A v The International Protection Appeals Tribunal, The Minister for Justice and Equality, Ireland and The Attorney General
| Jurisdiction | Ireland |
| Judge | Mr Justice Max Barrett |
| Judgment Date | 10 June 2021 |
| Neutral Citation | [2021] IEHC 399 |
| Docket Number | [2019 No. 650 JR; 2020 No. 119 JR] |
| Court | High Court |
| Date | 10 June 2021 |
In the Matter of Section 5 of the Illegal Immigrants (Trafficking) Act 2000 (As Amended) and In the Matter of the International Protection Act 2015
[2021] IEHC 399
[2019 No. 650 JR; 2020 No. 119 JR]
THE HIGH COURT
Leave to appeal – Point of law – Exceptional public importance – Applicants seeking leave to appeal – Whether the point of law raised could properly be described as one of exceptional public importance
Facts: The applicants applied to the High Court pursuant to s. 5 of the Illegal Immigrants Trafficking Act 2000 for leave to appeal the court’s judgment in the above-entitled proceedings, which were the subject of a single judgment ([2021] IEHC 25). The first applicant posited the following “point of law of exceptional public importance” to arise from the court’s decision and contended “that it is desirable in the public interest that an appeal should be taken to the” Court of Appeal concerning same: “Whether the Applicant is entitled to a Declaration that section 2(2) of the International Protection Act 2015 [is] in breach of EU law and/or a breach of the right to an effective remedy insofar as it operates to abrogate the jurisdiction to extend time to bring an appeal to [the] IPAT where the Minister has made a Decision under s.47 refusing international protection following the first-instance IPO decision”.
Held by Barrett J that, having had regard to M.A.U. v Minister for Justice, Equality and Law Reform (No 3) [2011] IEHC 59, and more particularly Glancré Teoranta v An Bord Pleanála [2006] IEHC 250, para. 7, the court was satisfied that the point of law raised could not properly be described as one of “exceptional public importance”. The court declined to grant the leave sought.
Barrett J held that for the same reasons, mutatis mutandis, as were considered in the case of the first applicant, the court declined to grant the leave sought by the second applicant.
Application refused.
JUDGMENT of Mr Justice Max Barrett delivered on 10th June 2021.
This is an application for leave to appeal the court's decision in Mr A's proceedings, which, along with Ms B's proceedings, were the subject of a single judgment bearing the citation ‘ [2021] IEHC 25’. The application is made under s.5 of the Illegal Immigrants Trafficking Act 2000.
Section 5(1) of the Act of 2000, as amended, provides that “ the validity of” an array of immigration-related matters shall not be questioned (“ A person shall not question the validity of…”) otherwise than by way of an application for judicial review under O.84 RSC.
It is clear from s.5(6) of the Act of 2000, as amended, that the general expectation of the Oireachtas is that, when it comes to the type of application that comes within s.5, ‘the buck stops’ in the High Court, i.e. save in very limited instances, the High Court's decision on matters will be final (see also Vadim Raiu v. Refugee Appeals Tribunal and Anor. ( Unreported, High Court, 26th February 2002)). That said, we live, thankfully, in a liberal democracy whose animating spirit is that (all else being equal) each one of us should generally be allowed to do whatever we each want to do. Thus while the courts must duly apply s.5(6), they must not go further, seeking to close out potential appeals that, consistent with the said animating spirit – and bringing to bear a generous interpretation of what constitutes a “ point of law of exceptional public importance” – ought rightly to be the subject of an appeal. In a liberal democracy a court should surely err on the side of allowing the greatest freedom, in the present context on the side of allowing an appeal to proceed. Section 5(6) does not require a court to go any further than it expressly requires; indeed given that it seeks to set a boundary to personal freedom it ought rightly to be narrowly construed.
Section 5(6) of the Act of 2000 provides as follows:
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“(a) The determination of the High Court of an application for leave to apply for judicial review to which this section applies, or of an application for such judicial review, shall be final and no appeal shall lie from the decision of the High Court to the Supreme Court in either case except with the leave of the High Court which leave shall only be granted where the High Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.
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(b) This subsection shall not apply to a determination of the High Court insofar as it involves a question as to the validity of any law having regard to the provisions of the Constitution”.
Since the approval of the 32nd Amendment of the Constitution, the reference to the ‘Supreme Court’ now falls to be read as a reference to the ‘Court of Appeal’.
Some elements of/factors relevant to the adjudication of the within leave application are identified in M.A.U. v. Minister for Justice, Equality and Law Reform (No 3) [2011] IEHC 59, with the judgment in Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250 bringing clarity to what is meant by “ exceptional public importance”, and S.A. v. Minister for Justice and Equality (No. 2) [2016] IEHC 646 mentioning a few extra criteria that can be brought to bear in appropriate cases. The relevant portions of the three cases have been recited in many other judgments concerning s.5(6) applications. The court proposes simply to apply them, rather than repeat them yet again. However, the court would reiterate the point that it made in Nadeem v. Minister for Justice and Equality and Ors. (No. 4) [2020] IEHC 66, para.1, viz. that:
“It is…possible, in this wealth of binding guidance, to lose sight of the fact that a relatively straightforward standard is established by statute, viz, the court must be satisfied ‘that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken’ to the Court of Appeal.”
The factors/principles identified in M.A.U., Glancré, and S.A. are signposts to truth erected by judges who have gone down the route of s.5(6) before and are intended as an aid to judges who follow after. They are binding on the court but they do not fall to be applied like statutory criteria in which all must be fully satisfied before a person can obtain the leave that s.5(6) makes necessary. A High Court judge looks to those cases/factors/principles, s/he is bound by them, but s/he arrives at her/his decision in the round by reference to all the facts and issues in play.
In the case that was decided last January, the court observed as follows at paras. 4–5:
“4. Three key questions were contended by Mr A to arise in the within proceedings:
[1] Did the IPAT err in law insofar as it failed [if it failed] to apply the actual test prescribed by reg.4(5) of the International Protection Act 2015 (Procedures and Periods for Appeals) Regulations 2017? [2] Did the IPAT err by failing correctly to apply reg.4(5)?
The court's answer to each of Questions [1] and [2] is ‘no’, for the reason that the IPAT never applied reg.4(5). It refused to proceed with the application for an extension of time on the basis that at the time of the application the IPO's s.39 recommendation had been superseded by a s.47 decision by the Minister, making it pointless to proceed (as any appeal against the recommendation would then be moot/futile).
[3] Is reg.4(5) invalid?
The court's answer to Question [3] is that this question does not arise for determination as reg.4(5) was not relied upon by the IPAT.”
As the court understands the present application, no criticism is made of the court's answers to the three key questions, as identified by Mr A. Immediately that places Mr A in the odd position that although he does not, it seems, seek to impugn the actual answers given to the questions that he considered to present in his application, he nonetheless...
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