The High Court refused D.E.’s application for leave to appeal a decision refusing leave to seek judicial review of a decision by the Minister for Justice and Equality. The judgment, delivered by Mr Justice Richard Humphreys on 9 May 2017, addressed whether the proposed appeal questions met the required test for certification.
D.E., an infant suing through his mother and next friend A.E., had previously been refused leave to seek judicial review in D.E. v Minister for Justice and Equality (No. 1) [2016] IEHC 650. The later application for leave to appeal was made on notice. The judge considered several proposed questions, including whether the Minister had to publish criteria for decisions on leave to remain, whether the Lumba transparency criteria applied, and how the child’s best interests and access to medical care in Nigeria should be considered.
The court said the proposed question about publishing a policy could not support leave because, even if the applicant established the point, it would not change the result. The judge also said the substantive judgment had found no substantial grounds to contend that section 3(11) required a full policy statement for decisions to be valid. The court held that the Lumba questions did not arise on the facts, and that the argument about the child’s best interests treated a working group report as if it were the Minister’s policy.
On medical care, the judge said the applicant had not argued at the original leave stage that access to treatment in Nigeria was an aspect of an Article 3 European Convention on Human Rights claim. The Minister’s decision had referred to medical facilities in Nigeria and concluded that appropriate care was available there. The court said a more detailed assessment of access to care would arise only if the applicant first showed a real risk of treatment contrary to Article 3. It found that the applicant had not crossed that threshold.
The judgment noted that the Minister’s decision referred to 150,000 children born with sickle cell anaemia in Nigeria each year. The judge said that care in Nigeria might not always match Irish standards, but that this did not establish substantial grounds to show deportation would prima facie amount to torture or inhuman or degrading treatment.
The court ordered that leave to appeal be refused. It did not decide an appeal on the merits; the application before it was for permission to appeal the earlier refusal of leave to seek judicial review.