Supporting Documents:

THE SUPREME COURT

BETWEEN

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES

RESULT: The Court grants leave to the Applicant to appeal to this Court from the Court of Appeal

REASONS GIVEN:

ORDER SOUGHT TO BE APPEALED

COURT: Court of Appeal

DATE OF JUDGMENT OR RULING: 4th May, 2018

DATE OF ORDER: 5th June, 2018

DATE OF PERFECTION OF ORDER: 31st July, 2018

THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 28th August, 2018 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 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 opposes the grant of leave.

Decision

4. As can be seen from the notices just referred to, the potential issue which would arise on this appeal is, in one sense, a narrow one. The applicant/appellant (“Mr. XX”) considered that he did not need to apply for re-admission into the asylum system because of the circumstances which pertained at the time of his original withdrawn application. However, on what might be described as a “belt and braces” approach, he did apply for re-admission but was refused. When he then sought to make an application on the basis that it was, properly speaking, a first application, this was refused on the basis that s. 17(7) of the Refugee Act 1996 precluded such an application.

5. The Court of Appeal ultimately agreed that this was the correct approach, having taken the view that to permit Mr. XX to now assert that he did not need to obtain the Minister’s approval would, in circumstances where he had sought and been refused that approval, amount to a collateral attack on the Minister’s decision which would be impermissible in the light of the jurisprudence of this Court.

6. However, this Court is of the view that it is at least arguable that the collateral attack jurisprudence is not strictly speaking applicable to a case such as this. The Minister, in deciding to refuse Mr. XX re-entry to the asylum system, was not per se called on to decide that Mr. XX needed such permission. This was so because Mr. XX had sought the permission in the first place and the question of the need for permission did not, therefore, arise. The Minister’s decision was, therefore, one on the merits, as it were, rather than on whether the Minister’s approval was required. In such circumstances it does not necessarily follow that it would amount to a collateral attack on the decision of the Minister to now assert that the application which led to the Minister’s refusal was legally unnecessary. Indeed, it is arguable, as noted by Mr. XX in his application for leave, that it may be that it is appropriate to consider this matter in the context of a potential estoppel arising whereby it might be argued that Mr. XX was prevented from now asserting that he did not need the Minister’s consent when he had, in fact, applied for that consent, albeit on a “without prejudice” basis. It further may be arguable that the legal effect of the attempt made by Mr. XX to make his application “without prejudice” may be affected by whether it is appropriate to characterise the issues which potentially arise as falling within the realm of estoppel as opposed to the collateral attack jurisprudence.

7. Thus considered, the Court is of the view that this appeal raises an issue of general public importance being as to whether it is appropriate to determine a question such as that which found favour in the Court of Appeal on the basis of the collateral attack jurisprudence or whether it is more appropriate to consider the matter as a potential estoppel. Furthermore, and dependent on the answer to that initial question, the application of the appropriate jurisprudence to the circumstances of this case would arise.

8. In those circumstances the Court will grant leave to appeal, but will require Mr. XX to file revised grounds of appeal which clearly fall within the ambit of the basis on which leave to appeal is hereby granted. Such revised grounds of appeal should be included as an appendix to the written submissions which are to be filed in the ordinary way in accordance with the statutory practice direction. It will be for the case management judge, having heard the parties, to be satisfied that the grounds of appeal sought to be pursued fall properly within the ambit of the leave granted.

And it is hereby so ordered accordingly.