U (MA) (A Minor) and Others v Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 22 February 2011
• Neutral Citation: [2011] IEHC 59
• Court: High Court
• Date: 22 February 2011

U (MA) & Ors v Minister for Justice (No 3)

JUDICIAL REVIEW

BETWEEN

M. A. U., A. M. U., O. A. U. (A MINOR SUING BY HIS FATHER AND NEXT FRIEND, M. A. U.), E. A. U. (A MINOR SUING BY HIS FATHER AND NEXT FRIEND, M. A. U.), A. O. U. (A MINOR SUING BY HIS FATHER AND NEXT FRIEND, M. A. U.), AND A. A'A. O. U. (A MINOR SUING BY HIS FATHER AND NEXT FRIEND, M. A. U.)

APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM (NO.3)

RESPONDENT

[2011] IEHC 59

[No. 881 J.R./2009]

THE HIGH COURT

IMMIGRATION

Deportation

Certificate of leave to appeal - Point of law of exceptional public importance - Public interest - Validity of deportation order - Duration of deportation order - Discretion - Whether decision involves point of law - Whether point of law of exceptional public importance - Whether desirable in public interest that appeal be taken - Whether law clear and established - Whether respondent had discretion - Whether respondent failed to exercise discretionary power - Arklow Holidays Ltd v An Bord Pleanála (No 3) [2008] IEHC 2, (Unrep, Clarke J, 11/1/2008) followed - U(MA) v Minister for Justice, Equality and Law Reform (No 1) [2010] IEHC 492, (Unrep, Hogan J, 13/12/2010); U(MA) v Minister for Justice, Equality and Law Reform (No 2) [2011] IEHC 95, (Unrep, Hogan J, 9/2/2011); Raiu v Refugee Appeals Tribunal (Unrep, Finlay Geoghegan J, 12/2/2003); Arklow Holidays Ltd v An Bord Pleanála (No 1) [2006] IEHC 102, [2007] 4 IR 112; Glancré Teo v An Bord Pleanála [2006] IEHC 250, (Unrep, MacMenamin J, 13/7/2006) and Irish Press plc v Ingersoll Irish Publications Ltd [1995] 1 ILRM 117 considered - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5(3)(a) - Immigration Act 1999 (No 22), s 3 - Planning and Development Act 2000 (No 30), s 50(4)(f) - Application refused (2009/881JR - Hogan J - 22/2/2011) [2011] IEHC 59

U(MA) v Minister for Justice, Equality and Law Reform

Facts These proceedings concerned a deportation order made by the respondent requiring the applicant to leave the State and to remain thereafter outside of the State. The applicant contended that the respondent failed to exercise a discretionary power which would have allowed him to prescribe a shorter period during which the ban on returning to the State would take effect, rather than a life time ban. In the first judgement delivered by this court, that argument was rejected on the basis that s. 3(1) of the Immigration Act, 1999 was clear and unambiguous in its effects, so that, in principle, at least, a deportation order constituted a life time ban. In a second judgment the court held that it had no jurisdiction, post-judgment, to allow an amendment of the pleadings to permit the applicant to challenge the constitutionality of section 3(1). The applicant herein applied for a certificate of leave to appeal to the Supreme Court pursuant to s. 5(3)(a) of the Illegal Immigrants (Trafficking) Act 2000 and in that regard submitted that the proper construction of s. 3(1) of the 1999 Act involved a point of law of exceptional public importance, namely, whether the relevant words in that sub-section - "to remain thereafter out of the State" - meant that a deportation order had permanent effect, subject only to the mitigating effects of s. 3(11).

Held by Hogan J. in refusing the application: That it was clear from the authorities dealing with applications under section 5(3)(a) that the statutory requirements were cumulative and consequently it would be possible for a court to hold that while the decision involved a point of law of exceptional public importance, it would nonetheless not be desirable in the public interest to grant a certificate of leave to appeal. Applying the relevant principles to the facts of this case it was clear that the decision involved a point of law, the resolution of which was a central feature of the judgment. It was also clear that the point of law was one of exceptional public importance because the question of the duration of a deportation order and the related issue of whether the respondent had any discretion in the matter were of central importance to the very operation of the asylum and immigration system. However, the issue of the construction of the sub-section in this case was straightforward and determined by the plain meaning of the relevant statutory words and consequently it was not in the public interest that the Supreme Court should be required to determine this point.

Reporter: L.O'S.

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(3)(A)

U (MA) & ORS v MIN FOR JUSTICE (NO 1) UNREP HOGAN 13.12.2010 2010 IEHC 492

IMMIGRATION ACT 1999 S3(1)

IMMIGRATION ACT 1999 S3(11)

U (MA) & ORS v MIN FOR JUSTICE (NO 2) UNREP HOGAN 9.2.2011 2011 IEHC 95

RAIU v REFUGEE APPEALS TRIBUNAL & ORS UNREP FINLAY-GEOGHEGAN 26.2.2003 2006/50/10549

ARKLOW HOLIDAYS LTD v BORD PLEANALA & AG (NO 1) 2007 4 IR 112 2007 1 ILRM 129 2006/3/463 2006 IEHC 102

GLANCRE TEORANTA v BORD PLEANALA UNREP MACMENAMIN 13.7.2006 2006/26/5686 2006 IEHC 250

IRISH PRESS PLC v INGERSOLL IRISH PUBLICATIONS LTD 1995 1 ILRM 117 1995/3/905

ARKLOW HOLIDAYS LTD v BORD PLEANALA & ORS (NO 3) UNREP CLARKE 11.1.2008 2008/2/340 2008 IEHC 2

1 1. In this judgment I am called upon to consider whether to grant the applicants a certificate of leave to appeal to the Supreme Court pursuant to the provisions of s. 5(3)(a) of the Illegal Immigrants (Trafficking) Act 2000 ("the 2000 Act"). The essence of the challenge in the present proceedings was to the validity of a deportation order made as against the first applicant requiring him to leave the State and to remain thereafter outside of the State. The applicants contended that the Minister had failed to exercise a discretionary power which would have allowed him to prescribe a...