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Determination

Title:
Charles & ors -v- The Minister for Justice and Equality & ors
Neutral Citation:
[2016] IESCDET 8
Supreme Court Record Number:
S:AP:IE:2015:000054
Court of Appeal Record Number:
A:AP:IE:2014:000445
High Court Record Number:
2011 No 862 JR
Date of Determination:
01/20/2016
Composition of Court:
Denham C.J., Dunne J., Charleton J.
Status:
Approved

___________________________________________________________________________


Supporting Documents:


THE SUPREME COURT

DETERMINATION


BETWEEN

C & ors
RESPONDENTS
AND

THE MINISTER FOR JUSTICE AND EQUALITY

IRELAND AND THE ATTORNEY GENERAL

APPLICANTS

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES

RESULT: The Court grants leave to the applicants to appeal to this Court from the Court of Appeal.

REASONS GIVEN:

1. This determination concerns an appeal brought by the Minister for Justice and Equality, Ireland and the Attorney General hereinafter referred to as “the applicants” from the judgment of the Court of Appeal delivered on the 27th day of July, 2015 ([2015] IECA 167) and the order of the 27th July, 2015 which was perfected on the 29th July, 2015.

2. The Court of Appeal granted an interlocutory injunction restraining the deportation of the respondents pending the determination of the appeal.

3. This Court has jurisdiction to hear an appeal from the Court of Appeal, in the circumstances described in Article 34.5.3° of the Constitution, which states:

      “The Supreme Court shall, subject to such regulations as may be prescribed by law, have appellate jurisdiction from a decision of the Court of Appeal, if the Supreme Court is satisfied that:

        (i) the decision involves a matter of general public importance, or

        (ii) in the interests of justice it is necessary that there be an appeal to the Supreme Court.”

4. The decision of the Supreme Court under Article 34.5.6° is, in all cases, “final and conclusive”.

5. The constitutional framework established by the Thirty Third Amendment to the Constitution thus requires, that in order for a party to be entitled to appeal to this Court from a decision of the Court of Appeal it has to be demonstrated that either a “matter of general public importance” arises, or that “in the interests of justice it is necessary that there be an appeal to this Court”.

6. The statutory framework for the exercise of the right to appeal to this Court is to be found in the Court of Appeal Act 2014, and, in particular, in the provisions of s. 44 of that Act, which inserts a new s. 7 into the Courts (Supplemental Provisions) Act 1961.

7. The Rules of Court are set out in the amended Order 58 of the Rules of the Superior Courts.

8. The Constitution has retained the entitlement to have one appeal as a right from the High Court to the Court of Appeal, subject to express exclusions or regulation by statute. What is sought here is a second appeal. The jurisdiction to bring an appeal to this Court is confined, principally, to cases where, as a result of the determination of the Court of Appeal, the decision of that Court is such that the issues raised on a proposed appeal would involve a matter of general public importance, or would be such that it is in the interests of justice that there should be a further appeal to this Court.

9. In these proceedings the respondents brought an application for leave to apply for judicial review of the decisions determining that they are not eligible for subsidiary protection and of the decisions to make deportation orders in respect of the respondents. The High Court, in a judgment delivered on the 19th April, 2012, refused to grant leave to apply for judicial review of the decisions determining that they are not eligible for subsidiary protection and of the decisions to make the deportation orders. The respondents then appealed to the Court of Appeal, which, in a judgment delivered on the 27th July, 2015 pursuant to a notice of motion seeking an injunction restraining the deportation of the respondents pending the determination of the appeal which was filed by the respondents on the 9th May, 2012 against the judgment and order of the High Court (Mr. Justice Cooke) made on the 19th April, 2012 refusing the respondents’ application for leave to apply for various reliefs by way of judicial review, allowed the application and granted an interlocutory injunction restraining the deportation of the respondents pending the determination of the appeal.

10. The applicants have applied for leave to appeal to this Court against the entire decision of the Court of Appeal to grant the respondents the interlocutory injunction restraining their deportation.

Background facts

11. The respondents in the application for leave to appeal are a father, mother and their two minor children. They are all Malawian nationals. The first named respondent applied for a declaration of refugee status in 2008. He claimed that he had to flee his country of origin, Malawi, because his father-in-law, who has HIV, wanted to have sexual intercourse with his daughter in the belief that it would cure him of his condition. His application was unsuccessful. His wife, the second named respondent, also applied for asylum in 2008. She included the third named respondent who was born in Malawi in 2007 in her application which was, in substance, the same as her husband’s. Her application was unsuccessful as was an application for asylum made on behalf of the fourth named respondent who was born in the State in 2008. Thereafter, applications for subsidiary protection and leave to remain were made by or on behalf of the respondents in which they relied upon the assertions which had underpinned their unsuccessful applications for declarations of refugee status. In refusing these applications and in making deportation orders against the respondents in 2011, the first named applicant noted that State protection and internal relocation would be available to the respondents in Malawi.

12. The respondents issued judicial review proceedings seeking to quash those decisions of the first name applicant. The inter partes leave hearing took place in 2012 and Cooke J. having reserved judgment, subsequently refused leave, holding that no stateable grounds existed for quashing the decisions. The respondents appealed the High Court’s upholding of the validity of the subsidiary protection decisions to the Supreme Court. They did not apply for a certificate of leave to appeal against the upholding of the deportation orders. They subsequently left their address, failed to notify the authorities of their whereabouts, and failed to present to the Garda National Immigration Bureau (“GNIB”) for the purpose of making arrangements for their deportation from the State, thereby evading deportation for a number of years, during which the adult respondents worked illegally in the State. They presented again in 2015 and sought an undertaking not to deport them given their appeal, which in the meantime had been transferred to the Court of Appeal. The undertaking requested by them not being forthcoming, they applied to the Court of Appeal for an injunction to enjoin their deportation and were granted it pursuant to the decision of the Court of Appeal of the 27th July, 2015.

The Court of Appeal

13. The Court of Appeal found that the respondents had a fair and arguable case on appeal by reference to the decision of Hogan J. in M.M. v. Minister for Justice [2013] 1 I.R. 370 and by reference to the ruling of the CJEU to C - 277/11 MM v. Minister for Justice [2012] E.C.R. I-000. This was on account of the fact that the decisions to refuse subsidiary protection were partly based on the adoption of a negative credibility finding made by the first named applicant when refusing the respondents’ declarations of refugee status. The Court of Appeal held, relying upon the decision of Okunade v. Minister for Justice and Equality & Ors [2012] 3 I.R. 152 (Okunade), that the balance of convenience lay in favour of granting the injunction sought. The Court of Appeal applied the same test that would be applied at an inter partes application for an injunction at first instance notwithstanding that the High Court had already determined that there was no fair or arguable case to be tried insofar as it had refused to grant leave.

14. The Court of Appeal also held that, if the adult respondents were looked at in isolation, their applications for such relief would have little to commend them given their evasion of their obligations under immigration law. It held, however, that their position had to be considered in conjunction with that of their children. The children were innocent of the parents’ deceptions and it would be unjust to visit them with the consequences thereof. It held that their deportation would occasion them significant dislocation. It held that they had a right to the company and care of their parents under Articles 41, 42 and 42A of the Constitution. It held that the balance of convenience favoured granting them an injunction and that it was, in consequence, also necessary to enjoin the deportation of their parents in order to protect the children’s constitutional rights.

Application

15. On the 26th August, 2015, the applicants lodged an application for leave to appeal to the Supreme Court. The respondents’ notice was received on the 10th September, 2015.

Reasons of the applicants as to why Supreme Court should grant leave to appeal

16. The applicants have stated that the proposed appeal raises two important matters of law of general public importance warranting an appeal being granted in the interests of justice namely:

      (a) Where the High Court refused leave by way of judicial review to challenge inter alia decisions of the first named applicant to make deportation orders in respect of the non-national respondents and where they sought an interlocutory injunction from the Court of Appeal to enjoin their deportation from the State pending the outcome of the appeal, did the Court of Appeal err in determining the issue on the basis of whether or not there was a fair issue to be tried?

      (b) In assessing where the balance of convenience lay, did the Court of Appeal err in failing to acknowledge that the respondents’ children were to be identified with the conduct of their parents, and in failing to decline the injunctive relief sought on the basis of the parents’ grave breaches of immigration law, particularly their evasion of deportation over a sustained period?

17. In relation to the first question it was submitted on behalf of the applicants that the decision of the Court of Appeal conflicts with and/or misapplies a number of decisions of the Supreme Court, namely Okunade, [2012] IESC 49, P.B.N.(DR Congo) v. Minister for Justice and Equality & ors[2014] IESC 9, Cosma v. Minister for Justice, Equality and Law Reform [2007] 2 I.R. 133, and P.O. & anor v. Minister for Justice and Equality & ors [2015] IESC 64.

18. First, it significantly misapplied and impermissibly extended the decision of the Supreme Court in Okunade. Okunade, a case concerning a mother and a four year old child who were subject to deportation orders, set out principles pursuant to which the first named applicant may be enjoined from enforcing deportation orders against non-nationals pending a leave hearing or, as the case may be a post-leave hearing by way of judicial review before the High Court.

19. Insofar as the identification of “arguable grounds” for an injunction was concerned, the Supreme Court in Okunade held at para. 10.7 that the decision to be identified was whether there was on an “arguable grounds” basis, a “credible basis for suggesting that a real risk of significant harm would attach to the [non-national] on deportation”. In its later decision in P.B.N. (DR Congo) v. Minister for Justice [2014] IESC 9, the Supreme Court was faced with an appeal from a non-national whose application for an injunction to enjoin deportation pending a leave hearing had been refused by the High Court. It held that, based on the information before it, there were arguable grounds for the contention that a credible basis existed for suggesting that a real risk of significant harm would attach to the non-national on deportation. It considered at para. 27 that it was not appropriate to attempt to resolve the conflicts in the detailed country of origin information before it on that question on an interlocutory application.

20. The position of the respondents in the present case, and in any analogous case, is to be contrasted with that of a party seeking injunctive relief at first instance. In the respondents’ case there has already been a hearing at first instance where the conflicts of fact requiring to be resolved have been resolved. There has also been an opportunity to argue all issues fully. The rules underpinning the grant of interlocutory injunctions in such cases and more generally operate on the basis that it may be necessary and fair to preserve a particular status quo ante pending an opportunity to fully explore the relevant issues of fact and law. The same logic does not apply in the appellate setting – or insofar as it may apply it does so in a very much attenuated manner.

21. In an appellate setting it is contended that considerably more weight ought to be given to considerations of public order and the necessity to enforce otherwise lawful deportation orders which have withstood scrutiny at first instance. In this regard an useful analogy might be drawn with the criteria applying to the grant of bail pending appeal from conviction and sentence in criminal proceedings – see DPP v. Corbally [2001] 1 I.R. 180.

22. Turning to the balance of convenience, the Supreme Court held in Okunade that significant weight needed to be attached to permitting measures such as deportation orders, which were prima facie valid, to be carried out in a regular and orderly way. It held at para. 9.30 of its decision that:

      “An order or measure which is at least prima facie valid, (even if arguable grounds are put forward for suggesting invalidity) should command respect such that appropriate weight needs to be given to its immediate and regular implementation in assessing the balance of convenience” (Emphasis added).
It pointed out at para. 10.5 that the “default position” was that an applicant for leave would not be entitled to an injunction enjoining deportation. It observed at 10.3 that in some cases, the only result of a successful judicial review challenge would be a rehearing or a reconsideration, rather than a court determined right to remain in the State.

23. In Okunade, the Court stated at paras. 11. 2 and 11.3 that the disruption to the non-national’s family life should have been considered as a countervailing factor of sufficient weight as to warrant the grant of an interlocutory injunction pending a leave hearing. It specifically expressed no view on what the position should be after the refusal of leave as that issue was not before it. The present case clearly concerns the position after a refusal of leave.

24. In the cases of Cosma v. Minister for Justice, Equality and Law Reform [2006] IESC 44 and P.O. & anor v. Minister for Justice and Equality & ors [2015] IESC 64, the Supreme Court indicated that, absent changed or new circumstances, an injunction should not be granted to enjoin enforcement of a valid and unchallenged deportation order.

25. It is suggested that there would appear to be a degree of uncertainty as to the appropriate criteria to be applied on an application for an injunction before the Court of Appeal in circumstances where an otherwise valid deportation order exists and the grounds for challenging same have been dismissed at first instance. Given the high volume of cases of this type and the inevitability that the same issue will arise in the future it is desirable that it would be determined definitively by the Supreme Court.

26. In the present case the position before the Court of Appeal was that the High Court, following an inter partes leave hearing, during which it had time to consider the information underpinning the various applications made by the respondents and the arguments of the parties, delivered judgment in which it upheld the validity of the refusal of the respondents’ subsidiary protection applications and the deportation orders made in respect of them. It observed that there was no objective basis for the fear which led to the making of the applications for subsidiary protection, noting that, notwithstanding some sceptical remarks in the decisions, the first named applicant had not questioned the essential backdrop against which the applications were framed, and had concluded that State protection and internal relocation would be available to the respondents in Malawi. The High Court considered that to have been a reasonable conclusion.

27. In those circumstances, it is submitted that the Court of Appeal’s appraisal of the question of arguable grounds was insufficiently exacting and/or failed to give sufficient weight, on the one hand, to the decision of the High Court that there was, in effect, no arguable basis for the contention that there was a credible basis of a real risk of significant harm being suffered by the respondents if they moved to Malawi and, on the other, to the fact that neither the grounds of appeal in the respondents’ notice of appeal nor the affidavit grounding the application for the injunction before the Court of Appeal demonstrated the existence of such a risk. The grounds of appeal raised a number of complaints about the High Court’s decision, all of which were straightforward matters of law which did not suggest any reason for believing that such a risk existed and the ventilation of which did not require the respondents’ presence in the State. The affidavit grounding the injunction did not adduce any evidence to suggest that the respondents would be at risk of “serious harm” within the meaning of the Qualification Directive (2004/83/EC) in Malawi. It is submitted that the same may be said of the point identified by the Court of Appeal as constituting an arguable ground for the purpose of granting the injunction impugned herein which, it is submitted, overlooked the fact that, unlike MM, the first named applicant’s refusal of the subsidiary protection application was based on severable, objective matters like the availability of internal relocation and state protection. Additionally, that ground was not included in the notice of appeal by the respondents; they had, however, included it in their statement of grounds before the High Court, but had not pursued it at the leave hearing.

28. Further, it is submitted that the Court of Appeal erred in failing to give insufficient weight to the fact that the validity of the deportation orders had been upheld by the High Court and were not challenged in the appeal.

29. It is submitted that, in relying upon Okunade to justify the grant of an injunction by reference to the ages of the respondents’ children and the fact that they had been in the State for a number of years (albeit either precariously or unlawfully), the Court of Appeal failed to acknowledge that the view expressed in Okunade were expressly designed to govern the position before a leave hearing, and not afterwards By holding, in effect, that Okunade required the grant of an injunction in the instant case, it is submitted that the Court of Appeal extended Okunade in a significant and unwarranted manner, such as to require clarification in the interests of justice from this Honourable Court as to whether or not it was correct to do so.

30. It is submitted that the Court of Appeal failed to acknowledge that the respondents’ family had no right to remain as a unit in the State pending the outcome of the appeal and in failing to have any due regard to the sovereign entitlement of the State to control illegal immigration, as emphasised by the Supreme Court in P.O. v. Minister for Justice and Equality & ors, cited above, and Esmé v. Minister for Justice and Equality [2015] IESC 26.

31. Moreover, it is submitted that the Court of Appeal failed to have regard to the fact that there had been delay/laches on the part of the respondents in seeking injunctive relief and that, insofar as it considered that there had been integration on their part in the State, it failed to acknowledge that that had occurred predominantly when they had no lawful entitlement to be on its territory and at a time when the adult respondents were actively frustrating the entitlement of the first named applicant to enforce their deportation.

32. The issues raised above arise out of the decision of the Court of Appeal and transcend this individual case. Given the size of the High Court asylum and immigration list and the current increase in asylum seekers in the State they are likely to come before both the first named applicant and officials acting on her behalf and the Superior Courts on a frequent basis. A significant number of persons subject to deportation orders and who have instituted proceedings to challenge them have minor children. Already, the Department of Justice and Equality and the Chief State Solicitor’s Office has received correspondence from legal advisers for non-national applicants seeking undertakings not to deport them on the basis of the Court of Appeal’s decision in this case, and threatening injunction applications in default thereof. This case has been relied upon by the applicant in one injunction application currently before the High Court. It is submitted that the conflict between the Court of Appeal’s decision and the Supreme Court case law outlined above will result in the existence of considerable uncertainty in the important area of the State’s entitlement to enforce immigration controls and, unless this Honourable Court permit this appeal to proceed, will render extremely difficult, if not impossible, the enforcement of deportation orders in respect of non-nationals who have children in the State, notwithstanding the fact that leave applications to challenge deportation orders have been heard or, leave having been refused, appeals have been lodged with the Court of Appeal.

33. On the second question identified by the applicants the following submissions were made, namely:

      It is submitted that, in granting the adult respondents an injunction solely on the basis that their children were blameless in respect of their grave abuse of the immigration system, the decision of the Court of Appeal conflicts with and/or misapplies a number of decisions of the Supreme Court namely Sivsivadze & ors v. Minister for Justice and Equality & ors [2015] IESC 53 (Sivsivadze) and P.O. & ors v. Minister for Justice [2015] IESC 64 (P.O.), as well as case law of the European Court of Human Rights, such as Butt v. Norway App no. 47017/09 (ECtHR, 4th March, 2013).

      The Supreme Court in Sivsivadze did not exclude the possibility that relief sought by way of judicial review could be refused on the ground of a matter like abusive process on the part of an adult applicant, even where the applicants to the proceedings included a blameless minor. In its later decision in P.O., the Supreme Court indicated, applying jurisprudence of the European Court of Human Rights, that the status of children would generally have to be identified with the conduct of their parents, failing which those parents might exploit the situation of their children in order to secure a residence permit for themselves and their children.

      It is submitted that the adult respondents disentitled themselves to injunctive relief in circumstances where they were not candid in their interactions with the asylum authorities, by working illegally in the State and, in particular where, by moving address and failing to present to the GNIB, they frustrated their deportation from the period 2012/3 until 2015, when they presented once again to the GNIB.

      It is submitted that the Court of Appeal erred in holding that their position had to be considered with that of their children and that, as the latter were innocent of their parents’ deceptions and it would be unjust to visit them with the consequences thereof, it followed that an injunction had to be granted to enjoin their deportation in order to vindicate the latter’s constitutional rights to the company and care of their parents.

      It is submitted that the Court of Appeal thereby erred in failing to apply the aforementioned decisions of the Supreme Court and to identify the respondents’ children with the conduct of their parents. It is further submitted that its decision is also incompatible with the considerable number of decisions of the High Court, where injunctions to enjoin deportation were refused to adult applicants, or judicial review proceedings were dismissed, notwithstanding the presence of their children in the State, and, indeed, in the proceedings: see, for example, Akujobi and anor. v. Minister for Justice [2007] IEHC 19 and O & Ors. v. Minister for Justice, Equality and Law Reform [2007] IEHC 275.

      The Court of Appeal erred in failing to acknowledge that the respondents’ children had no lawful entitlement to be in the State since the refusal of their applications for declarations of refugee status in 2009 and 2010 and that, insofar as there was any integration in the State on their part, it therefore occurred predominantly at a time when they were unlawfully on its territory and when their parents were actively frustrating the ability of the first named applicant to enforce the deportation orders lawfully made in respect of them.

      It is submitted that the Court of Appeal erred in failing to acknowledge that any constitutional rights enjoyed by the children to the company and care of their parents were not absolute in nature and/or that it was the intention of the first named applicant to enforce the deportation orders in respect of the family unit in its entirety, in consequence whereof there would have been no interference with any such rights.

34. As previously stated, the issues raised above arise out of the decision of the Court of Appeal and transcend this individual case. Reference was made to the size of the High Court asylum and immigration list and again to the fact that the issues raised are likely to rise on a frequent basis, particularly as abuse of the immigration system on the part of proposed deportees is not uncommon. The question of whether an application for an undertaking or injunction not to deport ought to be refused on the ground of lack of candour or wrongful conduct is therefore likely to arise both before the first named applicant and the officials acting on her behalf and the Superior Courts on a frequent basis. Contrary to Sivsivadze and P.O., the decision of the Court of Appeal against which it is sought to appeal indicates that, no matter how egregious the lack of candour or wrongful conduct on the part of an non-national, an undertaking or injunction cannot be refused on that basis as long as he or she forms part of a family unit in the State with a blameless child, even where a deportation order is extant in respect of the child.

35. Should the Court of Appeal’s decision stand in that regard, it is submitted that it will become difficult if not impossible to maintain proper immigration controls and will encourage abuse of the immigration system on the part of proposed deportees. It must be borne in mind that the conduct of the adult respondents was egregious. By moving address and failing to notify the immigration authorities of their whereabouts, and also by failing to present to the GNIB to facilitate their deportation from the State, they intentionally subverted the integrity of the immigration system by frustrating the ability of the first named applicant to enforce the deportation orders made in respect of them in 2011 and, in effect, exercised a choice of residence in the State in defiance of those orders. It is respectfully submitted that, by granting them an injunction, the Court of Appeal absolves the adult respondents of their wrongful conducts by reference to their blameless children, and incorrectly allowed them to profit from their wrongdoing. A significant number of non-nationals challenging the validity of deportation orders by way of judicial review have minor children in the State. The decision of the Court of Appeal is likely to encourage such a person to refrain from co-operating with the first named applicant or the GNIB for the purpose of facilitating their deportation from the State and, indeed, to go as far as evading deportation altogether, safe in the knowledge that they are free to regularise their position at a time of their own choosing and seek an undertaking or an injunction to enjoin their deportation, at which point no weight whatsoever can be given to such matters by the first named applicant or, as the case may be, by the High Court or the Court of Appeal when deciding whether or not to grant any injunctive relief that might be sought by them at some future date.

36. It is submitted that the aforementioned decisions of the Supreme Court and of the European Court of Human Rights indicate that the Court of Appeal was incorrect in granting the injunctive relief notwithstanding the blamelessness of the respondents’ children in respect of the egregious conduct of their parents, and that it is necessary in the interests of justice for this appeal to proceed in order to resolve whether it was correct to have done so and to obtain clarity on this issue for the first named applicant, her officials, and the High Court and Court of Appeal, all of whom are likely to have to deal with such issues in the future.

Reasons from the respondents opposing the application for leave to appeal

37. The respondents have furnished the following reasons for opposing leave to appeal:

      (i) It seems to be the applicants’ contention that a general distinction should be made and a different test should apply for the granting of an interlocutory injunction in cases where leave to apply for judicial review has not yet been sought in the High Court as opposed to cases (such as this) where there has already been a refusal to grant leave in the High Court which refusal itself is being appealed from. The applicants appear to contend that there should be a different general rule where leave has been refused. While it is readily conceded by the respondents that all due respect should be paid to the terms of the judgment under appeal in this case and indeed in any similar type case it is contended that the imposition of such a general rule as contended for would amount to a denial of access to the Court – it would require the Court hearing an appeal to have a certain regard or respect for (almost a “presumption of correctness”) the judgment which is in fact under appeal. Such a rule as is being contended for would undermine the independence of the Court hearing the appeal and would amount to a worrying limitation on the right to an effective remedy (in both domestic and European law). Where the courts have emphasised in numerous cases involving the proposed deportations of third party nationals (and children) to various companies that it is the underlying individual circumstances of the parties and the underlying individual conditions prevailing in any particular country of origin that should be considered the imposition of a different general rule, as contended for by the applicants, could only serve (on appeal) to reduce the obligation for such individual circumstances of each case to be examined, and thus undermine, or tend to undermine, the effectiveness of the international protection system in place (including the jurisdiction to grant interlocutory injunctions – a crucial element of that protection system) to the detriment of all. There may indeed be cases where the judgment of the court below could leave the appellate court, on application for injunctive relief, in no doubt that, for instance, the appeal was doomed to failure and that for that reason injunctive relief should not be granted. However, such an approach patently requires an examination of the individual circumstances of such a case and not the application of any general rule. In those circumstances it is contended that the suggested question (1) is not an issue that could be termed one of general public importance.

      (ii) The imposition of such a rule as is being contended for, in any event, would require legislative intervention, and this Honourable Court, in the circumstances outlined below, would, at least since the coming into law of the Charter of Fundamental Rights of the European Union, have no jurisdiction to introduce into national law a rule which would further limit the availability of injunctive relief to applicants such as the respondents for protection. That being so it is contended that the granting of a certificate to appeal to the applicants, in respect of question (1), could not, in any circumstances, be a matter of general public importance.

      Such a rule as is being contended for would require legislative intervention in the following circumstances: the respondents have sought international protection in the State. The right to asylum and subsidiary protection in appropriate cases is undoubtedly a “fundamental right” – Articles 18 and 19 of the Charter refer.

      The right to an effective remedy in circumstances where rights and freedoms guaranteed by the law of the Union are violated is also a “fundamental right” – Article 47 of the Charter refers. Article 52(1) of the Charter states:


        “Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.”

        [Emphasis added]


      The rule being contended for by the applicants would, it is submitted, if applied, be a limitation on, at least, the right to an effective remedy, and thus, must be provided for by law. In this context it is submitted that the words “provided for by law” mean provided for by legislation. It is submitted that, for example the German and French versions of Article 51(2) leave no doubt that these words require legislative intervention only. Otherwise, the requirement of legal certainty would be offended.

      If there is any doubt as to the meaning of the words “provided for by law” in Article 52(1) should be interpreted, then it is submitted that a preliminary reference on that question should be requested from the Court of Justice of the European Union by the Supreme Court.

      (iii) Without prejudice to the above, the rule being contended for by the applicants, if judged to be appropriate, and if applied to the respondents’ case, would amount to an unlawful retrospective application of “new” law. In these circumstances the granting of a certificate could not be said to be a matter of general public importance.

      (iv) The applicants are in essence, it is submitted, by this question, seeking permission to have this case expanded in scope and to become a “test case” for a broad point which they assert is one of general importance, i.e., the weight to be given by an appellate court to a judgment of a lower court refusing leave, in an application to an appellate court for interlocutory relief. It is submitted that this cannot be a matter of general public importance where adequate and effective remedies already exist to deal with cases where it is clear that the original judgment (refusing leave) is, in all likelihood, not going to be interfered with on appeal, for example, an example to strike out an appeal for being frivolous or vexatious, etc.

38. The decision in respect of leave to appeal is not a decision in respect of which it would be in the interests of justice necessary that there be an appeal to the Supreme Court.

The same arguments as set out above in relation to the question of general public importance are relied on, where applicable, in relation to the further question of whether it would be in the interests of justice, necessary that there be an appeal to the Supreme Court.

39. The respondents dealt with the second proposed question in respect of the “egregious conduct of the adult respondents” as follows:

      (i) It is here asserted by the applicants that the Court of Appeal erred in “failing to acknowledge that any constitutional rights of the respondents’ children to the company and care of their parents were not absolute in nature and/or that they had no entitlement to have their care and company in the State . . .” There is nothing in the judgment sought to be appealed to indicate that the Court of Appeal was not well aware that the rights in question were not absolute or that the applicants had no lawful entitlement to be in the State.

      It is for the Minister to develop and publish guidelines or policies as to the extent to which any perceived misbehaviour of applicants, such as the adult respondents herein, should impact on their rights (if any) and the children’s rights (if any) and to apply those guidelines or policies to the facts of any given case. It is only then that the legality or proportionality of an individual decision could be of “general public importance” inasmuch as the policy/guidelines could be tested. In this case it would only be open to the Supreme Court, on appeal, if a certificate were granted, to decide whether the particular and unique misbehaviour of the parents and the particular and unique circumstances of the family were such as to justify the withholding of injunctive relief. That matter, by reason of its confinement to unique and particular circumstances, could, at best, only have a very limited bearing per se on “general public importance”.

Decision

40. The Court has carefully considered the judgment of the High Court and the Court of Appeal in this matter, the application of the applicants and the response by the respondents.

41. The essence of the application is that the Court of Appeal “significantly misapplied and impermissibly extended the decision of the Supreme Court in Okunade v. Minister for Justice [2012] IESC 49”. Okunade as was accepted by the Court of Appeal sets out the criteria regarding the grant of interlocutory relief in immigration/asylum cases. The difference between Okunade and the present case is that the principles set out in Okunade arose in the context of applications to enjoin the Minister from enforcing deportation orders against non-nationals pending a leave hearing or as the case may be a post-leave hearing by way of judicial review before the High Court whereas the respondents were refused leave to appeal before the High Court and then sought an injunction pending an appeal. The Court of Appeal found that there was “at least an arguable case regarding the validity of the subsidiary protection decision”. It is not suggested that the Court of Appeal did not have regard to the Okunade principles in the present case but rather the argument is that the Court of Appeal misapplied the decision of the Supreme Court in Okunade.

42. The Court considers that an issue of general public importance as to the test to be applied after a full post-leave hearing in circumstances where the High Court has found against the respondents and has upheld the decision determining that the respondents were not eligible for subsidiary protection and has upheld the validity of the deportation orders and whether the test in Okunade is the appropriate test to apply in respect of a post-leave decision.

Accordingly, the Court will grant leave to appeal to this Court on the following grounds:

      1. That the Court of Appeal erred in identifying the test in Okunade as being applicable to a post-leave decision upholding the decision determining that the respondents were not eligible for subsidiary protection and upholding the validity of the deportation orders.

      2. That the Court of Appeal erred in identifying the appropriate test to be applied.

AND IT IS HEREBY SO ORDERED ACCORDINGLY.



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