Y.Y. v Minister for Justice and Equality No.4

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 17 October 2017
• Neutral Citation: [2017] IEHC 690
• Date: 17 October 2017
• Docket Number: [2016 No.774 J.R.]

BETWEEN

Y.Y.

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

(No. 4)

[2017] IEHC 690

[2016 No.774 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Asylum, Immigration and Nationality – S.3(11) of the Immigration Act, 1999 – Revocation of deportation order – Amendment to the statement of grounds – Discretion of Court – Exceptional circumstances

Facts: The applicant had been granted leave to appeal by the Supreme Court on three issues and his first application under s. 3(11) of the Immigration Act, 1999 was quashed and the matter was remitted to the High Court for consideration of the issue of validity of the original deportation order. The applicant had now filed a motion to allow further amendment to take into account the decision on the second s. 3(11) application, which was refused by the first respondent and the applicant's application for liberty to put in a further affidavit. The key issue arose as to whether the amendments should have been allowed. The key issue arose as to whether the Court had discretion to quash the affirmation decision only and to adjourn the challenge to the original decision pending reconsideration.

Mr. Justice Richard Humphreys extended the stay on the removal of the applicant to facilitate more time to allow amended pleadings being filed. The Court gave liberty to the applicant to file a further amended statement of grounds in terms of the order sought except for the amendment to two grounds. The Court granted the applicant leave to seek judicial review in terms of the statement of grounds as amended. The Court gave liberty to the applicant to file a further affidavit without prejudice to any objection that may have been made at the substantive stage by the respondents.

RULING of Mr. Justice Richard Humphreys delivered on the 17th day of October, 2017

1 The applicant's original statement of grounds was delivered on 4th October, 2016. On the 13th December, 2016, I gave leave to amend the statement in relation to a first application to revoke the deportation order under s. 3(11) of the Immigration Act, 1999. On 13th March, 2017, in Y.Y. v. Minister for Justice and Equality (No.1) [2017] IEHC 176, I refused substantive relief on a telescoped basis. On 24th March, 2017, in Y.Y. v. Minister for Justice and Equality (No. 2) [2017] IEHC 185, I refused leave to appeal to the Court of Appeal and on the same date in Y.Y. v. Minister for Justice and Equality (No. 3) [2017] IEHC 334, I declined to continue the stay that had been in place against actual removal from the State. By a determination in Y.Y. v. Minister for Justice and Equality [2017] IESC DET 38, 30th March, 2017, the Supreme Court gave leave to appeal on three identified questions, and in its judgment in Y.Y. v. Minister for Justice and Equality [2017] IESC 61, 27th July, 2017, the Supreme Court quashed the first s. 3(11) decision and remitted the issue of the validity of the original deportation order back to this court. The applicant then made a second s. 3(11) application which has now been refused by the Minister. On 2nd October, 2017, I permitted amendment of the amended statement of grounds to ensure that the correct format for the amendment previously allowed was appropriately reflected (see Doyle v. White & Anor [2017] IEHC 44), and on 17th October, 2017, I heard the applicant's motion to allow a further amendment to take into account the decision on the second s. 3(11) application and his application for liberty to put in a further affidavit. I am now dealing primarily with that application.

The discretion of the court in relation to quashing a flawed decision

2 It seems to me that the attitude I should adopt to an amendment depends on the conceptual approach that should be taken to the question of how the court should respond to a flaw in an original decision. In my view it would be totally unfair on an applicant to treat him or her adversely in a review of a deportation order because he or she had made an application for revocation. While the Supreme Court did refer to the fact that the original decision and the affirmation decision were part of a chain of decisions and should be taken together, that has to be put in the wider context that the applicant could not be treated adversely for having made that application. The Supreme Court thus should I think be taken to have been likely to have made the same order (that is, an order remitting the question of the validity of the original decision to the High Court with liberty to the applicant to make a revocation application) even if there had been no prior revocation application. Such an approach is best conceptualised in my view in terms of the discretion of the court. Thus it is not automatic that a legal error results in the quashing of a decision. The Supreme Court found that there was an inadequacy of reasons in the original deportation order, but nonetheless did not quash that order. It remitted the question of the validity of that order to this court. If there had been no s. 3(11) application to have been considered with that remittal it would have been just as appropriate to remit the original issue and to require or at least permit a s. 3(11) application to be made. The exercise of discretion in this case hinges on a point made in para. 81 of the Supreme Court judgment that ' This is not a case however where it can be said that the Minister was not entitled in any circumstances to come to such a conclusion, or conversely that there was no reasonable basis upon which any Minister could conclude that there was no real risk of a breach of Article 3. Accordingly, the matter must be remitted to the Minister for further consideration.' An assessment of all circumstances including those referred to in para. 82 of the decision, which mentions the chain of decision-making, meant that it would be appropriate to quash only the revocation decision and remit the original decision. In my view (although I accept that the Supreme Court did not state this specifically) this consideration of all circumstances must include any consideration of public interest in whether the Minister should be allowed to reconsider the matter or whether the original decision should be quashed simpliciter. That public interest must include, in all realism, the fact that the applicant is a person with terrorist convictions, who was considered to be a security risk and who is clearly a serious flight risk, being a person with multiple identities who was apprehended in the act of...