BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

1. It is argued on behalf of the Applicant that as no application for leave was made within the time limited by Section 5 (2)(a) and no application for leave can be made without an order of the High Court extending that time the decision on an application to extend time cannot be a determination of either an application for leave or an application for Judicial Review and accordingly no leave to appeal is required. For the Respondent it is argued that in construing the Section full weight must be given to the word “determination”: the effect of the refusal of an extension of time is to determine the application for leave the application for an extension of time being part of the application of leave and so within the terms of Section 5 (3)(a).

2. An application for an extension of time can be taken separately from the application for leave by a Notice of Motion seeking only that relief or can be sought as one of the relief's in the Notice of Motion seeking leave. The procedure adopted should not be in any way determinative of the nature of the application and should not influence me in construing the Act. Further in construing the Act I must have regard to the clear policy of the Act that applications for Judicial Review of decisions coming within the Illegal Immigrants (Trafficking) Act, 2000 Section 5 should in the interests of the State and of persons affected by such decisions and other applicants for refugee status be processed and given effect to with expedition. Again I must have regard to the provisions of the Constitution Article 34.4.3º which provides -

3. The Local Government (Planning and Development) Act, 1992 Section 19 inserted into the Local Government (Planning and Development) Act, 1963 Section 82 a provision in identical terms to that contained in the Illegal Immigrants (Trafficking) Act, 2000 Section 5 (3)(a). This provision was considered by the Supreme Court in Irish Asphalt Limited -v- An Bord Pleanala 1996 2 I.R. 174. Barrigton J. in giving Judgment said -

4. He went on to say -

5. The passage was cited with approval by the Supreme Court in Irish Hardware Association -v- An Bord Pleanala & Others 23rd January, 2001 Keane J. The determination sought to be appealed in Irish Asphalt Limited -v- An Bord Pleanala was the refusal by the High Court to grant leave to appeal against a decision refusing relief by way of Judicial Review and the Supreme Court held that that determination was not amenable to an appeal to the Supreme Court. The decision accordingly is consistent with the second possible construction which I mention above - it has the effect of finally disposing of the application for Judicial Review. The same reasoning applies with equal force to the determination with which I am concerned as it also has the effect of finally disposing of an application for leave to apply for Judicial Review. The statement by Barrington J that the provision in the Local Government (Planning and Development) Acts excludes all appeals from the High Court to the Supreme Court in questions of Judicial Review is obiter but it is one to which I must have regard and to which I must pay due deference. If the matter was free of authority I would prefer to adopt the first possible construction particularly having regard to the expression in Section 5 (3)(a) - the determination of the High Court of an application” as opposed to “ on an application”- and having regard to the provision of the Constitution cited above. However, the view of the Supreme Court is that the identical provision in the Local Government (Planning and Development) Acts has the effect of excluding from the appellate jurisdiction of the Supreme Court cases mentioned in Section 82 of the Local Government (Planning and Development) Act, 1963 as amended. I hold that Section 5 (3)(a) of the Illegal Immigrants (Trafficking) Act, 2000 has the like effect. Accordingly leave of the High Court is required in order to appeal a decision of the High Court refusing to extend time pursuant to the provisions of the Illegal Immigrants (Trafficking) Act, 2000 Section 5 (2)(a). Indeed I so held in Benson -v- The Minister for Justice Equality and Law Reform without the point being argued.

6. I am satisfied that the issue as to the true construction of Section 5 (3)(a) of the Illegal Immigrants (Trafficking) Act, 2000 raises a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court. The very strict time limits imposed by the Illegal Immigrants (Trafficking) Act, 2000 Section 5 (2)(a) result in a large number of applications in this Court for an extension of time within which to seek leave to apply for Judicial Review . A decision of the Supreme Court would be of assistance to litigants and their legal advisors and in ease of this Court. However as to the circumstances which affect the Applicant which formed the basis of the application for an extension of time and my decision on the basis of such circumstances to refuse to extend time I do not consider that the same involve a point of law of exceptional public importance or that it is desirable in the public interest that an appeal should be taken to the Supreme Court and accordingly I refuse leave to appeal in respect of my decision in that behalf. However, it may be that in the event that the Supreme Court come to a different conclusion as to the true construction of Section 5 (3)(a) and hold that leave is not required to appeal my decision not to extend time they may well proceed to determine the appeal against my decision in that regard.