Supreme Court Justice Iseult O’Malley would dismiss MK’s appeal over a decision by the Minister for Justice and Equality, despite agreeing that the sequence used in reaching that decision was flawed.
In a judgment delivered on 24 November 2022, Ms Justice O’Malley said the respondent’s decision in MK’s case had relied on a Court of Appeal judgment and a House of Lords decision in a flawed sequence. She said all members of the Court agreed on that point.
However, she agreed with the Chief Justice and Hogan J that the flaw did not invalidate the Minister’s decision in this particular case. She therefore did not consider an order of certiorari, which would quash the decision, necessary or appropriate.
The appeal also raised the possible role of Articles 40.1, 40.3 and 40.6 of the Constitution in proposed deportations. Justice O’Malley said that, given the circumstances of this appeal, those provisions would not add to established principles under Article 8 of the European Convention on Human Rights in a way that would affect MK’s case. She said she did not need to decide how those constitutional provisions relate to Article 8, reserving that question for a more appropriate case.
Justice O’Malley’s judgment records her own position in a Court divided on both the issues and the outcome. She concluded that she would dismiss the appeal. The source excerpt does not state the Court’s overall order.