Supreme Court dismisses appeal as moot because deportation order revoked and no live legal issue remains.

THE SUPREME COURT

Appeal No. 138/2011

Denham C.J.

Murray J.

Fennelly J.

McKechnie J.

MacMenamin J.

Between/

Orelu Oluwabunmi Semilore Jedidiah Lofinmakin (an infant acting by her father and next friend Akintola Lofinmakin)

and

Ebun-Oluwa Motunola Peace Ore-Oluwa Lofinmakin (an infant acting by her father and next friend Akintola Lofinmakin)

and

Akintola Lofinmakin

and

Rachel Yinka Amonusi

Applicants/Appellants

and

The Minister Justice, Equality and Law Reform, Ireland and the Attorney General

Respondents

and

The Human Rights Commission

Notice Party

Judgment delivered on the 20th day of November, 2013, by Denham C.J.

1. There are two issues before the Court in this matter. The first issue is whether the appeal is moot. Secondly, if it is held that the

appeal is moot, the question arises as to whether this is one of the exceptional cases where a court will hear an appeal even though

the matter is moot.

2. The original proceedings in this appeal arose out of a deportation order, but there no longer exists a deportation order in respect of

any of the appellants.

Background

3. The first and second named appellants are Irish citizens, the third and fourth named appellants are their parents.

4. Originally, there were issues as to whether the third named appellant was entitled to reside in Germany. The Minister made a

deportation order on the 20th August, 2009, which was affirmed on the 3rd November, 2009, to deport the third named appellant.

5. The appellants applied to the High Court for reliefs, including leave to seek an order of certiorari of the deportation order. The

appellants raised issues as to family rights and the test set out in O’Keeffe v. An Bord Pleanála [1993]1 I.R. 39.

6. On the 1st February, 2011, in a reserved judgment the High Court (Cooke J.) refused leave to seek any relief. He adjourned the

application for a certificate for leave to appeal.

7. On the 7th March, 2011, the European Court of Justice delivered judgment in Zambrano v. Belgium (Case C-34/09) [2011] All E.R.

(E.C.) 491. The rights of citizen children of the European Union were held to derive from Article 20 of the Treaty on the European

Union.

8. The High Court granted a certificate for leave to appeal to the Supreme Court on the 25th March, 2011, noting that the appellants

had not relied on Article 20 of the Treaty on the European Union, which was the basis for the Zambrano decision; and the High Court

also granted a certificate relating to the O’Keeffe test, and the interpretation of the decision of this Court in Meadows v. Minister for

Justice, Equality and Law Reform [2010] 2 I.R. 701.

9. The appellants appealed against the refusal of leave to apply for judicial review on the points certified by the High Court.

10. Thereafter, the Minister decided to revoke the deportation order made in respect of the third named appellant, and so informed

him by letter of the 21st February, 2012. The third named appellant has been granted temporary residency until the 24th February,

2014.

11. Thus, there is no longer a deportation order in respect of any of the appellants. The first two appellants are Irish citizens and are

entitled to reside in Ireland. The third and fourth named appellants have permission currently to reside in Ireland.

12. If the situation were to arise where either the third or fourth named appellant were in danger of deportation, the Minister would

have to make a fresh deportation order. That could give rise to fresh proceedings with new issues arising which were not part of

these proceedings.

General Policy

13. The current proceedings, insofar as they relate to the deportation order against the third named appellant, are moot, as that

deportation order has been revoked.

14. As the deportation order has been revoked, there is no basis upon which to proceed. Furthermore, any decision by this Court

would be based on a hypothesis, and would be an advisory opinion. It has long been the jurisprudence of this Court that it will not

give advisory opinions, except in exceptional circumstances, such as under Article 26 of the Constitution, or as identified in the case

law of the Court.

15. Thus, while the parties had a real dispute when the proceedings were commenced, this is no longer the case.

16. As has been cited by this Court previously, including by Hardiman J. in Goold v. Collins [2004] IESC 38, the dictum of the Supreme

Court in Borowski v. Canada [1989] 1 S.C.R. 342 reflects the law of this jurisdiction where it is stated:-

“An appeal is moot when a decision will not have the effect of resolving some controversy affecting or potentially

affecting the rights of the parties. Such a live controversy must be present not only when the action or proceedings is

commenced but also when the Court is called upon to reach a decision. The general policy is enforced in moot cases

unless the Court exercised its discretion to depart from it.”

In this case the issues are moot, and applying the general rule of the Court, the appeal would not be heard.

Discretion

17. There are exceptions to this general rule, when the Court will hear and determine issues in a moot appeal. Such exceptions have

been described in O’Brien v. Personal Injuries Assessment Board (No. 2) [2007] 1 I.R. 328, in Okunade v. The Minister for Justice,

Equality and Law Reform and Ors [2013] 1 I.L.R.M. 1, and in Irwin v. Deasy [2010] IESC 35.

18. In Irwin v. Deasy, Murray C.J. said:-

“In exceptional circumstances where one or both parties has a material interest in a decision on a point of law of

exceptional public importance the court may in the interests of the due and proper administration of justice determine

such a question.”

19. In some cases an exception may arise if the issue determined in the High Court affects many other cases. Thus, in O’Brien v. PIAB

(No. 2) [2007] 1 I.R. 328, Murray C.J. pointed out:-

“Where, as in this case, a party has a bona fide interest in appealing against a declaratory order of the High Court which

is not confined to past events peculiar to the particular case which has been resolved in one way or another, the Court

should be reluctant to deprive it of its constitutional right to appeal. In this case the respondent continues to be

constrained in the exercise of public powers under statute by virtue of the declaration granted in the High Court at the

instance of the applicant.”

20. An exception to the general rule may also arise if it is a test case, and if many other cases have been adjourned pending the

decision of the case before the Court.

21. The issue of mootness was analysed by Clarke J. in Okunade. In that case the issue was, as he stated, “strictly speaking moot”.

However, it was a test case. Clarke J. stated:-

“5.3 This case had, therefore, been, in a sense, designated as an appropriate test case by reference to which the broad

issues which are addressed in this judgment were to be determined. That designation occurred at a time prior to the issue

becoming moot by virtue of the decision of Cross J. In those unusual circumstances the Minister was anxious, and the

court agreed, that this appeal should be heard notwithstanding the fact that the issue had, by the time the appeal

actually came on for hearing, become moot. The unusual set of circumstances outlined above formed the basis for that

decision. In addition it seemed to the court that any case in which this issue might arise was likely to become moot in a

relatively short period of time for the issue concerns the proper approach that should pertain pending the hearing of a

leave application. Every case of this type will, therefore, become moot when the leave application is heard. The problem

which emerged in this case, being that arrangements for an expedited appeal had been set up with a date set but that

the issue became moot by virtue of the hearing and determination of the leave application before that date was reached,

has a significant risk of occurring in any other case. In those special and unusual circumstances this court felt that it was

appropriate to hear the appeal notwithstanding its mootness.”

22. The fact that a case raises an important point of law is not of itself a reason to bring it within the exceptional category. The

foundations of a case that is moot have fallen away and so they are usually not appropriate cases upon which to decide important

points of law, unless there are other factors such as arose in O’Brien v. Personal Injuries Assessment Board and Okunade.

23. In making submissions to this Court, advocating that the Court should hear the appeal, counsel for the appellants relied on

Caldwell v. Mahon Tribunal [2011] IESC 21. .

24. Counsel submitted that there was an outstanding order for costs made in the High Court against the appellants and that that

order was appealed against by the appellant in their notice of appeal. It was submitted that in order to determine whether that costs

award against the appellants should stand, be reversed, or varied, the merits of this appeal must be decided by the Court.

25. It is not the jurisprudence of this Court that a moot appeal should be heard to determine an issue of costs. If such were the

case, it would render at nought the discretion of the Court on a moot appeal. In moot cases on appeal there may be an issue of costs

in both this Court and the High Court. However, that is not a factor in determining whether such exceptional circumstances exist,

that a moot appeal should be heard by the Court.

26. I would distinguish Caldwell v. Mahon Tribunal [2011] IESC 21. In general it is not necessary to hear an appeal simply to determine

if the costs order was properly made or ought to be set aside. I consider Caldwell to have unique circumstances which do not apply in

general and do not apply to this case. Consequently, I would not exercise discretion to hear the moot appeal simply because a costs

order was in issue.

Conclusion

27. The grounds of appeal relate to a deportation order which has been revoked. The validity of the deportation order is no longer an

issue, as it has been revoked. If there were a deportation order at any time in the future there would be additional issues of law to

those that framed the basis of the High Court decision. Consequently, it is not a situation where based on the High Court judgment it

could be a test case. Also, in those circumstances it is neither necessary nor appropriate to consider the test to be applied by the

High Court in reviewing the validity of the order.

28. There is no matter left in issue between the parties. Thus, the appeal is moot and, accordingly, the general rule should apply and

the appeal should not be heard. While the Court has a discretion to hear and determine a moot case in exceptional circumstances, no

such exception arises in this case.

29. Consequently, I would dismiss the appeal as moot.