Kearns P. would refuse leave on any ground and dismiss an appeal concerning a ministerial decision on representations against deportation, according to a judgment delivered in the Supreme Court on 21 January 2010.
The applicant, named in the judgment, had received two adverse merit-based decisions, neither of which was challenged by judicial review, Kearns P. said. The final step was a process under section 3(3)(b) of the Immigration Act 1999, under which the Minister for Justice was to consider representations on why the applicant should not be deported.
Kearns P. described that step as an “ad misericordiam” application, or plea for mercy. He said it was not a reconsideration of the earlier hearings and decisions. He considered that judicial review at this stage could be justified in limited circumstances, such as if relevant material had not been before the minister or significant new factual information had emerged. He said neither circumstance applied.
He rejected applying proportionality to decide whether the court should quash this kind of ministerial decision, reasoning that doing so would draw judges back into issues already determined at the earlier hearings. He also said the minister was not required to give detailed reasons, and cited a prior Supreme Court decision concerning a refusal of permission to remain on humanitarian grounds.
Kearns P. opposed broadening judicial review principles beyond those set out in O’Keeffe v. An Bord Pleanála and Keegan v. Stardust Victims Compensation Tribunal. He said an expanded approach risked bringing courts into executive decision-making and increasing the volume and length of judicial review cases.
He concluded that the applicant’s constitutional rights had been vindicated through the hearings, appeals, judicial review options and final ministerial representations process. He would answer the question in the certificate in the affirmative, refuse leave on any ground and dismiss the appeal.
The supplied text is Kearns P.’s judgment. It records his proposed disposition and disagreement with the majority’s approach; it does not set out the Supreme Court’s operative order or the certificate question.