Supreme Court dismisses appeal where family rights do not outweigh individual criminal conduct and immigration breaches.

THE SUPREME COURT

[Appeal No: 94/2012]

Denham C.J.

McKechnie J.

Clarke J.

In the Matter of the Refugee Act, 1996 (as amended),

In the Matter of the Immigration Act, 1999 (as amended),

In the Matter of the Illegal Immigrants (Trafficking) Act, 2000,

In the Matter of the European Convention on Human Rights Act, 2003 Section 3(1) and In the Matter of the Charter of

Fundamental Rights of the European Union

Between/

Charles Smith and Alimat Smith (Minors Suing By Their Father and Next Friend Omololu Smith), Sikirat Smith, Rufai Smith,

Ajoke Moriamo Smith and Omololu Smith

Applicants/Appellants

and

The Minister for Justice and Equality,

The Attorney General and Ireland

Respondents

Judgment of Mr. Justice Clarke delivered the 1st February, 2013.

1. Introduction

1.1 The extent to which it is necessary, in immigration law, to look at the rights of each member of a family from the perspective of

the family as a whole (in a way which may give a different perspective to that which would apply in respect of each individual

member) is a recurring problem. This case arises, in part, out of the differing status of a number of family members so far as Irish

immigration law is concerned. The sixth named applicant/appellant ("Mr. Smith") and his wife, the fifth named applicant/appellant

("Mrs. Smith") are Nigerian nationals, who appear to have arrived in the State in January, 2002. The first to fourth named

applicants/appellants are children of Mr. and Mrs. Smith. The respondent ("the Minister") has made a deportation order against Mr.

Smith. It is that deportation order (or more accurately the Minister's refusal to revoke it) which each of the applicants/appellants

(collectively "the Smiths") seek to challenge. For reasons to which I will shortly turn, each of the Smiths, with the exception of Mr.

Smith, is lawfully entitled to remain in the State, although the status of those other members of the family, in Irish law, differs

somewhat. In simple terms, the Smiths allege that the deportation of Mr. Smith would amount to a disproportionate interference with

their personal and family rights under the Constitution, the European Convention on Human Rights and relevant European Union law.

1.2 It also needs at this stage to be noted that Mr. Smith was found guilty of serious criminal offences in the United Kingdom for

which he received a significant sentence followed by deportation. Mr. Smith has also been guilty of significant breaches of the

immigration system.

1.3 On the 27th February, 2012, the Smiths sought leave to apply for judicial review to challenge the validity of a refusal by the

Minister to revoke the deportation order made against Mr. Smith. The relevant refusal, which was the second such decision, was

made on the 14th December, 2011. The application for leave to seek judicial review was refused for reasons set out in a judgment of

Cooke J. on the 5th March, 2012, [2012] IEHC 113. That application was, of course, made ex parte. Against that refusal the Smiths

have appealed to this court. In order to more fully understand the issues relied on by the Smiths, it is necessary to turn first to an

outline of the factual history.

2. The Facts

2.1 What immediately follows appears from the affidavit evidence filed on behalf of the Smiths (it being recalled that the Minister was

not a party to the application for leave so that the facts should not be necessarily taken as being accepted by the Minister or

established.) These facts were specifically set out in the written submissions filed by the Smiths in this Court.

2.2 On the evidence currently available, it appears that:-

(a) Mr. and Mrs. Smith are Nigerian nationals who arrived in the State in January 2002;

(b) Their son ("Charles"), the first applicant/appellant, was born in the State on the 16th January, 2002 and is an Irish

national;

(c) Mr. Smith left the State in 2002, travelled to the United Kingdom where he was tried and convicted of carrying illegal

drugs and sentenced to 7 years imprisonment. He was deported to Nigeria in July 2005 having served part of that

sentence;

(d) On the 15th March, 2005, Mrs. Smith was granted permission to reside in the State under the IBC/05 Scheme;

(e) On the 22nd June, 2006, Alimat Smith, the second named applicant/appellant, a Nigerian national and a daughter of

Mr. and Mrs. Smith, was born and resides in the State pursuant to the permission granted to Mrs. Smith;

(f) On the 27th July, 2006, Sikirat Smith, the third named applicant/appellant, a Nigerian national, and a daughter of Mr.

and Mrs. Smith, was granted permission to reside in the State;

(g) In September, 2006, Mr. Smith re-entered the State with his son, the fourth named applicant/appellant ("Rufai

Smith"), a Nigerian national;

(h) In March 2010, the Minister made Deportation Orders against Mr. Smith and Rufai Smith. No proceedings were

instituted seeking to challenge the validity of those Orders. In this regard, on the basis of Irish law as it then stood, it is

said that such an application stood little chance of success having regard to cases such as Alli (a minor) v. The Minister

for Justice [2010] 4 IR 45 and related cases;

(i) In March 2011, the Court of Justice of the European Union (“the ECJ”) delivered its Judgment in Case C-34/09

Zambrano [2011] ECR I-0000 (“Zambrano”);

(j) Consequent on this judgment the Minister announced that his Department would examine all cases where a link to

Zambrano has been identified. The Minister indicated that:

• where the Zambrano criteria were met, all other things being equal, permission to remain in the State would be

granted;

• that Zambrano might be of particular relevance to, inter alia, parents of an Irish born citizen child who had been

deported; and

• as a matter of policy Zambrano would not be applied to persons who had been convicted of serious and/or

persistent criminal offences.

(k) On the 2nd June, 2011, Mr. Smith and Rufai Smith submitted an application pursuant to Section 3(11) of the

Immigration Act 1999, as amended (“the 1999 Act”) for revocation of the Deportation Orders made against them;

(l) On the 21st October, 2011, the Minister granted Rufai Smith permission to reside in the State;

(m) Also on the 21st October, 2011, the Minister affirmed the Deportation Order made against Mr. Smith;

(n) On the 24th November, 2011, Mr. Smith made a second application for revocation of the Deportation Order against

him;

(o) On the 9th December, 2011, Mr. Smith made further representations in support of that later revocation application;

(p) On the 14th December, 2011, the Minister again affirmed the Deportation Order made against Mr. Smith; (it is in

respect of this decision that leave to seek judicial review is sought).

(q) Mr. Smith was deported from the State on the 7th March, 2012.

2.2 Certain other facts appear from the evidence and materials placed before the Court. Mr. Smith has admitted that in July, 2010, he

left the family home. Then, in September, 2010, Mr. Smith travelled to London via Belfast. It appears Mr. Smith remained in the United

Kingdom until June 2011, at which point he returned to Ireland following contact with the Garda National Immigration Bureau. Initially,

in correspondence through his solicitors, Mr. Smith denied leaving the jurisdiction during this period, a misstatement which was later

corrected.

2.3 Against the background of that factual account, it is next necessary to turn to the basis on which the trial judge declined to

grant leave, from which the grounds relied on for seeking leave to challenge the refusal to revoke the relevant deportation order will

become apparent. I, therefore, turn to the High Court judgment.

3. The High Court Judgment

3.1 The reasoning of the High Court is to found in paras. 14 - 25 of the judgment. Cooke J. commenced by noting what he described

as the “well-settled” test to be used in assessing the conduct of the Minister when considering an application for revocation, which

principles logically apply to a second or subsequent application for revocation. Cooke J. stated, at para. 14, that:

“It is well settled that the Minister is not obliged to entertain an application for revocation under s. 3(11) unless it is

based upon some new fact or information or some change of circumstance which has come about since the deportation

order was made and which, if established, would render the implementation of the deportation order unlawful. (See

C.R.A. v Minister for Justice [2007] 3 IR 603 at [78] to [87] and Irfan v Minister for Justice [2010] IEHC 422 at paras 7

and 8 and the cases there cited).”

3.2 In applying that test, the trial judge found that the only new fact or information which had arisen since the first application for

revocation was the fact that Rufai Smith had been granted temporary permission to remain in the jurisdiction. However, Cooke J. held

that this change in circumstances was not relevant to the position of Mr. Smith, as his application for revocation was still based on

the alleged dependence of his other son, Charles, on him. This was characterised as “merely a re-iteration of the argument”

advanced in the first application for revocation, with the trial judge expressing the view that such an approach was not open to Mr.

Smith. The correct approach, in the view of Cooke J., would have been to seek judicial review of the initial refusal, which had not

occurred in this case.

3.3 The Court then went on to deal with arguments to the effect that the Minister had failed to carry out an appropriate analysis of

the interference with the right to family life guaranteed under Article 8 of the European Convention of Human Rights and Article 7 of

the European Charter of Fundamental Rights. The thirty-six page memorandum which accompanied the 2010 deportation decision was

noted by the Court. This memorandum contained, in the Court's view, a “detailed analysis and assessment of the impact of a

deportation order upon the rights of the Smith family under Article 8 of the Convention and particularly the right of respect for

family life… [and] a detailed analysis and assessment of the impact of the deportation order upon the constitutional rights of the

Irish citizen child.” This analysis, the trial judge ruled, was not challenged by the applicant at that time, and it was no longer open to

him to challenge it.

3.4 The judge then went on to consider whether Zambrano was applicable in this case. At para. 24, he stated:-

“As the Minster has, correctly and lawfully in the judgment of the Court, decided in the first refusal that this was not a

case in which the Zambrano principle was applicable because the deportation of Mr. Smith would clearly not result in any

other member of the family leaving the European Union, that consideration cannot be said to arise in this case.”

The Court was, therefore, satisfied that no case had been made out for the grant of leave.

3.5 However, the judgment then went on to consider how the court would have exercised its discretion if a stateable case had been

made out. Mr. Smith’s history of repeatedly abusing immigration laws, by illegally entering Ireland and the United Kingdom and through

his attempts to evade the deportation order, amounted to “compelling reasons why the Court should exercise its discretion to refuse

to entertain the application”.

3.6 Against that judgment, the Smiths have appealed to this Court. I now turn to the grounds on which that appeal was based.

4. The Grounds of Appeal

4.1 The Smiths first suggest that the trial judge erred in applying the incorrect test to assessing the validity of the Minister’s

approach to the s. 3(11) application. It was submitted that the cases referred to in para. 14 of the High Court judgment, being C.R.A.

v Minister for Justice [2007] 3 IR 603 and Irfan v Minister for Justice [2010] IEHC 422, are distinguishable from this case in that such

cases concerned the family rights of applicants who were themselves subject to deportation orders. The present case, however,

concerns the family rights of a number of persons who are not subject to deportation orders and have the entitlement, for a variety

of reasons, to remain in the State. Therefore, it is said, this case concerns the fundamental family rights of those parties (who are

not subject to deportation) under the Constitution, the European Convention of Human Rights and the European Charter of

Fundamental Rights. In essence, the Smiths suggest that the failure of the Minister to revoke the deportation order amounts to a

disproportionate interference with the family rights guaranteed by those instruments.

4.2 It is the contention of the Smith's, therefore, that the Minister was obliged to reconsider the application for revocation, not only

when a new fact post-dating the Order emerges but also when a previously unknown fact arises or when there is a material change in

the law relevant to the reconsideration of deportation orders. On the basis that such a requirement to reconsider applies, it is argued

that the Minister is obliged to reconsider the effect of the deportation of Mr. Smith on the family rights of all the Smiths for three

separate reasons:

(a) the decision to grant Rufai Smith temporary permission to stay in the State;

(b) the delivery of the Zambrano judgment and the Minister’s response thereto; and

(c) the delivery of the judgment in S. & ors v. Minister for Justice, Equality and Law Reform [2011] IEHC 417 and the

permanent effect of a deportation order.

4.3 It is urged that the trial judge erred in finding that the decision to grant Rufai Smith temporary permission to remain in the State

does not amount to a relevant consideration in the Minister’s decision to not to revoke the deportation order. This revocation leaves

Mr. Smith as the sole member of his family who will have to return to Nigeria. This is relevant in that the memorandum to the

deportation order cited the fact that his son, Rufai Smith, was also being deported. It is said that Mr. Smith now faces deportation in

circumstances where his family ties to Ireland have been further strengthened.

4.4 The Smiths also contend that the Minister was obliged as a result of the ECJ judgments in Zambrano and Case C-256/11 Dereci

[2011] ECR I-0000 to reconsider the effect of the deportation on the family life of all the appellants. One factor which was referred to

in the memorandum in relation to the original deportation order was the reasonableness of the family relocating to Nigeria. However,

following Zambrano, this is no longer a relevant criterion as relocation on that basis would deprive Charles, an EU citizen, of the

substance of his right to reside in the territory of the EU. Therefore, it is said, the Minister should have, but did not, reconsider the

merits of Mr. Smith’s application in light of this new jurisprudence.

4.5 In the context of new jurisprudence reliance was also placed on the decision of the High Court in S. & ors v. Minister for Justice,

Equality and Law Reform [2011] IEHC 417, which, it is said, establishes that the separation of Mr. Smith from his children must be

seen as permanent in effect. It is submitted that insufficient weight was given to this material consideration in deciding to deport Mr.

Smith in 2010, and as a result a fresh re-evaluation of the effect of deportation on the family rights of all the appellants should, it is

argued, now be entered into. Such a re-evaluation might now conclude differently on the proportionality of the interference with the

rights to respect for family life enjoyed by all his family, particularly the rights of the minor Smiths, his children. Therefore, it is said,

the decision of the Minister to affirm his earlier decision amounts to a disproportionate interference with those rights.

4.6 The Smiths also seek to challenge the conclusion of Cooke J. that the misconduct of Mr. Smith was such as to amount to a

compelling reason for him not to exercise his discretion to grant leave. In so concluding, it is said that the trial judge erred by failing

to also consider the rights of the other Smiths. The transgressions of Mr. Smith are only one factor to be considered when the court

is exercising its discretion in an application of this nature.

4.7 Finally, the Smiths submit that the trial judge erred in characterising the second application for revocation as an attempt to

postpone the implementation of the deportation order.

5. Discussion

5.1 It is important to commence any discussion of the issues which arise on this appeal by noting two important principles. First, it

must be emphasised that this is an appeal against a leave application. It follows that the only question, so far as the substance of

the grounds put forward, which was before the trial judge was as to whether a sufficiently arguable case had been made out for the

grant of leave to seek judicial review in the light of the existing jurisprudence. The leading authority on this point is the decision of

the Supreme Court in G. v. Director of Public Prosecutions [1994] 1 I.R. 374 where Finlay C.J. stated at pp. 377-378:-

“An applicant must satisfy the court in a prima facie manner by the facts set out in his affidavit and submissions made

in support of his application of the following matters:—

(a) That he has a sufficient interest in the matter to which the application relates to comply with rule 20 (4).

(b) That the facts averred in the affidavit would be sufficient, if proved, to support a stateable ground for the

form of relief sought by way of judicial review.

(c) That on those facts an arguable case in law can be made that the applicant is entitled to the relief which he

seeks.

(d) That the application has been made promptly and in any event within the three months or six months time

limits provided for in O. 84, r. 21 (1), or that the Court is satisfied that there is a good reason for extending the

time limit….

(e) That the only effective remedy, on the facts established by the applicant, which the applicant could obtain

would be an order by way of judicial review or, if there be an alternative remedy, that the application by way of

judicial review is, on all the facts of the case, a more appropriate method of procedure.”

This test was re-affirmed by Fennelly J. in Gordon v. Director of Public Prosecutions [2002] 2 I.R. 369 where he stated at p. 372 that

“leave to apply for judicial review can be obtained by demonstrating that, if the facts alleged are proved, the applicant has an

arguable case in law to obtain the relief he seeks; this has been frequently described as a "low threshold" and by Denham J. as a

"light burden" in G. v. Director of Public Prosecutions…”

5.2 It follows that the only issue, so far as the substance of the grounds of appeal are concerned, that arises on this appeal, is as to

whether the trial judge was correct in refusing leave having regard to that standard. This court is not concerned, therefore, with

whether the issues raised are necessarily correct but merely with whether those issues are arguable to the necessary standard in

accordance with the jurisprudence to which reference has been made.

5.3 Second, it seems to me that the trial judge was correct in identifying the overall test by reference to which an application to

revoke a deportation order needs to be judged. There are very sound reasons of policy why that test is appropriate. As this Court

pointed out in its judgment in Okunade v. Minister for Justice [2012] IESC 49, one of the problems which currently besets the Irish

immigration system is the lengthy period of time which it frequently takes before there is a final resolution of all issues arising in

relation to the attempts by many individuals to establish a lawful basis for remaining in the State. Some of the reasons for such

delays in the system are addressed in Okunade. However, as pointed out in my judgment in that case, there are very good reasons

why, provided the process is not expedited to the extent that it becomes unfair, persons who are found to be entitled to remain in

Ireland should be told so in as short a time as is possible and why persons who are found not be entitled to remain in Ireland should

be given a final decision to that effect in a similar timeframe, so that the undoubted complications which arise from persons spending

a long period of time in the country before such final decision is made do not arise.

5.4 While there are many aspects of the system which contribute to the delay of which I have spoken, there can be little doubt but

that permitting persons to make repeated applications for revocation of deportation orders in the absence of significant new materials

or circumstances would contribute to such delays and have an adverse effect on the orderly implementation of the Irish immigration

system. It seems to me to follow that it is only where a relevant applicant can point to some significant feature, not present when

the original deportation order was made, that there can be any obligation on the Minister to give detailed reconsideration to the

question of deportation. It likewise follows that a similar situation arises where, as here, there is a second or subsequent application

for revocation of a deportation order. Where, as here, neither the original deportation order nor the first or earlier application for

revocation was challenged in the courts by judicial review (or where any such challenge failed), it must be assumed that the analysis

of the Minister, on the basis of the facts, materials and considerations then before the Minister, was correct. It follows that the only

basis on which a challenge to a second or subsequent refusal on the part of the Minister to revoke a deportation order can be

brought is where reliance is placed on a suggestion that there were new circumstances not before the Minister when the deportation

order or any previous decision not to revoke same was determined and where the challenge is directed to the consideration by the

Minister of the application in the light of such new circumstances.

5.5 To that general principle, I would add two observations. First, it seems to me that the overall approach which I have identified

applies, at least in the vast majority of cases, notwithstanding the fact that some of the persons whose rights may be affected are

persons who are not subject to the deportation order in the first place. It is, of course, the case here that the rights of the other

members of the Smith family, who are not subject to the same deportation order as Mr. Smith is, are engaged. However, in the vast

majority of cases, and in the absence of some special or unusual factors, it is reasonable to assume that any person seeking the

revocation of a deportation order on the basis, amongst other things, of the rights of other family members, will address, in their

relevant application to the Minister, any points which can be made in favour of the revocation sought which derive from the rights of

those other family members. There is nothing, on the facts of this case, to suggest that there was any difficulty encountered by, or

indeed failure of, Mr. Smith in putting forward the rights of relevant family members to the Minister at all material times. On that basis,

it does not seem to me that counsel for the Smiths was correct when she suggested that the jurisprudence relied on by the trial

judge as to the test to be applied was incorrect on the basis that the rights of persons not subject to the deportation order are

engaged on the facts of this case whereas the cases from which that jurisprudence derived involved cases where that was not so.

The rights of each relevant member of the Smith family, at least so far as they stood at the time when the original deportation order

was made or when the original application for revocation was advanced, were asserted and considered. The need to bring finality and

certainty to the immigration process in a timely fashion applies just as much to cases involving the rights of other family members, not

the subject of a deportation order, as it does to cases involving only those sought to be deported. I would leave to a case in which

there was a factual basis for the point a consideration of the proper approach where there was some serious failure to advance the

rights of family members.

5.6 The second observation is that there is an obligation on persons seeking to invoke their right to invite the Minister to revoke a

deportation order to put before the Minister all relevant materials and circumstances on which reliance is sought to be placed. The

question of the presence of new and significantly material considerations such as might justify a reconsideration of a previous

deportation decision (including a previous refusal to revoke) must be judged against that obligation. The mere fact that what is said

to be a new consideration was not before the Minister when an earlier decision was made does not of itself render it the sort of

consideration which requires the Minister to actively reconsider. If what is asserted to be a significant and material new consideration

was actually available to the applicant at the time of the previous application, but was not advanced or brought to the Minister’s

attention, then, in the absence of special circumstances, it is difficult to see how the existence of such a consideration can properly

be advanced as a new consideration requiring an active reassessment by the Minister of the substantive merits of the case. For a

new circumstance to require such a reassessment it must either have arisen after the earlier decision of the Minister or there must be

a compelling explanation as to why, notwithstanding its existence at the relevant time, it was not then advanced.

5.7 There does not seem to me to be any basis, on the facts of this case, for suggesting that Mr. Smith had any difficulty in

asserting any family rights which he wished in the course of his various applications to the Minister. It follows that, on the facts of

this case, an assessment of the Minister’s second decision not to revoke necessarily involves only a consideration of any new

circumstances which arose subsequent to the previous, and unchallenged, decisions of the Minister to deport and to decline to revoke

the deportation order. Against that background, it is necessary to assess the arguability of the grounds asserted on behalf of the

Smiths which are said to constitute such new and changed circumstances.

5.8 The changed circumstances which the Smiths allege the Minister was required to consider on the second application for

revocation challenged in these proceedings are both factual and legal. I should start by indicating that it is in my view, sufficiently

arguable for the purposes of a leave application, that a change in circumstances such as obliges the Minister to reconsider the merits

of a deportation order can include material changes in relevant and applicable legal frameworks including developments in both

domestic and European Union jurisprudence. It follows that, again for the purposes of a leave application, there is no reason in

principle why a material change in relevant jurisprudence may not amount to a sufficient change in circumstances to require the

question of deportation to be reconsidered (although it does not, obviously, follow that any such reconsideration would necessarily

lead to a different result). Furthermore, any asserted change in the legal framework would have to be demonstrated to be of real

materiality to the facts of the case concerned.

5.9 So far as the factual changes in circumstance relied on are concerned, same appears to principally depend on a change in the

status of two of the children of Mr. and Mrs. Smith. As noted earlier, reliance is placed on the decision to grant Rufai Smith temporary

permission to stay in the State. However, Rufai Smith was granted permission to remain on the 21st October, 2011. The Minister’s

first refusal to revoke the deportation order in respect of Mr. Smith also occurred on the 21st October, 2011. No challenge was

brought to that first decision of the Minister refusing to revoke the deportation order. If there was any legitimate basis for suggesting

that the Minister had not properly taken into account the family rights of Rufai Smith at any material time then that contention

applied in respect of the first decision to decline to revoke, for at that time the Minister was aware of the status of Rufai Smith as

Rufai was given leave to remain in the State on the same day. If it was sought to assert that a decision to permit Rufai Smith to

remain in the State carried with it an obligation to reassess the position of Mr. Smith, then such a case could have been made when

the applications to revoke the respective deportation orders made in relation to both Mr. Smith and Rufai Smith were advanced to the

Minister. In addition, and perhaps more importantly, if it was felt that, in giving Rufai Smith permission to remain, but in refusing to

revoke the deportation order in respect of Mr. Smith, the Minister had failed to adequately consider the consequences for the family

rights of the Smiths as a whole (or Rufai Smith in particular) in the light of those two decisions, then a challenge could have been

mounted to that first refusal to revoke the deportation order in respect of Mr. Smith on that basis. No such challenge was, of course,

brought. It follows that the time at which any challenge, based on an alleged failure to have regard to the new status of Rufai Smith,

ought to have been brought, was when the first decision to refuse to revoke was made. Any points that could have been raised,

based on the new status of Rufai Smith, could have been raised at that time. It is, in my view, now too late to seek to assert those

points when they were available at the time of the first decision not to revoke and no challenge to that decision has been brought.

5.10 In that regard, I should express my agreement with the views expressed by the trial judge when he indicated that a party

cannot artificially create a new point by the simple expedient of making multiple applications for revocation of a deportation order. It

is, of course, the case that a party is entitled to invite the Minister to revoke a deportation order at any time. Where, however, there

has already being an application to revoke which has been refused and where the refusal either has not been challenged or where any

challenge to such refusal has failed in the courts, then legal certainty requires that such refusal must be taken to represent a correct

determination based on the facts and materials as they stood at the time of that refusal. Those facts and materials must be taken to

include matters actually before the Minister together with any matters not before the Minister which the applicant ought to have

placed before the Minister. It follows that a second or subsequent application to revoke must put forward some new facts, materials

or circumstances beyond those which existed at the time of the first refusal to revoke (or which, while existing at that time, could

not with reasonable diligence have been expected to have been placed before the Minister by the relevant applicant). It is only such

new facts, materials or circumstances that the Minister is required to consider save to the extent that the Minister must, of course, if

there truly are new facts, materials or circumstances which could be material to an overall assessment of the position, take an overall

view of all the circumstances including those new matters addressed.

5.11 Based on that analysis, it is clear that any factors connected with the changed status of Rufai Smith do not qualify as new

facts, materials or circumstances which could have required the Minister to revisit his earlier decision not to revoke.

5.12 The other matters which are asserted to represent new circumstances stem from developments in jurisprudence. It is said that

as a result of Zambrano and S. & ors v. Minister for Justice, Equality and Law Reform, the legal framework within which consideration

must be given to the rights of family members, other than the person who is the subject to a deportation order, had altered in a

material way so that, it is said, the Minister should now reassess those rights in the light of that new legal framework. For the reasons

already addressed, I am satisfied that it is, in principle, arguable, sufficient for the purposes of a leave application, that the Minister

may be required, in the context of an application to revoke a deportation order, to reassess the position of either the proposed

deportee or other persons who may have family rights connected with the proposed deportee, in the event that there is a material

and applicable change in the legal framework for carrying out such an assessment.

5.13 The problem with the argument put forward on behalf of the Smiths under this heading is that the Zambrano points would have

applied equally at the time of the first refusal to revoke the deportation order in this case because Zambrano was decided well before

the first application to revoke was made. It is true that S. & ors v. Minister for Justice, Equality and Law Reform was decided while

the first application for revocation was under consideration, with judgment in that case being given by Clark J. on the 13th October,

2011, where the first application for revocation had been made on the 2nd June but was not determined until the 21st October.

Having reviewed the decision in that case, it does not seem to me that it is arguably realistic to characterise the judgment as

creating a materially different legal framework within which deportation of the type arising in this case is to be considered, such as

might give rise to an obligation on the part of the Minister to reassess rights previously determined in an earlier decision to deport or

to refuse to revoke a deportation order. I am not, therefore, satisfied that the delivery of judgment in S. & ors v. Minister for Justice,

Equality and Law Reform is a matter which required the Minister to give any reassessment to the general family rights invoked on the

facts of this case. So far as Zambrano is concerned, if any points arising from that case had any merit then they should have been

fully addressed to the Minister at the time of the first application for the revocation of the deportation order and, if it was felt that

the Minister’s consideration of those points did not conform with law, then a challenge to the Minister’s decision, at that time should

have been brought.

5.14 It is incumbent on any party seeking revocation of a deportation order to put forward the entire argument which they wish to

advance (subject, as pointed out earlier, to any undiscovered points which could not, with reasonable diligence, have been

discovered), so as to enable the Minister to consider all such points. It is also incumbent on any party who feels that the Minister’s

determination does not conform with law to bring a timely challenge to that decision. A party cannot bypass those obligations simply

by making a renewed application without new grounds. Where a renewed application is made, then the Minister is only required to

revisit the overall merits of the case where there are new and material grounds put forward. There is nothing to suggest that there

was any material change in the legal framework between the time of the first refusal to revoke and the refusal which is the subject of

challenge in this case. There is, therefore, in my view, no basis for challenging the Minister’s second decision to refuse to revoke

based on grounds which were available when the first decision not to revoke was made and which were not put forward at that time

as a basis for a challenge.

5.15 As the trial judge pointed out, the grounds addressed in respect of the second application to revoke were narrowly focused and

were little more than a repetition of the grounds concerning Charles which had already been considered by the Minister as far back as

the original decision to deport. Insofar as there might have been any argument that the position in respect of Charles has changed

because of Zambrano (for the reasons advanced in argument on behalf of the Smiths), then any such argument was available at the

time of the refusal of the first application to revoke and if any such grounds were valid as a basis for challenge, then a challenge

should have been brought to that first decision to revoke.

5.16 In that regard it does not seem to me to be necessary to deal with the issue raised on this appeal (but not, in fairness, pressed)

which asserts that the trial judge was wrong in concluding that the second application to revoke and the challenge to its refusal were

designed to delay or prevent an actual deportation. Whatever may be the merits of that point it remains the case that the trial judge

was correct to assess the case put forward to determine whether anything new had emerged between the two applications to

revoke, and the trial judge was more than correct in concluding that there was nothing new presented at that stage.

5.17 It follows that, in my view, the trial judge was correct in concluding that the Smiths had not made out a basis for challenge in

the circumstances of this case. In that context, it is important to emphasise that, for the reasons already addressed, it is necessary

for a party seeking to make a second application to revoke a deportation order to put forward some new facts, materials or

circumstances on which revocation might be considered in order that the Minister be required to enter into a reassessment of the

overall merits of the case. The initial question which must, therefore, be asked in respect of any challenge to a second or subsequent

refusal to revoke is whether the applicant in question has actually put forward new facts, materials or circumstances such as would

require the Minister to enter into a full reconsideration. For the reasons addressed by the trial judge, I am not satisfied that the

Smiths had put forward any arguable grounds for suggesting that they had put forward any such new facts, materials or

circumstances between the application which led to the first refusal to revoke and the application which is subject to challenge in this

case. In those circumstances, the questions raised as to how the Minister ought to have addressed the overall considerations of a

case involving family rights just do not arise on the facts of this case.

5.18 As the trial judge went on to consider how he would have exercised his discretion in the event that he had been satisfied that

there were arguable grounds for contesting the validity of the Minister’s decision, I also propose to make some brief comments on that

topic.

6. Discretion

6.1 It is important to carefully identify the role of discretion in the context of judicial review applications such as that with which the

court is now concerned. In so doing, it is important to emphasise that the term "discretion" does not mean that a judge can override,

in any way, the law. Nor can a judge, by the exercise of discretion, interfere with the rights of any individual as such. Indeed, in that

context, it might be suggested that the term "discretion" is apt to mislead. What, in truth, the term implies is that there may be a

range of factors which can properly be taken into account by the court, as a matter of law, in determining whether an applicant is

entitled to a remedy and if so what remedy.

6.2 On the facts of this case, it seems to me that the trial judge was entitled to consider whether, as a matter of practical reality,

there would be any point in referring this matter back to the Minister to reconsider.

6.3 Any Minister would be required to have regard to the serious wrongdoing of Mr. Smith in respect of not just of how he has dealt

with the Irish immigration system (which factors were, of course, known to the Minister at all material times and noted by the trial

judge), but also the serious criminality in which Mr. Smith engaged and the circumstances, by specific reference to the family rights

and entitlements which are now sought to be asserted to his advantage, in which that criminality occurred. It must be recalled that

Mr. and Mrs. Smith came to Ireland in 2002 and Charles, who is the only Irish citizen amongst the Smiths, was born in that year. Far

from carrying out his role in personally vindicating the family rights of Charles, Mr. Smith travelled to the United Kingdom and became

engaged in very significant criminality such as warranted a lengthy custodial sentence. Those actions were taken at the very time

when Charles and, indeed, Mrs. Smith as the mother of Charles, had a most immediate need of such family support as Mr. Smith might

be in a position to give. It is not, in my view, unreasonable to characterise his actions in departing Ireland, engaging in serious

criminality, and in putting himself in a position where he was unable to engage in family life, as being actions in total disregard of any

family rights involved.

6.4 In that context, it should also be noted that Mr. Smith’s actions in respect of his own family are not confined to the original

occasion when he went to the UK and became involved in serious criminality. It is clear that while Mr. Smith was, purportedly, in

Ireland seeking to place reliance on whatever legal rights he might have in the context of the Irish immigration system, he had in fact,

again, travelled to England. On the facts of this case, there is, therefore, no reality to the asserted position of Mr. Smith in respect of

his family. He has repeatedly left the jurisdiction and not tended to the needs of his family. The failure is, therefore, directly

connected with the very rights now sought to be asserted.

6.5 When coupled with Mr. Smith's other wrongdoing in respect of the immigration system as outlined by the trial judge, it seems to

me that this is the kind of case where, on the facts, there could only be one answer if the matter was referred back to the Minister.

The Minister would be almost certain to, and would be well justified in, concluding that, even if there were new circumstances, same

could not outweigh the extraordinary weighty balance against revoking Mr. Smith's deportation, which stems from his own reckless

disregard of the rights of his own family members.

6.6 In those circumstances, I am more than satisfied that the trial judge was correct in indicating that, had he come to a different

conclusion on the existence of arguable grounds, the discretion of the court should be exercised so as not to grant leave to seek

judicial review. Having regard to my comments on the term "discretion" earlier, I would prefer to suggest that, on the facts of this

case, there are compelling legal reasons why, even it if it were arguable that the Minister did not completely comply with his full legal

obligations, it nonetheless remains the case that the Minister's decision should not be quashed as there are compelling reasons to

believe that, even had the Minister considered any such additional factors, no difference in the result could have occurred.

7. Conclusions

7.1 For those reasons, I am satisfied that the trial judge was correct in concluding that there were no arguable grounds established

for challenging the Minister's second decision not to revoke the deportation order in respect of Mr. Smith. In addition, I am satisfied

that it was more than open to the trial judge to conclude, again for the reasons already analysed, that there were ample grounds for

declining judicial review, even if some technical deficiency in the Minister's decision had been established.

7.2 For those reasons, I would dismiss the appeal and affirm the order of the trial judge refusing leave to seek judicial review.