High Court: Stay granted for test case raising technical objection to use of contractors in International Protection Office

About this case:

• Citation:
  [2018] IEHC 499
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Richard Humphreys

Restraining the International Protection Appeals Tribunal (IPAT) from further processing the appeal in the test case, Mr Justice Richard Humphreys said that there was public interest in the test case being determined and therefore not becoming moot, but found that the balance of convenience and justice leaned ‘massively against a stay’ in the other five cases.

Background

NA, FK, NM, IG, JLFG, and NM are applicants in six cases in which proceedings have been brought making the technical objection that the IPO used contractors in the process of coming up with a negative recommendation. The respondents in the cases are the Chief International Protection Officer and the Minister for Justice and Equality, and Mr Justice Humphreys added the IPAT as a notice party in all six cases.

In IG v Minister for Justice and Equality [2015] IEHC 682 [2015] 11 JIC 0602 (Unreported), Mr Justice Humphreys refused leave on that purely technical point on the grounds that I considered it to be insubstantial. The Supreme Court on appeal granted leave. Mr Justice Humphreys explained that the present issue to be determined was whether ‘the present applicants in other cases raising the same or similar points should get the benefit of a stay restraining the International Protection Appeals Tribunal from carrying out its statutory duty to hear their appeals from the IPO recommendations expeditiously.

The applicants sought an order – a stay or an injunction – refraining the IPAT from processing their appeals further.

Mr Justice Humphreys explained that the applicants essentially relied on the balance of convenience and justice. In considering the major factors ‘particularly relevant to the balance of convenience and justice’, Mr Justice Humphreys explained that the refusal of the stay or injunction would:

1. Harm the applicants because their challenges might become moot. Notwithstanding this being a factor, Mr Justice Humphreys said that this had to be balanced against the fact that their complaints are purely technical and no particular harm to the applicants (beyond the speculative) has been demonstrated by the use of contractors.
2. Benefit the applicants because the IPAT would then be able to carry out its function of processing them expeditiously and the appeals would not be held up for many months or possibly even years depending on the procedural steps that follow.
3. Benefit the legal system and the people of Ireland by permitting the protection process to work in a manner envisaged by the Oireachtas. Mr Justice Humphreys said that he had ‘a significant concern as to the impact of a whole wave of purely technical challenges, of which there are at least 40 at the present time, holding up the working of the protection system’. Mr Justice Humphreys stated that the system was ‘in danger of logjam if applications are frozen at the end of the initial stage and cannot proceed to the appellate stage, where they will benefit from a full rehearing if unsuccessful initially’.
4. Benefit the tribunal by allowing it to ‘organise and carry out its statutory mission’. Mr Justice Humphreys said that it was clear from HTK v Minister for Justice and Equality [2016] IEHC 43 (Unreported) ‘that the tribunal is obliged to process any appeal made to it in the absence of any court order to the contrary’.
5. Prevent a situation where the IPO is prevented from doing its job in a significant number of cases, which was submitted as an outcome of stays being routinely granted on purely technical points. In this regard, it was submitted on behalf of the respondents that every day there are requests to adjourn hearings to litigate the technical point at issue in the present proceedings. It was also submitted that the IPAT is currently in a position to deal with cases more expeditiously than in the past.
6. Prevent a situation where a backlog would be created by all of the cases of this nature coming ‘on stream for consideration by [IPAT] at the same time on the final determination of the test cases’. As the final determination would not come for some time, the resulting substantial backlog would significantly affect the workload of the IPAT and its ability to manage its own business.

Considering all of the above, Mr Justice Humphreys was satisfied that ‘the balance of convenience and justice leans massively against a stay in cases such as these’.

Mr Justice Humphreys said that ‘the only exception would be for test cases where there is public interest in the issue being determined as a test case and therefore a corresponding public interest in such test cases not becoming moot’.

As such, Mr Justice Humphreys said that in the selected test case (NA) a stay should be granted ‘on the applicant’s undertaking to process the proceedings expeditiously and, in the event of being unsuccessful, to lodge an application for leapfrog leave whether or not the applicant is also going to seek leave to appeal to the Court of Appeal’.

Restraining the IPAT from further processing NA’s appeal, Mr Justice Humphreys refused the relief sought in the other five cases.

• by Seosamh Gráinséir for Irish Legal News