THE SUPREME COURT
[Appeal No: 54/2015]
Chief Justice
O’Donnell J.
Clarke J.
MacMenamin J.
Dunne J.
Charleton J.
O’Malley J.
C.C., A.P., C.C. C. (an infant suing by her father and next friend C.C.) and C.C. (an infant suing by his father and next friend C.C.)
(for the purposes of this redacted judgment called “Charles”)
Applicants/Respondents
and
The Minister for Justice and Equality, Ireland and the Attorney General
Respondents/Appellants
Judgment of Mr. Justice Clarke delivered the 28th July, 2016.
1. Introduction
1.1 On this appeal the Court is invited, once again, to revisit the question of the criteria by reference to which a court should make an order which has, in substance, the effect of restraining deportation pending the final resolution of immigration law proceedings. This Court has, relatively recently, addressed such questions in Okunade v. Minister for Justice and Equality & ors [2012] 3 IR 152 (“Okunade”). However, in circumstances which it will be necessary to address, the respondents/appellants (“the State”) in substance invite this Court to review Okunade insofar as it relates to the situation which may pertain pending an appeal within the courts system. It is, of course, the case that Okunade itself was concerned with the criteria by reference to which an injunction restraining deportation should be granted at a time when the relevant applicants had brought a case before the High Court but where that case had not been determined. In this case the applicants/respondents (“the Charles family”) had failed in their application before the High Court, had appealed to the Court of Appeal and had brought an application before the Court of Appeal seeking an injunction restraining their deportation pending the hearing of their appeal to that Court. The Court of Appeal, applying the criteria identified by this Court in Okunade, decided to grant the injunction sought.
1.2 The State applied to this Court for leave to appeal that decision of the Court of Appeal. The determination of this Court on that application for leave was given on the 20th January, 2016 (C & ors v. Minister for Justice and Equality & ors [2016] IESCDET 8). This Court granted leave on the following grounds:-
1.3 The appeal thus permitted came on for hearing and this judgment is directed to the issues arising. To understand the precise issues which arise it is first necessary to set out a brief history of these proceedings. The Charles family are respectively a father, mother and two minor children who are all Malawian nationals. Both the father and mother made separate applications for refugee status in 2008 with the mother including the elder of the two children (born in Malawi in 2007) in her application. The grounds were essentially the same in all cases. Each of those applications was unsuccessful as was a similar application made on behalf of the younger minor child who was born in this jurisdiction in 2008.
1.4 Thereafter applications for subsidiary protection and leave to remain were made by each of the members of the Charles family relying principally on the same sort of assertions which had underpinned their unsuccessful applications for refugee status. Those applications were also refused.
1.5 These judicial review proceedings were then commenced which seek to quash the decision to refuse subsidiary protection. In 2012 a contested leave application was heard before Cooke J. at which both the Charles family and the State were represented. The Court was requested to consider whether to grant leave to seek judicial review of the refusal of subsidiary protection. Cooke J. refused leave (C v. Minister for Justice, Equality and Law Reform (unreported, High Court, Cooke J. 19th April 2012)). An initial appeal against that decision of Cooke J. was brought to this Court. However, that appeal, along with many others, was transferred to the Court of Appeal as part of the measures put in place subsequent to the establishment of that Court under the provisions of the 33rd Amendment to the Constitution. Around this time the Charles family “went off the radar” of the immigration authorities although, it would appear, they may have had ordinary contact with other State agencies possibly through the payment of PRSI and the claiming of social welfare. Be that as it may contact was again made with the immigration authorities in 2015. An undertaking was sought not to deport the family pending their appeal which had been, by that stage, transferred to the Court of Appeal. No such undertaking being proffered an application for an injunction was brought before the Court of Appeal.
1.6 For the reasons set out in the judgment of the Court of Appeal delivered on the 27th July, 2015 by Hogan J. (C. & ors v. Minister for Justice and Equality & ors [2015] IECA 167), the Court of Appeal granted the injunction sought. It is as against that judgment and order that the appeal to this Court is now brought.
1.7 Against that backdrop it is necessary to identify with greater precision the issue with which this Court is concerned on this appeal.
2. The Issue
2.1 It is important to start with the terms of Art. 34.5.3 of the Constitution, as inserted by the 33rd Amendment, which requires that a minimum constitutional threshold must be met in order that an appeal can be brought to this Court. Under that provision the decision sought to be appealed must be shown either to involve a matter of general public importance or, in the alternative, that it is necessary in the interests of justice that there be an appeal to this Court.
2.2 Effect was given to the 33rd Amendment by the enactment of the Court of Appeal Act, 2014 (“the 2014 Act”) which allowed for the establishment of that court and for consequential matters. Amongst the measures adopted (see s.44 of the 2014 Act) was an amendment of s.7 of the Courts (Supplemental Provisions) Act, 1961 by the inclusion of a new subs. (14) which provides that leave to appeal to this Court from the Court of Appeal is by way of a certificate of this Court “specifying the ground or grounds on which such appeal may be brought”. It follows that the only grounds on which an appeal “may be brought” to this Court are the grounds specified in the determination in which this Court certifies that the constitutional threshold is met.
2.3 After the 2014 Act came into force amended Rules of Court were adopted to reflect the new appellate regime within the Superior Courts. So far as this Court is concerned the relevant rules are found in the amended form of O.58 of the Rules of the Superior Courts. Order 58, r.19(2) requires that the determination certifying the granting of leave to appeal “shall specify the grounds on which leave is given”. Order 58, r.21(1)(a) makes clear that “the grounds of appeal are limited to those on which leave has been granted”.
2.4 Whatever may have been the position in the past in respect of certain types of appeals, therefore, the position which now pertains, in respect of appeals brought to this Court subsequent to the establishment of the Court of Appeal, is clear. The only grounds which can be pursued on an appeal are those grounds in respect of which leave to appeal has been granted. This is confirmed by the Constitution, by the 2014 Act and by the Rules of the Superior Courts.
2.5 As can be seen from the terms on which leave was granted in this case, the only such grounds concern the criteria by reference to which an interlocutory injunction should be granted pending appeal and after an adverse decision in the court below (in the sense in which the term “court below” is used in the rules). Specifically it is suggested that that test identified by this Court in Okunade does not or perhaps does not fully apply in such circumstances.
2.6 Given that a number of other matters were canvassed on both sides at the hearing of this appeal it is important to emphasise that the scope of any appeal to this Court under the new constitutional regime is confined to the grounds in respect of which leave has been given. It may, of course, be the case that within the general grounds in respect of which leave is given there may emerge specific or detailed questions which are not themselves expressly referred to in the leave grounds but which can fairly be said to be encompassed by the grounds set out in the determination granting leave. The grounds so set out should not be treated as the words of a statute to be applied with unnecessary rigidity. That being said, however, it does have to be strongly emphasised that the grounds advanced on the appeal must be such as to come fairly within the scope of the grounds in respect of which leave has been given.
2.7 It should also be noted that the respondent’s replying notice to an application for leave to appeal requires that respondent to specify, in their notice, any basis on which the party concerned wishes to argue that the order of the court below should be upheld on grounds other than those which formed the basis of the judgment appealed against. That issue was addressed by this Court in McEnery v. Commissioner of An Garda Síochána [2016] IESC 26. As the Court made clear in that judgment, additional grounds not thus referred to in the respondent’s notice cannot be said to be properly before the Court. I would again emphasise that a respondent who wishes to expand the scope of the appeal by addressing alternative reasons for upholding the judgment appealed against (beyond those which underlay that judgment) must specify those grounds in the respondent’s notice in order that those additional grounds be properly before the Court.
2.8 It requires to be recorded that the answer given to the relevant question in the respondent’s notice in this case was “none” thus indicating that it was not intended to put forward any other grounds for upholding the decision of the Court of Appeal in this case beyond the grounds which found favour in the judgment of that Court.
2.9 It follows that the only question which is properly before this Court is the question identified in the Court’s determination granting leave. In substance that question is as to whether the Okunade test is applicable in the context of the situation which arises pending an appeal after an adverse leave judgment upholding a decision to refuse subsidiary protection. It also, obviously, logically follows that, in the event that this Court is persuaded that the Okunade test is not appropriate, a necessarily consequential issue arises as to what action should then be taken. However, it is clear that the State’s appeal stands or falls on the contention that the Okunade test needs to be reviewed in the context of appeals. Likewise, the resistance to the State’s appeal put forward on behalf of the Charles family stands or falls on the assertion that the Court of Appeal was correct to apply the Okunade test.
2.10 I should add that it follows that no issue concerning whether the Okunade test was properly applied to the facts of this case truly arises on this appeal. In that context it should be noted that this Court has refused leave to appeal in many cases on the grounds that the decision of the Court of Appeal involved the application of well established principles to the particular facts of the case concerned. It follows that the established jurisprudence concerning leave to appeal will not ordinarily and without more and in the absence of some other special circumstance, permit an appeal to be brought to this Court at all where the Court of Appeal properly identified the existing legal test and applied it to the facts of the case before it. Arguments about whether the test had been properly applied to the facts of the case in question will not, ordinarily and without more, give rise to a point of general public importance sufficient to meet the constitutional threshold for leave to appeal. It follows that, if the only point which the State had sought to raise on this appeal had been the question of whether the Okunade test had been properly applied to the facts of this case, it would have been doubtful that leave to appeal would have been given at all. The only reason, therefore, that this appeal is before the Court is because the State raised the more significant issue of whether the Okunade test requires some refinement in the context of post-leave applications of the type which here arise. It would, in those circumstances, in my view, be wrong to permit any wider issue than that to be canvassed on this appeal.
2.11 It follows that the first issue which must be considered is whether, as the State asserts, the Okunade test requires to be refined in some way in the context of post-leave refusal appeals such as this. No other issue arises unless the State succeeds on that first ground. In the event that the State does succeed on that ground then clearly a question arises as to the consequences for these proceedings of such a finding. Against that background it is necessary to look at what this Court decided in Okunade.
3. Okunade
3.1 I think it is fair to characterise the judgment in Okunade as containing a series of determinations as to the law, which move from general propositions of wide application to the tests by reference to which those general principles are to be applied in increasingly specific circumstances. Thus, at paragraph 67 of the judgment, there is an analysis, at a very general level, of the problem with which courts are frequently faced in having to make a temporary decision, based on a limited consideration of the case, as to what is to happen until such time as the court has had an opportunity to fully hear and determine the issues which arise. It is important to note that, in so analysing the broad situation, the fact that the same general problem can arise in the context of the situation pending an appeal is actually touched on.
3.2 In that regard what is said in the second half of paragraph 67 is the following:
“Indeed, although it is unnecessary to go into detail for the purposes of this case, it seems to me that a like general principle underlies the approach of the court in many other types of cases where the same broad problem arises. In many situations it is necessary to decide what is to happen in the intervening period pending a trial or other determination (or indeed an appeal) when, by definition, it is not possible to decide what the ultimate outcome will be. All such cases involve the risk that, when the dust has settled, it will be seen that some person or body has suffered either by the intervention of the court or, equally, by its non-intervention. However, the only way to remove that risk of injustice would be by deciding the case, issue or appeal immediately. The whole problem is that that process takes time. In those circumstances, I do not believe that the test as to whether the court should intervene pending trial depends on whether the temporary measure sought is described as a stay or as an injunction or, indeed, as any other form of order which might arise on the special circumstances of an individual case. The court must, in all cases, act so as to minimise the risk of injustice.”
3.3 Thus, the overarching principle is said to be one applicable in all cases where a court has to make a short-term and summary decision as to what is to happen pending a fuller hearing. The approach of the Court in such circumstances has to be to act in such a way as to minimise the risk of injustice.
3.4 The judgment then goes on to identify that the traditional test for the grant or refusal of an interlocutory injunction in most types of private law proceedings can be seen to represent the application of that general principle in such cases. However, the judgment further notes that there are certain types of private law cases where the courts have found it necessary to apply the general principle in a somewhat different way with the particular examples of mandatory injunctions, springboard injunctions and disciplinary injunctions being addressed. It is, therefore, important to note that, while the particular focus of Okunade was the grant or refusal of injunctions in the immigration field, the judgment does deal with all forms of order which may be sought on a temporary basis pending some form of full hearing.
3.5 Thereafter, the judgment goes on to consider how the general principle should apply, at least in broad terms, in the context of public law proceedings. For the reasons set out in the judgment the conclusion to that question is to be found at para. 104 which is in the following terms:
“As to the overall test I am of the view, therefore, that in considering whether to grant a stay or an interlocutory injunction in the context of judicial review proceedings the court should apply the following considerations:-
(a) the court should first determine whether the applicant has established an arguable case; if not the application must be refused, but if so then;
(b) the court should consider where the greatest risk of injustice would lie. But in doing so the court should:-
(i) give all appropriate weight to the orderly implementation of measures which are prima facie valid;
(ii) give such weight as may be appropriate (if any) to any public interest in the orderly operation of the particular scheme in which the measure under challenge was made; and,
(iii) give appropriate weight (if any) to any additional factors arising on the facts of the individual case which would heighten the risk to the public interest of the specific measure under challenge not being implemented pending resolution of the proceedings;
but also,
(iv) give all due weight to the consequences for the applicant of being required to comply with the measure under challenge in circumstances where that measure may be found to be unlawful.
(c) in addition the court should, in those limited cases where it may be relevant, have regard to whether damages are available and would be an adequate remedy and also whether damages could be an adequate remedy arising from an undertaking as to damages; and,
(d) in addition, and subject to the issues arising on the judicial review not involving detailed investigation of fact or complex questions of law, the court can place all due weight on the strength or weakness of the applicant's case.”
3.6 It is, perhaps, of some importance to this case to observe that this Court was not, thereby, suggesting that a different principle or test applied as and between ordinary private civil proceedings, on the one hand, and public law claims, on the other. Rather, the Court was identifying that the somewhat different context of many public law claims leads to the application of the general principle being potentially different in those cases as compared with the sort of typical civil law claim in respect of which an interlocutory injunction might be sought. As a simple example the fact that damages will rarely provide an adequate remedy, in the context of at least many public law challenges, demonstrates that the same broad principles and test may be applied in a different way in different contexts. Indeed it should also be said that the detailed analysis of the types of cases in which the precise test identified in Campus Oil v. Minister for Energy (No 2) [1983] I.R. 88 are not strictly applied was itself designed to demonstrate that the same general underlying principle may have a different type of application in different types of cases.
3.7 In any event, thereafter, the judgment went on to consider the application of the broad approach which should apply in public law cases to the more specific situation which is likely to pertain in immigration cases. The conclusions in that regard are to be found in paragraphs 110 and 111 in the following terms:
“110. The default position is, therefore, that an applicant will not be entitled to a stay or an injunction. However, it may be that, on the facts of any individual case, there are further factors that can properly be taken into account on either side. If, for example, (and it should be made clear that no such consideration arises on the facts of this case) there was a serious risk of criminality or other activity contrary to the public interest then that would be a factor to which significant additional weight would lie on the side of refusing an injunction. Perhaps more likely an applicant must, of course, be entitled to put before the court the practical consequences of being deported pending the conclusion of the judicial review process, such as the relevant conditions in any country to which the applicant is likely to be deported. There may, as already noted and as the trial judge recognised, be some cases where the presence of the applicant for the hearing of the judicial review proceedings is necessary. If that is so then all due weight needs to be attached to that factor. In a case where an applicant would suffer material prejudice in the presentation of the case at trial very great weight would need to be attached to that fact.
111. Furthermore, if an applicant can demonstrate that deportation, even on a temporary basis, would cause more than what one might describe as the ordinary disruption in being removed from a country in which the relevant applicant wished to live, such as a particular risk to the individual or a specific risk of irremediable damage then such factors, if sufficiently weighty, could readily tilt the balance in favour of the grant of an injunction or a stay.”
3.8 Before leaving the judgment in Okunade it is, for reasons which I hope will become clear, important to note one specific aspect of the general public law test identified at paragraph 104 being the observation, at sub-paragraph (d), that, in certain cases, appropriate weight can be given to the strength or weakness of the case. A fuller account of the reasoning contained in the judgment in that regard can be found at paragraphs 98 and 99, which are in the following terms:
98. In addition, while there may well be some judicial review proceedings which could come within the parameters of what Lord Diplock spoke of as "difficult" questions of law, many such cases involve either very net questions of law or involve the application of well established principles to the circumstances of the case. It seems to me, therefore, that in considering whether to grant a stay or injunction pending the progress of judicial review proceedings, the court can have regard to the strength of the case at least where, as will frequently be the case, the challenge does not involve issues of fact as such or the sort of complex questions of law which, in the words of Lord Diplock, at p. 407 "call for detailed argument and mature considerations".
99. In the particular context of judicial review in the immigration field it is, therefore, important to note that the relevant facts will almost certainly be readily placed before the court by the applicant for the facts which will be relevant to the judicial review are likely to consist almost entirely of the materials which were before, and considered by, the decision maker. Likewise, at least in many cases, the legal principles will be relatively clear. It is unlikely, therefore, that most cases involving a judicial review challenge in the immigration field would, at the interlocutory stage, again in the words of Lord Diplock, at p. 407, "call for detailed argument and mature considerations".”
3.9 Because Okunade was not concerned with the position which should pertain pending an appeal it is, perhaps, appropriate, before going on to consider whether, as the State asserts, Okunade requires refinement in the context of stays or injunctions pending appeal, to consider the jurisprudence, which I think can be described as well settled, which applies in ordinary civil proceedings in relation to the grant of a stay or an injunction after a case has been determined at first instance and pending an appeal. I, therefore, turn to a brief consideration of that jurisprudence.
4. Stay Pending Appeal
4.1 This Court considered the question in Redmond v Ireland [1992] 2 IR 362. That case concerned the award of damages for personal injuries suffered by the plaintiff during the course of his employment with the defendants. At the time of the award no application for a stay was made by the defendants in the High Court. However, an application was made later to this Court. McCarthy J. held that a heavy responsibility lay on the legal advisers of the party seeking a stay to assist the Court on the reality of an appeal and further noted that appeals had previously been brought for tactical rather than bona fide reasons. As McCarthy J. held in Redmond, the fundamental consideration is that the courts maintain a balance so that justice is not denied to either party, a principle endorsed by Denham C.J. in this Court in The Governors and Company of the Bank of Ireland v O’Donnell [2015] IESC 90.
4.2 It is clear that the Court must, therefore, form some view of the potential outcome of such an appeal. If there is a bona fide appeal then Irish Press Plc v. Ingersoll Irish Publications Limited (No.3) [1995] 1 I.L.R.M 117 may apply which requires a court to conduct a process analogous to the balance of convenience test which should be applied in determining whether to grant an interlocutory injunction.
4.3 The combination and application of both Redmond and Ingersoll were identified as forming the basis for the overall test in Danske Bank t/a National Irish Bank v. McFadden [2010] IEHC 119. The judgment in that case noted that a successful party in a claim at first instance may fail to benefit from that success to a greater or lesser extent and with a greater or lesser amount of permanency because of a stay placed on any order obtained. Similarly, an unsuccessful party at first instance who fails to obtain a stay, but who ultimately succeeds on appeal, may suffer, again to a greater or lesser extent and again with a greater or lesser amount of permanency, as a result of the fact that a court order has been effective against them in the intervening period. In Evans v. I.R.F.B. Services (Ireland) Limited [2005] IEHC 107 at page 6, it was noted that, in a case where there was significant potential detriment on both sides, it is necessary to consider whether there is any form of injunction that will reconcile the justifiable concerns of both parties. That rationale was applied in McFadden as a principle which also applies in the context of granting a stay. As noted in McFadden a stay on terms or the imposition of terms without a stay can ameliorate the potential detriment to both sides in the event that either a stay is granted and the appeal fails or a stay is not granted and the appeal succeeds.
4.4 The issue of lifting a stay granted pending appeal also arose in this Court in Emerald Meats Limited v The Minister for Agriculture, Ireland and the Attorney General [1993] 2 I.R. 443. Emerald was a meat trading company involved in the import of meat into the Ireland. A dispute ensued following changes to the EU regulatory regime regarding the grant of a licence by the Minister for the import of meat under new European quotas. Emerald’s application for a quota in relation to 177 tons of meat was refused and Emerald challenged this decision. Extensive litigation followed and ultimately the High Court awarded Emerald €2.45 million. The High Court placed a stay that order pending an appeal. This Court, however, lifted the stay.
4.5 McCarthy J. reaffirmed the principle that the overriding consideration was to maintain a balance so that justice would not be denied to either party. The Court had regard to the risk that the damages, if paid, might be dissipated in a way which would lead to it being difficult for the Minister to recover the monies in the event that the appeal was successful. On the other hand, the Court also had regard to the findings of the High Court and the risk that Emerald might have to cease to trade if the monies were not paid over thus suffering irreparable harm. It is in addition important to cite the comments of Egan J. who also delivered a judgment favouring the lifting of the stay. Egan J. noted that there was no perfect method of balancing the conflicting interests which arose. He did, however, assess the likely result of the appeal and in the circumstances came to the view that it was unlikely that the conclusions of the trial judge would not be upheld.
4.6 It seems to me to be clear that the stay pending appeal jurisprudence applies the same basic principles and test as were identified in Okunade. As pointed out at paragraph 67 of Okunade, the problem as to what to do pending an appeal gives rise to the same type of issues as arises in the context of the grant or refusal of a stay or interlocutory injunction pending trial. The Court does not necessarily know what the ultimate result of the appeal will be. The Court has to decide what to do until that result becomes clear. The overall principle is to identify a regime which runs the least risk of injustice.
4.7 As in all cases, the first question is as to whether there is any stateable or arguable basis for the appeal itself. If there is, then the Court has to assess the potential injustice which may result from, on the one hand, intervening in favour of the appellant only to find that the appellant loses, as opposed to not intervening in favour of the appellant only to find that the appeal is successful. In passing I might comment that it seems to me that “balance of justice” or “minimising the risk of injustice” is a more accurate description than “balance of convenience”. However, nothing turns on that purely semantic point.
4.8 In any event, it seems to me that the established and well-settled jurisprudence on the question of whether there should be a stay or other intervention pending an appeal fits four-square within the principles identified by this Court in Okunade. There is no different test. However, as has been pointed out earlier, the precise way in which the overall approach may apply may differ depending on the context. The context may include the nature of the proceedings, the nature of the interference sought from the court and, indeed, the stage which the proceedings have reached. That list is not, by any manner or means, intended to be exhaustive. However, the fact that the precise application of the general principle or test may differ from one type of case to another or from one stage of proceedings to the next does not take away from the fact that there is but a single principle or test. Having made that observation it is necessary to turn to the State’s contention that different or refined principles ought apply to a post-leave refusal application for an injunction pending appeal such as arose before the Court of Appeal in this case.
5. Should Okunade be Refined in the Appellate Context?
5.1 To an extent this issue arose in P.O. & anor v. The Minister for Justice and Equality & ors [2015] IESC 64. In that case the appellants brought an appeal before this Court from a refusal of judicial review in an immigration case in the High Court and also sought an interlocutory injunction pending the hearing of the appeal. However, for reasons explained by the Court in its judgments, both the interlocutory application and the substantive appeal were heard at the same time so that, in one sense, the application for an interlocutory injunction became moot. However, it is appropriate to note that Charleton J., at para. 10 of his judgment, did suggest that it was appropriate to apply the principles identified in Okunade. Nonetheless, I think it is fair to say that the question of whether those principles required to be altered or refined in the context of an appeal did not have to be fully considered in the circumstances which arose in that case. It is, therefore, necessary to address that question fully in this judgment.
5.2 I should start by indicating clearly that I fully accept that, along with the other matters addressed in this judgment and, doubtless, many other matters which could have been, the precise application of the underlying principle which requires the Court to act in a manner which gives rise to the least risk of injustice may well apply in a somewhat different way in the context of an order sought pending appeal as opposed to an order sought pending trial. But the broad principle and approach must remain the same.
5.3 What is the logic of applying a different standard to the assessment of the strength or weakness of a party’s case pre-trial or post-trial and pending appeal. In principle, the risk of injustice is just the same if one grants or rejects an application for a stay or injunction pending trial or if one grants or rejects an application for a stay or injunction post-trial and pending appeal. The risk is that the case will ultimately turn out in such a way that, with the benefit of hindsight, a party will have had its rights interfered with by the presence or absence of an order. In one case what may confer that hindsight may be the result of a trial. In the other case hindsight may be conferred by the result of an appeal. But there is no difference in principle. The party may suffer an injustice by being deprived, at least for the time being, of a remedy which a subsequent stage in the process (trial or appeal) may determine them to have always been entitled to. Of course, as in all cases, the Court also has to put into the balance the risk of injustice to the other side which may result from intervening in favour of the applicant in circumstances where the ultimate result (again, whether trial or appeal) demonstrates that the intervention was, with the benefit of hindsight, inappropriate. But likewise that situation applies just as much in the context of a potential measure sought pending appeal as it does in respect of a measure sought pending trial.
5.4 I cannot, therefore, see any legitimate basis for suggesting that a different principle or test applies which is dependent on whether the applicant seeks an appropriate order pending trial, on the one hand, or pending appeal, on the other. That is not to say, however, that, as with so many of the matters already touched on in this judgment, the fact that the case is now at an appellate stage and has, therefore, a determination at first instance, may not influence the questions which properly arise in applying that general principle or test.
5.5 In at least some cases there will be significant issues of fact in dispute pre-trial. At trial the facts will be found and, as the jurisprudence of this Court from Hay v. O’Grady [1992] 1 I.R. 210 onwards has demonstrated, the basis on which the facts can be revisited on appeal are very limited. Likewise legal issues can fall away precisely because of the way in which the facts are found or as a result of developments or clarifications which occur at the trial. Thus, the issues which may remain legitimately for decision on appeal may, at least in many cases, be narrower and significantly refined compared with those issues which it might properly be said were before the court at the trial stage. The assessment of whether there are stateable or arguable grounds for an appeal, while in principle giving rise to the same question as might arise in the context of deciding whether there were stateable or arguable grounds for a claim, may in practice be very different precisely for reasons such as those which I have sought to identify.
5.6 It is in that context that I particularly drew attention to what is said at paras. 98 and 99 of the judgment in Okunade. Where, as is often the case, the issues which potentially arise on appeal are narrow and concerned with questions of law, it is much more likely that the court will be able to assess the strength or weakness of a pending appeal on the basis that the appeal does not, to use the words of Lord Diplock in American Cyanamid Co. v. Ethicon Ltd. [1975] AC 396, at page 407 “call for detailed argument and mature consideration”.
5.7 It follows that the very process of a trial can easily lead to a significant narrowing and refinement of the kind of issues which remain open on an appeal such that it may well be possible for a court to place much greater weight on the strength or weakness of the potential appeal compared to the situation which would have pertained were the court attempting to assess the strength or weakness of the underlying case pre-trial. But whether it will be appropriate, in accordance with the established jurisprudence, to give added weight to an assessment of the strength or weakness of the potential appeal will be very dependent on the circumstances of the case itself. In some cases there may well not be any great narrowing or refinement. The issues which remain, even if purely legal, may involve the type of case described by Lord Diplock which required “detailed argument and mature consideration” In such cases it is clear that the Court should not attempt to place in the balance the strength or weakness of either a case (pre-trial) or an appeal (prior to the appeal being heard).
5.8 It follows that there is no general rule which applies a different standard in the case of the grant or refusal of a stay or injunction pending appeal to that which applies pre-trial. The principle is the same. The test is the same. There may be cases (but it will by no means always be the case) where the consequence of there having been a trial with findings of fact and/or law may lead to a very different type of assessment being capable of being carried out as to how those principles and that test are to apply pending appeal. But whether that is so is case specific. The fact that it may more frequently be the case that weight can be attached to the apparent strength or weakness of the proceedings at an appellate rather than a pre-trial stage does not mean that there is a different rule applicable at those respective stages. Rather it simply means that, as I hope I have demonstrated is the case in very many different types of situation, the general rule can apply somewhat differently in different contexts and that one of those contexts, but by no means the only one, may be the fact that the matter is being considered post-trial and pending appeal.
5.9 In the written submissions filed on behalf of the State an account was given of the relevant test applied in many other common law jurisdictions. While potentially helpful for comparative purposes a number of comments should be made. The first concerns the difficulty of taking a test applied in another jurisdiction in particular circumstances without placing that test in the broad context of the general jurisprudence of the courts of the jurisdiction concerned. For example, reference was made to the jurisprudence of the United States courts which require an appellant to make a so-called “strong showing” in order to obtain a stay or other similar order pending appeal. However, counsel for the Charles family suggested that it may be the case that the “strong showing” test is one which is generally applicable in the United States in respect of the grant of interlocutory type orders whether designed for the purposes of preserving the position pre-trial or in the context of a pending appeal. If that be the case then the “strong showing” test applied in respect of appeals amounts to no more than the application of the test which generally applies in the United States in all circumstances and does not demonstrate that, at least at the level of principle, a different test should be applied pending trial, on the one hand, or appeal, on the other.
5.10 In any event, for the reasons which I have sought to analyse, I am satisfied that the broad approach which is required to be followed in this jurisdiction is now well established and does not require to be revisited. Furthermore, that broad approach applies equally in the context of pending appeal orders in the same way as it applies to pre-trial measures.
5.11 For the reasons already identified in this judgment it does not seem to me that the question of whether the principles identified in Okunade were properly applied by the Court of Appeal can properly be said to form part of the appeal to this Court. I would, therefore, not consider it appropriate to make any comment on that question. It is, however, worth noting that the issue which the Court of Appeal decided formed the basis of a stateable appeal to that Court was, in the period immediately prior to the oral hearing before this Court, the subject of an opinion of an Advocate General of the European Court of Justice which, at least in part, supports the view that the Charles family may have a stateable or arguable basis for their appeal. It remains, of course, the case that, even if the Charles family are successful on their appeal, it does not necessarily follow that they ultimately will be entitled to remain in Ireland. But insofar as I have indicated in this judgment that, in an appropriate case, and in particular at the appellate level, it may be possible to give added weight to an assessment of the relevant strengths and weaknesses of the case, the position of the Charles family has, if anything, strengthened between the time when the matter was before the Court of Appeal and the time of the oral hearing before this Court. However, other than to draw attention to that fact, it does not seem to me to be appropriate to touch on the question of whether the Court of Appeal correctly applied Okunade principles in the circumstances of this case.
6. Conclusions
6.1 For those reasons it does not seem to me that any legitimate basis has been put forward on behalf of the State for suggesting that the test identified by this Court in Okunade requires to be revised or refined in any way. The test applies equally to an application for a stay or interlocutory injunction post first instance hearing pending an appeal. The precise way in which that test may properly be applied can, of course, be different in particular circumstances. It is possible that one such circumstance may be whether the proceedings are at first instance or at the appellate stage. But that will not always be so. Whether the test operates differently is case specific and not necessarily dependent on whether it is being applied in the context of an appeal. I would, therefore, reject the one ground of appeal on which leave was given to the State to contest the decision of the Court of Appeal in this case.
6.2 The Court of Appeal correctly identified that the Okunade test was to be applied. No different or refined test was required to be applied in the circumstances of this case simply because the Court of Appeal was considering an injunction pending appeal as opposed to an injunction pending trial. For the reasons already addressed earlier in this judgment I do not consider that any other questions properly arise on this appeal and I would not, therefore, propose to express any view on the question of whether it could be said that the Court of Appeal did not properly apply the Okunade test to the facts of this case.
Judgment of Mr. Justice John MacMenamin dated the 28th day of July, 2016
1. I agree with the judgment and order proposed by Clarke J.
2. This appeal is one of the many hundreds of cases which have come before our courts deriving from the Immigration Acts, 1999 - 2004. In that legislation, Ireland chose to operate what became known as a “bifurcated” system. This involved a separate and sequential application being made for asylum and for subsidiary protection.
3. It must be accepted that the system had to meet an entirely new problem; one never before encountered in our history. But, the system, as devised, was unwieldy. It did not serve the interests of the State, or asylum applicants. As is now clear, the application process could take years in this, and many other cases. The procedures, themselves, and the manner in which they were historically applied, gave rise to so many judicial review applications that special lists had to be devised, and many judges assigned to deal with these cases. Those court cases came at a significant legal cost to the State and, ultimately, therefore, the taxpayer. But the human cost is not so easily calculated; and cannot be conveyed in abstract statistics.
4. This was because the system was counter-productive in its effect. Rather than making decisions, (whether favourable or unfavourable) in a timely way, it often had the self-defeating consequence of actually dragging out the determination process, (including judicial reviews and appeals), over a period of years. During that time, asylum applicants lived in a state of suspense, with no certainty as to their future, and, not infrequently, living in inadequate and substandard accommodation. During these lengthy periods, inevitably, their circumstances changed, requiring further administrative review.
5. I would await evidence that an effective and speedy decision-making process will necessarily create what some people term a ‘magnet’ effect which attracts what are characterised as economic migrants. I am not persuaded that an inefficient system can have a “deterrent effect” on what are termed “unmeritorious” asylum applicants. Rather, I suspect, the contrary is true.
6. It must be said that not all applicants have been meritorious, in the sense of being true asylum seekers, as opposed to economic migrants. There were, also, undoubtedly, abuses of the system. But, whatever the merits of their cases, these people frequently had young families. The children became established in Ireland. They often knew no other home. The facts of this appeal are an apt example of this point. One of the children (the fourth respondent), has been resident in Ireland for seven years. He has never lived anywhere else. The other child, (the third respondent), arrived in Ireland when she was 1 year old. She has never lived anywhere else since then.
7. Not only did the system give rise to a vast deal of litigation in this country, it also led to a number of references under Article 267 of the Treaty to the European Court of Justice in Luxembourg. This was because issues of European law arose, which could not be resolved by national courts, without invoking the reference procedure under the Treaty on the Functioning of the European Union. Over many years, the courts in the State, insofar as they legitimately could do so, sought to give some indication in their judgments to the manner in which the legislative position might be ameliorated.
8. The facts of this case provide other illustrations of the deficiencies in the present bifurcated system. This appeal concerns subsidiary protection. The Acts in question provided for a number of points, where administrative decisions had to be made, all of which might be the subject matter of judicial review. This problem applied both to the asylum process proper, and, as here, to applications for subsidiary protection. A further oddity in the system was that the threshold for judicial review applications with regard to subsidiary protection was actually lower than that applicable to review of asylum applications proper. It is hard to understand the logic of that situation.
9. An immigration system must be capable of enforcement. The High Court decision, which is the subject matter of this appeal, was made in 2012. Subsequent to that point, as Clarke J. points out, the appellants went “off the radar” of the asylum process. But, in fact, they continued living in Ireland and they continued to be registered with the Department of Social Protection as having been in employment in Ireland for much of that intervening time. It is not suggested the State took any action to trace them. It would not have been difficult.
10. There is now new legislation in the shape of the International Protection Act, 2015. The implementation of that legislation is to be on a phased basis. We are informed the Act is to be fully operational by the end of this year. It is to be hoped that the stated intention of this new legislation is fulfilled, and that a coherent, timely, and humane system, is the result. It is very much to be hoped that a new, and effective system will soon be fully in operation.
