Seredych v The Minister for Justice and Equality No.2

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 23 April 2018
• Neutral Citation: [2018] IEHC 307
• Court: High Court
• Docket Number: [2018 No. 132 J.R.]
• Date: 23 April 2018

[2018] IEHC 307

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2018 No. 132 J.R.]

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

(No. 2)

Deportation order – Certiorari – Public interest – Applicants seeking certiorari of a deportation order – Whether it was in the public interest that there be an appeal

Facts: The applicants applied to the High Court for certiorari of a deportation order against the first applicant, Mr I Seredych, dated 8th February, 2018. In Seredych v Minister for Justice and Equality and Others (No. 1) [2018] IEHC 187, Humphreys J dismissed the applicants' application. The applicants sought leave to appeal that decision pursuant to s. 5 of the Illegal Immigrants (Trafficking) Act 2000, proposing the following questions: 1) in circumstances where the Supreme Court has opined that the European Court of Human Rights does not apply the strict principles of stare decisis and decisions of that Court are part of a continuum of jurisprudence, how does the obligation under s. 4 of the ECHR Act 2003 to take judicial notice of the Court's decisions fall to be applied in practice by the Irish Courts?; 2) did the failure to identify the applicants' constitutional rights as a family to choose to reside in the State and cohabit as a family render the decision to deport the first applicant unlawful?; 3) is the respondent, the Minister for Justice and Equality, required to consider the proportionality of an interference with the applicants' Constitutional rights prior to or separately from any such consideration under Article 8 ECHR?; 4) in the absence of express reference to Article 21 TFEU in pre-litigation representations, are the applicants and/or the Courts precluded from placing reliance upon this provision in an application to quash the respondent's decision to deport the first applicant?; 5) in the absence of express reference to Article 24(3) of the Charter of Fundamental Rights and Freedoms in pre-litigation representations made by the applicants, are the applicants and/or the Courts precluded from placing reliance upon this provision in an application to quash the respondent's decision to deport the first applicant?

Held by Humphreys J that it is the principles as set out in well-established case law that a court must follow, not any and every individual case however outlying. Humphreys J held that, referring to Gorry v Minister for Justice and Equality [2017] IECA 282, a married couple, one of whom is a citizen, have constitutionally protected rights to have the Minister consider and decide their application with due regard to a recognition that the decision that the family should live in Ireland is a decision which they have a right to take and which the State has guaranteed in Article 41.1 to protect; that embodies a right to have the Minister have due regard to the family decision, not a right to live in the State as such. Humphreys J noted that the lack of a need for separate consideration had already been decided in Oguekwe v Minister for Justice, Equality and Law Reform [2008] IESC 25; it would trivialise the Constitution if an otherwise valid decision had to be quashed merely because the order in which issues were decided was not to the court's liking. It seemed to Humphreys J that the fourth and fifth questions were not points of exceptional public importance nor was it in the public interest that there be an appeal, because any possible favourable answers could only benefit people who do not raise a point before the decision-maker and who then seek to raise it for the first time before a court, a procedure that should not be encouraged.

Humphreys J held that the application for leave to appeal would be refused.

Application refused.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 23rd day of April, 2018

1 In Seredych v. Minister for Justice and Equality and Others (No.1) [2018] IEHC 187 [2018] 3 JIC 2206 (Unreported, High Court, 22nd March, 2018) I dismissed the applicants' application for certiorari of a deportation order against the first-named applicant, dated 8th February, 2018. The applicants now seek leave to appeal that decision pursuant to s. 5 of the Illegal Immigrants (Trafficking) Act 2000. I have considered the law in relation to leave to appeal as set out in Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250 (Unreported, MacMenamin J., 13th November, 2006) and Arklow Holidays v. An Bord Pleanála [2008] IEHC 2, per Clarke J. (as he then was). I have also discussed these criteria in a number of cases including S.A. v. Minister for Justice and Equality (No. 2) [2016] IEHC 646 [2016] 11 JIC 1404 (Unreported, High Court, 14th November, 2016) para. 2, and Y.Y. v. Minister for Justice and Equality (No. 2) [2017] IEHC 185 [2017] 3 JIC 2405 (Unreported, High Court, 24th March, 2017) at para. 72.

2 I have heard helpful submissions from Mr. Anthony Lowry B.L. (with Mr. Michael Lynn S.C.) for the applicants and Ms. Siobhán Stack S.C. (with Mr. John P. Gallagher B.L.) for the respondent.

Question 1 - judicial notice of Strasbourg decisions

3 The first proposed question is ' in circumstances where the Supreme Court has opined that the European Court of Human Rights does not apply the strict principles of stare decisis and decisions of that Court are part of a continuum of jurisprudence, how does the obligation under section 4 of the ECHR Act 2003 to take judicial notice of the Court's decisions fall to be applied in practice by the Irish Courts?'.

4 The question proposed is not susceptible to a one-size-fits-all answer in the manner sought. The civilian nature of the methodology of the Strasbourg court is well established. The point I made at para. 14 of the No. 1 judgment follows...