Supporting Documents:
24-19 Redacted AFL.docx 24-19 Redacted Resp.Notice.pdf

THE SUPREME COURT

DETERMINATION

IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 (AS AMENDED)

ORDER SOUGHT TO BE APPEALED

COURT: Court of Appeal

DATE OF JUDGMENT OR RULING: 19th October, 2018

DATE OF ORDER: 1st November, 2018

DATE OF PERFECTION OF ORDER: 24th January, 2019

THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 13th February, 2019 AND WAS IN TIME.

1 The respondent is an Algerian national whose application for a declaration of refugee status and for a subsidiary protection declaration has been the subject of an adverse recommendation made under s.39(3)(c) of the International Protection Act 2015.
2 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. Accordingly, it is unnecessary to revisit the new constitutional architecture for the purpose of this determination.
3 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 in any detail.
4 On 6 June 2018, R.S. lodged an appeal against the adverse subsidiary protection recommendation with the notice party, the International Protection Appeals Tribunal (“IPAT”), without prejudice to his contention that the decision of the Chief International Protection Officer (“CIPO”) was invalid because no lawful examination of his subsidiary protection application had been carried out by the officer concerned because a panel of contractors had been employed by the office in making recommendations under the 2015 Act.
5 The issue arising in the case had been the subject of a judicial review application in a number of cases, which became known as I.G. v. Refugee Application Commissioner [2018] IESC 25 (Unreported, Supreme Court, 16 May 2018) (“the I.G. cases”). The High Court in that matter (G.I. v. Minister for Justice & Ors. [2015] IEHC 682 (Unreported, High Court, Humphreys J., 6^th November, 2015)) had refused to grant leave to seek judicial review, but the Supreme Court reversed that decision. Accordingly, leave was granted to pursue the point. This case concerns one of a number of other cases raising the same point.
6 It is clear that the point raised in the I.G. cases, and raised in this case, is a systemic one: it applies to all cases processed in the same way by the International Protection Office. In the light of the I.G. cases, the High Court in this matter (N.A. v. The Chief International Protection Officer [2018] IEHC 499 (Unreported, High Court, Humphreys J., 10 September 2018) (“the N.A. case”) & I.G.(Albania) v. The Chief International Protection Officer [2018] IEHC 509 (Unreported, High Court, Humphreys J., 17 September 2018)), granted a stay on the processing of the appeal in the test case (the N.A. case), but the High Court also delivered a considered judgment refusing to order a stay in any of the other cases, including this one. The Court of Appeal overturned that decision.
7 It was argued on behalf of the applicant that the proceedings raised a matter of far reaching public importance in relation to the powers of the IPAT to adjourn or to refuse to adjourn an appeal where judicial review proceedings have issued challenging a decision under appeal. The appellant relies on the judgment in the High Court of Mac Eochaidh J. in H.T.K. (A Minor) v. Minister for Justice & Anor. [2016] IEHC 43 (Unreported, High Court, Mac Eochaidh J., 15 January 2016), to the effect that the IPAT’s predecessor was obliged to process any appeal made to it in the absence of any court order to the contrary. It was contended that S.I. No. 116/2017 – International Protection Act 2015 (Procedures and Periods for Appeals) Regulations 2017, gives the IPAT a jurisdiction to adjourn to a specified date, but not to adjourn indefinitely. It is said that the decision of the Court of Appeal “begs the question whether IPAT is obliged to continue to process and hear appeals in [I.G.]-type cases unless there is a court order staying the same or whether the IPAT is required in light of the judgment given by the Court of Appeal to adjourn such case pending the determination of the test cases in the High Court”.
8 It is also suggested that the point is of more general importance because of the significant disruption which would be caused to the expeditious and orderly processing of appeals. Accordingly, it is suggested that the issue is one of significance beyond the protection system because “the notion that the right to litigate a first instance decision requires [a] statutory appeal to be stayed on the litigant’s request has implications for a whole range of administrative schemes in which statutory appeals are provided”.
9 It is important to note that the test cases have been heard in the High Court, and judgment was delivered determining the issue against the applicant. It is said that the applicants intend to apply for leapfrog appeal to this Court.
Consideration
10 The grant of leave to seek judicial review in the test cases of the point which arose in this case and other cases meant that an issue had been raised which potentially affected many, if not all, applications for international protection. Furthermore, when the issue was raised in respect of the procedure at first instance, and where there was a statutory appeals process and the possibility of further proceedings by way of judicial review, then a decision which halted proceedings creates serious logistical problems in freezing all cases before the appellate stage was engaged. This has the further complication that, depending on the outcome of the test case, either the first instance hearing stage or the appellate stage will be swamped by all of the proceeding which have been stalled pending the determination of the legal challenge. The process of determining the legal issue can itself take some time if there is, as there almost inevitably will be, an appeal from the determination of the High Court.
11 These difficulties should not be underestimated and the legitimate concerns of administrators should not be discounted. However, the problems that arise here are a variant of the problem faced every time a generic point of sufficient substance is raised and test cases are pursued with a capacity to determine a large number of other cases where the issue also arises.
12 The basic solution must be to attempt to ensure a speedy determination of the issue at first instance and a streamlined appeals process so that the delay between the first raising of the point and its final determination is limited, and the obvious inconvenience is reduced as much as is possible. Thereafter, it is for the courts hearing the case to attempt to make the most sensible and fair arrangements pending the determination of the case. This will depend on the facts, the nature of the case made, and the position taken by the parties. Where an appeal stage is involved, then a question may also arise at the leave stage or at the hearing of any judicial review as to whether the appeal is an adequate alternative remedy. On the other hand, a court may also have to consider whether an appeal should proceed pending the resolution of the judicial review challenge. It is necessary to determine the nature of the point raised and whether proceeding with the appeal will render that point moot and, if so, whether this will cause irremediable prejudice and disruption to the applicant. In this case, it is significant that it was not conceded by the applicant that, should the test case succeed, the respondent would be entitled to benefit from it even if the appeal had been heard. Instead, it appears to have been accepted, at least tacitly, that proceeding with the appeal could have the effect of rendering the case moot so that this respondent might not benefit from a favourable decision in the test case.
13 The Court of Appeal addressed these issues and resolved them by granting a stay on the proceedings so that the appeal could not proceed pending the resolution of the test case. In doing so, the decision of the Court of Appeal raised no novel issue of law. The decision did not rule upon any question of the extent of the powers of the IPAT to adjourn proceedings of its own motion. The effect of the order was that the appeal could not proceed by order of the Court of Appeal rather than by any decision of the IPAT.
14 The Court is neither satisfied that the decision for which leave to appeal was applied for raised any issue of law of general importance nor that it is otherwise in the interests of justice to permit an appeal to this Court.