DE v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 09 May 2017
• Neutral Citation: [2017] IEHC 276
• Docket Number: [2016 No. 678 J.R.]
• Court: High Court
• Date: 09 May 2017

[2017] IEHC 276

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2016 No. 678 J.R.]

BETWEEN

D.E. (AN INFANT SUING BY HIS MOTHER AND NEXT FRIEND A.E.)

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

(No. 2)

Asylum, Immigration & Nationality – Refusal of leave to seek judicial review – Leave to Appeal to the Court of Appeal – Point of law of exceptional public importance

Facts: The applicant/minor through his mother sought leave to appeal to the Court of Appeal in relation to the substantive judgment wherein the applicant was denied leave to seek judicial review. The applicant had formulated certain questions claiming that those needed to be redressed as they were the points of law of exceptional public importance. Those questions were whether the respondent was required to publish her policy for setting out criteria for making a decision on an application for leave to remain in the State; whether the respondent was required to consider the best interests of the child; and whether the respondent had given adequate consideration to the concept of appropriate care in the light of judgment of the European Court of Human Rights in Paposhvili v Belgium.

Mr. Justice Richard Humphreys refused to grant certificate to appeal to the applicants. The Court held that none of the questions formulated had satisfied the requirement to grant leave. The Court held that it was settled that the respondent was not under any obligation to publish the criteria for deciding an application for leave to remain in the State. The Court pointed out that such applications just required a careful scrutiny of individual cases. The Court noted that in order to apply Paposhvili, the applicant should have demonstrated that there was a real risk of being subjected to treatment contrary to art. 3 of the European Convention on Human Rights.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 9th day of May, 2017

1 In the substantive judgment in this case, D.E. v Minister for Justice and Equality (No. 1) [2016] IEHC 650, I refused the applicant leave to seek judicial review. Mr. Michael Conlon S.C. (with Paul O'Shea B.L.) now applies for leave to appeal. The application was made on notice, and I have heard from Ms. Nuala Butler S.C. (with Ms. Fiona O'Sullivan B.L.). I have had regard to the caselaw on the issue of leave to appeal, including Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250 (Unreported, High Court, McMenamin J., 13th July, 2006), as supplemented in S.A. v. Minister for Justice and Equality (No. 2) [2016] IEHC 462, para. 2, and Y.Y. v. Minister for Justice and Equality (No. 2) [2017] IEHC 185. I will address in turn the various questions said to constitute points of law of exceptional public importance.

Is the Minister required in a deportation context to publish her policy setting out criteria on which she makes decisions on leave to remain?

2 Mr. Conlon fairly acknowledges difficulty with seeking leave on the basis of this question – it would not make any difference to the result. A question of law must be determinative, not one that would leave the outcome unchanged (see S.A. v. Minister for Justice and Equality (No. 2) [2016] IEHC 462).

3 In D.E. (No.1) (para. 10) I found that there were no substantial grounds to contend that s. 3(11) involves an enforceable legal requirement to have a full statement of the policy being adopted such that decisions are rendered invalid in the absence of such a policy statement. This principle is reinforced by the decision of the Court of Appeal in Balchand v. Minister for Justice and Equality [2016] IECA 383.

4 It is also consistent with the decision of the Supreme Court in P.O. v. Minister for Justice and Equality [2016] IEHC 543 where it was stated by MacMenamin J. (at paras. 13 to 16) that the task of the Minister in making decisions of this type did not require the application of a policy, but instead requires the exercise of a margin of appreciation relating to the facts of individual cases.

5 It was emphasised by Charleton J. in P.O (at para. 29) that the Minister's exercise of power under s. 3(11) was a ‘ matter of discretion’, and that the criteria in Lumba v. Secretary of State for the Home Department [2011] UKSC 12 were of no assistance as that case dealt with quite a different situation (where a blanket, unpublished policy was inconsistent with a published policy). The Minister's power is to be exercised in accordance with the approach as set out in Sivsivadze v. Minister for Justice [2012] IEHC 244, where Kearns P. stated that the exercise of s. 3(11) power is not a policy decision, but rather involves the exercise of a margin of appreciation by the Minister related to the facts of individual cases.

6 There is no real doubt about this point. Further, as I noted in the (No. 1) judgment (para. 13), even if there was a substantial ground to contend that there is an obligation to set forth criteria, that has been done. Hence the question cannot be the basis of leave to appeal.

Do the Lumba criteria apply to require the Minister to acknowledge or publish a policy and or the detail of a policy in advance of the decision in question?

7 The previous points also apply to this reformulation of the question. This is not a basis for leave to appeal either.

Assuming the Lumba criteria apply in a deportation context, then in circumstances where the applicant's solicitor asked for details or a copy of the policy is the Minister's first tentative acknowledgement of a de facto policy in the decision itself sufficient to satisfy the Lumba requirements of transparency and natural justice in circumstances where the applicant's solicitor believed there was a policy but was not previously aware of the detail of the policy?

8 The...