Seredych v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: O'Donnell J.,Dunne J.,Charleton J.
• Judgment Date: 26 October 2018
• Neutral Citation: [2018] IESCDET 157
• Court: Supreme Court
• Date: 26 October 2018

[2018] IESCDET 157

THE SUPREME COURT

DETERMINATION

O'Donnell J.

Dunne J.

Charleton J.

BETWEEN

IVAN SEREDYCH JOVITA KALPOKIENE –SEREDYCH

ANDRII SEREDYCH (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND JOVITA KALPOKIENE -SEREDYCH)

AND

MARKO SEREDYCH (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND JOVITA KALPOKIENE -SEREDYCH)

APPLICANTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.4° OF THE CONSTITUTION APPLIES

RESULT: The Court does not grant leave to the Applicants to appeal to this Court directly from the High Court.

REASONS GIVEN:

ORDER SOUGHT TO BE APPEALED

COURT: High Court

DATE OF JUDGMENT OR RULING: 22 nd March, 2018

DATE OF ORDER: 23 rd April, 2018

DATE OF PERFECTION OF ORDER: 23 rd April, 2018

THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 5 th June, 2018 AND WAS NOT IN TIME.

General Considerations

1 The general principles applied by this Court in determining whether to grant or refuse leave to appeal having regard to the criteria incorporated into the Constitution as a result of the 33 ^rd Amendment have now been considered in a large number of determinations and are fully addressed in both a determination issued by a panel consisting of all of the members of this Court in B.S. v Director of Public Prosecutions (2017) IESCDET 134 and in a unanimous judgment of a full Court delivered by O'Donnell J. in Price Waterhouse Coopers (A Firm) v Quinn Insurance Ltd. (Under Administration) [2017] IESC 73. The additional criteria required to be met in order that a so-called "leapfrog appeal" direct from the High Court to this Court can be permitted were addressed by a full panel of the Court in Wansboro v Director of Public Prosecutions (2017) IESCDET 115. It follows that it is unnecessary to revisit the new constitutional architecture for the purposes of this determination.

2 Furthermore the application for leave filed and the respondent's notice are published along with this determination (subject only to any redaction required by law) and it is therefore unnecessary to set out the position of the parties.

3 In that context it should be noted that the respondent does oppose the grant of leave.

Decision

4 In order to understand the background to this application it is necessary to set out some details. The first named applicant is a national of the Ukraine. He arrived in Ireland in May 2001 and claimed asylum. He and his first wife had a child, born on the 20th June, 2001 in Ireland. As the applicant was the father of an Irish born child, he was granted residency in the State. In July 2002 he was convicted of a number of road traffic offences. He was fined €150 and disqualified from driving for one month. Thereafter he was granted a residence permission for a period of two years on the 27th April, 2005. The permission was renewed periodically. He commenced work as a taxi driver in 2006. He divorced his first wife and around 2007 he met and began cohabitation with the second named applicant, a Lithuanian citizen. She is now a naturalised Irish citizen since 2014. In July 2015, the first and second named applicants had their first child. On the 23rd September, 2015, they married. In November 2015, the first named applicant was convicted of sexual assault of a young woman which occurred in June 2012 while he was in the course of acting as a taxi driver. Following his conviction, he was sentenced to three years imprisonment. On the 8th June, 2016, the first named applicant's latest permission to be in the State expired. On the 28th July 2016, the first and second named applicants' second child was born. The first named applicant applied for renewal of his permission to remain in the State and on the 14th July, 2016 the Minister indicated an intention not to renew the permission and invited submissions as to why he should not take this course. On the 28th August, 2016 representations were made to the Minister on behalf of the first named applicant and on the 5th September, 2016 a proposal to deport was issued by the Minister. Further representations were made as to why a deportation order should not be made. In the meantime, the first named applicant appealed his conviction in respect of the offence of sexual assault and on the 3rd November, 2016 the Court of Appeal refused his appeal against conviction. A deportation order was made on the 8th...