High Court: State denied permission to appeal

High Court: State denied permission to appeal

Andrew McKeown BL

The High Court has denied the State permission to appeal in a case where the court quashed the deportation order of two relatives of an EU citizen, having heard that they offered to undergo DNA testing at their own expense.


The Minister for Justice and Equality applied for a certificate of the court pursuant to s.5(6) of the Illegal Immigrants (Trafficking) Act 2000, as amended. Such a certificate would be necessary for the Minister to appeal the court’s judgment in MH and SH v Minister for Justice and Equality [2020] IEHC 360 to the Court of Appeal.

The Minister considered that this was a case to which an appeal to the Court of Appeal was desirable. MH and SH disagreed. All parties were agreed that there was a “high hurdle” under s.5(6) of the Act of 2000 before he could bring such an appeal. Mr Justice Max Barrett noted that the court was not provided with a copy of the current text of that provision by the State “in an application that is its to make”.

If the State, the judge said, was to be believed “the court managed to raise no fewer than 5 points of law of exceptional public importance… That would be remarkable if true, but of course nothing of the sort occurred – it would be something of a miracle if it did – and it reflects poorly on the respondent that it has sought to advance such a farfetched proposition.”

The State was “respectfully reminded” Lord Donaldson MR astutely observed in his renowned judgment in R v Lancashire CC, ex parte Huddleston [1986] 2 All ER 941 “The courts must and do recognise that, where errors have, or are alleged to have, occurred, it by no means follows that the authority is to be criticised. In proceedings for judicial review, the applicant no doubt has an axe to grind. This should not be true of the authority.”

The judge said that the court was not at all assisted if, when it comes to making an application under s.5, “a public decision-maker succumbs to the temptation of seeking to elevate a quite fantastic number of appeal points to the status of points of law of exceptional public importance which it is desirable in the public interest should be adjudicated upon by the Court of Appeal. Points of law of exceptional public importance which it is desirable in the public interest should be the subject of a decision on appeal do not flourish in super-abundance” and the Minister “well knows that fact.”

The court considered Glancré Teoranta v An Bord Pleanála [2006] IEHC 250, IR v Minister for Justice (No.2) [2009] IEHC 510 and SA v Minister for Justice and Equality (No. 2) [2016] IEHC 646. The requirements of a s.5 application go substantially further than that a point of law emerges in or from the case. It must be one of exceptional importance being a clear and significant additional requirement. The jurisdiction to certify such a case must be exercised sparingly. The point of law must arise out of the decision of the High Court and not from discussion or consideration of a point of law during the hearing.

The appropriate test is not simply whether the point of law transcends the individual facts of the case since such an interpretation would not take into account the use of the word ‘exceptional’. The term ‘exceptional’ must be given its normal meaning.

‘Uncertainty’ cannot be ‘imputed’ to the law by an applicant simply by raising a question as to the point of law. Rather the authorities appear to indicate that the uncertainty must arise over and above this, for example in the daily operation of the law in question.

On one of the points raised by the Minister, Mr Justice Barrett said that his comments on Article 8 ECHR in the original judgment was “additional point”, after the court had already found for MH and SH. Therefore, the court held, the point of law contended for in this regard did not satisfy the criterion identified in the SA judgment that “The question of law should be one which is actually determinative of the proceedings, not one which if answered differently would leave the result of the case unchanged.” Even if the Article 8 ECHR point had been answered differently, the result of the case would have been unchanged.


The court said that it had “considerable sympathy” for SH, “who came to Europe as a young child, came to Ireland before she was a teenager, and yet has had the prospect of deportation hanging over her for years, when Europe/Ireland has been her home for most of her life. Childhood, Millay wrote, ‘is the kingdom where nobody dies’; it ought not to be the kingdom where the terror of deportation is allowed a considerably protracted reign for which no justification is ever volunteered.”

The application was denied.

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