A Vs Min. for Justice and Equality
| Jurisdiction | Ireland |
| Judge | MacMenamin J.,Clarke C.J. |
| Judgment Date | 01 August 2019 |
| Neutral Citation | [2019] IESCDET 189 |
| Date | 01 August 2019 |
| Court | Supreme Court |
| Docket Number | Supreme Court record no: S:AP:IE:2019:000080 Court of Appeal record no: A:AP:IE:2016:000465 High Court record no: 2014 No. 528 JR |
[2019] IESCDET 189
THE SUPREME COURT
DETERMINATION
Clarke C.J.
MacMenamin J.
Irvine J.
Supreme Court record no: S:AP:IE:2019:000080
Court of Appeal record no: A:AP:IE:2016:000465
High Court record no: 2014 No. 528 JR
AND
RESULT: The Court does not grant leave to the Applicants to appeal to this Court from the Court of Appeal
ORDER SOUGHT TO BE APPEALED
| COURT: Court of Appeal |
| DATE OF JUDGMENT OR RULING: 22 nd February, 2019 |
| DATE OF ORDER: 27 th March. 2019 |
| DATE OF PERFECTION OF ORDER: 16 th April. 2019 |
| THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 24 th April. 2019 AND WAS IN TIME. |
This is an application for leave to appeal from a judgment of the Court of Appeal (Peart, Edwards and Whelan JJ.), dated the 22 nd February, 2019 ( [2019] IECA 123). The order of the Court of Appeal was made on the 27 th March, 2019, and was perfected on the 16 th April, 2019.
The principles applied in deciding whether or not to grant leave to appeal having regard to the criteria incorporated into the Constitution under the 33 rd Amendment have been considered in many 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 Price Waterhouse Coopers (A Firm) v Quinn Insurance Ltd. (Under Administration) [2017] IESC 73. Accordingly it is unnecessary to revisit the new constitutional architecture for the purpose of this determination.
The application for leave filed, and the respondent's notice thereto, 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 in detail.
In the Court of Appeal, Peart J. delivered judgment. The court dismissed an appeal against an order of the High Court (Humphreys J.) dated the 10 th October, 2016. The proceedings concern the arrival of the first-named applicant in Ireland on the 28 th December, 2006 (para. 3 of the judgment of the Court of Appeal). His claim for asylum was rejected by the Refugee Applications Commissioner on the 3 rd January, 2007. The following day, he married Ms. A.A., a British national, and their child, the second-named applicant, was born to the couple on the 2 nd December, 2007 (para. 4).
The first-named applicant made three unsuccessful applications for residence, two based on an assertion of EU Treaty rights, and one grounded on the decision of the Court of Justice of the European Union in Ruiz Zambrano v. Office National de l’Emploi ( Case C-34/09) [2012] Q.B. 265. On the 23 rd December, 2013, an unchallenged deportation order was made in respect of the first-named applicant (para. 5). In February 2014, in circumstances where the marriage had broken down, the first-named applicant applied for access to the second-named applicant and for a revocation of the deportation order (para. 6). He was granted access to his child for two hours each Friday. The application for revocation was rejected on the 22 nd July, 2014 (“the impugned decision”) (paras. 7-8). The present proceedings arose from a challenge to that refusal.
In the Court of Appeal, the applicants argued that the High Court judge erred:
“(i) in finding that the impugned decision was lawful in circumstances where it did not identify the best interests of the child; and/or did not treat those interests as a primary consideration; and/or did not have regard to new information affecting that consideration;
(ii) in finding that the impugned decision gave due consideration to the constitutional and Convention rights of the child as required by the prevailing Irish jurisprudence; and
(iii) in inferring his own reasons and rationale into what was an opaque decision in breach of the appellants” constitutional right of access to the courts, and thus conducting a merits-based appeal of the decision” (para. 21).
7. At para. 54 of the judgment, Peart J. concluded that “the respondent did in fact treat the best interests of the child as a primary consideration” but found that they were “outweighed by the legitimate interests of the State” (see. also, para. 39).
The applicants argue that the issues raised in this case can potentially influence matters of principle. It is said that the outcome of these proceedings will affect the position of...
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