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Cite as: [2020] IECA 64

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THE COURT OF APPEAL

Donnelly J.

Faherty J.

Power J.

BETWEEN/

[2020] IECA 64

Record Number: 2019/223

AJK

- AND -

THE MINISTER FOR DEFENCE

PLAINTIFF/APPELLANT

DEFENDANT/RESPONDENT

JUDGMENT of Ms. Justice Donnelly delivered on the 28th day of February, 2020

Introduction

1. This judgment concerns an appeal against a decision of the High Court (O’Regan J.)

refusing the appellant an order of certiorari quashing the decision of the respondent

(hereinafter “the Minister”) dated 31st January, 2018, which the appellant maintains

amounted to a refusal to permit him enlist in the Defence Forces in accordance with law.

He was also refused a declaration that as the holder of a declaration of subsidiary

protection he was eligible to enlist with the defence forces (see the decision of the High

Court AJK v the Minister for Defence [2019] IEHC 159).

2. The appellant is a Pakistani national under the age of 25. He came to Ireland as an

unaccompanied minor in 2012 and secured subsidiary protection status in October 2014.

At that time, he was granted permission to remain in the state for a three-year period. On

20th June, 2017, he secured an extension of that three-year period with permission valid

until 20th June, 2020.

3. In August 2015, he applied to join the General Service of the Defence Forces but that

application was not successful. In April 2016 he submitted a second application to join the

General Service, and in May 2016 he applied to join the Naval Service. He was enlisted in

the Naval Service on 19th December, 2016 and commenced training on 3rd January,

2017. He left the Naval Service on 19th January, 2017, having purchased his discharge in

accordance with law, as he was confident he would secure a place with the General

Service which was his preference. He could not apply to the General Service if he was a

member of the Naval Service.

4. The appellant was duly selected for enlistment with the General Service and was invited

to the Curragh Camp on 24th April, 2017. On that date, he was told orally that he was not

eligible to enlist on the basis that he required a minimum of twelve years’ permission to

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reside in the State or his permission had to be open ended. This was followed up by an

email the following day. On 4th May, 2017, a letter on Defence Forces headed notepaper

was sent to him which stated: -

“I have the following information which may help you acquire the required

Certificate of Registration from the Department of Justice, Equality and Law

Reform.

As you are a non-national the current legal position is set out clearly in para. 127

of Admin Instruction A10 as follows (emphasis in bold of the critical provision) –

Non-nationals must have a minimum of three years legal and unbroken

residency in the State and they must meet residency and work permit

conditions as laid down by the Department of Justice, Equality and Law

Reform and the Department of Enterprise, Trade and Employment. Applicants

must have established residency and must be in possession of a Certificate of

Registration (also called the Certificate of Residency or the Green Book)

issued by Immigration & Citizenship Division, Department of Justice, Equality

and Law Reform. This authorised period of residency must be open

ended or, as a minimum, must cover the period of engagement

including any reserve commitment. Care must be taken when examining

this document as the duration of residency stamps vary from case to case.”

(emphasis in original)

5. The appellant’s solicitor subsequently engaged in correspondence with the military

authorities who had written this letter and cc’d that correspondence to the Minister. The

import of the letter from the appellant’s solicitor was that they understood this to be a

stated policy position of the Defence Forces. They sought a review of the decision because

they viewed it as an inflexible unpublished policy and therefore an illegality.

6. At various stages they sent reminders to both the military authorities and to the Minister.

On 8th November, 2017, the Department of Defence replied acknowledging receipt of the

three previous letters. That letter stated “[t]he Department is currently engaging with the

military authorities in relation to this matter and we will revert to you in due course.”

Having received that letter, the appellant’s solicitor engaged with the Minister by letter of

22nd November, 2017. The solicitor requested a final decision and gave the Minister 14

days in which to make a final decision in respect of the client. He asked for a

reconsideration of the case. On 5th December, 2017, the Department of Defence replied,

acknowledging the urgency for the appellant but said that the time limit of 14 days was

not feasible. The Department said that the issues had been brought to the immediate

attention of the appropriate military authorities. The appellant’s solicitor again wrote on

12th December, 2017 giving a further period of 28 days. He again wrote on 9th January,

2018 giving a further 14 days, and on 24th January, 2018, giving a further 7 days.

7. On 31st January, 2018, the Department of Defence made a substantive reply. In the first

instance they said that they engaged with military authorities and established that the

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appellant’s attestation in the Naval Service was administratively incorrect under current

legislation. The letter stated: -

“In addition to this error, it has also been established that your client did not have a

residency permission that would allow him to satisfy current Defence Forces

induction criteria in terms of residency. The period of engagement for enlistment is

twelve years (comprising of five years Permanent Defence Forces and seven years

Reserve Defence Forces service) and as such, the authorised period of residency

must be open ended or as a minimum, must cover the stated twelve year period.”

The letter went on to say –

“There are currently no regulatory provisions under section 53(1) of the Defence

Act, 1954 and DFR (Defence Forces Regulation) A10 to provide for your client’s

induction to the Defence Forces.

In order to be inducted to the Defence Forces, your client requires appropriate

permission to allow him to enlist for the period set out in Defence Forces legislation.

In these circumstances, your client could not have been inducted to the Defence

Forces and it is up to an individual, on seeking application to join the Defence

Forces to determine whether he/she satisfies the required residency criteria in the

first instance.”

The first issue

Did the Minister have the power to review the decision of the Defence Forces dated

4th May, 2017 refusing to allow the appellant to enlist?

8. In the Statement of Opposition, the Minister made a preliminary objection that the

appellant was out of time to seek judicial review as over three months had passed from

the decision of 4th May, 2017. The appellant subsequently sought to amend his

Statement of Grounds seeking an extension of time in which to seek certiorari of that

decision of 4th May, 2017. The High Court Judge refused to extend the time to seek

leave. The appellant has not sought to appeal that finding. Instead, the appellant submits

that the decision of the Minister dated 31st January, 2018 was the first and only review

decision. Their submission is that it was made by a different decision maker and was not

simply a reiteration of what was said in the decision of 4th May, 2017.

9. Central to the determination is whether the Minister had a power of review at all. It must

be emphasised at the outset that there is no suggestion that the wrong respondent to

these proceedings was named. It is fully accepted that the Minister is correctly named as

a respondent where decisions are taken by either the military authorities or the civilian

authorities in the Department of Defence. On the contrary, the Minister’s position is that

the Minister, having made regulations under the Defence Act, 1954 dealing with inter alia

enlistment, had delegated the day to day decision making regarding enlistment to the

military authorities. In those circumstances, the only entity with the power (vires) to

make an individual decision on an applicant for enlistment was the Chief of Staff of the

Defence Forces acting through his delegates. In the Minister’s submission, despite the

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control of the Minister of executive and administrative functioning of the Defence Forces,

this was not a power in respect of which he had any right of review.

10. The appellant objects that this issue was not directly pleaded in the Statement of

Opposition, although it was pleaded that the Minister’s letter merely reiterated the original

decision, from which there was no provision for an appeal. The issue was one raised by

the trial judge at the hearing in the High Court. It was then addressed by both parties in

the High Court without objection from the appellant. Furthermore, despite making

objections in written submissions to this process, objection to the process was not a

formal ground of appeal. In all the circumstances, I am satisfied that it is appropriate for

this Court to address this issue in this judgment.

The Legal Provisions

11. Section 1 of the Ministers and Secretaries Act, 1924 (hereinafter “the 1924 Act”) states as

follows: -

“There shall be established in Saorstát Eireann the several Departments of State

specified and named in the eleven following sub-paragraphs, amongst which the

administration and business of the public services in Saorstát Eireann shall be

distributed as in the said sub-paragraphs is particularly mentioned, and each of

which said Departments and the powers, duties and functions thereof shall be

assigned to and administered by the Minister hereinafter named as head thereof,

that is to say:—

…

(x) The Department of Defence which shall comprise the administration and

business of the raising, training, organisation, maintenance, equipment,

management, discipline, regulation, and control according to law of the

Military Defence Forces of Saorstát Eireann, and all powers, duties and

functions connected with the same, and of which Department the head shall

be, and shall be styled, an t-Aire Cosanta or (in English) the Minister for

Defence.”

12. Under s. 2 of the Defence Act, 1954, as amended, (hereinafter “the 1954 Act”) the

expression “the Defence Forces” means the Defence Forces to be raised and maintained

under the 1954 Act. Section 13(1) of the 1954 Act states: -

“(1) There shall stand established in the Department of Defence a military element

(which shall be known, and is referred to in this Act, as ‘Defence Forces

Headquarters’), the head of which shall be the Chief of Staff.”

Subsection 2 of the said Act provides that –

“(2) Subject to the Defence Acts, 1954 to 1998, there shall be assigned to the Chief

of Staff such duties in connection with the business of the Department of Defence

as the Minister may from time to time determine.”

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Subsection 3 then provides –

“(3) The Chief of Staff shall be directly responsible to the Minister for the

performance of such duties as may from time to time be assigned to him or her

under subsection (2).”

Subsection 4 provides –

“(4) The Chief of Staff may, subject to the approval of the Minister, delegate such

duties assigned to him or her under subsection (2) as he or she considers

appropriate to the Deputy Chief of Staff (Operations) or the Deputy Chief of Staff

(Support).”

13. Section 16 of the said Act provides –

“It shall be lawful for the Government to raise, train, equip, arm, pay and maintain

defence forces to be called and known as Óglaigh na hÉireann or (in English) the

Defence Forces.”

14. Section 17 provides as follows –

“(1) Under the direction of the President, and subject to the provisions of this Act,

the military command of, and all executive and administrative powers in relation to,

the Defence Forces, including the power to delegate command and authority, shall

be exercisable by the Government and, subject to such exceptions and limitations

as the Government may from time to time determine, through and by the Minister.

(2) (a) The delegation of command and authority by the Minister—

(i) may be made subject to such exceptions and limitations as he may

from time to time determine,

(ii) may be in relation to any area, place or State ship or any military

body organised under section 22 and may embrace different

components of the Defence Forces,

(iii) may, during a period of emergency, be in relation to the whole of the

Defence Forces.”

15. Section 53(1)(a) provides –

“(1) (a) A person (including a minor) may be enlisted as a man of the Permanent

Defence Force for service for a period of twelve years or for such less period as may

from time to time be prescribed, but not for any longer period, and the period for

which a person enlisting under this section is enlisted is in this Act referred to as

the term of his original enlistment.”

Subsection 2 provides –

“(2) The enlistment of a person under this section shall be as follows, either—

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(a) for the whole of the term of his original enlistment in the Permanent

Defence Force, or

(b) for such portion of the term of his original enlistment as may from time to

time be prescribed and as is specified in his attestation paper in the

Permanent Defence Force and for the residue of the said term in the

Reserve Defence Force.”

16. Section 56(1) provides –

“(1) The Minister may make regulations (in this Act referred to as recruiting regulations)

in relation to all or any of the following matters, that is to say:—

(a) the appointment and duties of recruiters;

(b) the persons authorised to enlist recruits for the Permanent Defence Force and

the Reserve Defence Force;

(d) the forms to be used for the purposes of enlistment;

(e) the persons to be enlisted;

(f) the enlistment of recruits for service in a particular service corps;

(g) the enlistment of recruits in the Reserve Defence Force for service in a

particular class of reservists;

(h) any other matter in relation to proceedings for enlistment.

(2) Recruiting regulations shall provide for the completion by a person enlisting in the

Permanent Defence Force or the Reserve Defence Force of an attestation paper in

the prescribed form and the signing by such person of such attestation paper and

the verification of his signature.”

17. Section 57 provides –

“Every person enlisting in the Permanent Defence Force or the Reserve Defence

Force shall be enlisted in accordance with recruiting regulations.”

18. Section 58 provides for those persons enlisting to take an oath or make a declaration set

out in the schedule to the Act. Section 59 provides for the signing of a declaration

affirming such particulars in relation to himself that may be required by his attestation

paper and of his willingness to fulfil the engagement set out in the said attestation paper.

Having signed this declaration and complied with s. 58, a person is deemed to be enlisted

as a man of the Permanent Defence Force or the Reserve Defence Force as the case may

be.

19. A man is defined under s. 2 the 1954 Act as a person who is for the time being a member

of the Defence Forces but does not include an officer.

20. On 31st July, 1941, Defence Force Regulations A10 (hereinafter “DFR A10”) were passed.

These relate to enlistment, promotions, reductions, transfers to the Reserve Defence

Force, and discharge. Provision was made under the 1954 Act for the existing Defence

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Forces to become the Defence Forces under the 1954 Act. Section 298 provided that

existing statutory instruments made under the Defence Forces (Temporary Provisions)

Act, 1923 shall be deemed to have been made under the 1954 Act. Therefore, DFR A10 is

a statutory instrument made under the 1954 Act. No issue has been taken with the

contention that they are therefore to be considered as the regulations made by the

Minister under s. 56; the “recruiting regulations”.

21. Section 2 of the Statutory Instruments Act, 1947, as amended by the Statute Law

Revision Act, 2015, exempts regulations made, inter alia, from the usual requirements of

printing, notice of making, gazetting in Iris Oifigiúil and dissemination. Therefore,

although Defence Force regulations do not have to be published in the same way as other

statutory instruments, they are, in all other respects, statutory instruments. It appears

that some Defence Force regulations have been published and continue to be published

but some are not so published.

22. Regulation 1A of DFR A10 provides: -

“The Adjutant-General is responsible for the organisation and conduct of recruiting

for the Defence Forces”.

Regulation 2 provides that General Officers Commanding Commands are charged with the

general administration of recruiting for the Defence Forces under the orders of the

Adjutant General.

23. The 1954 Act has been amended by the substitution of the Chief of Staff for the Adjutant-

General in certain sections of the Act. There was, however, no consistency in the

substitution of the Chief of Staff for the Adjutant-General. Section 9 of the Defence

(Amendment) Act, 1998 (hereinafter “the 1998 Act”) provided that the person who held

the office of Adjutant-General shall be deemed upon commencement of that Act to stand

appointed to be Deputy Chief of Staff (Operations). However, s. 10 of the 1998 Act

provides that: -

“(1) Subject to sections 6, 7 and subsection (3), references in any Act of the

Oireachtas passed before the commencement of this Act or in any statutory

instrument made before that day (other than such instruments (if any) as may be

prescribed by the Minister) to the Adjutant-General or to the Quartermaster-

General shall, on and after such commencement, be construed as references to the

Deputy Chief of Staff (Support).”

At first glance it may appear that the reference in Regulation 1A of DFR A10 must be read

as a reference to the Deputy Chief of Staff (Support). The following legal provisions must

be considered however.

24. Subsection 2 of s. 10 of the 1998 Act provides, inter alia, that references in such

statutory instruments (if any), as may be prescribed by the Minister under subs. 1, to the

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Adjutant-General or to the Quartermaster-General shall be construed as references to the

Deputy Chief of Staff (Operations). The Minister does not rely upon that provision.

25. The Minister contends that under s. 13(4) of the 1954 Act, the Chief of Staff delegated

such duties assigned to him under subs. 2 as he considered appropriate to the Deputy

Chief of Staff (Operations) or the Deputy Chief of Staff (Support). The Minister submits

that he thereafter delegated recruitment and enlistment duties to the Deputy Chief of

Staff. The Minister relies upon the Defence Act, 1954, (Section 13(2) as amended by

section 4 of the Defence (Amendment) Act, 1998 (No. 31 of 1998)), (Duties of the Chief

of Staff) Instrument, 1998 for that delegation. This instrument has been provided to us.

26. That Instrument states that the Minister in exercise of the powers conferred by s. 13 of

the 1954 Act, as amended by s.4 of the 1998 Act “hereby assign[s] to the Chief of Staff

the duties in connection with the business of the Department of Defence described in this

instrument, for the performance of which he shall, pursuant to subsection (3) of the said

section 4, be directly responsible to the Minister for Defence.” Regulation C(ii) assigns,

inter alia, duties with respect to the recruitment and enlistment of non-commissioned

officers and privates to the Chief of Staff.

27. In the written submissions, the Minister refers to the delegation as being made to the

Deputy Chief of Staff. In the legislation there is no office of Deputy Chief of Staff; there is

either Deputy Chief of Staff (Operations) or Deputy Chief of Staff (Support). Indeed, the

Instrument of 1998 specifically refers to the permitted delegation, with the prior approval

of the Minister for Defence, of duties to the Deputy Chief of Staff (Operations) and to the

Deputy Chief of Staff (Support). Moreover, it is an overstatement in the Minister’s

submissions that the 1998 Act abolished the office of Adjutant-General and replaced it

with the Office of Chief of Staff. The 1998 Act did not abolish the office in a single

provision, but instead provided that various references in the existing legislation to the

Adjutant-General were to be construed in different contexts to the Chief of Staff, the

Deputy Chief of Staff (Operations) or to the Deputy Chief of Staff (Support).

28. It seems to me therefore, that in line with s. 10 of the 1998 Act, the role of the Adjutant-

General under DFR A10 was to be carried out by the Deputy Chief of Staff (Support) but

this was subject to the Minister’s entitlement to delegate duties (including those relating

to enlistment) to the Chief of Staff pursuant to s.13 of the 1954 Act, who in turn was

entitled to delegate these duties to either of the Deputy Chiefs of Staff.

Discussion

29. The main argument on behalf of the Minister is that by making the recruiting regulations

under the Act, the Minister has set out those who are entitled to enlist and the manner in

which enlistment must be carried out. Thereafter, the individual determination on a case

by case basis must be made by the military element, in this case the relevant Deputy

Chief of Staff, and that the Minister has no function in individual enlistment decisions. The

Minister submits that the trial judge interpreted the correspondence between the parties

in the correct manner, namely that the enlistment decision was that of the Defence

Forces and not of the Minister. Accordingly, the decision of 4th May, 2017 emanated from

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Defence Forces Headquarters which, under the 1954 Act, is the military element of the

Department of Defence, the head of which is the Chief of Staff.

30. By the Instrument of 1998, the business, inter alia, with regard to enlistment and

recruitment was delegated to the Chief of Staff pursuant to the provisions of s. 13 of the

1954 Act. Most importantly, the Instrument specifically states that it “is in substitution for

all assignments and delegations to the Chief of Staff and assignments to the Adjutant-

General and the Quartermaster-General heretofore made under section 13 of the Defence

Act, 1954 (No. 18 of 1954).” The original provisions of s. 13(2) had stated that there shall

be assigned to, inter alia, the Adjutant-General such duties in connection with the

business of the Department of Defence as the Minister may from time to time appoint.

The result therefore is that the Minister’s delegation of the enlistment and recruitment

functions to the Chief of Staff operates as an effective amendment to Statutory

Instrument DFR A10 in terms of the day to day control and organisation of recruitment in

the Defence Forces. According to the Minister, that function has in turn been delegated to

the Deputy Chief of Staff (Operations).

31. The issue thereafter is whether it is correct to say that a decision over enlistment, even

one concerning the interpretation of the regulations and the Act, is one over which the

Minster has retained no control or powers. Under the Constitution, the Defence Forces

occupy an important and sui generis role within the architecture of state institutions. A

significant example of the unique nature of the role is found in Article 38 which provides

that the ordinary system of criminal justice does not apply to those who are subject to

military law.

32. The origin and control of the Defence Forces was set out by Kingsmill Moore J. in Attorney

General and Another v. Ryan’s Car Hire Ltd. [1965] I.R. 642 at p. 663 as follows: -

“In Ireland, by Article 13.4 of the Constitution the supreme command of the

Defence Forces is vested in the President and by Article 13.5.1º, the exercise of the

supreme command is regulated by law. By Article 15 the right to raise and maintain

military or armed forces is vested exclusively in the Oireachtas, and the Oireachtas

has exercised its powers by the Defence Act, 1954. Section 16 of that Act

empowers the Government to raise, pay and maintain defence forces, and s. 17

provides that the military command of, and all executive and administrative powers

in relation to, the defence forces are to be exercised by the Government under the

direction of the President and subject to the provisions of the Act; and that such

powers are to be exercised through and by the Minister for Defence.”

33. It is the appellant’s submission that the above dicta reflects s. 1(x) of the 1924 Act and

also s. 13 of the 1954 Act which places the military element within the Department of

Defence. The submission is that the Minister has very broad statutory powers and

functions in relation to all aspects of the formation and development of the Defence

Forces.

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34. The appellant submits that the Minister’s position is to be understood that in the context

of enlistment, the military element operates independently, immune from oversight, by

any official in his department or even the officials at Defence Forces Headquarters. In

respect of the latter part of that submission, I am of the view that the appellant has

mistakenly identified Defence Forces Headquarters as part of the administrative element

of the Department of Justice; the appellant has wrongly identified the “officer in charge of

recruitment in Defence Forces Headquarters” as a civil servant. I am satisfied that

Defence Forces Headquarters is as stated, a military element, but a military element

established in the Department of Defence.

35. Notwithstanding the confusion by the appellant as to the status of Defence Forces

Headquarters, I am satisfied that s. 13 of the 1954 Act is highly relevant to the

understanding of the correct legal position. The head of Defence Forces Headquarters is

the Chief of Staff (s. 13(1) of the 1954 Act). Defence Forces Headquarters is the military

element of the Department of Defence. The Department of Defence itself is headed by the

Minister (s. 1(x) of the 1924 Act).

36. Section 13(2) of the 1954 Act assigns to the Chief of Staff such duties in connection with

the business of the Department of Defence as the Minister may, from time to time,

determine. Under s. 17 (and through subsequent statutory instruments) the military

command of, and executive and administrative powers in relation to, the Defence Forces

(including the power to delegate command and authority), are exercisable through and by

the Minister. That delegation of command and authority may be made subject to such

exceptions and limitations as he may, from time to time, determine. The original

delegation as to enlistment to the Adjutant-General, in the absence of a restriction on

that delegation, arguably divests the Minister of any power in relation to enlistment

decisions. That delegation has now been made to the Chief of Staff in accordance with the

provisions of s. 13 of the 1954 Act.

37. Section 13(3) of the 1954 Act, states that the Chief of Staff shall be directly responsible

to the Minister for the performance of such duties as may, from time to time, be assigned

to him under subs. 2. In my view, the wording of this section refers to the chain of

command rather than a disciplinary issue for the Chief of Staff. If a disciplinary or

personal responsibility only was at issue, the wording may well have stated that the Chief

of Staff was personally responsible to the Minister for the performance of his duties.

Instead, the statutory provision is that the Chief of Staff is directly responsible to the

Minister. Such phraseology is more consistent with an issue of line management; in the

military it is a chain of command issue.

38. In my view, s. 17(2), which permits the delegation of command and authority to be made

subject to such exceptions and limitations as the Minister may determine, cannot be read

as excluding the Minister from ultimate responsibility over command issues. The ultimate

command is reflected by making the Chief of Staff directly responsible to the Minister.

This preserve of command functions is also reflected in the Instrument of 1998 which

specifically also states that the Chief of State is directly responsible to the Minister for the

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performance of those duties. The legal position therefore is that the Chief of Staff is

responsible for the organisation and conduct of recruitment for the Defence Forces,

although he may delegate those functions. However, as it is a duty assigned to him under

s. 13(2), the Chief of Staff is, in turn, directly responsible for the performance of those

duties to the Minister.

39. The Minister therefore retains a responsibility over the performance of the Chief of Staff in

respect of the duties assigned to the Chief of Staff. This interpretation of the command

structure is entirely in keeping with the other provisions of the 1954 Act and in particular,

the general statement that the military command of, and all executive and administrative

powers are exercisable by the Government and through and by the Minister. Moreover, s.

13 provides that the military element is established in the Department of Defence. The

locating of the military element as part of the Department of Defence also must be read

in accordance with the relevant provisions of s. 1(x) of the 1924 Act. The purpose of the

Acts of 1924 and 1954, in particular when read in light of the provisions of the

Constitution, are to ensure civilian control of the military powers. It is in that context that

the importance of s. 13(2) must be seen. The Chief of Staff, who is the head of the

military element of the Department of Defence, has direct responsibility to the Minister for

the performance of the duties that are assigned to him by the Minister. Section 13(3) is

the ultimate provision ensuring proper civilian control over the military elements.

40. Indeed, the behaviour of the military element, i.e. Defence Forces Headquarters, and the

civilian element of the Department of Defence in their dealings with the appellant in this

case, support the interpretation that has just been given. In the present case, the

appellant’s solicitors wrote to Defence Forces Headquarters and copied those letters to

the Minister. Despite repeated requests to Defence Forces Headquarters, the reply

ultimately only came from the Department of Defence civilian side. The Department

indicated that they were in communication with the military authorities. Ultimately, it was

the Minister who made the final reply, setting out the view of the Minister as to the

correct legal position. It is to be noted that the legal position was phrased in a different

manner to that which had been set out by Defence Forces Headquarters. It is clear that

Defence Forces Headquarters was at all times deferring to the Minister.

41. I do accept that the mere fact that the Department of Defence acted in a particular

manner did not or could not create an estoppel against the Minister if in fact there had

been no power of the Minister to engage or carry out any function in respect of this

matter. I refer to the communications merely to illustrate that, as these matters were

proceeding, the Minister was of a view that he was the appropriate person to respond.

Moreover, the tenor of the Statement of Opposition was also to the effect that there was

no appeal mechanism within the 1954 Act. It had not directly addressed the fact that the

Minister had no power at all in relation to enlistment decisions or any responsibility for the

Chief of Staff’s decision. Having considered the relevant legal provisions, it is clear that

the manner in which the Department proceeded in this case actually reflected the legal

provisions; the Minister did have a role to play in the performance of the Chief of Staff of

the duties assigned to him with regard to enlistment and recruiting.

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42. I am therefore satisfied that the decision of 31st January, 2018 was a decision of the

Minister in respect of enlistment decisions. In so holding, this should not be understood as

creating a system of review for every mishap that might befall an applicant for enlistment

in the Defence Forces. The extent of such a review, if any, may have to await decision on

another day in relation to particular facts. The issue here is a fundamental aspect of the

performance of duties by the Chief of Staff, namely, whether he has correctly applied the

appropriate law to a decision on enlistment. The decision on enlistment made by the Chief

of Staff here was not a decision merely as to personal characteristics of this appellant but

was a decision that all applicants in the same legal situation as the appellant were not

entitled as a matter of law to enlist in the Defence Forces. The Chief of Staff was directly

responsible to the Minister for the performance of such a fundamental duty of interpreting

the legislation correctly. By making him responsible to the Minister, the Minister retains

under the Act and the Instrument a power of review over whether those duties are being

operated in accordance with law.

Second Issue

Is the decision of 31st January, 2018 amenable to Judicial Review?

43. The next issue for decision is whether the Minister’s letter of 31st January, 2018 is a

decision amenable to judicial review. To a certain extent this has already been answered

in the discussion on the previous issue. If the Minister has a power to review because the

Chief of Staff is directly responsible to him for the performance of the duties assigned to

him, then where a review is sought and engaged with, whatever decision is made is then

a decision amenable to judicial review. The Minister has however argued that even if he

had power to engage, what he did in this case was merely a reiteration of the previous

decision and was not in any sense a review. The Minister has referred to the lack of any

statement that it was a review in the Minister’s letter and also to the fact that the

appellant, through his solicitors, had misunderstood the original decision and had sought

to have the Minister apply a different policy.

44. The Minister has also referred to the dictum of Carroll J. in Finnerty v. Western Health

Board (Unreported, High Court, Carroll J., 5th October, 1998) in which she states, “Time

therefore begins to run when the final decision is first made”. The Minister submits that

this could not be anything other than a reiteration of the earlier definitive decision.

45. In the later decision of Sfar v. Revenue Commissioners [2016] IESC 15 McKechnie J. also

referred to the concept of the final decision. In that case, it was clear that the final

decision was made ten months after an original decision. That original decision had been

subject to a request for review.

46. It is generally good practice to seek a review of a decision, where such a review is

permissible. It permits general oversight of whether the original decision maker has

correctly interpreted the law and the facts. It can save expensive court proceedings. If a

government department wish to make clear that they do not have any power of review or

are not going to engage in a review because a review is out of time, this should be done

at the earliest possible time. Of course, endless reviews cannot be engaged in and

Page 13 ⇓

decisions that have become final cannot be revised by simply claiming an entitlement to a

review. Each case must be carefully considered.

47. Relevant to the present case are the following: (i) the appellant requested a review of the

earlier decision, even if he did so on a misunderstanding of the basis for that decision, (ii)

he was asked to withhold from taking legal proceedings in relation to the decision, (iii) he

was told that the Minister was engaging with the military authorities and (iv) the final

decision, being one which the decision maker had power to make, clarified the legal basis

for the original decision. That original basis had wrongly relied upon an administrative

circular (i.e. the Administrative Instruction) rather than referring to the precise legal

provisions. Furthermore, even on the Minister’s case, part of the paragraph referred to

incorrectly stated the law, as will be referred to further in this judgment (although this

section was not relevant to the decision in this appellant’s case). In all those

circumstances, I am satisfied that the decision of 31st January, 2018 was a final decision

which is amenable to judicial review. In the circumstances I am satisfied that the

appellant is within time to challenge the decision with regard to his enlistment in the

Defence Forces.

The final issue

Is the appellant precluded from enlistment by the provisions of s. 53(1) of the 1954

Act, or by DFR A10 recruiting regulations?

48. The trial judge decided obiter that neither the provisions of s. 53(1) of the 1954 Act nor

DFR A10 prevented the appellant’s enlistment. The Minister cross-appealed that decision.

The appellant relies upon the decision of the trial judge.

49. The Minister refers to the findings of the High Court in this regard in which it was stated

at para. 13 that it had been argued on behalf of the Minister that “such a fixed-term

period therefore requires a guarantee by an applicant”. The judgment highlighted the

absence of the word “guarantee” in s. 53 and/or in the balance of the 1954 Act and also

in the regulations. The Minister argues that that the judgment failed to engage with the

requirement in the Act that a person seeking enlistment be available to serve for a period

of twelve years, as prescribed by the regulations.

50. The Minister also submits that the High Court judge, in referring to s. 74 of the Act in

circumstances where a discharge occurs when a person becomes a member of

parliament, was incorrect as that section is concerned with the discharge of a reservist

from the Reserve Defence Force, whereas s. 53 of the provision at issue relates to

enlistment in the Permanent Defence Force. More importantly, the Minister submits that

those provisions relate to discharge by operation of law rather than eligibility for

enlistment in the first place.

51. The Minister also submitted that the trial judge incorrectly considered ss. 85 and 89 of the

1954 Act and that she was incorrect in referring to s. 53 as being akin to a fixed-term

contract. It is submitted the trial judge was also incorrect to refer to the ability to buy out

a term.

Page 14 ⇓

52. In the Minister’s submission, s. 53(1) is clear on its face. It is submitted that the section

provides for an enlistment period of twelve years or for such lesser period as may be

prescribed by law. That period is now a period of five years in the Permanent Defence

Forces and seven years in the Reserve Defence Forces. It is the Minister’s submission that

the person seeking to enlist must be in a position to commit to the period required under

the Act, as prescribed by the Defence Force regulations. Counsel refers to s. 53(2) which

states that the enlistment of a person shall be for the whole of the term of his original

enlistment in the Permanent Defence Forces or for such portion of that term as is set out

and prescribed in regulations. It is submitted that a person with a time-limited permission

to reside in the State cannot genuinely provide that commitment. A person in the same

circumstances as the appellant who had only eighteen months left on his permission to

remain in the State could not give that commitment.

53. The Minister relied upon the affidavit of Commandant Collins who averred that the

Minister took the view that the statutory intention behind the temporal limitation was one

designed to ensure that enlisted persons have an allegiance to the State which is

reflected in an entitlement to reside in the State on an open-ended basis, or at least for

the period of enlistment concerned. Commandant Collins submitted that persons who are

enlisted enter into a particularly sensitive institution designed to ensure the public

security of the State and to defend that State from both internal and external threats. In

submissions, the Minister expanded upon this by stating that there may be particular

considerations where a person is on deployment when their permission expires. They will

be a serving member of the Irish Defence Forces but not entitled to reside in the country.

It is also submitted that there may be particular implications in calling such a person back

from deployment in difficult to access conflict zones.

Discussion

54. As set out above, s. 53(1)(a) does not make express provision that a person must have

an entitlement to reside in the country for at least the full period of twelve years. The

Minister’s submission is that such an interpretation is the only one that can be given to

the legislation as it follows inexorably from the requirement to enlist for a prescribed

term.

55. Prior to looking at the DFR A10 recruiting regulations, which provide for the class of

persons who may be enlisted, it is perhaps of some value to distinguish between the

eligibility of persons to be appointed officers and the eligibility of other persons to be

enlisted in the Defence Forces under the 1954 Act. Section 41 provides that Irish citizens

and any other persons specifically approved by the Minister are eligible to be appointed as

officers. By contrast, the 1954 Act has no such restrictions on the enlistment of recruits,

instead by s. 56 it delegates to the Minister the power to regulate in relation to the

persons to be enlisted.

56. Regulation 12, DFR A10 provides a list of the persons who will not be enlisted. It (now)

sets out thirteen categories of persons who are ineligible. Amongst those ineligible, are

persons already in the Defence Forces, homeless persons, military personnel of other

countries, a person ordinarily resident outside Ireland and a person who does not reach

Page 15 ⇓

the standard of intelligence for recruits as laid down from time to time by the General

Staff. Nowhere in the list does it set out that a person is ineligible if they do not have

permission to reside in the State for the entirety of the term of enlistment.

57. The Minister also points to other provisions in the Act which amount to enlistment

requirements. In particular, the Minister refers to age limits, minimum heights and

physical standards. As regards age limits, it appears that for the general service in any

corps, the age limit is twenty-five years on the closing date for receipt of applications for

each relevant competition. In that regard this appellant is entitled to reapply for

enlistment and is entitled to be enlisted if he has a permission for at least twelve years’

residence in the country or if in fact that is not a legally required permission, as will be

discussed below.

58. As a guide to the meaning of s. 53 and the requirement to be able to commit to the entire

term of enlistment, the Minister points to s. 85 which provides: -

“Every officer and man of the Permanent Defence Force shall be liable at all times

to render military service within the State …”

The Minister also relies upon s. 89 which refers to –

“Every reservist who is called out on permanent service shall be liable at all times

to render military service within the State …”

59. In the Minister’s submission, the reference to “at all times” demonstrates that a person

must be liable throughout the period of twelve years to render military service within the

State. In my view however, the fact that s. 89 refers to the reservists who are called out

on permanent service being liable at all times to render military service within the State,

indicates that “at all times” refers back to the context in which it arises. In s. 89 therefore

it is while on permanent service the liability arises for recruits. Under s. 85, the liability is

while one is a member of the Permanent Defence Force. In other words, “at all times”

refers to the time when one is actually a member. In my view such an interpretation is

supported by the continuation of both s. 85 and s. 89 which states –

“… and, if he is employed on a State ship or service aircraft, be liable at all times

while so employed to render military service outside the territorial seas of the

State.”

The reference to “at all times” has to be read in the context of one’s membership of the

Permanent Defence Force or one’s employment on a particular State ship or service

aircraft to be liable at that particular time for service outside the State. It is in effect a

duty imposed on members of the Defence Forces, while on permanent service, that they

be liable to render service at all times in the state, or outside the state if serving on a ship

or aircraft outside the territorial seas of the State. Section 85 thus has no relevance to

the interpretation of s. 53 of the 1954 Act, which relates to the term of enlistment and

not the duties when enlisted.

Page 16 ⇓

60. I agree with the Minister’s submission that the discharge provision under s. 74 does not of

itself assist in interpreting the meaning of the term of enlistment. Section 74 only applies

to a reservist who becomes a member of either house of the Oireachtas or a member of

the European Parliament, providing that they shall stand discharged from the Reserve

Defence Force. That involves a discharge and not an enlistment. It does not have a direct

bearing upon the meaning of the term of enlistment. It is axiomatic that persons could,

for various reasons, including illness and misconduct, be discharged from the Permanent

Defence Force. Moreover, the legislation provides for the ability to purchase one’s

discharge from the Permanent Defence Forces in certain circumstances. The liability to be

discharged does not of itself affect the term of enlistment.

61. Prior to making a determination as to the meaning of s. 53 of the 1954 Act, it is also

appropriate to consider the provisions relating to those persons who are given

international protection. The appellant has been declared a person entitled to subsidiary

protection within the meaning of the International Protection Act, 2015 (hereinafter “the

2015 Act”). He is therefore, along with a person declared a refugee, a qualified person

within the meaning of s. 53 of the 2015 Act. Section 53 states that: -

“A qualified person shall be entitled—

(a) to seek and enter employment, to engage in any business, trade or

profession and to have access to education and training in the State in the

like manner and to the like extent in all respects as an Irish citizen,

(b) to receive, upon and subject to the same conditions applicable to Irish

citizens, the same medical care and the same social welfare benefits as those

to which Irish citizens are entitled,

(d) subject to section 55, to the same rights of travel in or to or from the State

as those to which Irish citizens are entitled.”

62. Section 11 of the 2015 Act provides that –

“(1) A person shall cease to be eligible for subsidiary protection when the circumstances

which led to his or her eligibility for subsidiary protection have ceased to exist or

have changed to such a degree that international protection is no longer required.

(2) In determining whether subsection (1) applies, regard shall be had to whether the

change of circumstances is of such a significant and non-temporary nature that the

person no longer faces a real risk of serious harm.

(3) Subsection (1) shall not apply to a person eligible for subsidiary protection who is

able to invoke compelling reasons arising out of previous serious harm for refusing

to avail himself or herself of the protection of his or her country of nationality or,

being a stateless person, of the country of former habitual residence.”

63. Under s. 52 of the 2015 Act, a subsidiary protection declaration may be revoked by the

Minister for Justice and Equality if the person should have been or is excluded from being

Page 17 ⇓

eligible for subsidiary protection under s. 12 of the said Act. Section 12 excludes a person

from being eligible for subsidiary protection where there are serious reasons for

considering that he or she has committed a crime against peace, a war crime, or a crime

against humanity, or has committed a serious crime or constitutes a danger to the

community or the security of the State. The revocation may also occur if the person

ceases to be eligible for subsidiary protection or in other circumstances where a

misrepresentation or omission of facts was decisive in the decision to give protection.

There is a detailed process, including the option of an appeal to the Circuit Court, to be

followed before such a revocation can take place.

64. Under s. 54 of the 2015 Act, a qualified person shall be given a permission to reside in

the State for a specified period of not less than three years. That permission, according to

subs.3: -

“(a) shall be renewable unless compelling reasons of national security or public order

(“ordre public”) otherwise require, and

(b) shall cease to be valid where the person to whom it was given ceases to be a

qualified person … .”

65. The appellant’s initial claim in these proceedings was that there was a prohibited

discrimination against those with a declaration of subsidiary protection because the

Minister permitted refugees to enlist in the Defence Forces. As qualified persons under the

2015 Act, refugees were subject to the same restrictions as those entitled to subsidiary

protection. The appellant had exhibited an advertisement seeking applications to join the

Defence Forces as an Air Corps Apprentice Aircraft Technician. This indicated that persons

who had been granted refugee status in accordance with the provisions of the 2015 Act

were entitled to enlist. It also stated that nationals of an EEA State, or the Swiss

Confederation were entitled to join. Furthermore, it stated that nationals of any other

State lawfully present in Ireland and who had five years’ lawful residence here were

entitled to apply.

66. The provisions of DFR A10 do not make any specific reference to refugees or members of

the European Economic Area. The circular produced by the military authorities under DFR

A10, namely the Administrative Instruction A10, referred to citizens of European Union

Member States and states that “limitations as to residency in Ireland cannot be set.” The

circular does not refer to refugees at all.

67. As a matter of further complexity, the Administrative Instruction A10 provides for a

residence requirement that non-nationals must have a minimum of three years legal and

unbroken residence in the State. No such requirement is set out in the regulations in DFR

A10. From the foregoing, as well as from evidence produced in respect of website

information and application forms, it is apparent that up to the point of the appellant’s

application for enlistment, different service corps of the Defence Forces were applying

different minimum residence requirements.

Page 18 ⇓

68. It is now the position of the Minister that some of these interpretations as to eligibility for

enlistment were not correct. The Minister now submits that refugees, as qualified persons

under the 2015 Act, are only entitled to enlist if they have a minimum residence

permission of at least twelve years in the State, thus placing them in the same position as

holders of subsidiary protection. On the other hand, in the course of submissions, the

Minister appears to maintain that EU citizens cannot be treated any differently from an

Irish citizen and are entitled to enlist. Furthermore, the Minister no longer appears to

stand over the first part of the relevant paragraph of the letter of the 4th May 2017,

which stated that non-nationals required three years’ legal and unbroken residence in the

State prior to enlistment (in apparent reference to para 127(c)(1) of Administrative

Instruction A10 which referred to non-EU non-nationals). From the foregoing, I am

satisfied that there has been a clear inconsistency in how the military authorities applied

the legal provisions as to enlistment.

69. The Minister has placed significant emphasis on the argument that s. 53 requires that a

person must be both willing and able to sign up to the term of enlistment, namely the

twelve year service. In the context of a person being willing to sign up to that term, the

Minister gives the example of a person who states that they wish to serve for a couple of

years to earn money prior to doing another apprenticeship or perhaps going to college.

The Minister submits that would not be permitted under the Act as the person has to be

willing to sign up to the full term. In my view, that raises a different legal and factual

situation. A person who expresses those views would quite rightly not be enlisted because

they were in effect repudiating the very basis of enlistment. The enlistment is for a term

of the prescribed period and at the time of enlistment a person must willingly sign up to

that period. In the present case, the appellant is prepared to and wishes to sign up for

the full period. The willingness to commit to the term is something that the person has

control over and is the basis for entering into the commitment.

70. The Minister’s argument is that apart from being willing, the appellant must also be

legally able, to sign up to an entire twelve year period. In his legal submissions, the

Minister submitted in respect of s. 53(1)(a) that: -

“On its face therefore it is clear that the person seeking enlistment must be able to

commit to enlistment for the term which is twelve years.”

71. For the purpose of countering the Minister’s construction, the appellant points to other

situations where at the time of enlistment there exists a possibility that the term of

enlistment may not be able to be fully served. Counsel for the appellant referred to the

position of Irish citizens who are not citizens by birth but citizens by naturalisation. In the

Defence Force, by contrast with the position of officers, enlistment is open on a general

basis to persons who are not Irish citizens. The appellant submits that if the Minister’s

logic is correct as to providing proof of entitlement at the time of enlistment to serve the

prescribed term, there must also be a distinction between the entitlement to enlist for

those ordinarily resident in the State, who are Irish citizens by birth and those who are

Irish citizens by naturalisation.

Page 19 ⇓

72. Citizens by naturalization are liable under s. 19 of the Irish Nationality and Citizenship

Act, 1956, as amended, to have their certificates of naturalisation revoked by the Minister

for Justice and Equality. Revocation can be based on a number of reasons including if the

issue of the certificate was procured by fraud, misrepresentation whether innocent or

fraudulent, or concealment of material facts or circumstances. It can also be revoked in

circumstances where the person to whom it is granted is also, under the law of a country

at war with the State, a citizen of that country. A person’s entitlement to reside in the

country is predicated upon, in the first place, their right to citizenship and, if not a citizen,

on a right to reside in the jurisdiction granted by the Minister for Justice and Equality in

accordance with law.

73. The legal implication of those provisions is that a person who is a naturalised citizen can

only make a commitment that they are willing and able to commit to the term of

enlistment insofar as permitted by law to so serve. Indeed, a particularly striking

provision is that the certificate of naturalisation would be revoked where the person is

also a citizen of a country at war with this State. If such a situation happened with

respect to a naturalised citizen serving in the Defence Forces, one can readily see that

such a person may no longer be welcome in the Defence Forces. The provisions of DFR

A10 provide for a discharge of a person whose services are no longer required. The

regulation 58(r)(i) specifically states that this applies in the case of “a man whose

discharge is clearly desirable in the interests of the service and in whose case no other

reason for discharge is applicable.” That provision is a catch-all one which would permit

the discharge from the Defence Forces of those who are security risks. Indeed, I am of

the view that the Minister’s reliance on issues of national security to aid in the

interpretation of s. 53 is wholly misplaced. If a real issue of national security arises in

respect of an enlisted person, one would expect immediate and direct action to be taken

by the relevant military authorities using this power or any other lawful and appropriate

power, rather than waiting for the result of any other potentially lengthy procedure

concerning revocation of a certificate of naturalisation.

74. The 2015 Act does not give to a qualified person the same ostensibly open-ended

residence that a naturalised Irish citizen has subject to the right of the Minister to revoke

the citizenship. On the other hand, s. 54(3) of the 2015 Act, states that the permission

shall be renewable unless compelling reasons of national security or public order

otherwise require. In my view therefore, the mere fact that the appellant’s residence is

only for a period of not less than three years, would not place him in any different

situation to a naturalised Irish citizen by virtue of s. 54(3), as it is only in circumstances

of compelling reasons of national security or public order that his permission to reside in

the State would be revoked. Indeed, as stated above, if there were compelling reasons of

national security, one would expect the military authorities as distinct from the Minister

for Justice and Equality to make a decision that he should stand discharged from the

Defence Forces. Similarly, if there are reasons of public order why he cannot have his

residence renewed these should come under the same provision in DFR A10 or those

which deal with convictions in the civil courts.

Page 20 ⇓

75. There is of course a further distinction to be made in relation to a person with a

declaration of subsidiary protection to those who are naturalised Irish citizens. This is

because pursuant to s. 52(3) of the 2015 Act, which is also reflected in s. 54(3)(b), the

Minister may revoke a subsidiary protection declaration and consequently a person’s

power to reside in the State, if, inter alia, they cease to be eligible for subsidiary

protection. That is a matter entirely outside of the control of the appellant. The cessation

of eligibility for subsidiary protection occurs where a person’s eligibility has changed to

such a degree that international protection is no longer required. In determining whether

a person ceases to be eligible for subsidiary protection, regard must be had to whether

the change of circumstances is of such a significant and non-temporary nature that the

person no longer faces a real risk of serious harm. Moreover, s. 11(3) provides that s.

11(1) does not apply to a person eligible for subsidiary protection who is able to invoke

compelling reasons arising out of previous serious harm for refusing to avail himself or

herself of the protection of his or her country of nationality.

76. As set out above, in s. 52 of the 2015 Act, there is a set procedure with which the

Minister must comply before a person can have subsidiary protection withdrawn. There is

also a right of appeal to the Circuit Court. This would not be in any sense an automatic

process.

77. The Minister’s argument that only those with a right to reside for a minimum period of

twelve years or an open-ended period are entitled to enlist is not a remorselessly logical

one. An Irish citizen through naturalisation may have an apparently open-ended right of

residence but as a matter of law that right of residence can be cut short through the

revocation of the certificate of naturalisation. The Minister has not attempted to argue

that naturalised citizens are not entitled to apply for enlistment.

78. Similarly, a person entitled to subsidiary protection has what is in effect an open-ended

right of residence; see, s.54(3)(a) and (b) of the 2015 Act above. In reality as long as the

appellant has a declaration of subsidiary protection he is entitled as a matter of law to

have his permission renewed save in circumstances of national security or public order. If

such reasons of national security or public order arose, undoubtedly the Minister for

Defence would be entitled to discharge him from the Defence Forces.

79. With respect to the declaration of subsidiary protection, the cessation of his qualification

for the declaration may only come about in certain circumstances, many of which reflect

the circumstances where a certificate of naturalisation may be revoked, e.g.

misrepresentation or omission of facts. In relation to the possibility of exclusion from

subsidiary protection under s. 12, these are matters which would make him liable to

discharge under the general rules for the Defence Forces in any event. There can be no

security concern because he might lose his subsidiary protection for reasons that he has

committed crimes against peace, serious crimes, or is a danger to the community or

security of the State as undoubtedly this would justify his exclusion from the military.

80. It should also be noted that the Minister was at all times free to make regulations as to

how persons may be enlisted. If there was a genuine concern about persons without the

Page 21 ⇓

full right of residence in the State for the entire term of enlistment, those without such

right of residence could have been excluded by regulations i.e. Regulation 12 of DFR A10

could have included such a person as ineligible. That observation is subject to the

discussion on s. 53 of the 2015 Act below.

81. The only possible other aspect that differentiates the appellant from the circumstances

that might give rise to a naturalised Irish citizen losing their certificate is under s. 11 of

the 2015 Act. That provides for cessation of eligibility for protection, when the situation

will have changed in his country of origin to such an extent that international protection is

no longer required. That however is not an automatic process, it must be considered in a

serious and deliberative fashion by the Minister for Justice and Equality. Even if

circumstances have changed, there may be compelling reasons arising out of previous

serious harm that a person can invoke for refusing to avail of the protection of his or her

country of nationality. The Minister makes the point that subsidiary protection is a

temporary status and therefore a person cannot commit to the term of enlistment at the

outset. In my view however, there is no meaningful difference between that temporary

status and the conditional status of a naturalised Irish citizen. To say that the s. 53 term

of enlistment permits the latter but, on its face, excludes the former would be illogical.

82. For the reasons I have set out I am satisfied that there is no basis for construing or

implying into s. 53 of the 1954 Act that a person must have an unimpeachable

entitlement to reside within the State for the full period of the term of enlistment at the

time of enlistment. It is not expressly provided for in the section and reasons of national

security or public order do not necessitate that this construction must be given.

83. It is appropriate to mention further arguments that were made by the parties in support

of their contentions. The appellant has also relied upon the provisions of s. 53 of the 2015

Act to argue that s. 53 of the 1954 Act cannot be given the meaning for which the

Minister contends. Section 53 of the 2015 Act states that a qualified person (entitled to

subsidiary protection or a refugee) is entitled to seek and enter employment “in the like

manner and to the like extent in all respects as an Irish citizen”. It is noted that there is

no distinction made between those Irish citizens who are citizens by birth or by

naturalisation. Indeed, there appears to be no basis in law for any distinction between the

categories of citizenship save for the important distinction that those who are naturalised

citizens may be subject to having their citizenship taken away.

84. The appellant submits that in interpreting s. 53 of the 1954 Act, regard must be had to s.

53 of the 2015 Act. The Minister submits that there is no basis for so doing as each Act is

a stand-alone Act as each of the statutory provisions must be provisions must be

construed on a stand-alone basis.

85. In my view, it is of some relevance that the 2015 Act gives an entitlement to work in the

like manner and the like extent in all respects as an Irish citizen. As stated above, the

only reference to Irish citizens who may serve in the Defence Forces is in s. 41 of the

1954 Act and this refers to officers. This Court does not have to decide whether s. 41

would override the provision in the 2015 Act. It is at least arguable however that the only

Page 22 ⇓

interpretation that can be given to the 2015 Act is that the reference therein “to the like

extent in all respects as an Irish citizen” could only mean that even where there is a

requirement to be an Irish citizen, a person with a declaration of subsidiary protection has

the same rights. In the present case the matter at issue, namely the right to enlist, is not

restricted to Irish citizens.

86. The Minister has not argued that the phrase “seek and enter employment’” could not and

did not mean employment other than the Defence Forces. Of course, according to the

Supreme Court in The State (Gleeson) v. Minister for Defence [1976] I.R. 280 at 294 an

enlisted person has a statutory contract and is not in law a “servant”. An enlisted person

is nevertheless “employed” as even the reference in ss. 85 and 89 to “employed on a

State ship” demonstrate. The Minister’s argument was simply that the provisions of s. 53

of the 1954 Act were specific in requiring that a person had the ability to commit to a

minimum twelve year term of enlistment because of their entitlement to reside in the

State throughout that entire period. The Minister submits that Irish citizens can so

commit to such period and that it is such a period which is required under the Act. Aside

from the observations I have made about naturalised Irish citizens, it seems to me that

this argument is incorrect. The 2015 Act provides for the consequences in terms of

entitlements of those who are qualified persons within the meaning of that Act. This

means that in respect of the areas addressed in s. 53 of the 2015 Act, qualified persons

are to be treated like Irish citizens. In terms of Irish citizens, the only excluding factors

under s. 53 of the 1954 Act and DFR A10 are those set out in the relevant provisions of

DFR A10. For example, an Irish citizen has to be ordinarily resident in the State to enlist

and cannot be a homeless person. According to the Minister, an Irish citizen, including a

naturalised citizen, is able as a matter of law to sign up to the term of enlistment. The

Minister submits that the 2015 Act does not by any implication or otherwise amend the

1954 Act.

87. This issue only arises if I had found that the 1954 Act required an ability as a matter of

law at the time of enlistment to commit to a twelve year period. I have held that it does

not do so. Accepting for the moment that s. 53 of the 1954 Act is not so clear, the

question arises as to what, if any, impact the 2015 Act might have upon it. As Dodd in

Statutory Interpretation in Ireland, 1st Ed., (Dublin, 2008) states at para. 4.68: -

“Implied amendment or repeal may arise as between a later provision and an

earlier provision which it has the power to amend. Where the later provision does

not expressly amend or repeal the earlier one but is inconsistent with the earlier

provision, then a court may declare that the earlier provision is amended or

repealed by implication in so far as is necessary to avoid the inconsistency.”

There is of course a countervailing maxim which is generalia specialibus non derogant.

This provides that where a provision deals with a particular situation in special or specific

terms, and the language of a more general provision could be taken to apply to the same

particular situation, the general provision will not be held to undermine, amend or

abrogate the effect of the special words used to deal with the particular situation.

Page 23 ⇓

88. The Minister’s position is that the 1954 Act is specialist legislation and could not therefore,

be amended by the 2015 Act. In my view, the 2015 Act, in its relevant part, deals

specifically with the employment rights of those entitled to subsidiary protection. Given

that the Equal Status Act, 2000 and Employment Equality Act, 1998 already provide for

protection against discrimination on the grounds of nationality or ethnic or national origin,

there must have been a reason greater reason than simple non-discrimination in

providing, in the 2015 Act, what are essentially rights equal to those of Irish citizens as

far as access to employment is concerned. In those circumstances, it seems to me that

s.53 of the 1954 Act must be construed in light of the provisions of s. 53 of the 2015 Act.

89. In those circumstances, the appellant is entitled to seek and enter employment in the

same way as an Irish citizen would be. He cannot be discriminated against because of his

status as a person entitled to subsidiary protection. He has a statutory entitlement to be

enlisted in the same manner and to the like extent as an Irish citizen. He cannot be

prohibited from enlistment by virtue of his status as a qualified person under the 2015

Act. To hold that the term of enlistment required him to have the right to remain in the

State for at least twelve years would amount to a prohibition on his right to seek and

enter employment in the like manner and to the like extent as an Irish citizen.

90. The appellant has also relied on the case of N.H.V. v. Minister for Justice [2017] IESC 35,

[2018] 1 IR 246, the decision on the right of asylum seekers to work. The Minister says

that that is irrelevant, in circumstances where it revolved around the right to work based

upon the dignity of the person. In my view, in the particular circumstances which apply

here, there is minimal assistance to be gained from reliance on this case.

91. The appellant had also relied upon the Minister’s interpretation of s. 53 of the 1954 Act as

not applying to EU citizens. The Minister had submitted that EU citizens after three

months have an automatic right to five years’ residence in the country and thereafter a

right of permanent residence (see Directive 2004/38/EC of 29 April 2004, O.J. L 158/77,

30.4.2004). In my view, while the rights of EU citizens are extremely strong in terms of

residence, they are not absolute. Article 27 of the said Directive gives member states the

right to restrict the freedom of movement of Union citizens and family members

irrespective of nationality on grounds of public policy, public security or public health.

These are based on the personal conduct of an individual. Again, the restriction on

freedom of movement is highly circumscribed but nonetheless demonstrates that even EU

citizens do not have absolute rights to remain in this jurisdiction indefinitely. It is the case

that their rights are more akin to the rights of a naturalised Irish citizen than to an Irish

citizen by birth. On the other side of the coin, their rights to reside in the jurisdiction are

wider than a person entitled to subsidiary protection as their rights are solely dependent

upon personal conduct of the EU citizen rather than outside factors.

92. I am satisfied however, that the fact that EU citizens and Irish citizens by naturalisation

can have their residence in this jurisdiction terminated within the twelve year period, lend

support to the interpretation of s. 53 of the 1954 Act as one which does not support the

contention of the Minister that there must be a complete and open-ended right of

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residence for twelve years. Indeed, in that respect the Minister’s position in the letter of

31st January, 2018 is inconsistent. If the only objection is that the period of residence

must be open-ended, or as a minimum must cover the stated twelve year period, there

can be no objection based upon the contention that he could cease to be a person entitled

to a declaration of subsidiary protection. That is a situation where one’s residence permit

shall cease. Thus, a distinction between having an open-ended right of residence or a

twelve year one is a meaningless distinction in the context of this case. I do accept

however that the Minister’s submissions were somewhat more nuanced than his letter and

appear to accept that it is his temporary status per se that disqualifies the appellant.

93. In my view, the Minister has constructed an argument and placed upon s. 53 of the 1954

Act an interpretation that it does not bear. The Minister cannot be bound in estoppel by

interpretations that his department (whether the civil or military element thereof) have

given to this section previously. I simply refer to that to highlight the confusion and lack

of clarity as to the meaning of s. 53 by the Department of Defence. The reason for that

confusion and lack of clarity is because s. 53 actually provides for a simple requirement

that those who are enlisting must sign up to a term of enlistment for a prescribed period

of time. Those who are unwilling to sign up to such a period could not be enlisted under

the Act. However, those who are willing to sign up and who are otherwise not disqualified

by the recruiting regulations made under the Act are entitled to be enlisted. If by

operation of law or otherwise, their entitlement to reside in the State ceases, then the

applicable rules and regulations concerning rights of residence will come into play. If,

through lack of right of residence, and therefore permission to work, or through an act of

deportation, they are no longer in a position to serve in the Defence Forces, they will be

liable to discharge. Up until that point occurs, they are obliged to render service to the

State in accordance with the terms of their enlistment. If the Minister has a genuine

concern about persons who have restricted or limited rights of residence he remains free,

subject to the statutory provision, set out in s. 53 of the 2015 Act, to amend the

enlistment and recruiting regulations.

94. I would therefore allow this appeal. The precise details of the Orders to be made

consequential on this judgment will be finalised having considered the submissions of

counsel.

Result: Allow appeal