Supporting Documents:

THE SUPREME COURT

DETERMINATION

BETWEEN

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

REASONS GIVEN:

1. Jurisdiction

This determination relates to an application by the applicant in the underlying proceedings (“E”) for leave to appeal, under Art. 34.5.4 of the Constitution, directly from the judgments of the High Court (Humphreys J.) delivered respectively on the 14th November, 2016 and the 26th June, 2017. The orders appealed against were made on the 27th June, 2017 and perfected on the 28th June, 2018. 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 interest of justice necessary that there be an appeal to this Court. In addition because this is an application for leave to appeal directly from the High Court it is also necessary that it be established that there are “exceptional circumstances warranting a direct appeal” to this Court.

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 a 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.

2. The Proceedings

These proceedings were commenced on behalf of E, suing by his mother and next friend, with a view, in substance, to challenging a decision of the first named respondent (“the Minister”), made on the 29th July, 2016, which had the effect of affirming a previous deportation order made in respect of E on the 1st July, 2011. An application for leave to seek judicial review was made ex parte and determined on the 14th November, 2016. In accordance with law it was necessary for the Court on that application to consider whether E had established substantial grounds for his contentions. The High Court refused leave to seek judicial review.

Thereafter, an application was made on behalf of E for the certificate necessary to appeal to the Court of Appeal. That application was rejected by a decision of the High Court (Humphreys J.) on the 9th May, 2017.

Finally, an application was brought on behalf of E seeking an injunction or stay designed to prevent his deportation pending an application for leave to appeal to this Court. That application was also refused on the 27th June, 2017.

3. The Order appealed against

Leave to appeal to this Court is sought only in respect of the first order, being the order refusing leave to seek judicial review, and the third order, being the order refusing an injunction.

4. The Contentions of the Parties

The notice of application for leave to appeal together with the response is published along with this determination. It is not, in those circumstances, necessary to set out in full detail the contents of those documents. For the purposes of this determination it is sufficient to summarise the basis upon which the applicant suggests that the constitutional threshold for leave to appeal has been met.

In the respondent’s notice filed on behalf of the Minister there is some criticism of the way in which the arguments in favour of grant of leave to appeal are formulated in the notice filed on behalf of E. The Court agrees that there is some substance in those criticisms. While this point has been emphasised in a number of previous determinations of this Court it is important to reiterate that the function of part 5 of the appellant’s notice is to set out in clear terms why it is said that the constitutional threshold is met and not to put forward arguments as to why the appellant may have a good case in respect of any of the issues sought to be raised. It is true that the notice in this case does address the constitutional argument to some extent but it has to be said that it does so in an unfocused way by consistently going into significant detail as to the merits of the case. It should be emphasised that it is only necessary to address the merits of the case for the purposes of dispelling any risk that the Court might refuse leave either on the basis that the case was unstateable or on the basis that the issue asserted to be of general public importance did not arise in the case. It is unnecessary to go beyond that in section 5 and any tendency so to do can only run the risk of distracting the Court from the true task which the Court has to perform on an application for leave being to determine whether the issues sought to be raised meet the constitutional threshold.

That being said it is possible to distil the overly lengthy and scattergun application as indicating that three broad sets of issues are asserted to meet the constitutional threshold. These are:-

(a) The Lumba issues;

(b) The illness and medical care issues;

(c) The proportionality issues

5. Discussion

As is clear from a range of determinations made by this Court since the 33rd Amendment to the Constitution came into force, the constitutional function of this Court is no longer that of an appeal court designed to correct alleged errors by the trial court. Where it is said that the High Court has simply been in error in some material respect the constitutional regime now in place confers jurisdiction to correct any such error as may be established on the Court of Appeal. Rather the text of the Constitution now in place makes clear that an appeal to this Court, whether directly from the High Court under Art. 34.5.4 or from the Court of Appeal under Art. 34.5.3, requires that it be established that the decision sought to be appealed against involves a matter of general public importance or that it otherwise is in the interest of justice necessary to allow an appeal to this Court. It will rarely be necessary in the interest of justice to permit an appeal to this Court simply because it is said that the lower court was in error. An appeal to the Court of Appeal provides the appropriate remedy for any error made by the High Court. Likewise a party which has had the opportunity to have the decision of the High Court reviewed by the Court of Appeal will have had the benefit of having been able to put its case both at trial and on appeal. Without more the interests of justice will not require a further review on appeal to this Court.

Against that background it is necessary to address the basis on which it is said that the constitutional threshold is met in this case.

It is proposed to consider each of the three areas advanced on behalf of E separately. However, it must be emphasised that the application which was before the High Court was an application for leave to seek judicial review. While it is true that the application in question required E to establish substantial grounds, it nonetheless remains the case that the High Court was not called on to reach a final determination on any of the issues concerned but rather had to determine whether the arguments under the various headings were sufficiently strong to meet a “substantial grounds” test. It follows that this Court has to consider whether the constitutional threshold has been met by reference to the question of whether an appeal, which would have as its focus the question of whether the High Court was correct to conclude that there were not substantial grounds under each heading, would raise issues which met the constitutional threshold. In that context and applying that approach it is proposed to address the three areas advanced on behalf of E.

So far as the Lumba issue is concerned the starting point has to be to note the decision of the United Kingdom Supreme Court in R. (Lumba) v. Secretary of State for the Home Department [2012] AC 245. At its most straightforward the UK Supreme Court in that case held that compliance with the rule of law required the executive, when exercising broad statutory powers, to identify any policy adopted so as to ensure that the relevant powers are exercised in a transparent way. There has been no consideration by this Court as to whether the same, or similar, principles apply in the context of this jurisdiction. In particular there may be questions as to the applicability of the same or similar principles to cases where the executive, or a statutory body, enjoys a broad discretion. In addition, there may be questions as to whether informal criteria, which are generally applied by decision makers in the exercise of broad statutory discretions, should be made available to assist persons making applications in relation to the exercise of such discretion in formulating their application by reference to the criteria likely to be applied.

In the respondent’s notice filed on behalf of the Minister it is said that the “Lumba issue does not arise on the facts”. There may well, therefore, be issues as to the extent to which any such principles might arguably have practical application in E’s case. However, the Court is first satisfied that it is arguable, on a substantial grounds basis, that principles similar to those identified in Lumba (whether adjusted in the context of Irish constitutional and administrative law jurisprudence or not) may apply. Furthermore, the Court is, at this stage, not satisfied that it can safely be said that those principles may be considered not to apply to the facts of E’s case so as to warrant refusing leave. Clearly, to the extent that the question of the existence of such principles may prove to be potentially relevant to E’s case, same raise issues which go far beyond his case. It follows that the Court is of the view that the Lumba grounds meet the general constitutional threshold.

It is next necessary to turn to the illness/medical treatment question. E. suffers from sickle cell disease. It is well established that the mere fact that persons suffering from illness might receive better treatment in some first world countries than they could expect if returned to a developing country does not, of itself, mean that deportation may not be permissible. If it were otherwise then developed countries would be required to admit every ill person who could demonstrate that the medical system in the country into which entry was sought was better than that which might be available in the country from which the person concerned came. However, it is equally clear that there may be extreme cases where deportation may not be permissible although the threshold in that regard is clearly quite high. The evidence put forward on behalf of E on the leave application certainly seemed to suggest that there was a risk that he would suffer particularly significant consequences if deported. It must, of course, be recalled that, because the application for leave was dealt with ex parte, the Minister did not have the opportunity to file a replying affidavit. The issue before the High Court was as to whether, on the basis of the evidence put forward on behalf of E, it was arguable on a substantial grounds basis that the admittedly high threshold had been reached.

The Court is mindful of the fact that this is a child in respect of whom there is credible evidence that there will be significant adverse consequences on his health if deported. That does not, of course, mean that the high threshold already identified is met. However, it is, in the view of the Court, in the interests of justice that this Court consider whether the evidence tendered is sufficiently strong to make it arguable, on a substantial grounds basis, that the illness/medical issues reach the undoubtedly high threshold established in the jurisprudence such that leave to seek judicial review should have been granted to enable the matter to be more fully considered on the merits before the High Court. Thus the general constitutional threshold is met in respect of this ground also.

So far as the final set of issues, concerning proportionality, are concerned the Court is satisfied that those issues involved the application of well established principles to the circumstances of this case. In those circumstances the Court is not satisfied that the constitutional threshold has been met so far as those issues are concerned.

Having identified two issues which, in the Court’s view, meet the general constitutional threshold, it is also necessary, given that this is an application for leapfrog leave, to determine whether exceptional grounds justifying a direct appeal to this Court have also been established. In the Minister’s replying notice it is suggested that it cannot be the case that, simply because a party might be precluded from appealing to the Court of Appeal because of the absence of a relevant certificate required under a statutory regime, such a party must automatically be entitled to leapfrog leave. However, at a minimum, if this Court is satisfied that the general constitutional threshold is met, the Court would be reluctant to shut out an applicant from having any appeal. While it is true that the statutory regimes which require a certificate in order that there be an appeal to the Court of Appeal represent the views of the Oireachtas on the appellate structure that should apply in such cases, it is also clear that the entitlement of this Court, without exclusion, to entertain appeals directly from the High Court represents the fundamental constitutional architecture. However, for the purposes of this case it is sufficient to record that the Court finds that there are exceptional circumstances justifying a direct appeal to this Court deriving from the fact that E would not otherwise have any entitlement to appeal in proceedings which this Court has determined involve issues which meet the general constitutional threshold.

Finally, so far as it is sought to appeal from the refusal of an injunction or stay which would have had the effect of preventing deportation until this Court has had the opportunity to deal with the matter, it requires to be noted that this Court is granting leave to appeal on the two bases already identified. The question of whether, in those circumstances, it might be appropriate for this Court to itself grant an injunction or stay which would have the effect of preventing deportation is a matter which will be addressed later in this determination. For the reasons which will be set out at that stage it does not appear that there is any necessity for a standalone appeal on the injunction question.

6. Conclusion

The Court, therefore, grants leave to appeal under Art. 34.5.4.

The issues or grounds on which E will be permitted to pursue an appeal to this Court are as follows:-

Whether the High Court was incorrect to conclude that substantial grounds justifying a grant of leave to appeal had not been made out in the circumstances of this case having regard to the following issues:-

(a) Whether Irish law recognises the same or an appropriately adapted principle such as that identified by the Supreme Court of the United Kingdom in Lumba such that there is an obligation on public authorities enjoying a broad discretion to publish any policy or criteria by reference to which such discretion is likely to be exercised whether that policy has been formally adopted or represents an established practice;

(b) Having regard to any propositions determined to arguably represent the law under (a), it is sufficiently arguable that such principles have application in the case of E so as to justify a grant of leave to seek judicial review on a substantial grounds basis; and

(c) Whether it is sufficiently arguable, on a substantial grounds basis, that E’s medical condition and requirement for treatment meets the high threshold which requires to be met in order to make it unlawful to deport.

The Court will arrange for the first case management hearing to take place during September. It will be necessary for the parties to consider, in the light of the fact that this Court has granted leave in accordance with the terms of this determination, whether it is necessary that there be any interlocutory application to deal with the situation which is to apply in respect of E thereafter and until such time as this appeal has been finally determined. The Court would expect that no precipitated action would take place prior to the first case management hearing. If there is a dispute between the parties in relation to the position of E thereafter and pending the resolution of this appeal then an appropriate application for the purposes of resolving any such dispute may be issued and served so that it can be considered on the occasion of the first case management hearing.

And It is hereby so ordered accordingly.