Seredych v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 16 December 2019
• Neutral Citation: [2019] IEHC 891
• Docket Number: [2019 No. 356 J.R.]
• Court: High Court
• Date: 16 December 2019

[2019] IEHC 891

THE HIGH COURT

JUDICIAL REVIEW

Richard Humphreys

[2019 No. 356 J.R.]

BETWEEN

IVAN SEREDYCH

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

(NO. 4)

Deportation order – Judicial review – Revocation – Applicant seeking leave to appeal – Whether the respondent acted unlawfully and/or in frustration of the purpose of the International Protection Act 2015, in maintaining the deportation order

Facts: In Seredych v Minister for Justice and Equality [2018] IEHC 187 (Unreported, High Court, 22nd March, 2018), Humphreys J dismissed an application for certiorari of a deportation order. In Seredych v Minister for Justice and Equality (No. 2) [2018] IEHC 307 (Unreported, High Court, 23rd April, 2018), Humphreys J refused leave to appeal that decision. In Seredych v Minister for Justice and Equality (No. 3) [2019] IEHC 730 (Unreported, High Court, 29th October, 2019), Humphreys J granted certiorari of the refusal to revoke the deportation order after a significant change of circumstance, mainly the grant of permission to the applicant, Mr Seredych, to make an application for international protection under the International Protection Act 2015. The State applied to the High Court for leave to appeal the No. 3 judgment. Five questions were proposed on behalf of the State: 1A “Whether [the respondent, the Minister for Justice and Equality] acted unlawfully and/or in frustration of the purpose of the [2015 Act], in maintaining the Deportation Order either at the time of the Applicant’s departure from the State on 24 April, 2018?” 1B “Whether the Minister acted unlawfully and/or in frustration of the purpose of the [2015 Act], in maintaining the Deportation Order either from the date of receipt of the recommendation of [the International Protection Appeals Tribunal] of 11 February, 2019, or on receipt of the Applicant’s solicitor’s letter of 21 February, 2019.” 2 “Whether the High Court was correct to conclude that it was not necessary to decide whether Articles 32 and 34 of the Procedures Directive, 2005, require a Member State to readmit to its territory an applicant who is granted permission to make a re-application for protection and was present in that territory at the time of applying for permission to reapply for international protection but has left the territory before the determination of that application for permission because the authorities of the Member State have made a deportation Order requiring such an applicant to leave.” 3 “may the Court refuse to grant reliefs which would have the effect of re-admitting the Applicant to the territory of the State where it would appear that s.12(1) of the 2015 Act precludes the granting of the ultimate relief, i.e. subsidiary protection?” 4 “Whether the exercise by the Minister of his discretion under s.3(11) of the Immigration Act, 1999, is part of the same statutory process as that provided for in the 2015 Act, including s.22 of the 2015 Act, such that the Minister is bound by the decisions of the International Protection Appeals Tribunal and/or the findings contained in those decisions so as to be bound to revoke a Deportation Order on the basis of those decisions or findings?”

Held by Humphreys J that: (i) evaluating the respondent’s claim was not an exercise that was possible in absence of any meaningful evidence, and if a party wants to make a point such as that the case has general implications, it must make such a point at first instance so it can be scrutinised by the mechanisms available at that level, rather than parachuting in such details at appellate level; (ii) there was no substance to any of the State’s points; (iii) the State’s written and oral legal submissions barely touched on the actual statutory criteria for leave to appeal; (iv) even if he was wrong in how he applied to the facts of this case the general principle that the Minister should not frustrate the statutory purpose, the most the State could say was that that was simply an error in the judicial administration of known principles; (v) there was more generality to the points sought to be raised by the applicant in his unsuccessful application for leave to appeal the challenge to the original deportation order, which the respondent successfully opposed in both the High Court and the Supreme Court.

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

Application refused.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 16th day of December, 2019

1 This application deals with an extremely unusual situation and one that doesn't seem to have any real general impact beyond its own peculiar facts. The three previous judgments in this matter were as follows:

(i). Seredych v. Minister for Justice and Equality [2018] IEHC 187 [2018] 3 JIC 2206 (Unreported, High Court, 22nd March, 2018), in which I dismissed an application for certiorari of a deportation order.

(ii). Seredych v. Minister for Justice and Equality (No.2) [2018] IEHC 307 [2018] 4 JIC 2308 (Unreported, High Court, 23rd April, 2018), in which I refused leave to appeal that decision.

(iii). Seredych v. Minister for Justice and Equality (No. 3) [2019] IEHC 730 [2019] 10 JIC 2903 (Unreported, High Court, 29th October, 2019), in which I granted certiorari of the refusal to revoke the deportation order after a significant change of circumstance, mainly the grant of permission to the applicant to make an application for international protection under the International Protection Act 2015.

2 I am now dealing with the State's application for leave to appeal the No. 3 judgment, and in that regard I have considered the relevant caselaw including Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250 (Unreported, MacMenamin J., 13th November, 2006), Arklow Holidays v. An Bord Pleanála [2008] IEHC 2, per Clarke J. (as he then was), I.R. v. Minister for Justice and Equality [2009] IEHC 510 [2015] 4 I.R. 144 per Cooke J., and M.A.U. v. Minister for Justice Equality and Law Reform (No. 3) [2011] IEHC 59 (Unreported, High Court, 22nd February, 2011) per Hogan J. 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) (para. 72).

3 It is important to note from the outset that counsel for the respondent accepts that there is no presumption of entitlement to leave to appeal simply because it is the State that is seeking leave. In N.E. v. International Protection Appeals Tribunal (No. 2) [2019] IEHC 784 (Unreported, High Court, 18th November, 2019), at para. 3, I listed the fact that at that particular time I was aware of at least nine cases where applicants had been refused leave to appeal, both by me in the first instance and by the Supreme Court on leapfrog applications: see J.N.E. v. Minister for Justice and Equality [2017] IESCDET 86, Igbosonu v. Minister for Justice and Equality [2018] IESCDET 51, V.D. v. Minister for Justice and Equality [2019] IESCDET 41, A.M.C. v. The Refugee Appeals Tribunal [2019] IESCDET 88, Seredych v. Minister for Justice and Equality [2018] IESCDET 157, O.A. v. Minister for Justice and Equality [2019] IESCDET 87, M.S.R. v. International Protection Appeals Tribunal [2019] IESCDET 123, M.E.O. v. International Protection Appeals Tribunal [2019] IESCDET 165 and U.O. v. International Protection Appeals Tribunal [2019] IESCDET 166 (there have been a few more since then). In terms of equality of arms, it certainly cannot be the case that the State has any preferential entitlement to, or presumption of, a grant of leave to appeal in cases where it, rather than an applicant, is seeking such leave.

4 In the present application, I have received helpful submissions from Ms. Siobhán Stack S.C. (with Mr. John P. Gallagher B.L.) for the respondent, and from Mr. Michael Lynn S.C. (with Mr. Anthony Lowry B.L.) for the applicant.

5 Five questions are proposed on behalf of the State.

Question 1A

6 Question 1A asks “Whether the Minister acted unlawfully and/or in frustration of the purpose of the International Protection Act, 2015, in maintaining the Deportation Order either at the time of the Applicant's departure from the State on 24 April, 2018?”

7 Leaving aside the fact that the question doesn't make grammatical sense, in so far as one can inject meaning into it, it is premised on a misunderstanding. Paragraph 15 of the State's written legal submissions says: “the Deportation Order had been previously upheld by this Court in Seredych v. Minister for Justice (No. 1) [2018] IEHC 187, and it is also settled law that an appellant under s.22 has no right to remain in the State pending determination of that appeal: P.N.S. v. Minister for Justice [2018] IEHC at para. 35, citing Article 39 Procedures Directive and Case C-239/14 Tall v. Centre public action sociale d'Huy ECLI:EU:C:2015:824, 17 December, 2015.” That submission is completely irrelevant, because P.N.S. (Cameroon) v. Minister for Justice and Equality [2018] IEHC 504 [2018] 7 JIC 1607 (Unreported, High Court, 16th July, 2018) dealt with a totally different period. The period in issue in P.N.S. was the interval between the application for permission to reapply for protection being rejected at first instance and the application being rejected on appeal. The question there was the status of the applicant during that appellate interregnum. Here, this applicant has already come through that period and out the other side, and is in the fairly unusual situation of having received permission to reapply. So P.N.S. was decided in a totally different context. Paragraph 16 of the State's written submissions notes that: “Insofar, therefore, as the judgment finds that...