Judgment Title: J. & Ors -v- MJELR
Composition of Court:
Judgment by: Hogan J.
Status of Judgment: Approved
Neutral Citation Number:  IEHC 433
THE HIGH COURT
2011 806 JR
IN THE MATTER OF THE IMMIGRATION ACT 1999 AND ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000
AND STATUTORY INSTRUMENT NO. 518 2006
P.J., O.A.O.J. (A MINOR), O.O.M.J. (A MINOR) AND O.C.P.J. (A MINOR)
ALL SUING THROUGH THEIR MOTHER AND FRIEND P.J.
MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
JUDGMENT of Mr. Justice Gerard Hogan delivered on the 19th day of October, 2011
1. In these proceedings the applicants seek leave pursuant to s. 5(2) of the Illegal Immigrants (Trafficking) Act 2000 (“the 2000 Act”) to challenge the validity of a deportation order made by the Minister on 18th August, 2011. The proceedings were commenced on 5th September, 2011, and the first return date for the motion was 3rd October, 2011. The respondents agreed to give an undertaking not to deport until 3rd October, 2011, but declined to give any undertaking beyond that date.
2. The applicants then initially sought an interlocutory injunction restraining their deportation pending the outcome of the present judicial review proceedings. Matters have now moved to the point where the only real issue presently before the court is whether the applicants are entitled to an interlocutory injunction pending the determination of the leave of the application and, if so, whether the standard Campus Oil principles (Campus Oil Ltd. v. Minister for Energy (No.2)  I.R. 86) which govern the grant of an interlocutory injunction (fair question to be tried, adequacy of damages and balance of convenience) apply to a case of this nature.
3. The only reason why the present case might present a special circumstance taking the case outside of the ordinary Campus Oil principles is because of the inter-action between Ord. 84 and s. 5 of the 2000 Act. Of course, s. 5(1) of the 2000 Act provides that a challenge to the validity of a deportation decision cannot be brought otherwise than “than by way of an application for judicial review under Ord. 84 of the Rules of the Superior Courts”.
4. So far as applications under Ord. 84 are concerned, if it be the case that applicants for certiorari are entitled more or less as of right to a stay (which I will treat for present purposes as the equivalent of an injunction) following the grant of leave and absent special circumstances, then it cannot be right in principle that they are deprived of that entitlement simply because their application for leave has yet to be heard and determined by the Court. Unlike the situation which obtains in the case of conventional applications for leave under Ord. 84 where there is no (or, at least, almost no) hiatus between the commencement of proceedings and the application for leave itself, in practice the delays in immigration cases between the commencement of proceedings and the determination of the leave application are usually measured in months, if not years.
5. What is critical, therefore, is to determine whether the standard Campus Oil principles apply to the grant of a stay following the grant of leave to apply for judicial review in cases where certiorari has been sought. If the answer to that question is in the affirmative, then the Campus Oil principles apply to the present (pre-leave) application. If, on the other hand, the question is in the negative, so that applicants for certiorari obtain a stay more or less as of right or by reason of a quasi-entitlement absent special circumstances, then the special rules must be applied by analogy to the pre-leave cases as well. This present case turns, therefore, on that very question.
6. Before turning to a consideration of this question, it is appropriate to say something about the facts of the case. The first applicant (whom I shall describe as “the mother”) is a Nigerian national who arrived here in December, 2004. During her stay here she met and had a relationship with a man as a result of which she had the second, third and fourth applicants (“the children”). The children were born here, but they are not Irish citizens. Two of the children have serious intellectual difficulties. One of them, OAOJ, has been diagnosed as being on the autistic spectrum and the other, OOMJ, has serious speech and language problems. Judged by the supporting document exhibited in the affidavit, it is only fair to record that the mother has striven valiantly, along with the social services, to provide the very best care and attention for these two children.
7. So far as OAOJ is concerned, his condition has been summarised thus by Grace Connor, a family support co-ordinator in a letter of July, 2010:-
12. The authors of the file memorandum went on to state:-
14. Nevertheless, the authors of the file memorandum had previously stated in the context of humanitarian arguments (as required by s. 3 of the Immigration Act 1999) that:-
16. At all events, following the rejection of the asylum application, the process culminated in the making of deportation orders on 18th August, 2011. It is these orders which are under challenge in the present proceedings. We may now proceed to examine the question of whether the applicants are entitled to a stay of proceedings pending the application for leave pursuant to s. 5 of the 2000 Act and, as we shall now see, this requires an examination of the provisions of Ord. 84, r.20(7).
Order 84, r. 20(7)
17. Order 84, r. 20(7) is in the following terms:-
(a) if the relief sought is an order of prohibition or certiorari and the Court so directs, the grant shall operate as a stay of the proceedings to which the application relates until the determination of the application or until the Court otherwise orders;
(b) if any other relief is sought, the Court may at any time grant in the proceedings such interim relief as could be granted in an action begun by plenary summons.”
19. Before examining that question it is necessary first to consider whether Ord. 84, r. 20(7)(a) at all applies to applications to quash administrative decisions such as deportation orders.
The meaning of the phrase “stay of the proceedings”
21. The wording of Ord. 84, r. 20(7)(a) was borrowed more or less verbatim from the former Ord. 53, r. 10(a) of the English Rules of the Supreme Court. (Of course, in England, Ord. 53 has been since replaced by the Civil Procedure Rule 54.10). The meaning of the phrase “stay of proceedings” was examined in a series of decisions of the English Court of Appeal and, for that matter, the Privy Council. In the first of these cases, R. v. Secretary of State for Education and Science, ex p. Avon C.C.  1 Q.B. 558, the Court of Appeal held that the phrase “the proceedings” in RSC Ord. 53, r. 3(10)(a) should be construed widely and that, so construed, it embraced not only judicial proceedings, but also administrative decisions “and the process of arriving at such decisions”: see  1 Q.B. 558,562, per Glidewell L.J.
22. The Privy Council took a different view of the matter in Minister of Foreign Affairs, Trade and Industry v. Vehicle and Supplies Ltd.  1 W.L.R. 550. This was a Jamaican case involving provisions of the Jamaican civil procedure rules which were almost identical to in terms to Ord. 53, r. 10(a). Lord Oliver made it clear that the phrase “stay of proceedings” extended only to matters pending in lower courts and administrative tribunals. It did not extend to purely executive decisions such as a ministerial order.
23. The conflict between the two authorities was later examined by the English Court of Appeal in R.(H.) v. Ashworth Hospital Authority  1 WLR 127. Of course, by this stage Ord. 53 had been replaced by the (somewhat differently worded) CPR, but the phrase “stay of proceedings” was still used in the new version of these rules. As Dyson L.J. ( 1 WLR 127 at 138-139) observed:-
25. It follows, therefore, that I am of the view that the phrase “stay of proceedings” should be interpreted by reference to its basic underlying purpose, namely, to ensure that the High Court can make an order with suspensive effect in respect of both administrative as well as judicial decisions. This in turn means that a purely administrative decision such as a deportation order is capable of being stayed by an order made under Ord. 84, r. 20(7)(a).
Whether the Campus Oil principles apply to the grant of a stay under Order 84, r. 20(7)(a)?
27. Here it is urged, essentially for the reasons set out by Geoghegan J. in Adebayo v. Garda Commissioner  2 IR 298 that the applicant is entitled to an automatic stay on the operation of the deportation order pending the determination of the leave application. In that case Geoghegan J. expressed the view that the effect of the structure of s. 5 of the 2000 Act was such that if an applicant commenced judicial review proceedings within the 14 days period, then he or she was automatically entitled to a stay on the operation of the deportation order pending the determination of the application for leave ( 2 IR 298 at 315):-
(f) The grant of an injunction remains a matter for the discretion of the Court according to the established principles and, bearing in mind the duty to make the application in good faith and with full, honest disclosure of all relevant information….”
12. Next, where (as here) the proceedings are brought within time, then it similarly follows that the Minister must equally be precluded from giving effect to the deportation order pending the first return date on the motion applying for leave. It could scarcely have been the intention of the Oireachtas that an applicant could be deported before she had an effective opportunity to exercise her constitutional right of access to the courts.
13. This then leaves the situation of the present case where the first return date has passed, but the application for leave has yet to be heard. Here we must recall that, as we have just seen, an applicant who obtains leave will - certainly in practice - secure an automatic stay by virtue of O. 84, r. 20(7)(a). It would seem anomalous that an applicant facing deportation who seeks interlocutory relief should have to meet a higher standard when seeking such relief simply by virtue of the adventitious fact that the application for leave as yet to be heard. Unless, therefore, it was plain that an applicant would not get leave, it seems to me that he or she should not be disadvantaged by reason of the fact that the application for leave has yet to be heard.
14. If this is correct, then it follows that the Minister must be regarded as being impliedly precluded by the structure of the 2000 Act from giving effect to a deportation order pending the outcome of the application for leave where - as here - an applicant has commenced proceedings within time, save in those cases where it is plain that the application for leave is doomed to fail.”
32. At the same time, r. 20(7)(a) must be read in conjunction with r. 20(7)(b). This latter sub-rule provides, as we have already seen, that:
34. We may next proceed to compare r. 20( 7)(a) and r. 20(7)(b). Here the Rules Committee distinguished between those cases where certiorari and prohibition were sought on the one hand and cases involving declaration and prohibition on the other. It could scarcely have been the intention of the Committee that exactly the same principles would apply to both r. 20(7)(a) and r. 20( 7)(b). If that were so that the Campus Oil principles applied equally to both cases, then the elaborate structure created by the sharp differentiation between r. 20(7)(a) and r. 20(7)(b) would have been quite otiose. There would have been no need for such separate sub-rules and the distinction thereby drawn between the cases of where certiorari and prohibition were sought on the one hand and those where a declaration and injunction were sought on the other would seem quite superfluous.
35. In such circumstances, the Court must strive to ascribe a separate and distinct meaning to r. 20(7)(a) as distinct from r. 20(7)(b). Any other conclusion would not only do considerable violence to the structure and lay-out of sub-rule 7, but it would also infringe the presumption against surplusage: see, e.g., The State (Goertz) v. Minister for Justice  I.R. 45, 59-60, per Black J. That case concerned the meaning of the words “ordinarily resident” contained in s. 5(5) of the Aliens Act 1935. Black J. held that the word “ordinarily” must be given some “effective meaning” and, hence, that the word qualified the concept of residence. By the same token therefore, if the words in r. 20(7)(a) are to be given an effective meaning in this sense, it suggests that r. 20(7)(a) must mean something different from r. 20(7)(b).
36. Proceeding from this premise, therefore, it follows that r. 20(7)(a) cannot simply reflect the standard Campus Oil principles, even though this would be the natural meaning of those words if they were to stand alone and were to be construed in isolation from r. 20(7)(b). By contrasting r. 20(7)(b) with r. 20(7)(a), one is accordingly driven to the conclusion that, absent special circumstances, the grant of leave would operate as a stay in those cases where certiorari or prohibition was sought. That certainly reflects the practice has it has evolved over the last twenty five years since the present version of Ord. 84 came into operation in October, 1986.
37. I am fortified in this conclusion in view of the fact it reflects the sentiments expressed by Geoghegan J. in Adebayo v. Garda Commissioner  2 IR 298:-
39. Summing up, therefore, at this juncture I am of the view that the stay jurisdiction contained in r. 20(7)(a) cannot be regarded as reflecting Campus Oil principles, since if that were so it would collapse the clear distinction between r.20(7)(a) and r. 20(7)(b) which had been so carefully put in place by the Rules Committee. While the language and intent of the drafters might have been clearer, following an examination of the structure of the totality of sub-rule 7, I am driven to the conclusion that the best interpretation of r.20(7)(a) is that it requires the court to grant a stay following the grant of leave, absent special circumstances to the contrary.
40. In essence, therefore, I have arrived at the same conclusion as I did in LA, albeit by a slightly different process of reasoning. Given the differences of judicial opinion as manifested in Adebayo, A. and LA, one may express the hope that the Supreme Court will shortly pronounce definitively on these difficult questions.
41. If, however, my own analysis is correct, then it follows that an applicant should not be placed at a litigious disadvantage simply because the application for leave has yet to be heard. It follows in turn that the applicant is entitled to a stay pending the outcome of the leave application, absent special circumstances. One of those special circumstances might be where the proceedings are doomed to fail or where there was no reasonable prospect that leave would be granted.
Can it be said that the present proceedings are unsustainable?
43. At the same time, it is plain that the file assessment of the specific statutory considerations set out in s.3 of the 1999 Act must be full and fair. As Clark J. put it in her judgment in Alli v. Minister for Justice, Equality and Law Reform  IEHC 595,  4 IR 45, 63:-
(h) humanitarian considerations.”