Lofinmakin Decision

Lofinmakin v MJELR, previewed in the previous post, turned out to be less interesting than expected. As the Minister had revoked the deportation order which was being challenged, after certification by the High Court but prior to the Supreme Court hearing, the judgment by the Court was that the appeal was moot. And although the case raised points of law of exceptional public importance, that was not in itself sufficient grounds to bring the case within the exception to the general rule that the Court will not hear moot appeals. Nor is it the rule that an appeal will be heard to determine whether the High Court’s order for costs was correct. The Court dismissed the appeal.

 

Background

The appellants are a Nigerian married couple and their two Irish born children. Due to the children being Irish citizens, the mother resides legally within the State. Prior to 2007, the father (Lofinmakin) resided for ten years in Germany, during which time he frequently visited his family. In 2007, he entered the State on a temporary visa. He applied to the Minister for an extension to that visa. The Minister refused that application. After Lofinmakin’s visa expired, the Minister issued an order for his deportation. That order is the decision that was challenged in this case.

 

The High Court (Cooke J) denied Lofinmakin’s appeal, granting a costs order to the MJELR. Although, Cooke J later granted a certificate to appeal the decision to the Supreme Court on two grounds of exceptional public importance (discussed in the previous post). But before the hearing of the appeal, the Minister revoked the deportation order.

 

At hearing, the Minister argued that, as he had revoked the order, the appeal was moot. As a general rule, the Court will not hear moot appeals. Counsel for Lofinmakin argued that, as the case raised two legal issues of exceptional public importance, the case qualified as an exception to the rule. And as an order for costs had been made by the High Court, the Court should hear the appeal to determine whether that order should stand, be reversed or varied.

 

Law

Where an appeal against a declaratory order has been resolved but of which the underlying issue continues to affect the appellant, the Court should be reluctant to to deny the appellant their constitutional right to appeal, O’Brien v PIAB (NO2) [2007] 1 IR 328.  Or where the case is an appropriate test case on an issue which affects, or is likely to affect, a number of other cases the Court may exercise discretion and hear the case, Okunade v MJELR {2013] 1 ILRM 1.

 

Decision

The Court held that the fact that the case raised important points of law did not of itself bring it within the category of exceptional cases and that moot cases are not usually appropriate cases for deciding important points of law. If the Court did hear the case, the opinion would be based on a hypothesis and the judgment would be advisory. Furthermore, the Court rejected the argument that it was necessary to hear the appeal to determine where costs should fall. That would void the Court’s discretion to refuse moot appeals. The Court dismissed the appeal.

 

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