YY v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 24 March 2017
• Neutral Citation: [2017] IEHC 334
• Docket Number: [2016 No. 774 JR]
• Court: High Court
• Date: 24 March 2017

[2017] IEHC 334

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2016 No. 774 JR]

BETWEEN

Y.Y.

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

(No. 3)

Asylum, Immigration & Nationality – Practice & Procedures – Stay pending a proposed application for leave to appeal to the Supreme Court – Appropriate test – Public interest – Risk of injustice – Effective remedy

Facts: The applicant had filed an application seeking a stay on his deportation pending the determination of his application for leave to appeal to the Supreme Court after the refusal of leave to appeal by the Court of Appeal. The applicant contended that the Court had been obliged to grant a stay under the Constitution.

Mr. Justice Richard Humphreys refused to grant a stay to the applicant. The Court held that the Court had the discretion to grant only a short stay depending upon the circumstances of the case in order to avoid gross injustice or delay. The Court found that notwithstanding the applicant's success or failure in the proposed leave application, the stay of the applicant in the State would remain unlawful, and thus, he was liable to be deported. The Court held that the applicant had attempted to flee the jurisdiction by fraud and engaged in anti-human rights activities. The Court held that the applicant had already availed the benefit of a stay until the decision on his leave application was rendered by the Court of Appeal. The Court observed that public interests would lean in favour of the deportation of the applicant as he had committed fraud on the immigration system of the State for the purpose of committing terrorist offences.

EX TEMPORE JUDGMENT of Mr. Justice Richard Humphreys delivered on the 24th day of March, 2017

1 This judgment concerns an application by the applicant for a stay on deportation pending an application for leave to appeal to the Supreme Court, following the refusal of leave to appeal to the Court of Appeal.

What is the appropriate test to be applied?

2 The first issue is what is the test for a stay pending a proposed application for leave to appeal to the Supreme Court. Mr. David Leonard B.L. for the applicant says that, constitutionally, I am obliged to grant a stay unless there are compelling reasons to the contrary. He relies on the new constitutional machinery in the amended Article 34, as reinforced by P.I. v. Governor of Cloverhill Prison [2016] IESCDET 145.

Can regard be had to a determination in determining the legal principles applying here?

3 An immediate question under that heading is whether regard can be had to a determination for this purpose. The Supreme Court in the normal wording of determinations usually states that they are not of precedential value. Indeed that court so stated in Part 1 of P.I. by way of what Mr. Leonard accepts can be called a boilerplate disclaimer. It was stated that ‘ [t]he Court considers it desirable to point out that a determination of the Court on an application for leave, while it is final and conclusive so far as the parties are concerned, is a decision in relation to that application only. The issue is whether the questions raised, and the facts underpinning them, meet the constitutional criteria for leave. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, the issues permitted to be raised by the determination will in due course be disposed of in the substantive decision of the Court.’ Nonetheless, it does seem appropriate to have regard to determinations in relation to procedural issues regarding the process of leave to appeal as distinct from substantive issues, which is the term used in the disclaimer and Mr. Farrell does not argue with that proposition. So far the Supreme Court does not, so far as I am aware, appear to have said that its determinations cannot be used for procedural guidance.

Can a judgment be qualified or distinguished by reference to a determination?

4 The next question is whether a judgment (such as relating to the test for stays or injunctive relief) can be qualified or distinguished by reference to a determination. But logic suggests that if regard can be had to the determination at all, it seems potentially capable of being something that has to be read alongside caselaw as set out in judgments; and possibly to that limited extent as qualifying statements in a judgment. Having said that, one has to have regard to the disadvantages of readily regarding a determination as affecting the law as set out in judgments because determinations are issued without full argument, and usually without any oral argument. They are dependent on limited material; and to have regard to them as modifying judgments would create a new body of jurisprudence almost incidentally. Mr. Farrell describes the comments in P.I. as something in the nature of a practice direction, which I think is probably closer to what was intended; but at least at the level at principle it seems to me guidance as to procedural law can be had from determinations and to that extent, judgments on procedural issues may need to be read in a different light depending on the contents of particular determinations.

Is there a different test for a stay pending appeal for leave to the Supreme Court from that applying to an interlocutory stay?

5 The next question is whether there is a different test for a stay pending an application for leave to the Supreme Court that is distinct from the test in Okunade v. Minister for Justice [2012] IESC 49, per Clarke J., para. 9. Mr. Leonard says there is such a different test arising from the Constitution, and the constitutional right of appeal to the Supreme Court with leave of that court. He says this is not created by P.I. but reinforced by it. It seems to me however that there is no jurisprudential logic for saying that a stay pending an appeal should be more generous and readily available than the stay pending a hearing at first instance; indeed the reverse seems to be the case, as suggested in Okunade. It seems to me more important at the level of first principles that an applicant gets an initial full hearing than that he or she gets access to a review procedure, for numerous reasons. Accordingly, I would be of the view that it would be illogical to hold that there has to be a more ready granting of stays pending appeal than stays pending the conclusion of the process at first instance.

6 Part 3 of P.I. is obviously heavily relied on by Mr. Leonard but there the court does not specifically say that an injunction should normally be granted, just that it is normally appropriate for the application to be made. The Supreme Court stated that ‘ [t]he question of a stay or injunction pending the determination of an Application for Leave to appeal to the Supreme Court can arise often when the matter has already been considered in relation to the hearing in the High Court or Court of Appeal. In such circumstances it will normally be appropriate for an application to be made to the Court of Appeal (or the High Court in the case of appeals under Article 34.5.4°) for a short stay or injunction as the case may be, pending the decision of this Court on an application for leave. In circumstances of urgency it may be appropriate ...