British
and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> S.O. (Nigeria) v Minister for Justice and Equality [2019] IEHC 728 (21 October 2019)
URL: http://www.bailii.org/ie/cases/IEHC/2019/2019_IEHC_728.html
Cite as: [2019] IEHC 728
[New search] [Printable PDF version] [Help]
Page 1 ⇓
THE HIGH COURT
JUDICIAL REVIEW
[2019] IEHC 728
[2019 No. 621 J.R.]
BETWEEN
S.O. (NIGERIA)
AND
THE MINISTER FOR JUSTICE AND EQUALITY
APPLICANT
RESPONDENT
(No. 2)
JUDGMENT of Mr. Justice Richard Humphreys delivered on the 21st day of October,
2019
(Unreported, High Court, 23rd July, 2019) I dismissed a challenge to a review decision
refusing leave to remain under s. 49(7) of the International Protection Act 2015. The
applicant now seeks leave to appeal. Since then a deportation order has been made
against the applicant who has now brought a second set of judicial review proceedings
against the Minister challenging that latest adverse decision [2019 No. 735 J.R.].
However, that is a separate case and it would simply be pandering to a delaying tactic to
adjourn the present leave to appeal application pending the outcome of that new case, as
the applicant sought.
2. I have considered the law in relation to leave to appeal as set out in Glancré Teoranta v.
An Bord Pleanála [2006] IEHC 250 (Unreported, MacMenamin J., 13th November, 2006),
M.A.U. v. Minister for Justice Equality and Law Reform (No. 3) [2011] IEHC 59
(Unreported, High Court, 22nd February, 2011) per Hogan J. I have also discussed these
criteria in a number of cases, including S.A. v. Minister for Justice and Equality (No. 2)
[2016] IEHC 646 [2016] 11 JIC 1404 (Unreported, High Court, 14th November, 2016)
JIC 2405 (Unreported, High Court, 24th March, 2017) (para. 72).
3. The applicant’s first proposed question of exceptional public importance is “Must an
applicant’s medical condition “engage” Article 8 ECHR in the assessment of the right to
respect for private life under s.49(3) of the International Protection Act 2015 (the “Act”)
and, if so, what is the threshold for engagement?”
4. That is a rerun of the tired old argument that s. 49 of the 2015 Act is different to art. 8 of
the ECHR. So what? No-one is contending otherwise. The question is based on a
completely false premise. Page 6 of the review states that the applicant’s case “was
considered under Section 49 … Consideration was also given to private and family rights
under Article 8 of the ECHR.” It is expressly stated that both were considered. The
Minister did not find that the applicant’s medical condition had to engage art. 8 in order to
be relevant to s. 49. Thus the question simply does not arise. For good measure the
Supreme Court addressed this area recently in D.E. v. Minister for Justice and Equality
Page 2 ⇓
[2018] IESC 16 [2018] 3 I.R. 326. So there is no immediately apparent benefit in further
appellate clarification, notwithstanding that the applicant has dreamed up a new legal
basis to make the point that his medical condition warrants permission to remain in the
State.
5. The applicant’s second proposed question is “What are the parameters of the Minister’s
obligations in the consideration of non-refoulement under s. 50(2) of the Act?”
6. First and foremost, this is not an appropriate case to raise such an issue because the
applicant did not make any submissions whatsoever regarding refoulement. Secondly,
the proposed question is an open-ended, write-an-essay type question. That comforting
fog of generality was presumably adopted because a more precise question would make it
obvious that the actual proposition of law argued for by the applicant under the heading
of refoulement lacks any common sense basis whatever: see in particular para. 17 of the
No. 1 judgment. Finally, it is worth mentioning in this context that the D.E. case also
touches on the non-refoulement issue insofar as relevant to art. 3 of the ECHR, so again
there is no immediately apparent benefit in repeated appellate clarification of this area.
7. Accordingly, the leave to appeal application is dismissed.
Result: Application for leave to appeal dismissed