Facts:
The applicants sought to quash a deportation order made against the father applicant, M.E. on the basis of preventing crime and disorder. They obtained leave to do so, but at the post-leave stage, the court declined to grant the reliefs sought. They then sought leave of the court to appeal its decision to the Supreme Court pursuant to the provisions of s. 5(3)(a) of the Illegal Immigrants (Trafficking) Act 2000, under which leave could not be granted unless the court certified that its decision involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal be taken.
The applicants sought to canvass whether the court, when considering whether or not to quash a deportation order in respect of a non-EU national who was the parent of minor Irish citizens, and in applying the test of reasonableness set out by the Supreme Court in the case of Meadows v. the Minister for Justice, acted correctly in exercising its jurisdiction on the basis that (i) it was not sufficient for the applicants to assert that the decision was irrational, unreasonable and disproportionate and invite it to reassess the balance of reasonableness as between the interests of the State and the rights and interests of the applicant and the child or family concerned and (ii) was entitled to require the applicants to identify the particular error, omission or other flaw in the reasons underpinning the making of the order which allegedly rendered the decision irrational, unreasonable or disproportionate.
The applicants contended that the principle of proportionality required the court to assess the balance which the Minister had struck and exercise its own judgment as to whether his decision affecting fundamental rights was disproportionate in its effects. The court was not constrained to uphold the assessment of proportionality merely because it had not been reached unreasonably or irrationally. It was entitled to exercise its own judgment as to what, in the circumstances, was a disproportionate impact on those rights, rather than to assess proportionality in a manner circumscribed by the common law rules applicable to judicial review.
They identified the following matters in support of the contention that the decision to deport M.E. was disproportionate:-
- the deportation order required him to remain outside the State, indefinitely resulting in a permanent disruption of family life which engaged the rights under Articles 41and 42 of the Constitution.
- the best interests of the children were not served by the making of the deportation order;
- it was unreasonable to expect his wife and children to move to Nigeria to be with him;
- his wife would be left to look after the children alone in the State without his support;
- the children were not of an adaptable age and it was not in their best interests that their father be deported;
- if the children were required to live in Nigeria they would suffer disadvantages in their upbringing there and would not be able to avail of the same level of education and other opportunities (including health protection) as would be available in this State; and
- the deportation order was unreasonable because M.E. had been convicted of an offence in respect of which a relatively short term of imprisonment had been imposed, which he had served and following which he had a clean record and had not come to the adverse attention of the authorities up to the time of the making of the order.
The court held that the test to obtain a certificate of leave to appeal had not been satisfied.
Reasoning:
The court found that the applicants had not discharged the onus of proof required to establish that the decision was unreasonable in the sense that it was disproportionate within the meaning of Meadows. It pointed out that judicial review was not a form of appeal and that the onus of proof lay upon the applicant to demonstrate that the impugned decision was fundamentally flawed. It held that, in the case before it, the applicants had failed to discharge that onus.
Having considered the decisions of the Supreme Court in Meadows and in Donegan v. Dublin Co. Council [2012] IESC 18, which emphasised that, when reviewing administrative decisions, a court was not entitled to substitute its own view for the administrative body, the court concluded that the applicants’ assertion that the High Court had a jurisdiction and an obligation to examine the substantive merits of the impugned decision and effectively to substitute its own decision if it considered the Minister’s decision to be disproportionate was incorrect, and did not give rise to a point of law of exceptional public importance that required resolution by the grant of a certificate.
Moreover, it said that it was not satisfied that the question as framed arose out of the court’s decision in the case, which was a precondition to obtaining a certificate in the light of the decision in Glancre Teoranta v. An Bord Pleanála [2006] IEHC 205.
Decision:
It accordingly refused the certificate sought.
