High Court certifies appeal on judicial review scope and EU Charter application to deportation decisions.

Neutral Citation Number: [2011] IEHC 116

THE HIGH COURT

JUDICIAL REVIEW

2009 946 JR

BETWEEN

OREOLU OLUWABUANMI SEMILORE JEDIDIAH LOFINMAKIN (AN INFANT ACTING BY HER FATHER AND NEXT FRIEND AKINTOLA

LOFINMAKIN) AND EGEBUN–OLUWAMOTUNOLA PEACE ORE–OLUWA LOFINMAKIN (AN INFANT ACTING BY HER FATHER AND

NEXT FRIEND AKINTOLA LOFINMAKIN) AND AKINTOLA LOFINMAKIN AND RACHEL YINKA AMONUSI

APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

AND

THE HUMAN RIGHTS COMMISSION

NOTICE PARTY

JUDGMENT of Mr. Justice Cooke delivered the 25th day of March 2011

1. On 1st February 2011 the Court gave its judgment on this application for leave to seek judicial review of a deportation order made

by the respondent in respect of the third-named applicant on 20th August 2009. For the reasons set out in that judgment the Court

found that no substantial ground in the sense of s.5 (2) (b) of the Illegal Immigrants (Trafficking) Act 2000 had been made out as to

why the decision in question ought to be quashed and refused to grant leave. The Applicants now apply for leave to appeal that

judgment to the Supreme Court in accordance with s. 5 (3) (a) of that Act. That leave cannot be granted unless the Court certifies

that its decision in that judgment involves a point of law of exceptional public importance and that it is desirable in the public interest

that an appeal be taken.

2. In applying for the certificate the applicants have identified two particular findings in the judgment as the basis upon which they

seek leave to appeal.

3. The first concerns the ruling in para. 48 of the judgment to the effect that the ground invoked by reference to Article 24 of the

Charter of Fundamental Rights of the European Union was not a substantial ground for the purposes of s. 5 (2) (b) of the Act of 2000.

4. Secondly, they identify the finding in para. 9 of the judgment in which the Court held that in the context of an application for

judicial review of a narrative decision of the kind challenged in this case, it is not sufficient that the Court be invited to re-evaluate

the substantive decision which is challenged and, in effect, to substitute its own view of the merits of the application which the

contested decision determines.

5. Written submissions were lodged by both parties for the hearing of the application for the certificate. Having considered those

submissions and the arguments advanced at the hearing, the Court is persuaded that this is an instance in which the test laid down

by s. 5(3)(a) of the Act of 2000 has been met.

6. So far as concerns the issue sought to be raised in the first of the above grounds, the Court is effectively obliged to grant the

certificate as it would otherwise have delivered a judgment against which no appeal was available in the sense of Article 267 (3rd

paragraph) of the Treaty on the Functioning of the European Union. It might, of course, consider referring for preliminary ruling under

that article the issue of Union law thus identified but having regard to the fact that the judgment of the Court of Justice in the

European Union of 7th March, 2011 in Case 34/09 Zambrano, was delivered after the Court’s judgment in the present case, and to

the fact that the applicants had relied upon Article 24 of the Charter rather than on Article 20TFEU, (which appears to be the basis of

the Zambrano judgment,) the Court does not consider that it is possible or desirable to refer the issue as a question for preliminary

ruling under Article 267. In those circumstances, the Court considers that it is bound to grant the certificate. If it is necessary that a

question be referred, it is preferable that it be formulated after the issues have been fully argued before the Supreme Court in the

light of the Zambrano judgment. In the view of the Court s.5(3)(a) falls to be construed and applied subject to the overriding duty of

the Court in Union law to give effect to the provision of Article 267TFEU. Where the High Court is not in a position to resolve

definitively an issue involving the interpretation of a provision of Union law, the point of law becomes a matter of exceptional public

importance and it is not only desirable but mandatory that an appeal be allowed so that the State’s obligation under Article 267 can

be discharged.

7. In relation to the second issue, the Court is motivated to grant the certificate because of the very large number of cases in which

reliance is sought to be placed by applicant parties upon the law as stated by the Supreme Court in its judgment of the 29th January,

2010, in Meadows v. Minister for Justice, Equality and Law Reform. Although the Court has endeavoured in its judgment to outline its

own understanding of the state of the law following that judgment as regards the test of rationality or reasonableness in law of

decisions of this character, a very large number of cases are currently pending before the High Court in the Asylum List in which it is

asserted that the Meadows judgment is authority for the proposition that the High Court has jurisdiction and an obligation to examine

the substantive merits of the challenged decision of the respondent and, where appropriate, to effectively substitute its own

evaluation of the representations made to the Minister against deportation where the Court considers the Minister’s decision to be

disproportionate in the balance struck.

8. The issue thus transcends the circumstances of the present case and potentially affects many other cases pending in the list and,

no doubt, many other cases yet to come. Furthermore, as the concept of proportionality as a facet of reasonableness in

administrative law is not necessarily confined to cases involving alleged encroachment on the rights to life, to protection against

torture or to protection of family life as typically raised in asylum cases, but may presumably extend to other personal constitutional

rights if not also to the validity of quasi-judicial or administrative decisions generally, the issue potentially affects the exercise of the

judicial review function as a whole and will be of exceptional public importance for that reason. Thus to enhance legal certainty in a

matter of such importance the Court considers that it is desirable that the appeal leave be allowed.

9. For these reasons, the Court has decided to grant a certificate but has reformulated the terms of the certificate as compared with

the draft put forward on behalf of the applicants. The points of law which form the basis of the certificate will, accordingly, be in the

following terms:

1. Whether the High Court was correct in law in holding (in para. 48 of the judgment,) that Article 24.3 of the Charter of

Fundamental Rights of the European Union when read in conjunction with its Article 51.1 has no application to a decision

made on 20th August 2009 by the first named respondent under s. 3 (1) of the Immigration Act 1999 to deport a third

country national illegally present in the State who is the parent of a minor Irish and Union citizen resident in the State?

2. Whether in applying the test or principle reaffirmed by the Supreme Court in the case of Meadows v Minister for

Justice, Equality and Law Reform [2010] IESC 3 to an application to quash a decision made by the respondent under the

above section to deport a non-EU national who is the parent of a minor Irish citizen, the High Court was correct in law in

exercising its jurisdiction in judicial review on the basis that:

a) It is not sufficient that an application merely asserts that the decision is irrational, unreasonable and

disproportionate and invites the Court to reassess the balance of reasonableness as between the interests of the

State and the rights and interests of the applicant and the child or family concerned;

b) The Court is entitled to require the applicant to identify the particular error, omission or other flaw in the

respondent’s reasons or assessment of the case which is claimed to render the decision irrational, unreasonable or

disproportionate?