New Appeals: Supreme Court grants leave to appeal in three cases under the interests of justice criterion

In these determinations, ML v Minister for Justice and Equality & Ors, JCM v The Minister for Justice Equality and Law Reform & Ors and VJ v The Minister for Justice and Equality & Ors, the Supreme Court granted the Minister an extension of time and leave to appeal in these three cases. Although the Court determined that the Minister had not raised an issue of general public importance, it determined that the cases met the constitutional threshold for leave to appeal under the interests of justice criterion, Article 34.5.3° (ii). The Court stated:

Given the length of time that these proceedings have been in being, there is in the Court’s view a strong interest in having all the issues in these proceedings determined and brought to finality in one court if possible.

 

Background

The Respondents in these cases entered the State seeking asylum (in ML’s case, that was 2008). The Minister refused in all three cases and also refused their applications for subsidiary protection. All three sought judicial review of the Minister’s decisions on numerous grounds.

In a separate case, MM v Minister for Justice & Equality & Ors, the High Court (Hogan J) made a reference to the CJEU on whether the Minister was obliged to provide the applicant with a draft of the decision to refuse subsidiary protection so that the applicant could comment on it prior to conclusion of the process. The CJEU answered that question in the negative but made other observations on the subsidiary protection regime. Based on those additional observations, Hogan J granted MM an order of certiori quashing the Minister’s decision on grounds that the Minister had not granted MM an oral hearing in relation to the application for subsidiary protection. The Minister appealed that decision to the Supreme Court. The Supreme Court found it necessary to make a further reference to the CJEU for clarification. Following the CJEUs decision, the Court allowed the Minister’s appeal (judgment).

In the period between the High Court’s and the Supreme Court’s decisions in MM, the High Court (McDermott J) dismissed the grounds of appeal argued by the Respondents in this case. But, following Hogan’s precedent, he granted them orders of certiori quashing the Minister’s decisions on the ground that the Minister had not granted them an oral hearing. The Minister appealed those decisions to the Supreme Court. The Respondents lodged appeals against some of McDermott’s findings. Following the 33rd amendment to the Constitution those cases were transferred to the Court of Appeal.

After the Supreme Court’s decision in MM, the Minister applied for leave to appeal direct form the High Court in these cases. The Respondents argued that the Minister had not raised an issue of general public importance, that these cases involve the application of the Court’s decision to the facts of these cases.

Granting leave to appeal in the interests of justice, the Court stated:

These proceedings which when commenced sought relief on 14 grounds have now splintered into separate cases at different stages in different courts. Given the length of time that these proceedings have been in being, there is in the Court’s view a strong interest in having all the issues in these proceedings determined and brought to finality in one court if possible. Accordingly all the cases should be heard together. If this appeal was to proceed in the Court of Appeal, there is a possibility that the proceedings could become further fragmented and their prosecution increasingly complex and tortuous. Accordingly, the Court has concluded that it is in principle desirable to grant to the Minister leave to appeal to this Court … the Court considers in such circumstances, it is appropriate to indicate that the respondent should be entitled to cross appeal against all or some of the decision of the High Court insomuch as the learned High Court judge dismissed the other grounds upon which leave had been granted [10].

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