SAAE v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 13 February 2017
• Neutral Citation: [2017] IEHC 72
• Docket Number: [2016 No. 777 J.R.]
• Court: High Court
• Date: 13 February 2017

[2017] IEHC 72

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2016 No. 777 J.R.]

BETWEEN

S.A.A.E.

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

(No. 2)

Asylum, Immigration & Nationality – S. 3 (1) of the Immigration Act 1999 – Leave to appeal to the Court of Appeal – Lack of substantial ground – Technicality versus Legality

Facts: Following the refusal of the Court to grant leave to seek judicial review of a deportation order issued by the respondent, the applicant now sought leave to file an appeal before the Court of Appeal on two proposed questions. The proposed question was whether the non-mention of the date of deportation on the deportation order would render such order unlawful.

Mr. Justice Richard Humphreys refused to grant leave to the applicant. The Court held that the answer to the said question had been adequately dealt with in the substantive judgment. The Court reiterated that though the mention of the date was essential in the deportation order, yet the mechanism had been provided wherein such a date could be established by way of reference to the date of service in the notification. The Court noted that the contention that certain words should be transferred from the notification to the deportation order was a technical point and not a ground for the entitlement of leave. The Court, however, granted an adjournment in relation to the applicant's second question pending the determination of an unrelated proceeding, which involved the same question as raised by the applicant in the present proceeding.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 13th day of February, 2017

1 In S.A.A.E. v. Minister for Justice and Equality (No. 1) [2016] IEHC 573 (Unreported, High Court, 19th October, 2016) I refused leave to the applicant for judicial review of a deportation order, notification letter and associated decisions. The applicant then sought leave to appeal in relation to two questions. One question overlapped with another case and I have postponed consideration of it. I am now considering the application in relation to the other question.

2 Mr. Conor Power S.C. (with Mr. James Buckley B.L.) on behalf of the applicant seeks leave to appeal on the basis of the question of whether ‘ a deportation order is lawful which does not give a date for the applicant to comply with it and has such a date been lawfully identified in this case.’ I have also heard from Mr. Dermot Manning B.L. on behalf of the respondent.

3 I have considered the case law relating to the criteria for the grant of leave to appeal including Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250 (MacMenamin J.) As outlined in S.A. v. Minister for Justice and Equality (No. 2) [2016] IEHC 646 (Unreported, High Court, 21st November, 2016), to the factors set out in that case I would add four further criteria, as follows:

(i). The application for leave to appeal should be made promptly and ideally within the normal appeal period (10 days in the case of a leave application and 28 days in the case of a substantive decision). The applicant has applied promptly in the present application.

(ii). The question of law should be one which is actually determinative of the proceedings, not one which if answered differently would leave the result of the case unchanged.

(iii). The grant of leave should provide some added value to any matters already before the Court of Appeal; thus the fact that an issue is independently the subject of a pending appeal would tend to dilute the public interest in the point being brought before that court a second time.

(iv). The question must be formulated with precision in a manner that indicates how it is determinative of the proceedings and should not invite a discursive, roving, response from the Court of Appeal.

4 Mr. Power submits that the deportation order does not specify a date and that such a requirement is a sine qua non. An order without such a date is ‘ an empty vessel’. Mr. Power firstly takes issue with the view I came to in para. 15 of the substantive judgment that the date specified in the notice (as a date of presentation) was, by necessary implication, a date to leave the State forthwith upon service of the notification. But the leave to appeal mechanism is not a procedure for simply disagreeing with a decision. A question must be identified which involves a point of law of exceptional public importance. The finding that the date of presentation was, by implication, a date to leave the State forthwith does not involve the question identified by the...