Supporting Documents:
 46-19 AFL.Redacted.doc 46-19 RedactedRespondentsNotice.docx
THE SUPREME COURT
DETERMINATION
BETWEEN
Y L
(A MINOR SUING BY HER father AND
NEXT FRIEND M L)
M L
H H W APPLICANTS AND
THE MINISTER FOR JUSTICE AND LAW REFORM RESPONDENT
APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.4° OF THE CONSTITUTION APPLIES
RESULT: The Court does not grant leave to the Applicants to appeal to this Court directly from the High Court.
REASONS GIVEN:
ORDER SOUGHT TO BE APPEALED
| COURT: High Court |
DATE OF JUDGMENT OR RULING: 18th December, 2018 |
DATE OF ORDER: 18th December, 2018 |
DATE OF PERFECTION OF ORDER: 18th December, 2018 |
THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 13th March, 2019 AND WAS NOT IN TIME. |
General Considerations
1. The general principles applied by this Court in determining whether to grant or refuse leave to appeal having regard to the criteria incorporated into the Constitution as a result of the 33rd Amendment have now been considered in a large number of determinations and are fully addressed in both a determination issued by a panel consisting of all of the members of this Court in B.S. v Director of Public Prosecutions (2017) IESCDET 134 and in a unanimous judgment of a full Court delivered by O’Donnell J. in Price Waterhouse Coopers (A Firm) v Quinn Insurance Ltd. (Under Administration) [2017] IESC 73. The additional criteria required to be met in order that a so-called ‘leapfrog appeal’ direct from the High Court to this Court can be permitted were addressed by a full panel of the Court in Wansboro v Director of Public Prosecutions (2017) IESCDET 115. It follows that it is unnecessary to revisit the new constitutional architecture for the purposes of this determination.
2. Furthermore the application for leave filed and the respondent’s notice are published along with this determination (subject only to any redaction required by law) and it is therefore unnecessary to set out the position of the parties.
3. In that context it should be noted that the respondent does oppose the grant of leave.
4. The jurisdiction of the Supreme Court to hear appeals is set out in the Constitution. What is sought in this application is what is colloquially known as a ‘leapfrog’ appeal directly from the High Court to the Supreme Court. The threshold for such an appeal is higher than that in respect of an appeal from the Court of Appeal. As is clear from the terms of Article 34.5.4° of the Constitution, it is necessary, in order for this Court to grant leave to appeal directly from a decision of the High Court, that the Court is satisfied that there are exceptional circumstances warranting a direct appeal, a precondition to which is the presence of either or both of the following factors: i) that the decision sought to be appealed involves a matter of general public importance, or ii) the interests of justice.
Decision
5. The Applicants seek leave to appeal against a decision made by the High Court in respect of a judicial review, delivered by Humphreys J. on 18th December 2018. The judicial review concerned an application made pursuant to s. 4 of the Immigration Act, 2004 (“the 2004 Act”) by a non-national minor child who was born in Ireland to parents in respect of whom deportation orders had been made. The minor child’s application to remain in the State was not granted and a proposal to deport was made in respect of the minor child, in terms of s. 3 of the 1999 Act, given that her parents were both the subject of deportation orders. The Applicants applied to the High Court seeking an order overturning the Respondent’s refusal to consider the s. 4 application and overturning the proposal to deport the minor child.
6. In refusing relief to the Applicants, Humphreys J. held that the Applicants’ reliance on s. 4 of the 2004 Act was misconceived and that the Supreme Court has already held in Sulaiman v Minister for Justice and Equality, [2012] IESC 63 (Unreported, O’Donnell J., 21st December 2012) that “the obvious focus of s. 4 is not to set some general template for all permissions granted, but rather to make provision for the decision of immigration officers at point of entry to the State.” The High Court, relying on that decision, concluded that s. 4 does not apply to a child who is born in the state with no legal entitlement to remain and that the executive power to grant permission to a non-national is different to the provisions of s. 4 which relate only to an application made at point of entry. In considering whether an Applicant has a right to make a free-standing application for permission to remain, the High Court followed the decision of the Supreme Court in Bode v Minister for Justice and Equality [2008] 3 I.R 663 to the effect that there exists no free standing right to apply and that the appropriate procedure is that contained in s. 3 of the 1999 Act. The High Court held that the Applicants do not have the right to dictate how and when the application is to be dealt with. On the basis that the minor child’s parents were within the State without legal authority, unlike the parties to Luximon (Luximon & ors v Minister for Justice and Equality; Balchand & ors v Minister for Justice and Equality [2018] IESC 24), who had permission to be in the State under s. 4, the High Court distinguished the circumstances from those in Luximon.
7. The Applicants submit that leave to appeal should be granted because it is a matter of general public interest that an uncertainty about the interpretation of s 4(5) of the 2004 Act be cleared up and that the jurisprudence surrounding this issue is in conflict. The Applicant also submits that it would be in the interests of justice for the Appeal to be heard because inter alia the minor child is now of school-going age and is “living under the spectre of a proposal to deport her.”
8. This Court does not agree that the matters raised meet the threshold set out in s. 34.5.4° of the Constitution. This Court’s decision in Sulaiman has dealt definitively with the fact that s. 4 of the 2004 Act creates a procedure for applications to be made at the point of entry to the State. This was not such an application. Further, the decision in Bode makes it clear that there is no free-standing right to apply to remain. Thus, the decision of the High Court involved no more than the application of well-established case law.
9. The most appropriate mechanism for the Applicants’ challenge is s. 3 of the 1999 Act, an option which remains open to them.
10. In the circumstances, because it cannot be considered that this case concerns a matter of general public importance or that the interests of justice warrant the granting of an appeal, it is not necessary to consider whether the additional requirement of “exceptional circumstances” (warranting the granting of a “leap frog” appeal directly from the High Court) are present, nor is it is necessary to consider an extension of time.
11. Accordingly, the Court refuses the application for leave to appeal.
And it is hereby so ordered accordingly.
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