Seredych v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Clarke C.J.,MacMenamin J.,Baker J.
• Judgment Date: 25 March 2020
• Neutral Citation: [2020] IESCDET 43
• Date: 25 March 2020
• Court: Supreme Court
• Docket Number: Supreme Court record no: S:AP:IE:2019:000228

BETWEEN

IVAN SEREDYCH

APPLICANT

AND

THE MINISTER FOR JUSTICE & EQUALITY

RESPONDENT

[2020] IESCDET 43

Clarke C.J.

MacMenamin J.

Baker J.

Supreme Court record no: S:AP:IE:2019:000228

High Court record no: 2019 No. 356 JR

THE SUPREME COURT

DETERMINATION

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

RESULT: THE COURT GRANTS LEAVE TO THE RESPONDENT 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: 29th October, 2019

DATE OF ORDER: 2nd December, 2019

DATE OF PERFECTION OF ORDER: 3rd December, 2019

THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON the 23rd December, 2019 AND WAS 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 Thirty-third 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 Quinn Insurance Ltd. v. PricewaterhouseCoopers[2017] IESC 73, [2017] 3 IR 812. It follows that it is unnecessary to revisit the new constitutional architecture for the purposes of this determination.

2 In addition, because this is an application for leave to appeal directly from the High Court, it is necessary that it be established that there are “exceptional circumstances” warranting a direct appeal to this Court. The Supreme Court held in Mackeral v. O’Donoghue[2015] IESCDET 27 that it would generally allow a leapfrog appeal only where the exceptional factor or factors identified make it probable both that:

(a) the case will come to the Supreme Court in any event, and;

(b) the clarification of the legal issues raised would be unlikely to significantly benefit from an intermediate appeal to the Court of Appeal.

3 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.

4 Any ruling in a determination concerns whether the facts and legal issues meet the constitutional criteria identified above, is particular to that application, and is final and conclusive only to that extent and as between the parties.

Discussion

5 This is the application of the Minister for Justice and Equality for leave to appeal directly to this Court pursuant to the provisions of Article 34.5.4° of the Constitution from the order of Humphreys J. of 2 December 2019 following a written judgment of 29 October 2019, Seredych v. Minister for Justice and Equality No. 3[2019] IEHC 730, quashing the Minister’s decision dated 4 April 2019 to refuse to revoke the deportation order made against the respondent, and remitting the matter to the applicant for reconsideration.

6 The matters of general public importance asserted concern the application of section 3(11) of the Immigration Act 1999 and whether the Minister is compelled to revoke a deportation order.

7 The respondent is a citizen of Ukraine who was convicted of sexual assault in the Circuit Court in 2015 and whose appeal against conviction was refused by the Court of Appeal in 2016, The People (DPP) v. Seredych[2016] IECA 415. He left the State on 24 April 2018 following an unsuccessful challenge to a deportation order made...