The High Court granted M. E. O. leave to appeal to the Supreme Court on a constitutional question arising from her proposed deportation, but confined the certificate to that issue. It refused leave on the proposed questions about private life under Article 8 of the European Convention on Human Rights (ECHR).
The application followed the court’s substantive judicial review judgment of 5 September 2012. In the present judgment, delivered on 2 November 2012, Mr Justice Cooke considered whether the case met the statutory threshold for a certificate: that it involve a point of law of exceptional public importance and that an appeal be desirable in the public interest.
The applicant’s proposed constitutional question concerned the State’s obligations to a non-citizen with significant health difficulties, including HIV, whose treatment was being provided in Ireland. In the earlier judgment, the court had found that her condition was not critical and that she was not in imminent danger of serious deterioration. It held that the Constitution did not require the State to provide or continue a particular medical treatment in her circumstances. The court described the potential harm as a consequence of her ill health, rather than an “unjust attack”.
For the appeal certificate, Cooke J framed the constitutional issue more narrowly. It asks whether Article 40.3 imposes a positive duty to protect an individual from the consequences of a life-threatening medical condition and to refrain from interrupting treatment that prevents the condition reaching a critical state. It also asks whether any such duty applies to a non-citizen, including one present without lawful permission.
The judge said the issue met the certification threshold because of its importance to affected individuals, the lack of definitive authority in Ireland, and its implications for the State. The judgment noted that such cases, though infrequent, arise in the asylum list and pose difficult questions. It also identified the public interest in clarifying whether the Constitution could require continuing, potentially expensive treatment in these circumstances.
The court rejected certification on the Article 8 questions. It said the applicant’s case had been based overwhelmingly on medical considerations, with no significant non-medical factors advanced about private life. The court considered that the respondent’s decision addressed the particular facts and did not raise a legal issue of exceptional importance extending beyond this case. It also rejected the claim that it had undertaken a merits review rather than asking whether the administrative decision was rational and reasonable on the material before the decision-maker.
The order grants leave to appeal only on the constitutional question as framed by the court. It does not grant a certificate on the Article 8 issues.