WS v Minister for Justice and Equality

JurisdictionIreland
CourtHigh Court
JudgeMs. Justice O'Regan
Judgment Date08 May 2017
Neutral Citation[2017] IEHC 282
Docket Number[2014 No. 250 J.R.]
Date08 May 2017

[2017] IEHC 282

THE HIGH COURT

JUDICIAL REVIEW

O'Regan J.

[2014 No. 250 J.R.]

BETWEEN
W.S.

AND

S. L. S.

AND

G. C. L. (AN INFANT SUING BY HIS FATHER AND NEXT FRIEND L. S. S.)
APPLICANTS
AND
MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
RESPONDENT

Asylum, Immigration & Nationality – S. 5(3)(a) of the Illegal Immigrants (Trafficking) Act 2000 – Deportation of settled migrants – Engagement of art. 8 of the European Convention on Human Rights (ECHR)

Facts: The applicants sought leave to appeal to the Court of Appeal for the purpose of proposing the question as to whether the respondent was required to conduct a proportionality assessment under art. 8(2) of ECHR while making a decision to deport a settled migrant or the respondent had the discretion to determine that private life rights in question were not sufficient to conduct an inquiry under art. 8.

Ms. Justice O'Regan refused to grant leave to the applicants. The Court held that there was no legal uncertainty in relation to the proposed question. The Court noted that the proposed question had already been answered in Balogun v United Kingdom (2013) 56 EHRR 3 and Balchand v Minister for Justice and Equality [2016] IECA 383. The Court held that the aforesaid decisions clearly laid down that there must be an inquiry to assess whether the proposed decision to deport had consequences of such gravity so as to constitute interference with private and family rights before an assessment under art. 8(2) could be made.

JUDGMENT of Ms. Justice O'Regan delivered on the 8th day of May, 2017
Issues
1

This is an application heard by the Court on the 26th April, 2017 following submissions tendered on the part of the applicants bearing the date 22nd March 2017 (no submissions were tendered on behalf of the respondent) wherein the applicants are seeking leave to appeal for the purposes of posing the following question:-

‘When the respondent is considering whether she will deport a settled migrant and will accept the deportation has the potential to interfere with his right to respect the private life within the meaning of Article 8 (1) of the ECHR, is the respondent obliged, in every case, to conduct a proportionality assessment as provided for in Article 8 (2) of the ECHR or may the respondent determine, without engaging in a proportionality assessment, that the private life rights in question were such as would not rise to a level sufficient to engage the operation of Article 8?’

2

The above query is said to arise from this Court's decision of the 23rd February 2017.

Applicable legislation and jurisprudence
3

Section 5 (3) (a) of the Illegal Immigrants (Trafficking) Act (2000) provides:-

‘The determination of the High Court of an application for leave to apply for judicial review as aforesaid 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 Court of Appeal 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 Court of Appeal.’

4

In the matter of Glancré v. An Bord Pleanala [2006] IEHC 250 MacMenamin J. in the High Court identified the following applicable provisions to the question of whether or not certification should be granted. Notwithstanding that the matter before MacMenamin J. was a planning issue nevertheless the principles so identified relate to comparable provisions as that contained in s. 5 (3) (a) of the 2000 Act aforesaid. These identified principles are as follows:-

‘1. The requirement goes substantially further than that a point of law emerges in or from the case. It must be one of exceptional importance being a clear and significant additional requirement.

2. The jurisdiction to certify such a case must be exercised sparingly.

3. The law in question stands in a state of uncertainty. It is for the common good that such law be clarified so as to enable the courts to administer that law not only in the instant, but in future such cases.

4. Where leave is refused in an application for judicial review i.e. in circumstances where substantial grounds have not been established a question may arise as to whether, logically, the same material can constitute a point of law of exceptional public importance such as to justify certification for an appeal to the Supreme Court (Kenny).

5. The point of law must arise out of the decision of the High Court and not from the discussion or consideration of a point of law during the hearing.

6. The requirement regarding ‘exceptional public importance’ and ‘desirable in the public interest’ are cumulative requirements which although they may overlap, to some extent require separate consideration by the court.

7. The appropriate test is not simply whether the point of law transcends the individual facts of the case since such an interpretation would not take into account the use of the word ‘exceptional’.

8. Normal statutory rules of construction apply which mean inter alia that ‘exceptional’ must be given its normal meaning.

9. ‘Uncertainty’ cannot be ‘imputed’ to the law by an applicant simply by raising a question as to the point of law. Rather the authorities appear to indicate that the uncertainty must arise over and above this, for example in the daily operation of the law in question.

10. Some affirmative public benefit from an appeal must be identified. This would suggest a requirement that a point to be certified be such that it is likely to resolve other cases.’

5

In a subsequent decision of Cooke J. in I.R. v. Minister for Justice, Equality and Law...

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