Supporting Documents:

BETWEEN

RESULT: The Court grants leave to the Applicant 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: 14th January, 2019

DATE OF ORDER: 28th January, 2019

DATE OF PERFECTION OF ORDER: 7th March , 2019

THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 27th March, 2019 AND WAS 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 Thirty-third 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, (Unreported, Supreme Court, 6 December 2017) and in a unanimous judgment of a full court delivered by O’Donnell J. in Quinn Insurance Ltd. v. PricewaterhouseCoopers [2017] IESC 73, [2017] 3 I.R. 812. The additional criteria required to be met in order that the so-called leapfrog appeal directly from the High Court to this court can be permitted were addressed by the court in Wansboro v. Director of Public Prosecutions [2017] IESCDET 115, (Unreported, Supreme Court, 20 November 2017). Accordingly, it is unnecessary to revisit the new constitutional architecture for the purpose of this determination.

2 The application for leave herein and the respondent’s notice are both published along with this determination (subject only to any redaction required by law). In addition, the High Court (Barrett J.) delivered a comprehensive judgment on 14 January 2019, which itself is publicly available (see [2019] IEHC 21). In the circumstances, it is not proposed to set out the facts in any greater detail. No aspect of this ruling has precedential value as a matter of law.

Decision
3 The broad and fundamental issue raised in these proceedings (and certain related proceedings with which it was heard as a test case) concerns the use of independent contractors or panel members contracted to assist the international protection officers and officers for the Minister in the processing of applications for international protection and the grant or refusal by the Minister for permission to remain under the International Protection Act 2015. The High Court dismissed the challenge on this point, as it did it the related cases but certified a point of law of exceptional public importance for the purpose of an appeal to the Court of Appeal, namely: “Did the actions of the International Protection Officer assigned to the applicant’s application for international protection amount to an examination of an application within the meaning of the International Protection Act 2015 and in particular s. 34 thereof?” However, in this case the applicant succeeded on a separate claim for certiorari in respect of the procedure under s.35, although this fact does not appear to be adverted to in the application for leave or response or the respective grounds of appeal or grounds for opposing appeal. It is apparent that the Application in this case was treated as raising the same issue as arose in the related cases where no issue under s.35 arose and That this was part of a test case. The Court, for the moment, will approach the matter on the same basis as the parties appear to have done but will require the parties to this case to address at case management the question whether it is either possible or necessary for this case to proceed as an appeal by the applicant in circumstances where the applicant succeeded in obtaining certiorari on other grounds.

4 The High Court judge managing the Asylum, Immigration and Citizenship List (Humphreys J.) suggested the matter (in the sense of the test cases) could be dealt with by leapfrog appeal. The respondent herein does not object to the grant of leave, and observes that there are 90 other cases on a holding list awaiting final determination of the challenges, and that the International Protection Appeals Tribunal cannot process appeals taken by any applicant in proceedings raised in these proceedings.

5 The court is satisfied that these proceedings generally (that is all the cases heard together as a test case and resulting in the judgment of the 14/1/19) involve an issue of law of general public importance. Accordingly, the court will grant leave to the applicant on the grounds set out in the application for leave, and will also abridge the time for the delivery of written submissions. The court will direct that the applicant lodge written submissions within two weeks of the date hereof, and allow to the respondents a further two weeks to respond. The matter will be put in for case management on 29 July 2019, or such other date as may be fixed to ensure that the case may be afforded an early hearing in the Michaelmas term. In this specific case however the court will address with the parties at case management whether it can (or should) proceed, and the rant of leave is in that respect conditional and may be revisited.

And it is hereby so ordered accordingly.