Y.Y. v Minister for Justice and Equality No. 8

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 25 September 2018
• Neutral Citation: [2018] IEHC 537
• Docket Number: [2016 No. 774 J.R.]
• Court: High Court
• Date: 25 September 2018

[2018] IEHC 537

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2016 No. 774 J.R.]

BETWEEN

Y.Y.

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

(No. 8)

Order of certiorari – Directions – Remittal – High Court judge seeking further submissions – Whether the order of certiorari should be directed to the whole, or only to a part of, the decision

Facts: The High Court (Humphreys J), in Y.Y. v Minister for Justice and Equality (No. 7) [2018] IEHC 459, decided that in principle there would be an order of certiorari directed to a decision under s. 3(11) of the Immigration Act 1999 whereby the respondent, the Minister for Justice and Equality, declined to revoke the deportation order against the applicant. As regards the appropriate relief, Humphreys J posed four questions on which he wished to hear further submissions: (i) whether the order of certiorari should be directed to the whole, or only to a part of, the decision; (ii) whether the matter should be remitted to the Minister; (iii) if so, whether specific directions as to the procedure to be adopted should be given; and (iv) if not, what would be the consequences for the deportation order. He received submissions on those matters from Mr Lynn S.C. (with Mr Leonard B.L.) for the applicant and from Mr Farrell S.C. (with Ms McGrath B.L.) for the respondent.

Held by Humphreys J that, as the flaws identified were too central to the decision and could not in any meaningful sense be severed from it, the decision must be quashed in whole. He held that the balance overall was still in favour of remittal, broadly for the reasons referred to in Y.Y. v Minister for Justice and Equality (No. 6) [2017] IEHC 811. He held that the fact that the case had already consumed so much in the way of court resources was a reason to positively consider directions that might nudge matters towards finality, one way or the other, at least as far as the High Court was concerned. He held that he would postpone the issue of the consequences for the deportation order until the s. 3(11) issue was dealt with.

Humphreys J held that: (i) there be an order of certiorari removing for the purposes of being quashed the entirety of the s. 3(11) refusal; (ii) the s. 3(11) application be remitted to the Minister with the directions set out in the judgment; (iii) the challenge to the deportation order be adjourned pending the outcome of the s. 3(11) process; (iv) within 2 weeks from the oral pronouncement of the order the respondent provide a schedule of material (including country information, case law and documents as set out in the judgment) to which regard was intended to be had in dealing with the s. 3(11) application; (v) the applicant have 2 weeks from the oral pronouncement of the order to make any further submissions to the Minister and to also provide a summary list of the comparable cases and other important points which would require to be addressed that the applicant contended came within para. 64 of the judgment of O’Donnell J in this case; (vi) within 2 weeks from receipt of such further submissions and the delivery of the list set out in the foregoing paragraph, the respondent provide an additional schedule of material proposed to be relied on if there was an intention to rely on any such additional material; (vii) within 1 week of the delivery of any such schedule, the applicant will have 1 further week to deliver any further observations to the respondent; (viii) the respondent has 4 weeks which will commence either on the delivery of the further observations or on his notifying the applicant that there is no further material being relied on, within which to make a decision on the s. 3(11) application; and (ix) the matter be listed for mention on 27th November, 2018.

Judgment approved.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 25th day of September, 2018

1 In Y.Y. v. Minister for Justice and Equality (No. 7) [2018] IEHC 459 [2018] 7 JIC 3134 (Unreported, High Court, 31st July, 2018), I decided that in principle there would be an order of certiorari directed to a decision under s. 3(11) of the Immigration Act 1999 whereby the Minister declined to revoke the deportation order against the applicant. As regards the appropriate relief, I posed four questions on which I wished to hear further submissions:

(i) whether the order of certiorari should be directed to the whole, or only to a part of, the decision;

(ii) whether the matter should be remitted to the Minister;

(iii) if so, whether specific directions as to the procedure to be adopted should be given; and

(iv) if not, what would be the consequences for the deportation order.

2 I have now received helpful submissions on these matters from Mr. Michael Lynn S.C. (with Mr. David Leonard B.L.) for the applicant and from Mr. Remy Farrell S.C. (with Ms. Sinead McGrath B.L.) for the respondent.

Whether the decision should be quashed in whole or in part

3 In the present case, the flaws identified are too central to the decision and cannot in any meaningful sense be severed from it, so the decision must be quashed in whole.

Whether the matter should be remitted to the Minister

4 It is clear that the jurisdiction to remit or not to remit is a discretionary one: Prendeville v. Medical Council [2007] IEHC 427 [2008] 3 I.R. 122, Nevin v. Crowley [2001] I.R. 113, Usk and District Residents Association v. An Bord Pleanála [2007] IEHC 86 [2007] 2 I.L.R.M. 378. That approach seems preferable to the idea canvassed in Pendred v. Employment Appeals Tribunal (Unreported, Kearns P., 28th November, 2014) that the reactivation of a process following certiorari does not require remittal. The Pendred approach would eliminate the well-established discretion of the court as to whether to remit or not to remit.

5 In that regard, in the present case, in Y.Y. v. Minister for Justice and Equality (No. 6) [2017] IEHC 811 [2017] 12 JIC 2111 (Unreported, High Court, 21st December, 2017), I identified a series of factors favouring and disfavouring the notion of remittal at that particular point in time. Most of those factors continue to apply, although the balance has improved from the applicant's point of view in the sense that there has been further error in the decision-making process, there is the fact that that involved a failure to give effect to the recommendations of the court regarding giving of notice of material and there is the further passage of time. Notwithstanding those elements, the balance overall is still in favour of remittal, broadly for the reasons referred to in the No. 6 judgment.

Whether directions as to the procedures to be adopted should be given

6 One major factor as to why there is a need to give more specific directions in the present case is that I have already attempted the route of making recommendations,...