A.W.K. (Pakistan) v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 05 November 2018
• Neutral Citation: [2018] IEHC 631
• Docket Number: [2018 No. 430 J.R.]
• Court: High Court
• Date: 05 November 2018

BETWEEN

A.W.K. (PAKISTAN)

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

(No. 2)

[2018] IEHC 631

[2018 No. 430 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Administrative & constitutional law – Judicial review – Immigration case – Application for leave to appeal from refusal of review

Facts: The applicant’s earlier application for judicial review had been refused by Humphreys J in September 2018 (See [2018] IEHC 550; [2018] 9 JIC 2506. The applicant now sought to apply for leave to appeal from the earlier refusal.

Held by Humphreys J, that the application would be refused. The earlier application of s 5 of the Illegal Immigrants (Trafficking) Act 2000 required the grant of leave to appeal, and on the submissions from the parties the Court was not persuaded such a grant was justified.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 5th day of November, 2018

1 In A.W.K. (Pakistan) v. Minister for Justice and Equality (No. 1) [2018] IEHC 550 [2018] 9 JIC 2506 (Unreported, High Court, 25th September, 2018) I refused the applicant's application for judicial review. Mr. Eamonn Dornan B.L. now applies for leave to appeal and in that regard I have received helpful submissions from him and from Mr. David Conlan Smyth S.C. (with Ms. Sarah-Jane Hillery B.L.) for the respondents. I have considered the law in relation to leave to appeal as set out in Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250 (Unreported, MacMenamin J., 13th November, 2006), Arklow Holidays v. An Bord Pleanála [2008] IEHC 2, per Clarke J. (as he then was), S.A. v. Minister for Justice and Equality (No. 2) [2016] IEHC 646 [2016] 11 JIC 1404 (Unreported, High Court, 14th November, 2016) (para. 2), Y.Y. v. Minister for Justice and Equality (No. 2) [2017] IEHC 185 [2017] 3 JIC 2405 (Unreported, High Court, 24th March, 2017) (para. 72) and I.R. v. Minister for Justice, Equality and Law Reform [2009] IEHC 510 [2015] 4 I.R. 14.

Questions 1 to 3

2 The first three proposed questions of exceptional public importance relate to whether I was correct in holding that s. 5 of the Illegal Immigrants (Trafficking) Act 2000 applies to these proceedings. It is questionable whether an issue as to whether leave to appeal is required could properly itself be a matter for leave to appeal for the simple reason that if such leave to appeal is granted, the point then immediately becomes moot. I did give such leave to appeal on one previous occasion in K.R.A. v. Minister for Justice and Equality [2016] IEHC 289 [2016] 5 JIC 1214 (Unreported, High Court, 12th May, 2016) but perhaps the outcome of that case shows that it may not have been necessarily the most appropriate course to have adopted because the Court of Appeal effectively commented that its decision on that point, while upholding my view that s. 5 did apply, was not absolutely definitive, for the reason I have referred to. Because leave to appeal had been granted the point was therefore not one of contention between the parties in the appeal: K.R.A. v. Minister for Justice and Equality [2017] IECA 284 (Unreported, Court of Appeal, 27th October, 2017) per Ryan P. at para. 53.

3 Mr. Dornan raised a separate argument that s. 5(6)(b) of the 2000 Act was relevant insofar as it provides that, by way of exception...