The High Court has refused an application by Ovidiu Erno Gritto, Andreea Daniela Micu and their minor daughter for a certificate allowing them to appeal to the Supreme Court. The application followed an earlier refusal of leave to seek judicial review of deportation orders concerning the first and second applicants.
Miss Justice Laffoy delivered the ruling on 16 March 2005. The application for an appeal certificate had been heard on 20 July 2004. Under section 5(3)(a) of the Illegal Immigrants (Trafficking) Act 2000, the High Court could grant a certificate only if its decision involved a point of law of exceptional public importance and an appeal was desirable in the public interest.
The applicants advanced three proposed points. The first concerned whether a non-national parent of an Irish-born child who is an Irish citizen should be told which common-good principles the Minister intended to apply when considering deportation, and be allowed to make submissions on them before a decision.
Justice Laffoy said the Supreme Court had already addressed the issue in AO & DL v Minister for Justice. She understood the majority judgments to leave general matters such as the requirements of the common good and immigration policy to the executive, while requiring each proposed deportation to be considered on its individual merits. The parent must have an opportunity to make representations about the relevant facts and factors, as well as the statutory opportunity under section 3(4)(a) of the Immigration Act 1999. The judge concluded that this proposed point met neither part of the certificate test.
The second proposed point argued that the deportation criteria had not been properly applied, that there had been no adequate balancing of interests, and that parents of an Irish child were in a different position from failed asylum seekers. The judge said this sought to revisit her conclusions on the merits and did not identify a point of law of exceptional public importance.
The third proposed point concerned whether a more demanding “anxious scrutiny” standard of review should apply where children’s rights are at issue. In the earlier substantive judgment, the court had found substantial grounds to contend that a more rigorous standard might apply where a child’s constitutionally protected fundamental rights were involved, but considered it inappropriate to grant judicial-review leave on that ground alone.
Justice Laffoy noted that a related appeal in Meadows v Minister for Justice was understood to be pending. She accepted the respondent’s submission that the applicants had not laid a detailed factual foundation about the child to support an appeal on the review standard. Granting a certificate on that point alone would ask the Supreme Court to consider a moot issue, she said, and would not be desirable in the public interest.
The application for a certificate was refused. The ruling did not determine a Supreme Court appeal; it denied permission to bring one from the earlier leave decision.