Supporting Documents:
61-17 AFL redacted.doc61-17 Respndts Notice.Redacted.doc

BETWEEN

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.4° OF THE CONSTITUTION APPLIES

Result: The Court grants an extension of time for the bringing of this application, and grants leave to appeal on the grounds set out at paragraph 6(a)-(h) of the application for leave.

Reasons Given:

1 The application for leave to appeal to this court is made in very unusual circumstances. The decision sought to be appealed from, is of the High Court (Humphreys J) delivered on the 29th of July 2016, in which he held that the respondent Minister (who now is the applicant for leave) was obliged to consider the position of the unborn child in the context of an application for revocation pursuant to s.3(11) of the Immigration Act 1999, of a deportation order made in respect of the prospective father of the child. In doing so, the High Court made observations on the interpretation of Article 40.3.3 of the Constitution, and the effect of the 28th, 31st and 34th amendments to the Constitution respectfully, and further, the position of non marital partners with children, under the Constitution. An unusual feature of the case, is that it was plainly moot, because the child in question was born during the currency of the application, and further because the s.3(11) application was itself withdrawn. The respondent Minister however, invited the Court to proceed with the case as a test case notwithstanding its obvious mootness. The Court also followed an unusual procedural course, of which the Minister now complains.

2 The respondent did not however seek to appeal the decision direct to this Court, but rather lodged an appeal to the Court of Appeal. In the course of case management in that court it was apparently suggested that this could be a suitable case for appeal pursuant to the provisions of Article 34.5.4 of the Constitution. Accordingly, if this appeal is to be permitted, it would be necessary to extend time for the bringing of such an application. It should be noted that the applicant for judicial review and respondent to this application, does not now challenge the contention that the case raises issues of general public importance or indeed that there are exceptional circumstances justifying an appeal to this Court, but rather contends that they will resist leave on the grounds of mootness unless arrangements are made as to costs satisfactory to the applicants, and presumably their advisors.

3 It is to be observed, that over and above any question of mootness, the outcome of this case is not necessarily dependent on the resolution of some of the complex issues of constitutional law debated in the High Court judgment. However, it is plain that the case does involve matters of general public importance, and therefore meets the general threshold for appeal to this Court. Furthermore, the issue of law is one which is unlikely to appear significantly different after a determination of the Court of Appeal. There is also clear advantage in seeking to address those issues sooner rather than later, given the systemic importance of the matters debated, not just in the field of immigration law, but more widely. While there was clear mootness in the case at the level of the High Court, the fact that the case proceeded, now means that the law is as stated in the High Court, and it appears inappropriate to now consider refusing leave to appeal to this Court on grounds of mootness, which was explicitly addressed in the High Court, and where the case proceeded effectively by agreement. The Court will not therefore accede to the respondent’s argument on mootness, advanced as it was in the context of seeking satisfactory assurances on costs. It is however clearly desirable that there be a legitimus contradictor, and the Court reserves the right to reconsider the grant of leave if it should appear that the appeal will not be contested, which would reduce, if not remove its value as a precedent, which is the justification for granting leave in this case.

4 The Court does not consider however that at present the procedural matters canvassed by the respondent Minister at paragraph (i) of part 6 of the application are themselves matters of general public importance. Rather they are features of the procedure adopted in a particular case. In many cases it might be said however, that where leave is being granted on other grounds, that such matters should also be addressed in the interests of justice. However, in this unusual case, the Court is not persuaded that this argument can be advanced. If indeed the Court were persuaded that there was some merit in any of the procedural complaints now made by the Minister, that, perversely, could lead to the issues of general public importance, the desirability of resolving which justified the appeal to this court, not being addressed. Accordingly, the Court does not propose to grant leave in respect of those issues at this stage, but will permit the parties to address that issue at case management, or thereafter, if it should appear that it is considered necessary to address some or all of the procedural issues in order to fully resolve the case in its entirety.

5 The 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, any issue canvassed in the application will in due course be disposed of in the substantive decision of the Court.

6 Accordingly, the Court grants leave to appeal on the grounds set out at paragraph 6(a), (b), (c), (d), (e), (f), (g), and (h) of the application for leave to appeal.

And It is hereby so ordered accordingly.