Ugbo & Buckley v Minister for Justice and Others
| Jurisdiction | Ireland |
| Judge | MR. JUSTICE HANNA |
| Judgment Date | 27 July 2010 |
| Neutral Citation | [2010] IEHC 355 |
| Court | High Court |
| Date | 27 July 2010 |
[2010] IEHC 355
THE HIGH COURT
BETWEEN
AND
AND
ILLEGAL IMMIGRANTS TRAFFICKING ACT 2000 S5(3)
EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8
IMMIGRATION ACT 1999 S3(11)
EUROPEAN CONVENTION ON HUMAN RIGHTS ART 13
MEADOWS v MIN FOR JUSTICE & ORS UNREP SUPREME 21.1.2010 2010 IESC 3
VILVARAJAH v UK 1991 14 EHRR 248
SMITH & GRADY v UK 1999 29 EHRR 493
CG & ORS v BULGARIA 2008 47 EHRR 248
ABDOLKHAMI & KARIMNIA v TURKEY UNREP ECHR 22.9.2009 APPLICATION NO 30471/08
I (EP) & ORS v MIN FOR JUSTICE & ORS UNREP FEENEY 30.1.2008 2008/29/6388 2008 IEHC 23
GLENCRE TEORANTA v MAYO CO COUNCIL UNREP MACMENAMIN 13.6.2006 2006/26/5686 2006 IEHC 250
RAIU v REFUGEE APPEALS TRIBUNAL UNREP FINLAY GEOGHEGAN 26.2.2003 2006/50/10549
IZHEVBEKHAI v MIN FOR JUSTICE & ORS UNREP FEENEY 13.3.2008 (TRANSCRIPT NOT AVAILABLE)
R (I) v REFUGEE APPEALS TRIBUNAL UNREP COOKE 26.11.2009 2009/47/11883 2009 IEHC 510
ILLEGAL IMMIGRANTS TRAFFICKING ACT 2000 S5(3)A
SOERING v UK 1989 11 EHRR 439
BENSAID v UK 2001 33 EHRR 10
KEEGAN, STATE v STARDUST COMPENSATION TRIBUNAL 1986 IR 642
O'KEEFE v BORD PLEANALA 1993 1 IR 39
CG & ORS v BULGARIA 2008 47 EHRR 51
EUROPEAN CONVENTION ON HUMAN RIGHTS ART 3
CHAHAL v UK 1997 23 EHRR 413
ILLEGAL IMMIGRANTS TRAFFICKING ACT 2000 S5
Judicial Review
Remedies
Effective remedy before national authority - Appeal to Supreme Court - Point of law of exceptional public importance - Refusal of leave against respondent's decision to make deportation order - Whether court was correct in finding that it was precluded from taking into account material not before respondent when he made decision - Whether judicial review proceedings constituted effective remedy - Whether law shown to be in state of certainty that required clarification for future cases - Meadows v Minister for Justice, Equality and Law Reform [2010] IESC 3 followed - Vilvarajah v United Kingdom (1992) 14 EHRR 248; Smith and Grady v United Kingdom (1999) 29 EHRR 493; G(C) v Bulgaria (2008) 47 EHRR 51; Abdolkhani and Karimnia v Turkey (Application 30471/08); Izhevbekhai (PEI) v Minister for Justice, Equality and Law Reform [2008] IEHC 23; Glancré Teo v Mayo County Council [2006] IEHC 250; Raiu v Refugee Appeals Tribunal (Unrep, HC, Finlay Geoghegan J, 26/2/2003); Radzuik (IR) v Refugee Appeals Tribunal [2009] IEHC 510; Soering v United Kingdom (1989) 11 EHRR 439; Bensaid v United Kingdom (2001) 33 EHRR 10; State (Keegan) v Stardust Compensation Tribunal [1986] IR 642; O'Keeffe v An Bord Pleanála [1993] IR 39 and Chahal v United Kingdom (1997) 23 EHRR 413 considered - Immigration Act 1999 (No 22), s 3 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5(3) - European Convention on Human Rights, arts 3, 8 and 13 - Application refused (2009/1174JR - Hanna J - 27/7/2010) [2010] IEHC 355
Ugbo v Minister for Justice, Equality and Law Reform
DECISION OF MR. JUSTICE HANNA, delivered on the 27th day of July, 2010
1. By decision dated the 5 th March, 2010, this Court refused to grant leave to the applicants to apply for judicial review of the decision of the Minister for Justice, Equality and Law Reform ("the Minister") to make a deportation order against the first named applicant. The applicants now seek a certificate of leave to appeal to the Supreme Court, pursuant to s. 5(3) of the Illegal Immigrants (Trafficking) Act 2000.
2. The point of law that the applicants wish this Court to certify is as follows:
"Was the High Court correct in finding that it was precluded from taking into account material which was not before the Minister when he was considering whether to issue a deportation order in respect of the first named applicant?"
If so, is judicial review an effective remedy within the meaning of Article 13 of the European Convention on Human Rights in circumstances where:
(i) the Court is precluded from taking into account any facts or factors relating to the alleged violation of the Applicant's family or private rights which were not put before the Minister by the Applicants when application was made by the first Applicant for leave to remain temporarily in the State; and
(ii) the instigation of such proceedings is not suspensory of the execution of a deportation order other than at the discretion of the Court?"
3. The applicants argue that this point of law arises from paragraphs 30 and 33 of the decision of this Court. Those paragraphs indicate that leave was refused on the ground that the Minister failed to have regard to the applicants' rights under Article 8 of the European Convention on Human Rights (ECHR) because the Minister had before him no submissions or evidence in relation the difficulties that might be faced by the wife in Nigeria. The submissions made in relation to Article 8 at the leave hearing were grounded on additional facts set out in the wife's affidavit. In a postscript to its judgment, the Court noted that it could not take account of those additional facts because they were not before the Minister at the relevant time, and suggested that the additional facts could ground an application for revocation of the deportation order pursuant to s. 3(11) of the Immigration Act 1999.
4. It is of some significance that the applicants have since applied for revocation of the deportation order. The Court understands that additional information and updated country of origin information has been furnished to the Minister in support of that application, upon which no decision had yet been taken as of the date of the hearing of this application for the certificate of leave.
5. Article 13 of the ECHR guarantees to those whose Convention rights and freedoms are violated the right to an "effective remedy" before a national authority. As the Court understands it, the applicants' argument is that judicial review proceedings do not constitute an "effective remedy" for the alleged violation of their Article 8 rights, because:-
· The court is concerned only with the legality of the Minister's decision and has no function in assessing the merits of the applicant's case:
· The court cannot take into account material which was not before the Minister;
· The court has no jurisdiction to alter the Minister's decision and can only quash the decision;
· The applicant does not have a fair and reasonable opportunity of refuting the facts; and
· Judicial review is not suspensory of the deportation order.
6. The applicants rely inter alia on the judgment of Fennelly J. in Meadows v. The Minister for Justice, Equality and Law Reform & Others (Unreported, Supreme Court, 21 st January, 2010) and the decisions of the European Court of Human Rights ("ECtHR") in Vilvarajah v. The U.K. (1992) 14 E.H.R.R. 248 (in particular, the partly dissenting opinion of Judge Walsh); Smith and Grady v. U.K. (1999) 29 E.H.R.R. 493: C.G. & Others v. Bulgaria (2008) 47 E.H.R.R. 51; and Abdolkhani & Karimnia v. Turkey (Application No. 30471/08, judgment of 22 nd September, 2009). The applicants also rely on Izhevbekhai (P.E.I.) & Others v. The Minister for Justice, Equality and Law Reform [2008] I.E.H.C. 23 (30 th January, 2008), where Feeney J. had regard to information which was not before the Minister but found it to be irrelevant.
7. As to the interpretation of s. 5(3) of the Act of 2000, the applicants rely in particular on the principles set out in Glancré Teoranta v. Mayo County Council [2006] I.E.H.C. 250 and Raiu v. Refugee Appeals Tribunal (Unreported, High Court,Finlay Geoghegan J., 26 th February, 2003).
8. The respondents note that the "effective remedy" argument was not raised at the leave stage and though it was raised in the applicants' original statement of grounds, it was not included in their draft amended statement of grounds which was prepared after the delivery of the Supreme Court's judgment in Meadows. As a result, the Court did not rule on the "effective remedy" issue and it is therefore inappropriate to grant a certificate on a point of law relating to that issue as the appeal would be the first occasion on which the issue was raised. It would be more appropriate to wait until the issue is dealt with properly at first instance; the question of a certificate might then arise and could be considered at that point.
9. The respondents further noted that in Izhevbekhai v. The Minister for Justice Equality and Law Reform (Unreported, High Court, Feeney J., 13 th March, 2008), Feeney J. refused to grant a certificate on effectively the same issue. It is argued that nothing has changed very substantially since then and that Fennelly J. in Meadows affirmed that, properly understood, the O'Keeffe test in judicial review proceedings provides an effective remedy sufficient for the purposes of Article 13.
10. The principles applicable to the grant or refusal of a certificate under s. 5(3) (a) are well established and do not require to be set out at any length here. The foremost question for the Court is whether is whether or not a point of law of exceptional public importance arises out of its decision of the 5 th March, 2010.
11. The principles distilled by MacMenamin J. in Glancré and recently applied in the asylum and immigration context by Cooke J. in Radzuik (I.R.) v. The Refugee Appeals Tribunal [2009] I.E.H.C. 510 (26 th November, 2009) are clear. In order for a certificate to be warranted under s. 5(3) (a), the law must be shown to be in such a state of uncertainty such that it is in the...
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