWEEN/
S.T.E., A.A. AND Z.N.T. (A MINOR SUING BY HIS FATHER AND NEXT FRIEND S.T.E.)
RESPONDENTS
- AND -
THE MINISTER FOR JUSTICE AND EQUALITY, ATTORNEY GENERAL

AND

IRELAND
APPELLANTS

Deportation – Revocation – Order of certiorari – Appellants seeking to appeal from the High Court order granting an order of certiorari quashing the first appellant’s decision refusing to revoke the deportation order made in respect of the first respondent – What matters must the appellants take into account when considering an application for revocation of a deportation order in respect of an applicant where his partner and their child have permission to reside within the State

Facts: The appellants, the Minister for Justice and Equality, the Attorney General and Ireland, appealed to the Court of Appeal from the Order of Humphreys J made on 3 October 2016 following delivery of written judgment on 24 June 2016, [2016] IEHC 379, in which he granted an order of certiorari quashing the first appellant’s decision of 23 February 2015 refusing to revoke the deportation order made in respect of the first respondent. The High Court judge also ordered that the first respondent’s application pursuant to s. 3(11) of the Immigration Act 1999 be remitted to the first appellant for fresh consideration and the court ordered that an injunction restraining the deportation of the first respondent continue until such time as the application pursuant to s. 3(11) of the 1999 Act was lawfully determined in accordance with the judgment of the High Court. The High Court judge gave leave to appeal pursuant to s. 5 of the Illegal Immigrants (Trafficking) Act 2000, not on the basis of issues proposed by the appellants, but rather on a question formulated by the judge himself. At the heart of this appeal was a consideration of what matters the appellants must take into account when considering an application for revocation of a deportation order in respect of an applicant where his partner and their child have permission to reside within the State.

Held by McGovern J that the High Court judge was in error in introducing into his judgment a requirement that the Minister must identify a “compelling reason” or “compelling circumstances” before the State’s rights could outweigh those of the respondents; this has never been the test applicable and no submission was made on this point in the High Court. McGovern J held that there was no basis for the findings of the trial judge that the decision of the first appellant was either irrational or contrary to the substantive rights of the respondents individually and/or collectively under Article 8 of the ECHR or Article 40.3 of the Constitution. McGovern J held that the finding of the High Court judge that there was no objective justification for the first appellant’s decision was entirely against the weight of the evidence; the decision of the first appellant had set out in detail all the relevant facts and balanced the interests of the respondents against the interests of the State in accordance with established legal principles.

McGovern J held that the appeal would be allowed.

Appeal allowed.

JUDGMENT of Mr. Justice McGovern delivered on the 18th day of December 2019
1

This is an appeal from the Order of Humphreys J. made on 3 October 2016 following delivery of written judgment on 24 June 2016, [2016] IEHC 379, in which he granted an order of certiorari quashing the first named appellant's decision of 23 February 2015 refusing to revoke the deportation order made in respect of the first named respondent. The High Court judge also ordered that the first named respondent's application pursuant to s.3(11) of the Immigration Act 1999 (“the 1999 Act”) be remitted to the first named appellant for fresh consideration and the court ordered that an injunction restraining the deportation of the first named respondent continue until such time as the application pursuant to s.3(11) of the 1999 Act is lawfully determined in accordance with the judgment of the High Court.

2

The High Court judge gave leave to appeal pursuant to s.5 of the Illegal Immigrants (Trafficking) Act 2000 (“the 2000 Act”), not on the basis of issues proposed by the appellants, but rather on a question formulated by the judge himself.

3

The question upon which the High Court judge granted a certificate contains within it an assumption that each of the respondents is “… in an equally precarious position …” despite the fact that this was a matter which was very much in issue in the High Court.

4

Section 5(1) of the 2000 Act provides:-

“(1) A person shall not question the validity of-

(c) a deportation order under section 3(1) of the Immigration Act 1999,

otherwise than by way of an application for judicial review under Order 84 of the Rules of the Superior Courts …”

5

Section 5(6)(a) of the 2000 Act, as amended by s. 34 of the Employment Permits (Amendment) Act 2014, provides:-

“The determination of the High Court of an application for leave to apply for judicial review to which this section applies, or of an application for such judicial review, shall be final and no appeal shall lie from the decision of the High Court to the Supreme Court in either case except with the leave of the High Court which leave shall only be granted where the High Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.”

Extent of jurisdiction of Court of Appeal following grant of certificate
6

The court has to consider whether it has jurisdiction in respect of all matters raised by the appellants (insofar as they were matters before the High Court) or whether it is confined to hearing the appeal within the limits of the issue formulated by the High Court judge in his judgment delivered on 3 October 2016, [2016] IEHC 544, following the application for leave to appeal. In para. 16 of that judgment Humphreys J. stated:-

“For the foregoing reasons, I will order:-

(i) that leave to appeal be given pursuant to s. 5 of the Illegal Immigrants (Trafficking) Act 2000, permitting the respondent to appeal to the Court of Appeal, on the basis of the following question of exceptional public importance such that it is desirable in the public interest that an appeal be brought to the Court of Appeal, namely whether, in deciding on an application made by one member of a family (including parents and a child exercising family life under article 8 of the ECHR) each of which is originally in an equally precarious position (having no entitlement to be in the State save such discretionary permission if any as the Minister might grant), the Minister is required to take a holistic view of the collective fate of the family, and in particular is required not to direct one member of such a family group to leave the State while permitting another member to stay without compelling justification;

(ii) … .”

7

At the hearing of the appeal neither party argued in oral or written submissions that the court should not deal with all matters arising out of a notice of appeal insofar as they were before the High Court judge. In Balc v. Minister for Justice and Equality [2018] IECA 76 Peart J. stated at para 6:-

“Once a point of exceptional public importance is certified for appeal pursuant to [s. 5(6)(a) of the Illegal Immigrants (Trafficking) Act 2000, as amended] the appellant is not confined to arguing only that point, as he would be for example on an appeal certified under s. 50A(7) of the Planning and Development Act 2000, as amended. In that regard s. 50(11) of the 2000 Act specifically provides that such appeal is confined to the certified point of law - see e.g. People (Attorney General) v. Giles [1974] I.R. 422 at 436 per Walsh J. This explains how it has come about that a number of grounds of appeal are relied upon in the present appeal in addition to the single ground certified by the trial judge.”

8

In People (Attorney General) v. Giles [1974] I.R. 422 the appellant was refused leave to appeal by the Court of Criminal Appeal but was granted a certificate by the Attorney General under s. 29 of the Courts of Justice Act 1924 allowing the appellant to appeal to the Supreme Court.

9

In his notice of appeal, the appellant entered four grounds of appeal other than the point of law certified by the Attorney General. At pp. 427 to 428 Walsh J. commented:

“… It is important to note that the wording of s. 29 of the Act of 1924 refers to ‘the determination by the Court of Criminal Appeal’ and ‘the decision’. It speaks of ‘the determination’ by the Court of Criminal Appeal being final and conclusive unless a certificate is given which states that an appeal should lie. The appeal lies against the decision of the Court of Criminal Appeal and there is nothing in the Statute which confines it to the point of law certified, if any. The decision ‘involves’ a point of law but, according to the Act, it is against ‘the decision’ that the appeal lies. The ‘point of law’ is not the decision. The decision is the order made in respect of the conviction and/or sentence, as the case may be. If the Statute had wished to restrict the right of appeal to a particular point of law it would have said so as, for example, was done in s. 57(5) of the Trade Marks Act 1963, which states:-

‘By leave of the Court, an appeal from a decision of the Court under this section shall lie to the Supreme Court on a specified question of law.’

Once an appeal is brought to this Court in respect of a decision of another court which appeal lies to this Court only by virtue of the provisions of a statute, the appeal shall be brought and conducted in the same way as any other appeal to this Court, save where otherwise...

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4 cases
  • F.E.C., P.N.C., E.C., D.C., S.C.Z.C. (The Third to Fifth Applicants are Minors Suing by their Next Firend P.N.C.) v Minister for Justice and Equality
    • Ireland
    • Court of Appeal (Ireland)
    • 16 April 2021
    ...the time this appeal came on for hearing, this Court had delivered its unanimous judgment in S.T.E v. Minister for Justice and Equality [2019] IECA 332-the judgment mentioned in the appeal certificate- allowing the Minister's appeal against the decision of Humphreys J. S.T.E. v. Minister fo......
  • D.K. (Ghana) v International Protection Appeals Tribunal
    • Ireland
    • High Court
    • 17 January 2020
    ...mother. Whether both parents here are equally precarious in the sense discussed in S.T.E. & ors. v. Minister for Justice and Equality [2019] IECA 332 does not arise of course at this point: see paras. 49 and 52 where McGovern J. considered that the question of discrimination did not arise o......
  • S.T.P. v The Minister for Justice and Equality
    • Ireland
    • Court of Appeal (Ireland)
    • 22 February 2021
    ...of the decision of Humphreys J. in S.T.E. 22 . On 18 December 2019 the Court of Appeal delivered its unanimous judgment in ( S.T.E [2019] IECA 332) allowing the Minister's appeal against the decision of Humphreys 23 . Before embarking on a consideration of the issues which arises in the wit......
  • Mascarenhas v The Minister for Justice and Equality
    • Ireland
    • High Court
    • 18 February 2020
    ...can validly consider”. See also the decision of the Court of Appeal in S.T.E. & Ors. v. The Minister for Justice and Equality & Ors. [2019] IECA 332, at paras. 35-39. That said, the Minister does face a challenging task in this regard; misfortune can strike any of us at any time, and all of......

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