Supreme Court dismisses premature reference application, directing it to be heard as part of the substantive appeal.

THE SUPREME COURT

[Appeal No. 166/2014]

MacMenamin J.

Laffoy J.

Charleton J.

BETWEEN:

P.O. AND S.O. (AN INFANT SUING BY HIS MOTHER AND NEXT FRIEND P.O.)

APPELLANTS

AND

THE MINISTER FOR JUSTICE & EQUALITY, IRELAND AND THE ATTORNEY

GENERAL

RESPONDENTS

JUDGMENT of Mr. Justice John MacMenamin delivered the 29th day of January, 2015

1. This matter first came before the Court by way of a Friday motion heard on the 25th July, 2014.

2. The appellants are Nigerian nationals. S.O., a minor, was born on the 20th October, 2006 in Ireland. He has now been in Ireland for

more than 8 years. S.O.’s mother, P.O., arrived in Ireland on the 11th September, 2006. This was just one month before S.O.’s birth.

The mother claimed to have left Nigeria because of fear of persecution. She stated she had been helped out of the country by her

husband. The husband, however, remained in Nigeria. P.O. came to Ireland with a false passport.

3. On the 26th September, 2006, that is, a fortnight after S.O.’s birth, both appellants applied to the Refugee Applications

Commissioner (R.A.C.) for a recommendation that they should be granted refugee status. It is a regrettable commentary on the

manner in which the asylum system operates that now, eight years later, there is still litigation pending as to their status.

4. The R.A.C. application brought on behalf of P.O. and S.O. was refused. They did not appeal to the Refugee Appeals Tribunal.

Instead, they initiated judicial review application in respect of the R.A.C. decision. Three years later, their case was discontinued.

5. On the 20th January, 2010 the Minister for Justice sent the appellants what is known as a “three options” letter. Under s.3(6) of

the Immigration Act, 1999, in determining whether or not to make a deportation order, the Minister may have regard to a series of

criteria, including duration of residence in the State, family and domestic circumstances and connection with the State. The Minister

must have regard to employment records and prospects, character and conduct, humanitarian considerations, and representations

made by or on behalf of the applicant.

6. In this case, the appellants did not make any application for subsidiary protection. On the 17th May, 2012 they received a letter

from the then Minister indicating that he had decided to deport them. This order, dated the 9th May, 2012, was enclosed. With it also

there was a written analysis as to why the application to remain in the State should fail. The appellants were required to leave the

State by the 3rd June, 2012. On its face, the order was final. Section 3(11) of the 1999 Act, however, enables the Minister to amend

or revoke a deportation order, including an order made under that sub-section. This meant that a person subject to a deportation

order might make representations to the Minister that the decision to deport should be reconsidered.

7. On the 21st September, 2012, the appellants’ solicitors sought to identify reasons why the appellants should not be returned to

Nigeria. By decision of the 25th February, 2013 the respondent affirmed the order and gave reasons for refusing to amend or revoke

that order.

8. The appellants were granted leave to apply for judicial review of this decision on the 22nd April, 2013. The matter was heard by

McDermott J. in the High Court, [2014] IEHC 141, who delivered judgment on the 21st March, 2014, refusing to make an order of

certiorari quashing the Minister’s decision. This High Court decision has been appealed to this Court.

9. Under s.5 of the Illegal Immigrants (Trafficking) Act, 2000, as amended, the final nature of the High Court order in most refugee

type applications does not extend to a decision of the respondent Minister to refuse to amend or revoke a deportation order under

s.3(11) of the Immigration Act, 1999. In lodging the appeal the appellants applied, by way of Notice of Motion, to this Court dated

the 11th July, 2014, for an injunction restraining their deportation pending the appeal. This was the Motion heard on the 25th July,

2014 aforesaid. In the interests of justice, this Court determined that the matter should be listed for further hearing on the 20th

October, 2014. This Court made clear that the further hearing of the interlocutory application to be heard in the new term was to be

in the papers as it then stood. The appellants had not availed of the opportunity to file further affidavits.

10. On the 20th October, 2014 the following written submissions were available to the Court:

(a) The appellants’ undated initial written submissions, which were not available to this Panel of the Court until the 20th

October, 2014;

(b) The respondents’ written submissions in reply, filed on the 18th July, 2014;

(c) Supplemental written submissions filed on behalf of the appellants on the 23rd September, 2014; and

(d) Supplemental written submissions filed on behalf of the respondents on the 8th October, 2014.

11. All of the foregoing submissions dealt only with the issue before the Court on the 20th October, 2014, that is, the application for

an interlocutory injunction.

12. On the 20th October, 2014, and not before, counsel for the appellants handed into Court a further set of written submissions.

These were entitled “Outline Written Submissions” on an application that the Court refer questions of the Court of Justice of the

European Union under Article 267. There was no prior warning that any such application was to be made, either to the Court or to the

respondents’ legal team who were handed the submissions at the outset of the resumed hearing, at the same time as they were

handed into the Court. There has been no prior indication that such a contingency arose in the case.

13. Counsel for the respondents, Ms. Siobhan Stack, S.C., when asked for submissions on the reference point, indicated that it would

be her case that the appeal had nothing to do with E.U. law. The Court proceeded to hear submissions by counsel for the appellants

on the reference point, in addition to the submissions on the application on the interlocutory injunction. When the Court again sat in

the afternoon it raised with the parties whether it should not more appropriately deal with the substantive issue in the appeal, rather

than the application for an interlocutory injunction. Counsel for the appellants was agreeable to that course being adopted. However,

Ms. Stack, S.C. submitted that there were valid deportation orders in existence, and that addressing the interlocutory application was

an important issue from the State’s perspective. In the circumstances, the Court indicated that it would, proceed only with the

interlocutory application and not the substantive issue. At the end of the hearing, however, the Court gave leave to the respondents

to file short written submissions on the reference point by Friday, 24th October, 2014. These submissions are referred to below.

14. It can be said even now that the application for a reference to the Court of Justice was in response to one sub-paragraph of a

paragraph in the respondents’ written submissions filed on the 8th October, 2014. That paragraph addressed the issue as to whether,

for the purpose of Campus Oil ([1983] I.R. 88) and Okunade ([2012] 3 IR 152) principles, there was a fair issue to be tried on the

appeal. It was stated that whether there was a fair issue to be tried must be established by reference to the grounds upon which

leave for judicial review was granted. In one ground, the appellants contended that the Minister’s decision “was in breach of fair

procedures, and the applicants’ right to be heard, and the principle of audi alteram partem …”. It is unnecessary at this stage to

recite the submissions and responses.

15. As a matter of general principle an application to refer a matter for the preliminary opinion of the Court of Justice should be done

in a timely manner, and in the appropriate court. The application should be part of written submissions. Those submissions must be

served with adequate notice (and with an adequate opportunity to reply) to the opposing legal counsel. An application to refer to the

Court of Justice should be made known to the Court in sufficient time for the court to consider the matter. Such an application must

not be used as some form of last minute “tactical ploy”, or in a manner which might suggest it is a legal after thought raised at the

eleventh hour. To engage in such conduct, in an appeal on an interlocutory matter, such as this, is, in the view of this Court,

tantamount to an abuse of court process, and is a matter which, inter alia, may be reflected in orders for costs, or other sanctions.

Additionally, when faced with such a situation, a court, be it a trial court or an appeal court, may conclude that a point of law raised

in this manner does not come within the criteria set out in C.I.L.F.I.T. Srl and Others v Ministro della Sanita' (Minister of Health)

(Case 283/81) [1982] ECR 3415, in that it may not always be clear whether the point sought to be referred is “necessary” to

determine the case (See C.I.L.F.I.T.), and Rules of the ECJ.

16. In the context of the instant appeal, however, the procedural consequences are acute. What is before the Court is not a

substantive appeal, but rather an application for an interlocutory injunction. Neither party came to Court to address the substantive

issues on the appeal. The only function of the Court in this regard is, generally, to consider the principles applicable to the grant of an

interlocutory injunction. As matters evolved, the application for a reference was made, without any prior warning to the Court, in

circumstances where, prima facie, the appropriate course of action would have been to deal with the interlocutory application and

later address the application for a reference at the hearing of the substantive appeal. Only then will it be possible to determine

whether the point is “necessary” for the determination of the appeal. A consequence of the appellants’ action was that on the 24th

October, 2014 (with the permission of the court) counsel for the respondents delivered written submissions. However, the appellants

have not had an opportunity to comment on these, or, in particular, to make observations or submissions, inter alia, in relation to the

judgment of the Court of Justice on Case C-40/11 Lida v. Stadt Ulm in which judgment was given by the Third Chamber on the 8th

November, 2012. No explanation as to why the issue of the reference was not raised before has been given.

17. There is now a balance between the consequence of the incorrect procedure adopted by the appellant and the requirements of

fairness. Be it said that if unfairness had arisen it would not have been as a consequence of the respondents’ actions, nor the court’s

procedure. The Court is now presented with a highly unsatisfactory situation which, quite simply, should not have arisen. The Court

fully realises that counsel for the appellants, in engaging in an application on behalf of persons who have been living in this State for a

significant period, will want to take such legal points as may properly arise, and are properly raised. But this must be done in a manner

which is consistent with both the letter and the spirit of the Rules of the Superior Courts, procedural fairness, and which allows

matters to be addressed in an orderly fashion.

18. In the circumstances of this case, the Court feels constrained to decide that, as a matter of justice to both sides, this application

for a reference will be heard only as part of the substantive appeal, rather than in the course of an interlocutory motion. In these

exceptional circumstances, therefore, the Court will direct that an expeditious appeal be heard (by the same panel of this Court), and

an early date will be fixed. The Court will hear submissions as to the time limits for any ancillary matter arising. The Court emphasises

that this matter will be dealt with on an urgent basis, in order to obviate any risk of any further delay.