X.X. v Minister for Justice and Equality (No. 2)

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 29 July 2016
• Neutral Citation: [2016] IEHC 475
• Date: 29 July 2016
• Court: High Court
• Docket Number: [2015 No. 647 J.R.] [2015 No. 727 J.R.]

[2016] IEHC 475

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2015 No. 647 J.R.]

[2015 No. 727 J.R.]

BETWEEN

X.X.

APPLICANT

AND

MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

BETWEEN

X.X.

APPLICANT

AND

MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

(No. 2)

Asylum, Immigration & Nationality – S. 5 of the Illegal Immigrants (Trafficking) Act 2000 – Leave to appeal to the Court of Appeal – Reference to the Court of Justice of the European Union (CJEU)

Facts: The present judgment concerns the reasons for the refusal of the High Court to grant a certificate of appeal and make a reference to the CJEU in relation to the proposed questions raised after the dismissal of the substantive proceedings. Some of the proposed questions raised for granting certificate of appeal were whether s. 5 of the Illegal Immigrants (Trafficking) Act, 2000, acted as a procedural or jurisdictional bar on the right to maintain judicial review proceedings in breach of that section and whether art. 32 of the Directive 2005/85/EC required member states to interpret pre-existing laws as requiring an applicant to identify new elements before being permitted to make a second asylum application.

Mr. Justice Richard Humphreys refused to grant leave to appeal before the Court of Appeal and refused to make a case for reference to the CJEU. The Court held that since one of the proposed questions was never raised in the original substantive proceedings by the applicant despite being given leave to amend the statement of claims, that point could not be argued in the judicial review proceedings. The Court held that other proposed question concerning art. 32 of the Directive 2005/85/EC was never in issue in the main proceedings, thus, it could not be entertained for the purpose of granting certificate of appeal. The Court held that it merely gave purposive interpretation to s. 17 (7) of the Refugee Act, 1996, which in turn gave effect to art. 32 of the said Directive 2005/85/EC. The Court opined that if the applicant wished to make a case for reference to CJEU, he could have done that at the time of hearing but not after dismissal of his case. The Court discharged all stays and injunctions granted in the main proceedings and held that there existed no point of law of exceptional public importance so as to cause the Court to exercise discretion in favour of the applicant.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 29th day of July, 2016

1 Following the substantive decision in this case X.X. v. Minister for Justice and Equality (No. 1) [2016] IEHC 377 (Unreported, High Court, 24th June, 2016), the applicant applied for leave to appeal and for a reference to the Court of Justice of the European Union, as well as for a stay on the discharge of the existing injunction pending an appeal. On 4th July, 2016, I refused those applications and I now set out written reasons for doing so.

The first proposed question

2 Mr. Michael Lynn S.C. for the applicant applies for leave to appeal in the first judicial review without prejudice to his contention that s. 5 of the Illegal Immigrants (Trafficking) Act 2000, does not apply. In considering the application for leave to appeal in relation to this and all other questions, I have had regard to the case law on the criteria for leave to appeal as set out in Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250 (Unreported, High Court, MacMenamin J., 13th July, 2006) and other related cases.

3 The first proposed question is whether s. 5 of the 2000 Act is a jurisdictional or a procedural bar on the right to maintain judicial review proceedings or in other words whether it prevents an applicant from maintaining judicial review proceedings in breach of the section, even if the respondent has failed to plead non-compliance with that section.

4 The first of many fatal obstacles to this application is that this question relates to a point not made at the hearing. The applicant did not submit, prior to the determination of his proceedings, that s. 5 was only a procedural bar akin to the statute of limitations and not a jurisdictional bar to his action. He cannot be permitted to simply read the judgment and think of new points which did not arise at the hearing and seek to use those new points as a basis for seeking leave to appeal.

5 To give leave to appeal on grounds which had not been raised at the hearing would be to facilitate an applicant in engaging in what Mr. Remy Farrell S.C., for the respondent, calls a ‘legal confection’ arising from an imaginative consideration of a judgment after the event. It would give rise to a situation where the Court of Appeal would determine the issue as a court of first instance.

6 The second difficulty is that para. 11 of the statement of opposition impliedly relies on s. 5 of the 2000 Act, at least as regards the issue of time. While in an ideal world it would have been better if the section had been expressly referred to and relied on to all of its elements rather than just in relation to the time aspect, I consider that the section was indeed pleaded by necessary implication.

7 Thirdly, as noted in X.X. (No. 1) at para. 50 the applicant was the beneficiary of an application to amend which ensured that any points he wished to make and for which an appropriate application had been made were brought within the pleadings. Given the precarious position in which the applicant found himself where an application to amend the statement of grounds had to be made during the hearing (an application which, in fact, required going through a number of different versions of his statement before leave to amend was finally given), it was incumbent on the applicant to articulate at the hearing any objections being made to alleged shortcomings in the respondent's statement of opposition. The applicant simply failed at the hearing to take any objection to the respondent relying on s. 5 of the 2000 Act and failed to make any point that such reliance had not been pleaded. It is, therefore, simply too late to engage in such a retrospective objection at this stage (see my judgment in K.R.A. v. Minister for Justice and Equality [2016] IEHC 289 (Unreported, High Court, 12th May, 2016) at para. 20).

8 Fourthly, the applicant cannot, in this case, submit that this, or indeed any other point in the first judicial review is a matter of exceptional public importance such that it is desirable in the public interest that an appeal be permitted by the Court of Appeal, because the applicant in the first judicial review proceedings failed to challenge the correct decision or name the correct respondents. The proceedings were simply incorrectly constituted, and even answering the proposed question in favour of the applicant would not change the result. Leave to appeal cannot be granted on the basis of a question which would not, in fact, make a difference to the outcome (see my judgment in G.I. v. Minister for Justice and Equality (No. 2) [2015] IEHC 823 (Unreported, High Court, 21st December, 2015) at para. 9).

9 Separately, it is unlikely that any future applicant would proceed in the roundabout way that this applicant has, namely by procuring a refusal under s. 17(7) and then failing to challenge it, but rather seeking declaratory reliefs more than 28 days after the original, unchallenged, decision.

10 It seems to me that the particular set of procedural steps which gave rise to the applicant's difficulties in the first judicial review are very much unique to him and do not extend significantly beyond the present case.

11 I would finally observe that the question is not in any event one on which genuine doubt arises. The section is not in any way analogous to the statute of limitations. The court cannot properly deal with an application for leave, or the outcome of a substantive decision, without actually taking a view on whether s. 5 arises. The question cannot be shirked even if it is not raised by a party. Otherwise, for example, a court at the leave stage would always be bound by the applicant's view as to whether s. 5 applies, no matter how absurd that view might be, because in the absence of a respondent, the section could not be pleaded at that point.

The second proposed question

12 The applicant's second question is as to whether art. 32 of the procedures directive ( Council directive 2005/85/EC of 1st December, 2005 on minimum standards on procedures in member states for granting and withdrawing refugee status) requires member states or their courts to interpret national legislation existing prior to the coming into force of that directive as requiring that a person making a second application for asylum after making and withdrawing a previous application must identify new elements before being permitted to do so despite that national legislation on a literal reading, not subjecting the making of a second application by such a person to any condition precedent.

13 There are a number of insuperable difficulties with this question. A number of the general reasons applicable to the first question also apply here.

14 But even more fundamentally, this is not a question that arises on the facts of this case or out of the judgment in the substantive proceedings.

15 I simply did not find that art. 32 of procedures directive compels member state to interpret pre-existing law as requiring an applicant to identify new elements before being permitted to make a second application for asylum.

16 I found that the provisions s. 17(7) of the Refugee Act 1996, which relate to re-applications,...