The High Court has refused an application by Saheed Adeola Ishola, Abisola Nimotalai Ishola and their minor son, Basit Ishola, for leave to appeal a decision made on 14 November 2019 in their immigration case.
In a judgment delivered on 18 February 2020, Mr Justice Max Barrett considered three proposed points of law under section 5 of the Illegal Immigrants (Trafficking) Act 2000, as amended. The application concerned whether the points met the threshold for a certificate permitting an appeal.
The first proposed question was whether the Court of Appeal’s 2017 decision in *Gorry v Minister for Justice and Equality* changed the law established in *Oguekwe v Minister for Justice and Equality* on how the Minister should consider family rights under Article 8 of the European Convention on Human Rights and Article 41 of the Constitution.
The court said it had already concluded that the substantive decision would not have differed even if the Minister had applied *Gorry* word for word. It also said both provisions involved weighing the family’s asserted right to remain together against countervailing considerations. The Minister had pointed to Supreme Court authority that a married couple comprising an Irish national and a non-national had no absolute right to reside in Ireland. The court said the Minister had carried out a careful and detailed balancing exercise, and found no purpose or merit in referring the proposed question.
The second proposed question concerned whether the Minister had to justify interference with constitutional protection of the family, where future criminal activity was alleged without a current evidential basis. The court said that framing conflicted with its earlier finding: it had accepted that Mr I’s criminal history in Ireland and England justified concern about his future activity. It said the applicants were seeking to revisit the court’s factual assessment under the guise of a point of law.
The third question asked whether the principle of “insurmountable obstacles” in *Sanade v Secretary of State for the Home Department* had become part of Irish law. The court said that issue had not been addressed in its earlier judgment and therefore did not arise from that judgment.
The court declined to grant the certificate or leave sought. This ruling determined the application for leave to appeal; it did not reconsider the underlying substantive decision.