Judgment Title: Efe & Ors -v- MJELR & Ors
Composition of Court:
Judgment by: Hogan J.
Status of Judgment: Approved
Neutral Citation Number:  IEHC 214
THE HIGH COURT
2009 329 JR
SUNDAY EFE, TEMITOPE EFE, BAMIDELEMI OLUKAYODE
(A MINOR SUING BY HER STEP-FATHER AND NEXT FRIEND SUNDAY EFE),
AYOMIDE OLUKAYODE (A MINOR SUING BY HER STEP-FATHER AND NEXT FRIEND SUNDAY EFE),
ESSE-OGHEME EFE (A MINOR SUING BY HER STEP-FATHER AND NEXT FRIEND SUNDAY EFE)
MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM,
ATTORNEY GENERAL AND IRELAND (No. 2)
HUMAN RIGHTS COMMISSION
JUDGMENT of Mr. Justice Hogan delivered on 7th June, 2011
1. In these proceedings the applicants seek to challenge a decision of the Minister where he sought to deport the first named applicant, even though the effect of that decision would be effectively to rupture - more or less permanently - his family ties with his two Irish citizen step-children. In a reserved judgment delivered on 25th February, 2011, I concluded that the applicants had established substantial grounds for contending that the Minister had not conducted a full and fair assessment of their case by reason, inter alia, of the fact that the file analysis had minimized the potential impact which the deportation of their step-father would have on such children. Leave to apply for judicial review of that decision was granted accordingly. It should also be noted that the couple also have a younger Irish born child and the issue as to whether the child is also an Irish citizen may also feature in the main proceedings.
2. At this stage of the proceedings the applicant now contend that the common law rules of judicial review are unconstitutional in that it is contended that these rules are basically ineffective to secure the protection of the fundamental rights which are engaged by the asylum and deportation process. It is further contended that in the event that these rules are found to be constitutional, the applicants are nonetheless entitled to a declaration of incompatibility pursuant to s. 5(2) of the European Court of Human Rights Act 2003 on the ground that their right to an effective remedy under Article 13 ECHR has been violated. As the pleadings were originally constituted there was no constitutional challenge. In the companion decision, S. v. Minister for Justice, Equality and Law Reform  IEHC 31, I ruled that the applicants were not entitled to seek a declaration of incompatibility without having first exhausted their constitutional remedies. Leave to amend was accordingly granted in that case, this case and the other companion cases, Oboh v. Minister for Justice, Equality and Law Reform, Fashade v. Minister for Justice, Equality and Law Reform and Alli-Balugon v. Minister for Justice, Equality and Law Reform in order to allow the parties to plead the constitutional issue. The other three cases all present similar facts and issues. This judgment also governs the constitutional and ECHR issues raised in the latter three cases so far as the adequacy of the common law judicial review rules are concerned.
3. Before proceeding further, it is probably important to state exactly what is embraced in this description of the common law rules of judicial review. The applicants do not challenge the basic procedural rules (such as the requirements as to leave, filing of affidavits and amendment of pleadings) contained in Ord. 84 RSC. Nor do they challenge the special requirements governing applications involving the asylum and immigration process prescribed by s. 5 of the Illegal Immigrants (Trafficking) Act 2000, this matter having in any event already been conclusively determined by the Supreme Court in its decision in Re Article 26 and the Illegal Immigrants (Trafficking) Bill 2000  2 I.R. 326. Instead, the applicants rather challenge the constitutionality of what might be termed the substantive common law rules of judicial review, namely, reasonableness, rationality and so forth on the ground that these rule do not provide an adequate remedy. In line with the proper sequence of issues indicated by the Supreme Court in Carmody v. Minister for Justice, Equality and Law Reform  IESC 71,  1 IR 635 and McD v. L.  IESC 81,  2 IR 199, I will first deal with the constitutional issues. It is only in the event that the applicants fail to secure a declaration of unconstitutionality that I will then proceed to consider the question of a declaration of incompatibility and the ECHR.
The guarantees contained in Article 40.3.1 and Article 40.3.2
6. It might also be observed that in his judgment in Meadows v. Minister for Justice, Equality and Law Reform  IESC 3,  2 IR 701, 721 Murray C.J. commented that it was “the task of the Courts to ensure that where rights are wrongfully breached that remedies are effective”. These comments are all the more pertinent given that they were uttered in the context of the appropriate test of review in judicial review cases challenging the reasonableness of a ministerial deportation order. The Chief Justice also made similar comments in Carmody ( 1 IR 635, 668) in the context of that plaintiff’s constitutional right to legal aid:-
First ground of constitutional challenge: Review for reasons of rationality and reasonableness: the appropriate test
9. The Court held that it was, with O’Higgins C.J. saying that a ministerial decision of this kind ( I.R. 337, 361):-
14. The second development - itself also illustrated by the thinking in Aer Rianta - was deference to specialized bodies. Quite independently of the appropriate presumption of validity which decisions taken by administrative agencies and government departments properly enjoy “by virtue of the respect which one great organ of the State owes to another” (Buckley v. Attorney General  I.R. 67 at 80, per O’Byrne J.), it is quite clear that decisions which emanate from agencies or persons with proven and established technical and administrative skills enjoy a special degree of deference.
15. We have perhaps forgotten that this is far from a relatively new concept. In Philadelphia Storage Battery Co. v. Controller of Industrial and Commercial Property  I.R. 575 Kennedy C.J. said - admittedly in the context of a statutory appeal – of the decisions of a specialist administrative official such as (what was then described as) the Controller of Industrial and Commercial Property ( I.R. 575, 593):-
18. Quite independently of questions of technical expertise, there are naturally certain types of issues which do not admit of easy resolution if ordinary legal standards and principles or even conventional legal reasoning are to be employed. Thus, in the sphere of planning and development, the resolution of questions involving technical engineering assessments, sustainability, aesthetics and even taste probably admit of limited judicial involvement. This is, as Denham J. pointed out in Meadows, quintessentially the kind of decision attracting the specialized deference which the Supreme Court had in mind in O’Keeffe. But this approach would have a much more limited (if, indeed, any) application in many other spheres of the planning process. At the other end of this spectrum, for example, the question of whether the compulsory acquisition of land was objectively necessary in the public interest squarely engages the substantive protection of property rights and as Geoghegan J. so carefully explained in Clinton (No.2), these rights would not be adequately protected by a test which was satisfied by showing that there was a reasonable basis for the decision.
19. So far as asylum and immigration decisions are concerned, much might depend, in the words of Kennedy C.J. in Phildadelphia Battery, on the experience and expertise of the particular decision-maker in the context of the decision at hand. One can occasionally, for example, encounter issues of credibility in the asylum area where the underlying facts present issues arising from complex societal and group behaviour, the dimensions of which outsiders struggle to understand: issues arising from Albanian blood feuds are, perhaps, a good case in point: see, e.g., ML v. Refugee Appeal Tribunal, High Court, 21st January, 2011. The resolution of these questions would undoubtedly benefit from decision-makers possessing specialist knowledge and understanding of the society and behaviour in question. If, in this sort of unusual case, the decision maker were shown to have this type of expertise, then, of course, the courts should generally defer to it.
20. There might well be other cases where, for example, the decision maker had lived for some time in the foreign country in question and was thoroughly familiar with its own particular cultural, social, political and religious norms and where such deference was possibly warranted. But where, as in the general run of things, the decision maker has not even visited the country in question and is, for example, entirely reliant on country of origin information to assist with a credibility assessment, any doctrine of curial deference would seem misplaced. If, for example, an African administrator was to claim a specialist knowledge of contemporary Irish political, social and cultural history based solely on his or her having read and consulted US State Department country of origin information regarding Ireland, this would be justly viewed here with some scepticism, not to speak of outright incredulity. Why should the position be viewed any differently in the case of those Irish decision-makers whose knowledge of the political and social affairs of specific African countries is derived almost exclusively from similar sources?
21. At all events, the present case is not one where the decision maker is called upon to make a judgment about the plausibility of an asylum claim by reference to specific internal events within the country of origin. Rather, what is fundamentally at issue here in the present proceedings is the likely effect of the deportation on the applicant’s family in general and children (including step-children) in particular and, by extension, whether it is realistic in the circumstances to expect the remainder of the family to travel to Nigeria were such an order to take effect. It cannot be said that administrative decision-makers enjoy a specialist knowledge or expertise in relation to such matters. Besides, these decisions engage fundamental rights under Article 41 of the Constitution, the protection of which is the solemn duty of this Court. Any rule of law which purported to constrain this Court from protecting these rights in circumstances where it could only interfere where there was “no evidence” to justify a factual conclusion reached would simply be at odds with these constitutional obligations. A test of this nature in the sphere of constitutional rights would thus fall to be condemned as unconstitutional in the light of the obligations imposed on the State by Article 40.3.1 and Article 40.3.2 to vindicate these constitutional rights.
22. It follows, therefore, that whatever be the parameters of the curial deference doctrine, it has no relevance in the present case. While the decisions under review are presumed to be valid unless and until quashed and are fully entitled to the respect which is rightfully due, it cannot be said that any doctrine of heightened deference is applicable.
23. Returning now to the narrative regarding the general standard of review, all of these questions were comprehensively examined by the Supreme Court in Meadows. In this case the Court concluded that the general proportionality applied to judicial review of administrative decisions. But as Mr. Maurice Collins SC, counsel for the Minister, so aptly noted in his submissions, the decision in Meadows did not simply drop out of the sky. It is perfectly clear that for quite some time there was increasing judicial unease with the manner in which O’Keeffe had come to be applied in practice. Any number of instances of this judicial unhappiness could be cited, but it perhaps suffices to refer three representative examples of a trend which had been welling up prior to the decision in Meadows.
24. The first decision is that of McKechnie J. in Holland v. Governor of Portlaoise Prison  IEHC 208,  2 IR 573. In this case the applicant prisoner challenged the validity of a prison policy which restricted his access to the media. McKechnie J. first indicated why he considered that O’Keeffe had modified the Keegan test:-
29. Second, it is equally clear that the O’Keeffe test has been re-interpreted and clarified to take fuller account of the earlier judgment of Henchy J. in Keegan: see generally Delany and Donnelly, “The Irish Supreme Court inches towards proportionality review” (2011) Public Law 9. In Keegan Henchy J. had stressed that the courts could intervene to quash on reasonableness grounds where the conclusion simply did not follow from the original premise. As Fennelly J. put it ( 2 IR 701 at 827):-
This does not involve a modification of the existing test as properly understood. Rather it is an explanation of principles that were already implicit in our law.”
31. In any event, post-Meadows this is a debate which scarcely matters, at least in those cases where - as here - the decision engages and affects constitutional rights, such as the family rights protected by Article 41 and, by extension, Article 8 ECHR. In this regard it would be difficult to improve on the succinct and comprehensive summary of the present law contained in the judgment of Cooke J. in ISOF v. Minister for Justice, Equality and Law Reform (No. 2)  IEHC 457. Here the question was whether it was necessary for this Court to give a certificate of leave to appeal to the Supreme Court under s. 5(2) of the Illegal Immigrants (Trafficking) Act 2000 in order to clarify aspects of Meadows.
32. Cooke J. concluded that the law in this regard had been settled “with sufficient clarity” by the decision in Meadows so that a certificate was unnecessary. Having referred to the passage from the judgment of Fennelly J. just quoted, Cooke J. continued:-
In other words, if the High Court has a constitutional obligation to vindicate personal constitutional rights in the face of administrative or quasi judicial decisions; and if it has by default a statutory duty under the European Convention on Human Rights Act 2003 to ensure protection under the Convention for rights not otherwise guaranteed by the Constitution, so be it. The remedy of judicial review under O. 84 of the Rules of the Superior Courts is sufficiently comprehensive and flexible in the exercise of the jurisdiction of the High Court to ensure that both of those objectives are met. The mistake is to confuse the jurisdictional rules and procedural incidents of the judicial review remedies with the manner which the criteria for the review fall to be applied.
The common law remedies of judicial review and judicial practice in their application have, in the view of this Court, evolved differently in the constitutional framework of this State (and particularly under the influence of the judgment of the Supreme Court in East Donegal Co-Operative Ltd. v. Attorney General  IR 317), as compared with other common law jurisdictions and particularly that of the United Kingdom both before and since the enactment there of the Human Rights Act 1998. Nevertheless, the potential for evolution of the criteria can be seen as reflected in, for example, judgments such as that in which the House of Lords in the United Kingdom held in the context of judicial review procedures in that jurisdiction involving the application of the criterion of proportionality under the Convention that , “…no shift to a merits based review” is required but “the intensity of review is greater than was previously appropriate , and greater even than the heightened scrutiny test adopted by the Court of Appeal in R v Ministry of Defence…” and thus goes “beyond that traditionally adopted to judicial review in a domestic setting.” (See the speech of Lord Bingham of Cornhill in R(SB) v Governors of Denbigh High School  1 AC 100, 116).
In this jurisdiction the Supreme Court has, of course, rejected the need to alter the “intensity” or the level of review applied by the Court in judicial review in this way. It remains the case however, as illustrated by the passage cited from the judgment of Fennelly J. [in Meadows] that judicial practice in the exercise of the judicial review function is capable of adapting to accommodate the need to examine the substantive content of a decision having impact on fundamental rights in order to evaluate the lawfulness of its encroachment on those rights without thereby supplanting the administrative decision with a new decision of its own.
Thus, while the judicial review remedies remain unchanged – although significantly more flexible and comprehensive in the reform of Order 84 in 1986 – and the procedural and evidential rules for their application are constant; the criteria by which they are applied are capable of evolving in order to accommodate rights to protection such as those created by the Constitution or the Act of 2003. By examining the substance of the effect of an interference brought about by an administrative decision on fundamental rights of an applicant for judicial review in order to assess whether it goes beyond a lawful encroachment, the Court is not substituting its own view of what the decision ought to be but is testing it by reference to what is objectively reasonable and commonsense.”
Conclusions on the first constitutional issue
Second constitutional issue: The admission of new evidence
37. It is important, however, to bear in mind the reason for the rule that, generally speaking at any rate, the court in judicial review proceeding will not receive new evidence. So far as asylum claims are concerned, Article 28 of the Constitution assigns the executive power to the Government. As the Supreme Court made clear in Laurentiu v. Minister for Justice, Equality and Law Reform  4 IR 26, deportation and cognate immigration questions squarely involve the executive power, albeit that the exercise of this power is regulated by the Immigration Act 1999. Given that decisions regarding asylum involve the exercise of executive power, it would not be constitutionally permissible to assign the exercise of such powers to the judicial branch: see TD v. Minister for Justice, Equality and Law Reform  4 I.R. 287. The practical effect of this is that the actual decision whether to deport or not must remain with the executive branch, albeit, of course, that a decision to deport might in practice be prevented by a judicial decision.
38. It was at one stage rather faintly argued that in order to have an effective remedy this meant that the ultimate decision on the deportation question would have to be taken by this Court itself. That submission is, however, unsustainable for the reasons just advanced, since the judicial branch could not constitutionally be invested with executive powers. This in itself does not mean that the Oireachtas could not elect to vest immigration powers in the judicial branch. It is, however, rather to observe that in the event that this were to occur, the judicial branch would be confined to applying purely legal principles to determine such questions by reference to standards prescribed by law by the Oireachtas. Any attempt to vest the judicial branch with functions in the immigration sphere akin to the determination and application of purely policy questions would, however, represent an unconstitutional violation of the separation of powers, as it would be tantamount to vesting the judicial branch with decision making powers of a type, style and nature which Article 28 reserves to the executive branch.
39. If, however, this Court could receive and act upon new evidence it would cross a borderline between review and appeal. If the Court acted upon new evidence, then it would no longer be simply reviewing the decision already taken, but it would be acting on foot of new information of which the decision-maker never stood possessed. Subject to the reservations just expressed with regard to reposing executive style powers and functions on the judiciary, there could be no objection in principle to vesting the judicial branch with an appellate function in respect of immigration decisions. In such circumstances, it might well be open to the court to receive new evidence and even to act on it: see, e.g., the judgment of Lynch J. in Balkan Tours Ltd. v. Minister for Communications  I.L.R.M. 101.
40. Nevertheless the fact that the court in judicial review cannot receive new evidence is simply an incidence of the nature of the proceedings. If new evidence could be received, they could cease to be in the nature of a review, but would then partake of the character of an appeal. The fact that judicial review does not admit of this does not of itself mean that the State has thereby failed to vindicate the applicants’ constitutional rights given that there exists a flexible and powerful remedy whereby such rights are protected and the rule of law upheld.
41. Given that, subject to limited exceptions, immigration decisions can be challenged only by way of judicial review under s. 5 of the Illegal Immigrants (Trafficking) Act 2000, I agree that if there were no mechanism whereby material facts which post-date the initial decision could not be acted on by the executive such a lacuna would have represented a failure by the State to provide a procedure whereby applicants’ constitutional rights could be adequately vindicated. Had there been such a lacuna, then in line with the Supreme Court’s decision in Carmody, in these circumstances the applicants would in principle have been entitled to a declaration to this effect.
42. The need for a mechanism whereby new facts can be assessed might be especially true in the general sphere of family rights under Article 41, where fresh developments such as marriage, the birth of children and the increasing extent to which Irish born children had integrated into the school system might all be intensely relevant to the Minister’s decision in any given case.
43. But, as it happens, there is such a mechanism. In the immigration sphere, the applicants have a tailor-made remedy which can address new post-decision facts, namely, the power to revoke the deportation order under s. 3(11) of the 1999 Act. Should, for example, the Minister fail to revoke the deportation order in the light of new material facts, then this Court could quash that decision in an appropriate case: see, e.g., S. v. Minister for Justice, Equality and Law Reform  IEHC 92.
44. For these reasons I cannot accept that the remedy of judicial review must be regarded as an inadequate method of vindicating constitutional rights by reason of the fact that new evidence is not admissible in judicial review proceedings once regard is had to the fact these applicants can avail in appropriate cases of the protections contained in s. 3(11) of the 1999 Act so that new, material evidence can be considered by the Minister.
Whether the common law rules of judicial review satisfy the requirements of Article 13 ECHR
In conclusion, the Kay applicants' challenge to the decision to strike out their Article 8 defences failed because it was not possible at that time to challenge the decision of a local authority to seek a possession order on the basis of the alleged disproportionality of that decision in light of personal circumstances. Accordingly, for the reasons given in McCann, the Court concludes that the decision by the County Court to strike out the applicant's Article 8 defences meant that the procedural safeguards required by Article 8 for the assessment of the proportionality of the interference were not observed. As a result, the applicants were dispossessed of their homes without any possibility to have the proportionality of the measure determined by an independent tribunal. It follows that there has been a violation of Article 8 of the Convention in the instant case.”
48. But what is perhaps a more significant aspect of Kay is that it clearly signals that judicial review providing for a proportionality analysis of administrative decisions affecting fundamental rights will fully satisfy the Convention’s requirements. Whatever might have been the case prior to Meadows, it is obvious in the wake of that decision that in this respect the scope of review articulated by our courts in cases such as Meadows and ISOF (No.2) clearly meets this standard.
49. It follows, therefore, that there is no basis for contending that these common law rules of judicial review - certainly as interpreted by Meadows - fails to satisfy the ECHR’s requirements with regard to an effective remedy.
New evidence and Article 13 ECHR
52. It is plain, however, from the decision of the European Court of Human Rights in Maslov v. Austria  ECHR 546 that such a declaration would not be warranted in present case. In Maslov one of the questions was the extent to which Contracting States were obliged to take account of events which post-dated a deportation decision. On this point the Court observed (at para. 93):-
54. Since the Oireachtas has accordingly provided an adequate remedy whereby new facts in deportation cases such as the present can be taken into account, it follows that the State is not in breach of Article 13 ECHR and no question of a declaration of incompatibility therefore arises.
B. Any rule of law which purported to constrain this Court from protecting constitutional rights in circumstances where it could only interfere where there was “no evidence” to justify a factual conclusion reached by a decision-maker would simply be at odds with these constitutional obligations. A test of this nature in the sphere of constitutional rights would thus fall to be condemned as unconstitutional in the light of the obligations imposed on the State by Article 40.3.1 and Article 40.3.2 to vindicate these constitutional rights.
C. In the wake of the Supreme Court’s decision in Meadows it can no longer be said that the courts are constrained to apply some artificially restricted test for review of administrative decisions affecting fundamental rights on reasonableness and rationality grounds. This test is broad enough to ensure that the substance and essence of constitutional rights will always be protected against unfair attack, if necessary through the application of a Meadows-style proportionality analysis.
D. In the light of the decision in Meadows, it is clear that constitutional rights - including the family rights protected by Article 41 at issue here - are adequately vindicated by the common law rules of judicial review.
E. In judicial review proceedings it is not permissible for this Court to receive and act on new evidence, since to do so would be to cross a border between appeal and review. If there were no mechanism whereby material new facts which impacted significantly on constitutional rights emerged after the relevant administrative decision could be reviewed, then such a lacuna would amount to a failure to vindicate constitutional rights for the purposes of Article 40.3 and the Court might have to give a declaration to this effect.
F. As it happens, however, there is such a mechanism, in that s. 3(11) of the 1999 Act allows the Minister to revoke a deportation order. In these circumstances, there is no basis for granting a Carmody-style declaration in respect of any legal lacuna and still less is there any basis declaring the common law rules of judicial review to be unconstitutional on this account.
G. It is clear from the decision of the ECHR in Kay v. United Kingdom that Meadows-style judicial review satisfies the requirements of Article 13 ECHR. So far as the receipt of new evidence is concerned, is likewise clear from Maslov v. Austria that all that is necessary that there is a mechanism whereby new material evidence can be evaluated by administrative decision-makers. As we have noted, there is such a procedure provided by s. 3(11) of the 1999 Act.
H. For these reasons, there is no basis for granting a declaration of incompatibility pursuant to s. 5(2) of the 2003 Act.