S.I. (Bangladesh) v Minister for Justice & Equality [2019] IEHC 706 (08 October 2019)
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THE HIGH COURT
JUDICIAL REVIEW
[2019] IEHC 706
[2019 No. 14 J.R.]
BETWEEN
S.I. (BANGLADESH)
APPLICANT
AND
THE MINISTER FOR JUSTICE AND EQUALITY
RESPONDENT
JUDGMENT of Mr. Justice Richard Humphreys delivered on the 8th day of October,
2019
1. In Kant v. Minister for Justice and Equality [2019] IEHC 583 [2019] 7 JIC 2207
(Unreported, High Court, 22nd July, 2019), I dismissed two sets of judicial review
proceedings. Mr. Colm O’Dwyer S.C. (with Ms. Leanora Frawley B.L.) for the applicants in
the second of those cases now applies for leave to appeal and did his best to
retrospectively reconfigure his points to maximise his chances of such leave to appeal but
ultimately that attempt is implausible. There is literally nothing in this application.
2. The first and second proposed questions raise the issue of the interpretation of the
Immigration Act 2004, the core aspects of which have already been decided upon by both
the Court of Appeal and the Supreme Court as set out in the substantive judgment in
Kant, so there is no particular benefit to the matter being re-agitated at appellate level as
persuasively argued by Mr. David Conlan Smyth S.C. (with Mr. Anthony Moore B.L.) for
the respondents. The fact that the applicant has come up with an inventive but
implausible argument to circumvent that jurisprudence by asserting that permission
under the European Communities (Free Movement of Persons) Regulations 2015 (S.I. No.
548 of 2015) isn’t permission under the 2015 regulations at all but rather is somehow
permission under the 2004 Act does not convert the case into one of exceptional or
indeed any public importance or render that existing appellate court jurisprudence
irrelevant.
3. The third question is a new point that was not argued in remotely this form at the
hearing. It only occurred to the applicant after the substantive judgment following the
CJEU decision in Case-94/18 Chenchooliah v. Minister for Justice and Equality (10th
September, 2019). The absence of an available judgment in Chenchooliah did not
however prevent the applicant from making that point when initiating the proceedings.
Mr. O’Dwyer submits that this is a good case to raise the issue, but that is not so because
the point was not argued at the substantive hearing, which makes this a very bad case to
raise the point for the first time at appellate level. That would make an appellate court
into a court of first instance which is in principle constitutionally improper.
4. The application is therefore refused.
Result: Application for leave to appeal is refused
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