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Cite as: [2011] ECHR 872

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FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 8596/08
by Foloshade Olubunmi, Fuad and Farouq ADIO
against Ireland

The European Court of Human Rights (Fifth Section), sitting on 17 May 2011 as a Chamber composed of:

Dean Spielmann, President,
Elisabet Fura,
Boštjan M. Zupančič,
Isabelle Berro-Lefèvre,
Ann Power,
Ganna Yudkivska,
Angelika Nußberger, judges,
and Claudia Westerdiek, Section Registrar,

Having regard to the above application lodged on 15 February 2008,

Having deliberated, decides as follows:

THE FACTS

The first applicant is a Nigerian national born in 1968. She is the mother of a child born in 1997, which child currently lives in Nigeria. She is also the mother of the second applicant (a Nigerian national born in Nigeria in 2001) and of the third applicant (born in Ireland in 2003 and, therefore, a citizen of Ireland). The three applicants all currently live in Ireland and are represented before the Court by Mr Mulvihill, a solicitor practising in Cork.

A. The circumstances of the case

1. The application for refugee status and under the Irish Born Child Scheme 2005 (“IBC05 Scheme”)

On 17 March 2003 the first and second applicants arrived in Ireland. Ten days later the first applicant gave birth to the third applicant. The latter became an Irish citizen by virtue of his birth in Ireland at that time.

On 18 March 2003 the first applicant applied for refugee status under the Refugee Act 1996, as amended (“the 1996 Act”) by completing the statutory questionnaire. She requested that the second applicant be included in her application and she reported that the whereabouts of her husband were unknown. She was called for an interview on 6 November 2003 but did not attend. Since she did not attend or explain her absence, by letter dated
13 November 2003 she was notified that the Refugee Applications Commissioner was recommending to the Minister for Justice, Equality and Law Reform (“the Minister”) that she should not be declared a refugee. The applicant did not pursue her request for refugee status any further.

In December 2004 as well as in January and March 2005 the Minister announced the establishment and details of a scheme known as the “IBC05 Scheme”. It was designed to deal with pending parental applications for leave to remain as regards children born in Ireland before 1 January 2005. Applications were to be received from 15 January to 31 March 2005.

On 26 April 2005 the first applicant applied for leave to remain under the IBC05 Scheme. The application was received by the Minister on 5 May 2005. By letter dated 29 November 2005 the first applicant was informed that her application could not be considered under the IBC05 Scheme as she had applied after the closing date. Following a re-submission of the application in December 2005, on 19 December 2005 the Minister confirmed the position regarding the expiry of the relevant time-limit and enclosed a copy of his letter of 29 November 2005.

2. Judicial Review

(a) The applicants’ request for leave to apply for judicial review

On 13 February 2006 the applicants were granted leave to apply for judicial review seeking two reliefs.

In the first place they requested an order of certiorari quashing the decision of the Minister refusing to consider the first applicant’s application, under the IBC05 Scheme, for leave to remain in Ireland. They submitted that the Minister’s decision was unlawful in that it was taken without any consideration of the personal rights of the Irish citizen child guaranteed by Article 40.3 of the Constitution and by Article 8 of the Convention. Secondly, they requested an order of mandamus directing the Minister to consider the application of the first applicant to reside in the State. The High Court judgment later summarised the Minister’s response:

“The essence of the submission made in response on behalf of the respondent was that having regard to the time limit specified in IBC/05 the respondent was not under any obligation to consider the rights of the Irish citizen child either by reason of Article 40.3 of the Constitution or article 8 of the Convention. It was further submitted that the second application made by Ms. Adio’s solicitors on her behalf on 15th December, 2005 should properly be construed as simply a repeat of her application under the revised arrangements on IBC/05 and should not be considered as a separate or a “free-standing” application for permission to remain in the State or residency.”

The hearing before the High Court took place at the same time as the hearings in a number of other judicial review applications, all concerning the Minister’s rejection of, or refusal to consider, applications by parents of Irish born children for leave to remain under the IBC05 Scheme.

(b) Bode and Others v. the Minister for Justice, Equality and Law Reform, [2006] No. 102 J.R.

On 7 November 2006 the High Court delivered its lead judgment in those cases finding that the Minister’s decision to refuse the parent’s application under the IBC05 Scheme was unlawful because it was taken in breach of the citizen child’s rights under Article 40.3 of the Constitution and in breach of the Minister’s obligations under section 3(1) of the European Convention on Human Rights Act 2003.

Although that decision meant that there was an outstanding application under the IBC05 Scheme to be considered, the High Court nevertheless examined Mr Bode’s request for an order of mandamus. Following the rejection of his application under the IBC05 Scheme, Mr Bode had made a further application for leave to remain to the Minister which, apart from being acknowledged, had not been responded to by the time leave to apply for judicial review had been granted (30 January 2006).

The High Court found that, while there was no legislative provision enabling the parent of an Irish born child to apply for residency or leave to remain outside of a proposal to deport is made under s. 3 of the Act of 1999, it was “undisputed that [the Minister] as part of the executive power of the State has an inherent right and power to exercise a discretion to consider and determine and grant if he considers it appropriate residency to the parent of an Irish born child. ... such discretion must be exercised in accordance with the Constitution which includes having regard to the State guarantee of the personal rights of the citizen child under Article 40.3.1.” Accordingly, and having regard to the guarantee of the personal rights of the Irish citizen child in Article 40.3 (including the right to live in Ireland and the welfare rights set out in G. v. An Bord Uchtála ([1980] I.R. 32)), it was not open to the Minister either to fail to deal in a substantive way with the application or to refuse, without considering the relevant facts and rights of the citizen child, to consider the application.

(c) Adio and Others v. the Minister for Justice, Equality and Law Reform, [2006] IEHC 346

On 26 November 2006 the High Court applied the principles established in the lead Bode judgment to the present applicants’ request for an order of certiorari concerning the rejection of their IBC05 application. The High Court found that the decision to refuse to consider the first named applicant’s application under the IBC05 Scheme, without considering the constitutionally protected personal rights of the Irish citizen child under Article 40.3 as well as that child’s rights under Article 8 of the Convention, was invalid. The High Court therefore quashed the decision of 29 November 2005 as confirmed in the re-issued letter of 19 December 2005. The Minister appealed.

(d) Bode and Others v. Minister for Justice, Equality & Law Reform [2007] IESC 62

On 20 December 2007 the Supreme Court delivered its judgment in the appeal in the lead Bode case.

As regards the executive power of the Government to operate immigration controls, the Supreme Court noted as follows:

‘‘In every State, of whatever model, the State has the power to control the entry, the residency, and the exit, of foreign nationals. This power is an aspect of the executive power to protect the integrity of the State. It has long been recognised that in Ireland this executive power is exercised by the Minister on behalf of the State. This was described by Costello J. in Pok Sun Shun v. Ireland [1986] I.L.R.M. 593 at 599 as:

“In relation to the permission to remain in the State, it seems to me that the State, through its Ministry for Justice, must have very wide powers in the interest of the common good to control aliens, their entry into the State, their departure and their activities within the State.’

The special role of the State in the control of foreign nationals was described by Gannon J. in Osheku v. Ireland [1986] I.R. 733 at 746. He stated at p.746:—

‘‘That it is in the interests of the common good of a State that it should have control of the entry of aliens, their departure and their activities and duration of stay within the State is and has been recognised universally and from earliest times. There are fundamental rights of the State itself as well as fundamental rights of the individual citizen, and the protection of the former may involve restrictions in circumstances of necessity on the latter. The integrity of the State constituted as it is for the collective body of its citizens within the national territory must be defended and vindicated by the organs of the State and by the citizens so that there may be true social order within the territory and concord maintained with other nations in accordance with the objectives declared in the preamble to the Constitution.’

I would affirm and adopt this description. While steps taken by a State are often restrictive of the movement of foreign nationals, the State may also exercise its powers so as to take actions in a particular situation where it has been determined that the common good is served by giving benefits of residency to a category of foreign nationals — as a gift, in effect.”

As regards the request for an order of certiorari (to quash the Minister’s refusal to consider their application under the IBC05 Scheme), the Supreme Court summarised its conclusions as follows:

“The application [by the Bode family to the High Court] was misconceived. The IBC 05 Scheme was a scheme established by the Minister, exercising executive power, to deal administratively with a unique group of foreign nationals in a generous manner, on general principles. The parameters of the scheme were set out clearly ... .

At no stage was it intended that within the ambit of the scheme the Minister would consider, or did the Minister consider, Constitutional or Convention rights of the applicants. Thus the terms of the pleadings and of the appeal relating to the Constitutional and Convention rights of the applicants were misconceived and premature. Applicants who were not successful in their application under the IBC 05 Scheme remain in the same position as they had been before their application.

The Oireachtas has established a statutory scheme providing that the Minister, in considering the situation of foreign nationals, shall have regard to a wide range of issues when making a decision under s.3 of the Immigration Act, 1999, as amended. Constitutional and Convention rights are appropriately considered at that stage. If there is a change of circumstances then an application may be made to the Minister to consider further matters under s.3(11) Immigration Act, 1999, as amended.

Consequently, I would allow the appeal and reverse the decision of the High Court. Constitutional and Convention rights of the applicants have yet to be considered by the Minister. Such consideration may arise in the future in the statutory process under s.3 of the Immigration Act, 1999, as amended. If necessary, further matters may be considered at a later date under s.3(11) Immigration Act, 1999, as amended.”

As regards their request for an order of mandamus (to order the Minister to consider Mr Bode’s free-standing application for leave to remain), the Supreme Court found that:

“The High Court found it unnecessary to make an order of mandamus to require the Minister to consider [Mr Bode’s] stand alone application to remain in the State, per letter dated 6th December, 2005. However, the High Court then went on to consider the Minister’s legal obligation to consider stand alone applications.

This is not now relevant in view of my decision on the nature of the IBC 05 Scheme, and the consequences, and the applicability of the s.3 procedure under the Act of 1999. However, I consider it important to state my opinion, to clarify the consequences of the decision.

The appropriate process within which to consider Constitutional or Convention rights of applicants is on the process under s.3 of the Act of 1999. This is the relevant statutory scheme.

In addition, within the statutory scheme there is provision to revoke a deportation order, see s.3(11) of the Act of 1999 ...

Thus, a person, such as [Mr Bode], could notify the Minister of any altered circumstances since the making of a deportation order, such as the birth of an Irish born child. On such notification the Minister would have a duty to consider the new information to determine whether to revoke a deportation order. As the statutory scheme makes this provision for such an application, there is no need to seek a further process for a right to apply. The integrity of the system should be maintained, as long as it protects the rights of the applicants, which it does in this case.

Consequently, it is my view that there is no free standing right of [Mr Bode] to apply to the Minister. The appropriate procedure is under s.3 of the Act of 1999, as amended, with the potential right to apply under s.3(11) in the future if the need to make such an application should arise.”

(e) Adio and Others v. the Minister for Justice, Equality and Law Reform [2007] IESC 63

On 20 December 2007 the Supreme Court applied, to the present applicants’ appeal, the principles it had established in its judgment on the appeal in the lead Bode case. It concluded as follows:

“The application was misconceived. The IBC 05 Scheme was an administrative scheme established by the Minister exercising executive power to deal with a unique group of foreign nationals in a generous way, on the criteria of the scheme. The parameters of the scheme were clearly set out and included time limits for applications. The scheme was administered by the Minister within the criteria of the scheme.

At no time was it intended, within the ambit of the scheme, that the Minister would consider Constitutional or Convention rights of applicants. The grounds of the application and the appeal relating to Constitutional or Convention rights were misconceived, and premature. Applicants who are unsuccessful on an application to the IBC 05 Scheme are in the same position after the application as they were prior to the application. Constitutional and Convention rights await consideration.

It was a requirement of the scheme that applications be made within a specified time. The first named applicant did not make his application within the time required in the scheme. The Minister consequently acted correctly within the scheme in refusing to consider the application.

Bearing in mind the analysis of the IBC 05 Scheme in Bode, and the extent of judicial review of such an administrative scheme, I would allow the Minister’s appeal on this matter, and reverse the decision of the High Court.

The Constitutional and Convention rights of the applicants remain to be considered in another, appropriate, process.”

The applicants continue to reside in Ireland. They do not refer to any change in their immigration status or submit that there has been any indication of an intention to deport them.

B. Relevant domestic law and practice

1. The Irish Constitution

Article 2 of the Constitution provides:

“It is the entitlement and birthright of every person born in the island of Ireland, ..., to be part of the Irish Nation....”

Article 40(3)(1) provides:

“The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.”

Article 41(1)(1) provides:

“The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.”

2. Relevant Legislation

(a) Refugee Act 1996 (“the 1996 Act”)

Section 17 of the 1996 Act is entitled “Declaration that person is a refugee” and subsection 6 provides as follows:

“The Minister may, at his or her discretion, grant permission in writing to a person who has withdrawn his or her application or to whom the Minister has refused to give a declaration to remain in the State for such period and subject to such conditions as the Minister may specify in writing.”

(b) The Immigration Act 1999 (“the 1999 Act”)

Section 3 of the 1999 Act confers on the Minister the power to make deportation orders in respect of certain categories of persons (Article 3(2) of the 1999 Act) having satisfied himself or herself that the deportation would not breach the prohibition of refoulement (section 5 of the 1996 Act) and having had regard to the “humanitarian” factors listed in Article 3(6) of the 1999 Act. Section 3, in so far as relevant, provides as follows:

3.—(1) Subject to the provisions of section 5 (prohibition of refoulement) of the Refugee Act, 1996 , and the subsequent provisions of this section, the Minister may by order (in this Act referred to as “a deportation order”) require any non-national specified in the order to leave the State within such period as may be specified in the order and to remain thereafter out of the State.

...

(3) (a) Subject to subsection (5), where the Minister proposes to make a deportation order, he or she shall notify the person concerned in writing of his or her proposal and of the reasons for it and, where necessary and possible, the person shall be given a copy of the notification in a language that he or she understands.

(b) A person who has been notified of a proposal under paragraph (a) may, within 15 working days of the sending of the notification, make representations in writing to the Minister and the Minister shall—

(i) before deciding the matter, take into consideration any representations duly made to him or her under this paragraph in relation to the proposal, and

(ii) notify the person in writing of his or her decision and of the reasons for it and, where necessary and possible, the person shall be given a copy of the notification in a language that the person understands.

...

(6) In determining whether to make a deportation order in relation to a person, the Minister shall have regard to—

(a) the age of the person;

(b) the duration of residence in the State of the person;

(d) the nature of the person’s connection with the State, if any;

(e) the employment (including self-employment) record of the person;

(f) the employment (including self-employment) prospects of the person;

(g) the character and conduct of the person both within and (where relevant and ascertainable) outside the State (including any criminal convictions);

(h) humanitarian considerations;

(i) any representations duly made by or on behalf of the person;

(j) the common good; and

(k) considerations of national security and public policy,

so far as they appear or are known to the Minister.

...

(11) The Minister may by order amend or revoke an order made under this section including an order under this subsection.”

(c) The European Convention on Human Rights Act 2003

Section 3 of this Act is entitled “Performance of certain functions in a manner compatible with Convention provisions” and, in so far as relevant, provides as follows:

“3(1) Subject to any statutory provision (other than this Act) or rule of law, every organ of the State shall perform its functions in a manner compatible with the State’s obligations under the Convention provisions.

(2) A person who has suffered injury, loss or damage as a result of a contravention of subsection (1), may, if no other remedy in damages is available, institute proceedings to recover damages in respect of the contravention in the High Court (or, subject to subsection (3), in the Circuit Court) and the Court may award to the person such damages (if any) as it considers appropriate. ...”

3. The IBC05 Scheme

(a) Prior to the IBC05 Scheme

Section 6(1) of the Nationality and Citizenship Act 1956 provided that every person born in Ireland was an Irish citizen from birth. An Irish citizen was considered immune from deportation (as distinct from extradition). Further to the judgment of the Supreme Court in Fajujonu v. the Minister for Justice, Equality and Law Reform ([1990] 2IR 151 and see below), it became the general practice of the Minister to grant leave to remain in the State to non-national parents of Irish born children. Between 1996 and 2003 the Minister granted leave to approximately 10,500 non-national parents on this basis. The Minister also had the power to refuse to grant leave when he deemed that such leave would not be in the “common good” (for example, criminal conviction). There was no prescribed procedure for applying for such leave to remain or for the Minister’s examination of such requests.

On 23 January 2003 the Irish Supreme Court found that a foreign national parent of an Irish born child did not have an automatic entitlement to remain in the State with the child (A.O. and D.L. v. the Minister for Justice, Equality and Law Reform [2003] 1 I.R. 1). The Minister was entitled to order the deportation of parents if he was satisfied for good and sufficient reason that the common good required the residence of the parents in the State to be terminated, even if an Irish born child had, in consequence, to leave the State in order to remain in the care of his parents and within the family unit.

Accordingly, from 19 February 2003 the Minister discontinued the practice of granting, as a matter of course, leave to remain in the State based solely on parentage of an Irish born child. According to the Supreme Court (Bode and Others v. Minister for Justice, Equality & Law Reform, cited above), approximately 11,000 such applications were pending before the Minister at that point.

In 2004 the Constitution was amended (the 27^th amendment) by referendum and the new Article 9(2) reads as follows:

“(1) Notwithstanding any other provision of this Constitution, a person born in the island of Ireland ... who does not have, at the time of the birth of that person, at least one parent who is an Irish citizen or entitled to be an Irish citizen is not entitled to Irish citizenship or nationality, unless provided for by law.

(2) This section shall not apply to persons born before the date of the enactment of this section.”

Legislative effect was given to this new Constitutional provision by the Irish Nationality and Citizenship Act 2004 (“2004 Act”) which came into force on 1 January 2005. This constitutional provision and legislation excludes the automatic grant of Irish nationality and citizenship to a child born after the date of enactment of the 2004 Act to parents neither of whom was entitled to be an Irish citizen at the time of birth.

(b) The IBC05 Scheme

While the 2004 Act reduced the number of pregnant foreign nationals arriving in Ireland, the Minister set about managing the applications for leave to remain of parents of children born before 1 January 2005 which were, by then, pending. On 14 December 2004 the Minister announced (in national newspapers and on the Minister’s website) the establishment and details of the IBC05 Scheme. It was a Scheme designed specifically to deal with pending parental applications for leave to remain as regards children born in Ireland before 1 January 2005 in a “decent, pragmatic and common sense way”. Applications were to be received from 15 January to 31 March 2005. The examination would not touch upon the merits of each individual case, but the Scheme fixed broad qualifying criteria:

- criminal activity would weigh against the granting of leave, as would not being part of the family unit and not taking a role in the upbringing of the child;

- presence in the State for some time would lean in favour of granting leave and a demonstrated continuous residence in the State since the birth of the child was a pre-condition for inclusion in the Scheme.

Details of the proofs/evidence required were outlined. A two-year leave to remain was to be initially granted, renewable at the Minister’s discretion. Such a grant was subject to certain conditions, on which an applicant would have to make a formal declaration including obeying the laws of the State, not becoming involved in criminal activity and making every effort to become economically viable.

The Scheme was again announced on 15 January 2005, with all application details including an application form (which stated the closing date), advice as to the evidence required and a stipulation as to the necessity to explain if a relevant evidentiary document was missing. A reminder notice was also published on 18 March 2005. Almost 18,000 applications were received and leave to remain was granted to all but 1119 which were found not to qualify. In this latter respect, approximately 560 did not prove continuous residence since the birth of the child. Applications lodged after the expiry of the time-limit were not considered.

4. Other relevant jurisprudence

(a) Fajujonu and Others v. Minister for Justice [1990] 2IR 151

Mr and Mrs Fajujonu were Nigerian and Moroccan citizens, respectively who moved to Ireland in the early 1980s. Their three children were born in Ireland and were therefore Irish citizens. When Mr. Fajujonu applied for a work permit, the Minister for Labour refused to grant it and the Department of Justice asked him to make arrangements to leave the country.

It was this request, and a fear that a deportation order would be made, which led the plaintiffs to issue proceedings seeking an order restraining the Minister from deporting the plaintiffs; a declaration that the plaintiffs were entitled to reside within the State; a declaration that such provisions of the Aliens Act 1935 as purported to empower the Minister to deport them were inconsistent with the Constitution/not carried over as laws by Article 50 of the Constitution; and, if necessary, an order directing the Minister to grant to the first and second plaintiffs a visa entitling them to remain in the State as long as they were members of the family.

The plaintiffs were unsuccessful in the High and Supreme Courts, where their action was dismissed on its merits, although the latter found that the Minister should consider the case afresh. The Supreme Court held that that, where non-national parents had resided for an appreciable time and had become a family unit within the State and had children who were Irish citizens, those children had the constitutional right to the company, care and parentage of their parents within the State. However, the Minister was entitled to exercise his powers to exclude such non-national parents from the State after due and proper consideration and full recognition of the fundamental nature of the constitutional rights of the family, where he was satisfied that their exclusion was necessitated by the requirements of the common good and where the consequences of this exercise would not be disproportionate to the requirements of the common good.

(b) Osheku and Others v Ireland and Others [1987] ILRM 330

The plaintiffs were a husband (non-national) as well as his wife and their child (both citizens of Ireland). The Minister indicated that leave to remain would not be given to the husband unless he produced proof of his ability to maintain himself and any dependants from his own resources. The husband feared deportation (no deportation order had issued) and the plaintiffs issued proceedings in the High Court seeking a declaration that, inter alia, the Aliens Act 1935 was unconstitutional and an order restraining the Minister from deporting the husband. This challenge was rejected by the High Court on its merits, that court finding, inter alia, that the Aliens Act 1935 not inconsistent with the Constitution.

5. Immigration, Residence and Protection Bill 2010 (“the 2010 Bill”)

It sets out a legislative framework for the management of inward migration to Ireland and lays down principles governing the presence in the State of foreign nationals, including the obligation on a foreign national who is unlawfully in the State to leave. The executive power and responsibility of the Government to make immigration polices being currently supplemented by, inter alia, the Aliens Act 1935, the 1999 Act as well as the Immigration Acts of 2003 and 2004, the 2010 Bill proposes to repeal and replace those statutory provisions. The 2010 Bill also proposes to integrate into a unified process all procedures for claiming protection and otherwise for requesting leave to remain and it therefore repeals and replaces the relevant provisions of, inter alia, the 1996 Act. The 2010 Bill also includes provision allowing non-nationals to obtain long-term residence permits and it sets out the rights attaching thereto.

6. The nature and standard of review on judicial review (Meadows -v- Minister for Justice Equality and Law Reform, [2010] IESC 3)

The applicant was refused refugee status and requested leave to remain under section 3 of the 1999 Act. The Minister issued a deportation order which the applicant challenged by way of a request for leave to apply for judicial review. The High Court refused leave but it certified that its decision involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Supreme Court (section 5(3)(a) of the Illegal Immigrants (Trafficking) Act 2000). The point of law so certified was as follows:

“In determining the reasonableness of an administrative decision which affects or concerns the constitutional rights or fundamental rights, is it correct to apply the standards set out in O’Keeffe v. An Bord Pleanala [1993] 1 I.R. 39?”

The Supreme Court allowed the appeal (Chief Justice Murray, Mrs Justice Denham and Mr Justice Fennelly in the majority, with Mr Justice Kearns and Mr Justice Hardiman dissenting). As noted by the Chief Justice, the primary and contemporary reference points for the approach which the courts had to adopt when judicially reviewing such administrative decisions were the decisions of the Supreme Court in The State (Keegan) v. The Stardust Victims Compensation Tribunal ([1986] I.R. 642) and the above-cited case of O’Keeffe v. An Bord Pleanala.

As regards the nature and standard of judicial review of administrative decisions including decisions encroaching on fundamental rights, Mr Justice Nial Fennelly opined as follows:

“The question is whether these considerations should lead to a modification of the Keegan or O’Keeffe test. The Minister strongly opposes the adoption of an entirely new threshold of review, whether that of “anxious scrutiny”, “most anxious scrutiny” or otherwise, for some administrative decisions. He submits that the adoption of such a test would significantly alter the role of the Courts in judicial review and would effectively constitute the Courts as the ultimate appellate tribunal from a vast range of administrative decisions.

67. At one level all this is no more than semantics: what is irrational or unreasonable depends on the subject-matter and the context. ... The appellant’s written submissions advance the principle of proportionality, in particular the notion of least intrusive interference with constitutional rights, saying that this principle can operate within the confines of the Keegan or O’Keeffe test. I do not consider it necessary to change the test. Properly understood, it is capable of according an appropriate level of protection of fundamental rights. The test as enunciated by Henchy J [in Keegan] and as explained by Finlay C.J. in O’Keeffe lays down a correct rule for the relationship between the courts and administrative bodies. Properly interpreted and applied, it is sufficiently flexible to provide an appropriate level of judicial review of all types of decision. The proposition of the [Minister], is a restatement, without using the word, of the principle of proportionality. The courts have always examined decisions in context against their surrounding circumstances.

68. Where decisions encroach upon fundamental rights guaranteed by the Constitution, it is the duty of the decision-maker to take account of and to give due consideration to those rights. There is nothing new about this. ... Where a right is not considered at all or is misdescribed or misunderstood by the decision-maker, the decision will be vulnerable to attack on the grounds of a mistake of law or failure to respect the rules of natural justice. In such cases, it may not be necessary to establish that it is unreasonable. It may, however, affect fundamental rights to such a disproportionate degree, having regard to the public objectives it seeks to achieve, as to cross a threshold, and to be justifiably labelled as so unreasonable that no reasonable decision-maker could justifiably have made it. To use the language of Henchy J [in Keegan], it may “plainly and unambiguously fl[y] in the face of fundamental reason and common sense.”

69. Where unreasonableness is alleged, the applicant will ask the court to examine the decision to see whether the decision-maker has complied with the duty to take account of and to give due consideration to any relevant rights or interests. There is an infinitely broad spectrum of decisions and of contexts and an infinite gradation of rights. There are constitutional rights, statutory and other legal rights, rights guaranteed by the Convention. In the last case, it is relevant that section 3 of the European Convention of Human Rights Act, 2003 places an obligation on every organ of the State to perform its functions in a manner compatible with the State’s obligations under the provisions of the Convention. In the Convention context, we must be conscious that the Court of Human Rights is influenced by the effectiveness of legal remedies against administrative decisions, when it considers the effectiveness of a national remedy pursuant to Article 13.

70. If we were to adopt the criterion of “anxious scrutiny,” it would follow that different standards of review would apply depending on whether the case was concerned with the protection of different types of right. That is the English “sliding scale” of review. In my view, it is neither appropriate nor necessary to have a different standard of review for cases involving an interference with fundamental, constitutional or other personal rights. ... It seems to me that the principle of proportionality, more fully developed in the judgments which have been delivered by the Chief Justice and of Denham J, can provide a sufficient and more consistent standard of review, without resort to vaguer notions of anxious scrutiny. The underlying facts and circumstances of cases can and do vary infinitely. The single standard of review laid down in Keegan and O’Keeffe is sufficiently responsive to the needs of any particular case.

71. I prefer to explain the proposition laid down in the Keegan and O’Keeffe cases, retaining the essence of the formulation of Henchy J in the former case. I would say that a court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied, on the basis of evidence produced by the applicant, that the decision is unreasonable in the sense that it plainly and unambiguously flies in the face of fundamental reason and common sense. I use the word, “substantive,” to distinguish it from procedural grounds and not to imply that the courts have jurisdiction to trespass on the administrative preserve of the decision-maker. This test, properly applied, permits the person challenging the decision to complain of the extent to which the decision encroaches on rights or interests of those affected. In those cases, the courts will consider whether the applicant shows that the encroachment is not justified. Justification will be commensurate with the extent of the encroachment. The burden of proof remains on the applicant to satisfy the court that the decision is unreasonable in the sense of the language of Henchy J [in Keegan]. The applicant must discharge that burden by producing relevant and cogent evidence.

72. 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.”

Mrs Justice Denham considered that the O’Keeffe decision has been construed “too narrowly” and judicial review should be an effective remedy especially where, as in asylum cases, access to the courts has been curtailed by law. Where fundamental rights were factors in a review, they are relevant in analysing the reasonableness of a decision and proportionality was inherent in any analysis of reasonableness.

COMPLAINTS

The applicants complained under Article 8 of the Convention arguing that, in the absence of any deportation order under the 1999 Act, there was no domestic procedure whereby the first and second applicants’ could apply for leave to remain in the Irish State. They argued that this left the applicant family, which included an Irish citizen, in a state of limbo without any clarified status and the first applicant, who should be the family’s main breadwinner, could not work, build a home or plan a future to the detriment of, in particular, the third applicant. Accordingly, the applicants contended that there should be a procedure by which the first and second applicants could regularise their immigration position in Ireland, which procedure should be adversarial and before an independent body competent to review the reasons for the administrative decision and the relevant evidence.

The applicants also noted in their application that a refusal of a right of residence to the first and second applicants would not be in the best interests of the third applicant (Irish citizen) and would violate the latter’s right to respect for his private and family life.

The first and third applicants also invoked Article 14 arguing that that Article applied to additional rights which they maintained the State had voluntarily decided to provide (notably, residence to non-national parents of Irish born children under the IBC05 Scheme). They submitted that the alleged lack of a legal procedure to apply to regularise their position discriminated against the first and third applicants in a number of respects.

Finally, the applicants invoked Article 13, in conjunction with Articles 8 and 14, arguing that they had no effective domestic remedy.

THE LAW

The applicants invoked Articles 8, 13 and 14 as regards their immigration status in Ireland. In particular, the submission underlying all of their complaints was that there was no domestic procedure whereby the first and second applicants could apply for leave to remain in Ireland with the third applicant (an Irish born child and citizen) and whereby they could have that request determined on the basis of their Constitutional and Convention rights. Their complaints concerned therefore their current situation in Ireland, as opposed to any feared or foreseen removal from Ireland.

The Court would note, at the outset, that the Supreme Court clarified in the lead domestic case of Bode that the IBC05 Scheme was an ex gratia administrative scheme lawfully established on a once-off basis by the Minister exercising executive power to consider granting leave to remain to a unique and limited group of foreign nationals on the basis of broad qualifying criteria. The parameters of the Scheme were published and clear, notably a time-limit for making applications under the Scheme. The first applicant did not make her application within the time allowed under the Scheme. Accordingly, while the vast majority of those who did apply under the IBC05 Scheme were granted leave to remain, the Minister refused to consider her application since it was out of time and the Supreme Court later found that the Minister had acted correctly within the ambit of the Scheme in doing so.

The first applicant did not explain why she failed to comply with that time-limit. It is further noted that, even on the basis of her own submissions to this Court, there is no reason to consider that she would not have fallen within the broad qualifying criteria of the Scheme and, therefore, be granted leave to remain. Accordingly, the uncertainty impugned by the applicants, at least from December 2004 when the details of the IBC05 Scheme were first published, stemmed to a large extent from the first applicant’s own inaction (Sisojeva and Others v. Latvia [GC], no. 60654/00, § 94, ECHR 2007 II). However, the Court does not have to decide whether the present application is consequently inadmissible on the grounds that the applicants cannot claim to be victims of the alleged absence of a legal procedure to regularise their residence in Ireland or indeed whether the Convention Articles invoked guarantee such a right, since their complaints are, in any event, inadmissible on other grounds which are set out below (Sisojeva and Others v. Latvia, cited above, at § 96).

The Court reiterates that under Article 35 § 1 it may only deal with a matter after all domestic remedies have been exhausted. Applicants must have provided the domestic courts with the opportunity, in principle intended to be afforded to Contracting States, of preventing or putting right the violations alleged against them. That rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in the domestic system in respect of the alleged breach. The only remedies which Article 35 § 1 requires to be exhausted are those that relate to the breach alleged and are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see, most recently, McFarlane v. Ireland [GC], § 107, 10 September 2010).

The Court recalls that the Supreme Court found that the IBC05 Scheme was not intended to determine the Constitutional or Convention rights of those who applied thereunder. It was for this reason that it found the applicants’ challenge to the Minister’s decision for failure to consider those rights to be misconceived and, notably, premature. The Supreme Court concluded that unsuccessful applicants under the IBC05 Scheme were therefore “in the same position after the application as they were prior to the application” so that their Constitutional and Convention rights remained to be considered in “another, appropriate, process”.

The applicants maintained that, despite this conclusion of the Supreme Court, they have no legal route to have those rights determined, and, in particular, by which they could make and have determined an application for leave to remain in the State on the basis of their Constitutional and Convention rights and, notably, those arising from the Irish citizenship of one member of their family namely, the third applicant.

It would appear that there is no particular statutory procedure governing the situation of persons, such as the applicants, who have not applied for residence prior to entry and who were not granted residence under the IBC Scheme. There was no suggestion that the first and second applicants withdrew their application for a declaration of refugee status or that the Minister refused such a declaration which circumstances could have rendered section 17(6) of the 1996 Act applicable. They simply did not proceed with their application. More significantly, no deportation order has been made so that section 3 of the 1999 Act is not operative. In this latter respect, the Court has contrasted the conclusion of the Supreme Court in the lead Bode case and in the present applicants’ case. In the former, the Supreme Court relied on the opportunities presented by section 3 of the 1999 Act since a deportation order had already been made against Mr Bode. Accordingly, Mr Bode had no free-standing right to apply to the Minister because a statutory regime applied to him, the integrity of which regime had to be maintained. However, in the present case, no such deportation order has been made and hence there was no relevant statutory scheme applicable so that, in concluding in the present applicants’ case that their Constitutional and Convention rights remained to be considered, the Supreme Court did not refer the applicants specifically to section 3 of the 1999 Act but to “another, appropriate, process”.

In this respect, the Court notes that it is established that the Minister, as part of the executive power of the State, has an inherent right and power to exercise a discretion to consider, determine and grant, if he considers it appropriate, residency to the parent of an Irish born child, based on relevant Constitutional and Convention rights. This power was referred to in the above-cited Osheku and Pok Sun Shun judgments, it was undisputed before the High Court in the Bode case and it was accepted by the Supreme Court in that same case which lead judgment was applied by the Supreme Court in the present case. The applicants accept this inherent executive power of the Minister in their application to this Court. Accordingly, the applicants have not demonstrated that, in the absence of an applicable statutory procedure, they could not apply to the Minister for leave to remain, raising their Constitutional and Convention rights having regard, inter alia, to the citizenship of the third applicant, or that the Minister would not have the power to determine and grant residency to them. As noted above, between 1996 and 2003 the Minister granted leave to remain to approximately 10,500 parents of Irish born children and, on the applicants’ own submissions, there was no particular format or statutory procedure for those applications.

In addition, the Court notes that an unfavourable response, or indeed a lack of response, from the Minister could then be the subject of an application to the High Court for leave to apply for judicial review on the basis of those Constitutional and Convention rights. Indeed, in certain previous cases plaintiffs, including parents of Irish born children against whom deportation orders had not issued, brought proceedings in the High Court and obtained an examination on the merits of their cases including on their request for a declaration that they were entitled to reside in the State. In the Fajujonu case in particular, the plaintiffs were unsuccessful on the merits but the High Court ordered the Minister to reconsider their application for leave to remain in Ireland as parents of Irish born children.

Moreover, and having regard to the recent judgment of the Supreme Court in the above-cited Meadows case which outlined, inter alia, the various Constitutional and Convention rights which would be examined in that context as well as the standard of review to be applied, the Court does not consider that the present applicants’ case and submissions demonstrate that the nature and standard of that review would be such as would render the above-described application for leave to apply for judicial review an ineffective remedy within the meaning of Article 35 § 1 of the Convention.

Accordingly, and whether or not the Convention guarantees a right to a determination of an application by a non-national for leave to remain in a State in the absence of any State action towards deportation, the Court considers that the applicants’ complaints, about an alleged lack of a legal procedure available to them, must be rejected as being premature since, apart from an application within the IBC05 Scheme, the first and second applicants have not taken any steps, whether prior to entry or subsequent thereto, to apply for an entry visa or residence permit or to request leave to remain in Ireland. Given such prematurity the applicants cannot, as matters stand, claim to be victims of a violation of the Convention. It follows that this complaint must be declared incompatible ratione personae with the provisions of the Convention, within the meaning of Article 35 § 3(a) of the Convention (Panevskii and Ors v Ireland (dec.) no. 2453/03 unreported 13 October 2005).

Finally, and in so far as the applicants also complain about any future refusal of a right to remain, this is also premature as the applicants could not claim to be the victims of a violation of the Convention in this respect within the meaning of Article 34 of the Convention. Accordingly, this complaint must be declared incompatible ratione personae with the provisions of the Convention, within the meaning of Article 35 § 3(a) of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Claudia Westerdiek Dean Spielmann Registrar President