Supporting Documents:
118-18 Redacted Resp Notice.pdf118-18 Redcated AFL.docx

BETWEEN

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

RESULT: The Court grants leave to the Applicant to appeal to this Court from the decision of the High Court.

ORDER SOUGHT TO BE APPEALED

COURT: High Court

DATE OF JUDGMENT OR RULING: 16th July, 2018

DATE OF ORDER: 27th July, 2018

DATE OF PERFECTION OF ORDER: 27th July, 2018

THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 1st August, 2018 AND WAS IN TIME.

REASONS GIVEN:

General Considerations

1. As is clear from the terms of the Constitution and many determinations made by this Court since the enactment of the 33rd Amendment it is necessary in order for this Court to grant leave that it be established that the decision sought to be appealed either involves a matter of general public importance or that it is otherwise in the interests of justice necessary that there be an appeal to this Court. In the case of an application under Article 34.5.4°, it is also necessary to set out exceptional grounds justifying a direct appeal to this Court. This is such a case.

2. The general principles applied by this Court in determining whether to grant or refuse leave in such cases is now reasonably well established. Accordingly it is not necessary to address those principles here save insofar as it is necessary for the purposes of determining this application.

3. 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 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.

The Proceedings

4. This case was heard with another case (PMS (Cameroon)) which raised the same issues. A separate application for leave to appeal is made in that case, and a determination is issued today. The proceedings themselves sought in essence, a declaration that the applicant could not be removed from the State until he had received a ‘decision’ from the first respondent pursuant to s. 22(15) of the International Protection Act 2015 ( “ the 2015 Act”), and in consequence an injunction restraining the removal of the applicant pending the said decision.

5. It is necessary to identify briefly the circumstances in which this argument arises. The applicant in this case is a native of the DRC, born in 1972. He first applied for asylum in the Netherlands on the 21st of January 2004, and again in February 2005. These applications were rejected and he was subject of a decision to remove him to South Africa. He resisted this, but was escorted to South Africa in May 2005. On the 31st of May 2011 (six years later) he applied for asylum in Ireland. That application involved false statements that he had been removed to the Congo rather than to South Africa. The applicant’s Irish claim was processed and refused by the Refugee Applications Commissioner (RAC). An appeal to the Refugee Appeals Tribunal (RAT) was lodged and rejected. Proceedings were brought seeking to quash the refusal but they were struck out with no order in December 2014. On the 5th of May 2015, an application was made for subsidiary protection and refused on the 19th of September 2016. An appeal was brought but withdrawn on the 17th of October 2016. The proposal to deport was made. Submissions were made on that on the 1st of December 2016 and ultimately a deportation order was made on the 13th of January 2017 and has not been challenged. However, on the 23rd of August 2017, an application was made to revoke the order under s. 3(11) of the Immigration Act 1999, which at the time of the High Court judgment remained outstanding.

6. The present proceedings concern however an application made on the 10th of October 2017, to be readmitted to the protection process pursuant to the provisions of the 2015 Act. That was rejected on the 26th of October 2017 by the International Protection Office (“IPO”). That was the subject of an appeal to the International Protection Appeals Tribunal (“IPAT”) on the 3rd of November 2017, which again, at the time of the High Court judgment had not been determined. This application therefore concerns the legal consequences of the application made to the IPO and its determination. Ultimately the applicant was arrested and detained on foot of the deportation order. He commenced Article 40 proceedings and is now at liberty.

7. The applicant’s essential contention is that he had a right under Article 7 of the Procedures Directive 2005/85/EC to remain in Ireland pending the determination at first instance of his application. Article 7 provides: “Applicants shall be allowed to remain in the Member State, for the sole purpose of the procedure, until the determining authority has made a decision in accordance with the procedures at first instance set out in Chapter III. This right to remain shall not constitute an entitlement to a residence permit”. It is not contested that this provision is applicable to the application for readmission to the protection process. The applicant contends however, that the outcome of the proceedings before the IPO are not a first instance decision, but rather, merely, a recommendation which can be the subject of an appeal, resulting in a decision. Accordingly, the applicant contends that he is entitled to remain in the State until the final determination of the application by the Minister.

8. In a lucid judgment, the High Court judge rejected this contention concluding, that on a close interpretation of the legislation, and having regard to the pre-existing legislative regime, that it was clear that the right to remain until first instance decision, covered in this jurisdiction, the period up to the determination/recommendation by the IPO. Furthermore, the High Court judge concluded that in any event, he would have refused to grant an injunction in the exercise of discretion, on the grounds that the applicant had engaged in “massive abuse” of the immigration system both in Ireland and in the Netherlands and had used different names, evaded his presentation obligations, had withdrawn his subsidiary application, and reapplied for protection some months after the deportation order, and accordingly, had he not refused his claim on merits he would have refused it on a discretionary basis.

9. While maintaining that the present proceedings were not captured by s. 5 of the Immigration Act 1999, the applicant applied for a certificate of leave to appeal to the Court of Appeal on a number of grounds, which was refused by the High Court judge. Accordingly the applicant now brings this application for “leap frog” appeal to this Court and says that three issues arise, some of which at least, it is asserted, require a reference to the ECJ. The issues which appear to be identified in the application for leave are:

(i) Whether these proceedings are within the terms of s. 5 of the 1999 Act so as to require a certificate from the High Court judge for the purposes of appeal to the Court of Appeal;

(ii) Whether the applicant has a right to remain in Ireland pending the final formal decision of the Minister on the application pursuant to s. 22 of the International Protection Act 2015;

(iii) Whether, on the assumption that the applicant had such a right to remain pursuant to the provisions of the Framework Decision, the Court could nevertheless refuse an application for judicial review brought with a view to enforcing such, on grounds of general discretion.

10. The respondents contend that these issues do not raise matters of general public importance, not least because it is contended that the cohort of persons involved is very small. The Court is however satisfied that the appeal herein can be said to involve questions of general public importance, and in the particular circumstances, there are exceptional grounds permitting a leapfrog appeal direct from the decision of the High Court to this Court. There are matters of specific application in the interpretation of the 2015 Act, but also more general application in relation to the impact of discretionary grounds for refusing relief, which are sufficiently important to merit appeal to this Court. Accordingly, the Court grants leave to the applicant to appeal to this Court on the grounds set out at paragraphs 1, 2, 3, 5, 6, and 7 of part 6 of the applicant’s application for leave. The Court does not consider that the issue raised at ground 4, was the subject matter of determination in the High Court, and accordingly it does not consider that it truly arises as a ground of appeal and accordingly leave is not granted on that ground.

And it is hereby so ordered accordingly.