Leave to appeal granted on specific question of law regarding holistic family consideration in deportation revocation.

Neutral Citation: [2016] IEHC 544

THE HIGH COURT

JUDICIAL REVIEW

[2015 No. 188 J.R.]

BETWEEN

S.T.E., A.A. AND Z.N.T. (A MINOR SUING BY HIS FATHER AND NEXT FRIEND S.T.E.)

APPLICANT

AND

MINISTER FOR JUSTICE AND EQUALITY

AND THE ATTORNEY GENERAL

RESPONDENTS

(No. 2)

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 3rd day of October, 2016

1. In the substantive judgment in this case, S.T.E. v. Minister for Justice and Equality (No. 1) [2016] IEHC 379, I granted an order of

certiorari quashing a decision of the Minister refusing to revoke a deportation order against the first named applicant. The Minister

now applies for leave to appeal subject to s. 5 of the Illegal Immigrants (Trafficking) Act 2000. In considering this application, I have

had full regard to the caselaw on leave to appeal, including as set out in Glancré Teo v. An Bord Pleanála [2004] 3 I.R. 401

(MacMenamin J.); Kenny v. An Bord Pleanala (No. 2) [2001] 1 I.R. 704 (McKechnie J.) and U. (M.A.) v. Minister for Justice, Equality

and Law Reform (No. 3) [2011] IEHC 59 at para. 6.

2. The respondents, somewhat confusingly, set out two alternative versions of the questions of law which they say ought to be

certified. The primary formulation of the proposed question is “what criteria in law govern the consideration by the respondent of an

application for the revocation of a deportation order made by a person whose immediately family members have already been

granted permission to remain in the State prior to the application for revocation being made and where the relevant family

relationship is founded at a time when none of the family members concerned had a legal entitlement to reside in the State”.

3. However, further in their legal submissions they set out a series of seven additional issues that arise from the judgment, although

these are not stated as being points of law of exceptional public importance such that it is in the public interest that an appeal be

brought to the Court of Appeal.

4. In my view, the question as formulated does not comply with the requirements of s. 5 of the 2000 Act because it is insufficiently

specific. A question that invites the court to set out, on an almost abstract basis, the criteria at law governing the consideration of

an application for a revocation in particular circumstances it seems to me to lack the specificity that is required by virtue of the

principle that the question of law must arise from the judgment itself. It effectively, and inappropriately, invites an appellate court to

“write an essay” on the subject rather than to answer a focused, precise, question of law. This objection is even stronger in relation

to the further list of seven issues identified, which Mr. Mark de Blacam S.C., for the applicant, describes as being “in the nature of

‘quiz’ questions about cases which are similar, but not identical, to that of the applicants”.

5. In particular, it is of some concern that the question identified fails to come to grips with the essential feature of the present case,

which was that the Minister selected between two equally precarious applicants who constituted a family (albeit not based on

marriage) by giving one permission to stay and requiring the other to leave. The fact that the family (to use the term in its European

and demotic, rather than its traditionally and restrictively Irish, sense) was formed at a time when neither parent had a legal

entitlement to reside in the State is an important part of the context but is not a full description of the issue.

6. Mr. David Conlan Smyth S.C. for the respondents submits that there are practical problems in interpreting and applying the

judgment, of which, perhaps, the most practical is that raised in his first issue (at para. 19(a) of the written legal submissions) namely

whether, where applications were made independently by applicants who are at different stages of the asylum process, the Minister is

required to postpone consideration of such an application until all parties reached the same stage.

7. Despite the unattractively loose formulation of the questions as put forward on behalf of the State, a court should always be on

alert when questions of practicability and of the workable implementation of legal doctrines are raised. As I intimated in B.W. v.

Refugee Appeals Tribunal (No. 2) [2015] IEHC 759 (para. 57), the principle that “things must be made to work” (Kenneth Clark,

Civilization (London, 1969) (at p. 197) is both a precept of social organisation and of law. In S.H.M. v. Refugee Appeals Tribunal

[2009] IEHC 128, Clark J. stated that “the decision-making process must be a workable one and impractical requirements should not

be imposed upon Tribunal Members” (at para. 43). In Angov v. Holder 736 F.3d. 1263 (9th Cir. 2013), Kozinski C.J. condemned

“layers of procedural complexity that will prove impossible to carry out in practice. ... Grandiloquent language and lofty sentiments

are no substitute for law and common sense” (at 1270). Fiat justitia ruat caelum is a good motto if it means that powerful and

popular individuals and institutions must be subjected to legal requirements; it is a pretty terrible motto if it means that the rigid

application of legal theory must be allowed to bring the overriding needs of an ordered society and its public administration to a

juddering halt.

8. In the present context, it is fair to comment that the objections of practical ramifications now raised by the State would be slightly

more convincing if they had in any way featured in argument at the substantive hearing of the case itself. But the practical objection

to requiring the State to conduct a holistic assessment of the family unit seems to have only occurred to the respondents after

having reflected on the judgment after the case was over.

9. Normally, failure to formulate an appropriate question, or failure to press the relevant argument during the hearing itself, and a

fortiori both such difficulties simultaneously, would be fatal to an application for leave to appeal. It is only because I consider that a

court should place an overriding emphasis on the question of the workability of its decisions that I am prepared to even consider the

present application for leave to appeal.

10. In circumstances where there is even a possibility that questions of practical implementation of a judgment could arise, a court

might be prepared to rephrase a question put forward by a party seeking to appeal even if the question as presented by that party is

not one that itself complies with the statutory criteria.

11. In the present case, I consider that there is a question of exceptional public importance such that it is in the public interest that

an appeal be brought to the Court of Appeal, albeit that the question is not that identified by the respondents. The question

essentially is whether, in deciding on an application made by one member of a family (including parents and a child exercising family

life under Article 8 of the ECHR), each of which is originally in an equally precarious position (having no entitlement to be in the State

save such discretionary permission if any as the Minister might grant), the Minister is required to take a holistic view of the collective

fate of the family, and in particular is required not to direct one member of such a family group to leave the State while permitting

another member to stay without compelling justification.

12. In the present case, the Minister’s conduct was in effect to “play God” by selecting between two parents each of which began

the process in an unmeritorious condition. The mother’s only apparent basis for the leave to remain that was granted was her status

as a parent. No basis has been shown as to why the other parent should not be treated similarly. For the avoidance of doubt, I need

to make clear that by granting leave to appeal on this question I am not to be taken as accepting that there are any real practical

problems with the implementation of a requirement to take a holistic view of the fate of the family. In my view there are no such

problems. At its most basic, the Minister is not required to wait until everyone is at the same stage of the process. What she is

required to do however is to assess any individual applicant in a manner that reflects a holistic view of the family unit as a whole.

Thus, if she plucks out one parent and confers the privilege of permission to reside on that person, an assessment of a subsequent

application by the other parent must reflect the need to treat the family holistically in the absence of compelling reasons to the

contrary. This could be done by revoking the first permission and requiring both parents to leave the State together. Or by granting

permission to both. Or by treating them differently if there are clear and compelling objective reasons to do so. But to grant

discretionary permission to one to stay and requiring the other to leave without demonstrating such reasons is an illegitimate exercise

of arbitrary power; an assault on equality before the law; and more fundamentally an assault on the family and on the rights of the

parents and their child, both individually and collectively.

13. It needs to be emphasised these considerations only apply where it is the Minister’s discretionary decision and that alone that

creates divergent paths for the fate of the family. If one member has at all times, or subsequently acquires, an independent

entitlement to stay in Ireland, the Minister is not significantly inhibited in compelling the other family member to leave. The

deportation of a person married to an Irish citizen, for example, is not State action splitting up a family. It is the consequence of the

parties building upon foundations of sand (see A.B.M. v. Minister for Justice and Equality [2016] IEHC 489 para. 44 where I differed

from the obiter view of Hogan J. in X.A. (a minor) v. Minister for Justice, Equality & Law Reform [2011] IEHC 397 at para 33). But

what the Minister cannot do is by her own discretionary decision and that alone, cause a family consisting of two equally precarious

illegal immigrants to become significantly more likely to split up without showing clear and compelling cause.

14. It seems to me that this question is the other side of the coin to that discussed in K.R.A. and anor. v. The Minister for Justice

and Equality [2016] IEHC 289 where the issue was whether the Minister was required to give separate consideration to the position of

any child member of a family. In determining the application for leave to appeal in that case (see K.R.A. and anor. v. The Minister for

Justice and Equality (No. 2) [2016] IEHC 421 para. 11), I made the point that I considered that the Minister was on the contrary

under a duty to consider an individual family member in a holistic context.

15. To the extent that these two issues are related, and to the extent that both decisions reflect the same approach I have

endeavoured to engage in, that a family unit should generally be treated holistically, I consider that the Court of Appeal should, at

least, be invited to hear both cases together, to facilitate that court in addressing comprehensively the question of the extent to

which the position of family members should be considered collectively in discretionary immigration decisions. While it is entirely a

matter for that court as to whether to accede to such an application, I think that the court should be given that option because the

possibility of two divisions of the court considering similar questions in two separate cases could lead to unnecessary duplication and

complexity.

Order

16. For the foregoing reasons, I will order:-

(i) that leave to appeal be given pursuant to s. 5 of the Illegal Immigrants (Trafficking) Act 2000, permitting the

respondent to appeal to the Court of Appeal, on the basis of the following question of exceptional public importance such

that it is desirable in the public interest that an appeal be brought to the Court of Appeal, namely whether, in deciding on

an application made by one member of a family (including parents and a child exercising family life under Article 8 of the

ECHR), each of which is originally in an equally precarious position (having no entitlement to be in the State save such

discretionary permission if any as the Minister might grant), the Minister is required to take a holistic view of the collective

fate of the family, and in particular is required not to direct one member of such a family group to leave the State while

permitting another member to stay without compelling justification;

(ii) that the foregoing order be made on the respondents’ undertaking to apply to the Court of Appeal for a direction that

the appeal be heard in tandem with that in K.R.A. v. Minister for Justice and Equality (Court of Appeal Record No.

2016/377), and on the respondents’ undertaking to prosecute the appeal expeditiously.