High Court of Ireland Decisions

1. The Applicant is a former Romanian professional footballer who has brought an application for Judicial Review pursuant to leave granted to him by an Order of Mr Justice Kelly made 16 March, 1998. I do not propose to recite all the precise reliefs set out in the Statement of Grounds and the Order of Mr Justice Kelly but the main reliefs can be broadly summarised as follows:-

1. An Order of Mandamus directing the Respondents, their servants or agents to consider the applications for refugee status and asylum and for humanitarian leave to remain in the country by the above named Applicant in accordance with the United Nations Convention relating to the Status of Refugees, 1951 as amended and in particular in accordance with what is generally known in Ireland as the "Von Arnim letter".

2. An Order of Certiorari quashing the decisions of the Minister dated 13 January, 1996 (refusal of refugee status) and/or dated 15 January, 1998 (reaffirming his original decision to refuse refugee status based upon the recommendation of the Interim Refugee Appeals Authority) and/or dated 10 March, 1997 (refusing humanitarian leave to remain).

3. An Order of Certiorari quashing the decision to deport the Applicant from Ireland which was made on 20 February, 1998.

4. A Declaration that the Aliens Order, 1946 pursuant to which the decision to deport has been made is ultra vires the Aliens Act, 1935 and that the making of deportation orders pursuant to the Aliens Act, 1935 and the Aliens Order, 1946 is ultra vires.

5. A Declaration that Section 5 of the Aliens Act, 1935 is not consistent with the Constitution of Ireland.

Apart from questions as to the validity of the Aliens Order, 1946 or Section 5 of the Aliens Act, 1935, the justiciable complaints made by the Applicant are:-

1. That there was no basis for refusing refugee status (a point largely abandoned in the course of oral argument).

2. That reasons were not given for the refusal of either the refugee status or of humanitarian permission to remain in the country contrary to the principles set out in the Von Arnim letter and to general constitutional principles.

3. That before the Applicant's appeal to the Interim Refugee Appeals Authority had been determined and more importantly before the final decision was made by the Minister, the Von Arnim letter and the procedures provided for therein had become superseded by what is known as the Hope Hanlan letter and the new procedures provided by it.

I will deal with each of these complaints in turn.

The first of them which is no longer being seriously pursued is clearly unstateable. It has been held time and again that it is no function of the Courts to consider the merits of an application for refugee status or asylum. The decision of the Minister on such an application could only be reviewed if that decision flew in the face of common sense and was wholly and clearly unreasonable. The principles laid down in O'Keefe v An Bord Pleanala, 1993 1 IR 39 apply. In the processing of the Applicant's claim for refugee status the Department of Justice quite properly consulted the office of the representative for the United Kingdom and Ireland of the United Nations High Commissioner for Refugees. In a very detailed letter dated 17 October, 1996 from Mr Sten Bronee, Deputy Representative, to Ms Colette Morey of the Immigration and Citizenship Division of the Department of Justice, the background of the Applicant in Romania is very fully set out and explained. It was noted in the letter that the Applicant had joined the Securitate as a trainee in 1984 but left two months afterwards. After that he was primarily a professional footballer playing for various clubs in Romania and Hungary. Ethnically he is Hungarian. The Applicant had alleged that he and his wife, whom he had married in 1987 but from whom he is now separated, had both joined the Securitate for a short training period and that a former colonel in the Securitate had been exercising "psychological pressure" on the couple after their departure from that organisation with alleged adverse effects on their examination results. It is pointed out in the letter that there is no corroborating proof of this. The Applicant claimed that he was told by a fellow student in 1991 who was then in the Securitate that "the colonel was watching him all the time". He alleges that in January 1994 he was involved in a fight with three people, one of whom was also involved in a fight with him in 1991 and that in March 1994 he was caught up with a demonstration and was arrested and beaten while in custody and released without charge after three days. The comments of the office of the representative for the United Kingdom and Ireland however are to the effect that the human rights situation in Romania has enormously improved since 1989 and the office was of the view that unless further information was forthcoming, the circumstances put forward by the Applicant did not themselves amount to persecution under the 1951 UN Refugee Convention. Furthermore, it was pointed out that there was no evidence that the treatment received from the colonel was official state policy and not the work of an over zealous officer who also happened to have a grudge against the couple. Nor was there evidence that the Romanian authorities were unwilling or unable to protect the Applicant against random attacks on him. It was the view of the office therefore that the Applicant had not established a claim to refugee status under the Convention. In the light of that advice the Minister's decision can hardly be said to be flying in the face of reason.

I will now address the argument that reasons ought to have been given. The initial letter of refusal is dated the 13 January, 1996 but this appears to be a mistake. It ought to have been dated 13 January, 1997. It is a letter from Ms Colette Morey of the Department to the Applicant and it is in the following terms:-

"Dear Mr Laurentiu,

I am directed by the Minister of State at the Department of Justice to refer to your application for refugee status. The Minister of State has considered the application made by you for refugee status and having consulted with the UNHCR she is of the view that your application is not such as to qualify for recognition as a refugee in accordance with the definition contained in the 1951 UN Convention relating to the status of refugees as amended by the 1967 New York Protocol. You have not established a well-founded fear of persecution.

Notwithstanding this decision, you may, if you so wish, appeal this decision to the Appeals Authority. Judge Peter O'Malley (retired) former President of the Circuit Court has been appointed to act as an Interim Appeals Authority for any applicant refused recognition as a refugee.

If you wish to lodge an appeal against the Minister's decision then you should do so by notifying the undersigned in writing within fourteen days of the date of this letter.

Any further relevant information in connection with your case should be submitted with the notice of an appeal.

Yours sincerely."

I agree with the view expressed by Mr Fennessy of the Department in his Affidavit that that letter does in fact contain reasons. In my view the letter is a sufficient statement of reasons. The reasons were confirmed in a letter of the 25 August, 1997 from Mr Barry O'Hara, Assistant Principal Officer, Immigration Citizenship, to Ms Blackwell, Solicitor for the Applicant. Among other matters that letter states as follows:-

"Your client's application for refugee status was refused because the Minister, following consideration of the views of the UNHCR formed the opinion that your client's explanations were not credible and has not established a claim for refugee status under the 1951 UN Refugee Convention."

The letter goes on to explain the appeals procedure. The Applicant did in fact appeal but his appeal was turned down by Mr Justice O'Malley. The Appeals Tribunal's function is at any rate recommendatory only. It is unnecessary for me to decide whether in all the circumstances there were constitutional obligations to give reasons independently of the established procedures under the Von Arnim letter. I am quite satisfied that adequate reasons were given for the purposes of fulfilling any constitutional obligation which there might be. The question of a constitutional obligation to give reasons is perhaps more relevant to the subsequent application which was made for permission to remain in the country on humanitarian grounds. As has been mentioned the Applicant is separated from his Romanian wife but a divorce has not yet been obtained. He has been living for quite some time with an Irish girl in Dublin and she became pregnant by him. Sadly there was a miscarriage and the Applicant therefore does not have any child by her. It is suggested, however, that it is not practicable for her to move to Romania and that it would be a great hardship to him and to her for a deportation order to be enforced. The argument is that effectively it would break up a de facto common law marriage. All of this is elaborated on in a very detailed letter of 29 January, 1998 written by the Applicant's Solicitor to Mr John Lynch of the Department of Justice, Equality & Law Reform, Appeals Section, Asylum Division. Ms Blackwell makes the point about the long-standing relationship with the Irish girl, Michelle O'Rourke. She states that it is the hope of the couple to marry and bring up a family in Ireland. She goes on to say that the Applicant would face no future at all in Romania, that the authorities would know all about him as he had a fairly high profile through football. She makes a number of other points of a humanitarian nature that are all set out in the letter. But by letter of 10 March, 1998 from Mr W O'Dwyer, Immigration Citizenship Division of the Department, the following is stated:-

"RE: SORIN LAURENTIU

Dear Sirs,

I am directed by the Minister for Justice, Equality & Law Reform to refer to your request for permission to remain in Ireland on behalf of the above named and to inform you that having taken all the circumstances of his case into consideration including the points raised in your submission, it has been decided not to grant your client permission to remain.

A deportation order (copy enclosed) has been signed and will be forwarded to An Garda Siochana to ensure implementation.

Yours faithfully."

I do not think that there was any obligation constitutional or otherwise to set out specific or more elaborate reasons in that letter as to why the application on humanitarian grounds was being refused. The letter makes clear that all the points made on behalf of the Applicant had been taken into account and of course they were set out in a very detailed manner. The letter is simply stating that the Minister did not consider the detailed reasons sufficient to warrant granting the permission to remain in Ireland on humanitarian grounds. It was open to the Minister to take that view and no Court can interfere with the decision in those circumstances.

I now turn to the points made on foot of the Hope Hanlan letter. It is sufficient in this regard to refer to paragraph 27 of the Affidavit of Mr Richard Fennessy. He states in that paragraph that the procedures set out in the Hope Hanlan letter of 10 December, 1997 were not applied to the Applicant and he claims that they are therefore of no relevance to these proceedings. That seems to be clearly so. I cannot accept any arguments put forward by Mr Hogan to the effect that Hope Hanlan did have relevance in that it came into play before the Appeal Tribunal had given its decision and before the Minister had made a decision to make and had in fact made a deportation order. It is quite clear that this entire application was subject to the Von Arnim procedures and was treated as such by the Department and I believe that that was correct.

It follows from what I have been saying that it is my view that unless it can be established that the Aliens Order, 1946 or at least the relevant part of it is invalid as being ultra vires the Act or that Section 5 of the Aliens Act, 1935 is inconsistent with the Constitution, the validity of the deportation order must be upheld. I therefore now turn to the validity of the relevant provisions in the 1946 Aliens Order. The power of the Minister to make a deportation order, if it exists, derives from Article 13 of the Aliens Order, 1946. The provision of the article which is relevant to this case is paragraph (1). That paragraph reads as follows:-

"Subject to the restrictions imposed by the Aliens Act, 1935 (No 14 of 1935), the Minister may, if he deems it to be conducive to the public good so to do make an Order (in this Order referred to as a deportation order) requiring an alien to leave and to remain thereafter out of the State."

Article 13(1) of the Aliens Order, 1946 is purported to be made under Section 5(1)(e) of the Aliens Act, 1935. That provision reads as follows:-

"The Minister may, if and whenever he thinks proper, do by Order (in this Act referred to as an Aliens Order) all or any of the following things in respect either of all aliens or of aliens of a particular nationality or otherwise of a particular class, or of particular aliens, that is to say:-

(a) . . .

(b) . . .

(c) . . .

(d) . . .

(e) make provision for the exclusion or the deportation and exclusion of such aliens from Saorstat Eireann and provide for and authorise the making by the Minister of Orders for that purpose;"

The Supreme Court considered Article 13 of the 1946 Order, albeit in a somewhat different context, in Tang v Minister for Justice, 1996 ILRM 46. In that case the High Court had declared Article 13(1) of the Aliens Order, 1946 to be ultra vires the powers conferred on the Minister by the 1935 Act because the 1935 Act itself did not by its express terms contain any provisions authorising the Minister if he deemed it conducive to the public good to make an Order requiring an alien to leave and remain thereafter out of the State. The constitutionality of the Act and the Order had also been in issue but the High Court had found it unnecessary to determine those questions. The Supreme Court reversed the Order of the High Court and Hamilton CJ who delivered the principal judgment, referred with approval to various passages in the judgment of Gannon J in Osheku v Ireland, 1986 IR 733. In particular he approved the observation of Gannon J "that the actions and decisions of the Minister should be conducive to the public good is undoubtedly consistent with the objectives of the Constitution as declared in its preamble" but he also approved of the following passage in the judgment of Gannon J:-

"The control of aliens which is the purpose of the Aliens Act, 1935, is an aspect of the common good related to the definition, recognition, and the protection of the boundaries of the State. 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 citizens, 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 of 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."

The general tenor of the Chief Justice's judgment in the Tang case with which O'Flaherty J concurred is one of approval for all the views expressed by Gannon J in Osheku and in particular the concept that it is reasonable that the Minister in the interests of the common good of a State should have wide powers relating to the control of the entry of aliens, their departure, their activities and duration of stay within the State. Earlier on in the judgment the Chief Justice when referring to the fact that because of the nature of the High Court Order, the Court did not have to consider the constitutionality of the Act or the Statutory Instrument specifically pointed out however that Gannon J had held that the Aliens Act, 1935 and the Statutory Orders 395 of 1946 and the Amending Order 128 of 1975 were not inconsistent with the Constitution.

Notwithstanding these comments by the Chief Justice, I accept the general principle asserted by Mr Hogan that the upholding of the constitutionality of an enactment against a particular ground of attack does not preclude the Court from reconsidering the matter in another case in the light of a quite different form of attack. In this connection Mr Hogan relies on the following passage in the judgment of O'Dalaigh CJ in The State (Quinn) v Ryan, [1965] IR 70 at 120:-

"It requires to be said that a point not argued is a point not decided; and this doctrine goes for constitutional cases (other than Bills referred under Article 26 of the Constitution and then by reason only of a specific provision) as well as for non-constitutional cases."

The challenge to both the Act and the Statutory Instrument which is made by Mr Hogan on behalf of the Applicant is one that has not been made before and is based on Cityview Press v An Comhairle Oiliuna 1980 IR 381. He criticises Article 13 of the 1946 Order as amended as being a A form of legislation not enacted by the Oireachtas and outside the powers of legitimate delegation and therefore contrary to Article 15.2 of the Constitution. Article 15.2 of the Constitution reads as follows:-

1. The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: No other legislative authority has power to make laws for the State.

2. Provision may however be made by law for the creation or recognition of subordinate legislatures and for the powers and functions of these legislatures.

If the Order has purported to confer powers on the Minister not authorised by the Act, Mr Hogan accepts that the Order should be declared invalid and the question of the unconstitutionality of the Act would not then arise. His ultimate constitutional attack on the Act itself is that Section 5 gives excessive legislative powers to the Minister and does not set out any general principles on which the Minister is to act. There is a certain difficulty about this argument because as has already been demonstrated the Supreme Court has approved of the general principle of wide powers being given to a Minister in relation to the control of aliens in the common good. If guidelines or principles were to be set out in the parent Act that might be construed as a limitation on the wide powers thought necessary by Gannon J for the protection of the State. However, I will return to this question after reviewing the authorities on which Mr Hogan relies.

The principal case relied upon by the Applicant is Cityview Press v An Chomhairle Oiliuna, 1980 IR 381. The Industrial Training Act, 1967 had empowered An Comhairle Oiliuna to impose a levy on employers in a designated activity by means of a Levy Order under Section 21 of the Act. Such an Order was made under the section declaring certain activities of the print and paper industry to be such designated activity. Section 21 of the 1967 Act empowered An Chomhairle Oiliuna for the purpose of meeting its expenses incurred in performing its statutory functions relating to that designated activity, to impose a levy on the employers in that designated activity. The relevant issue which arose in the case was whether Section 21 was unconstitutional in delegating to an executive body a legislative power to impose and regulate taxation thereby allegedly contravening the provisions of Article 15, Sections 2 and 4 of the Constitution. Both McMahon J in the High Court and the Supreme Court on Appeal held that there was no contravention of Article 15. However, in both Courts there was no real dispute as to what the correct legal principles were. The only dispute was as to the application of those principles to that case. Before McMahon J counsel on behalf of the defendant agreed that principles which had been applied in certain United States authorities cited were appropriate in this jurisdiction and he submitted that the principles were the following:-

"1. Anything clearly identifiable as policy making should be retained in the control of the Oireachtas.

2. If policy is clearly enunciated in the statute, a legislature can delegate wide powers of implementing the declared policy to a subordinate agency."

From the note of the argument in the report it would appear that it was further conceded by counsel for the defendant in the Supreme Court that the legislature must give "adequate guidelines to the executive in regard to the implementation of its functions". In the judgment of the Supreme Court delivered by O'Higgins CJ on the constitutionality of Section 21 of the 1967 Act, O'Higgins CJ set out the principle as follows:-

"The giving of powers to a designated Minister or subordinate body to make regulations or orders under a particular statute has been a feature of legislation for many years. The practice has obvious attractions in view of the complex, intricate and ever changing situations which confront both the legislature and the executive in a modern State. Sometimes, as in this instance, the legislature, conscious of the danger of giving too much power in the regulation or order making process, provides that any regulation or order which is made should be subject to annulment by either House of Parliament. This retains a measure of control, if not in parliament as such, at least in the two Houses. Therefore, it is a safeguard. Nevertheless, the ultimate responsibility rests with the Courts to ensure that constitutional safeguards remain, and that the exclusive authority of the National Parliament in the field of law making is not eroded by a delegation of power which is neither contemplated nor permitted by the Constitution. In discharging that responsibility, the Courts will have regard to where and by what authority the law in question purports to have been made. In the view of this Court, the test is whether that which is challenged as an unauthorised delegation of parliamentary power is more than a mere giving effect to principles and policies which are contained in the statute itself. If it be, then it is not authorised; for such would constitute a purported exercise of legislative power by an authority which is not permitted to do so under the Constitution. On the other hand if it be within the permitted limits -- if the law is laid down in the statute and details only are filled in or completed by the designated Minister or subordinate body -- there is no unauthorised delegation of legislative power.

An illustration of the application of this principle is the judgment of Blayney J in McDaid v Judge Sheehy, (1991) 1 IR 1. In that case the constitutionality of the Imposition of Duties Act, 1957 was challenged. It was submitted that Section 1 of the Act constituted an impermissible delegation of legislative powers by the Oireachtas to the Executive and thereby contravened Article 15.2(1) of the Constitution. The Cityview Press case was relied on. After setting out the principles contained in the judgment of O'Higgins CJ in Cityview Press, Blayney J had this to say:-

"When this test is applied to the provisions of the Act of 1957 giving the Government power to impose customs and excise duties, and to terminate and vary them in any manner whatsoever, I have no doubt that the only conclusion possible is that such provisions constitute an impermissible delegation of the legislative power of the Oireachtas. The question to be answered is: Are the powers contained in these provisions more than a mere giving effect to principles and policies contained in the Act itself? In my opinion they clearly are. There are no principles or policies contained in the Act. Section 1 states boldly that 'the Government may by order' do a number of things one of which is to impose a customs duty or an excise duty of such amount as they think proper on any particular description of goods imported into the State. In my opinion the power given to the Government here is a power to legislate. It is left to the Government to determine what imported goods are to have a customs or excise duty imposed on them and to determine the amount of such duty and the Government is left totally free in exercising this power. It is far from a case of the Government filling in only the details. The fundamental question in regard to the imposition of customs or excise duties on imported goods is first, on what goods should a duty be imposed, and secondly, what should be the amount of the duty? The decision on both these matters is left to the Government. In my opinion, it was a proper subject for legislation and could not be delegated by the Oireachtas. I am satisfied accordingly that the provisions of the Act of 1957 which I cited earlier are invalid having regard to the provisions of the Constitution."

As there was a later confirmatory statute, Blayney J in fact upheld the impugned Statutory Instrument. His decision was appealed to the Supreme Court. The Supreme Court upheld his view that the confirmatory Act cured any possible defect but further took the view that because of this it was inappropriate that any decision should be made as to the constitutionality of the Imposition of Duties Act, 1957 (an Act to which of course the presumption of constitutionality would have applied unlike the case of the Aliens Act, 1935). In that sense therefore the views expressed by Blayney J have to be treated as obiter dicta but I find them extremely helpful in considering the approach which I should take to the constitutional challenge in this case.

In Lovett v The Minister for Education, 1997 1 ILRM 89, Kelly J applied the same principles and struck down a scheme made under the Teachers Superannuation Act, 1928 on the basis that it went "far beyond the principles and policies which are contained in the 1928 Act".

In O'Neill v The Minister for Agriculture, 1997 2 ILRM 435, the Supreme Court had to consider the validity and constitutionality of regulations made by the Minister for Agriculture and Food under Section 3 of the Livestock (Artificial Insemination) Act, 1947. The facts of the case are not particularly relevant but in a judgment in the Supreme Court delivered by Murphy J (Hamilton CJ concurring), Murphy J refers to the principles laid down in Cityview Press Limited v An Chomhairle Oiliuna. He also points out that somewhat similar principles had been previously laid down by O'Higgins CJ in Cassidy v Minister for Industry and Commerce, 1978 IR 297 but Murphy J went on to say that:-

"the difficulty of applying to the present case the tests enunciated by the former Chief Justice is that the 1947 Act provides little guidance as to the policy or principles to be implemented by the Minister or the regulations contemplated by the Oireachtas. It is not merely that the lack of policy or principles deprives the Minister of suitable guidance but it also fails to provide any significant restriction on the ministerial power. This would be a reason for giving a wide construction to the power conferred on the Minister and a consequential doubt as to the constitutionality of the statutory delegation."

Adopting the reasoning of Murphy J in that passage, I think that given the absence of any set of principles in the Aliens Act, 1935 relating to deportation the power given to the Minister by Section 5 (which was of course enacted before the Constitution) must be construed as being a wide power. Indeed on the basis of an unchallenged assumption that the Aliens Act, 1935 is constitutional, the Supreme Court has already effectively held that Article 13(1) of the 1946 Order is intra vires. If therefore I am right in the view which I have taken as to the scope of the ministerial power contemplated by the Oireachtas of Saorstat Eireann, it would seem to follow that Article 13(1) of the 1946 Order and therefore the deportation order made pursuant to it are valid unless it can be established that Section 5(1)(e) of the Aliens Act, 1935 is not consistent with the Constitution.

I turn now to consider that question. With some reluctance having regard to the length of time that this statutory provision has stood up without being challenged as contravening Article 15 of the Constitution, I have nevertheless come to the conclusion on two alternative grounds that Section 5(1)(e) of the 1935 Act is inconsistent with the Constitution. First of all I think that in line with the views expressed by the Supreme Court in Cityview Press and Blayney J in McDaid the Minister cannot have a legislative power in relation to deportation unless some policy or principles on foot of which he is to act are set out in the parent Act. In my view the Oireachtas of Saorstat Eireann did not legislate for deportation. It merely permitted the Minister for Justice to legislate for deportation. There is no inherent reason why an Act of the Oireachtas cannot set out some policy matters at least in relation to deportation. For instance, as Mr Hogan points out, there could well be a policy of the State that the Minister would have a discretion to deport what is often loosely described as "economic refugees". On the other hand I do accept that it may be necessary for the protection of the State that there be an ultimate residual power in the Minister to deport any given alien or category of aliens in the interests of State security or possibly even in the interests of the common good of the State. But that should be a residual basis for deportation listed after some other specific grounds for deportation have been set out in the parent Act. If I am right about this then the present scheme clearly contravenes Article 15.2 of the Constitution.

But even if I am wrong in the view that specific principles or guidelines as to deportation of aliens have to be set out in the Act, it is still the case that a general power conferred on the Minister of a kind now conferred by Article 13 of the 1946 Order should be conferred by the Act itself and not by a Statutory Instrument such as the 1946 Order. In other words the Minister is not entitled to confer on himself the power to deport as in Article 13(1) of the 1946 Order. Such a provision would have to be in the Act itself. The power to require an alien to leave and to remain thereafter out of the State if a Minister deems it to be conducive to the public good is not in any sense a purely regulatory or administrative matter though of course it is that also. Article 13(1) contains substantive legislation and that is prohibited by Article 15.2 of the Constitution.

I will accordingly grant a Declaration that Section 5(1)(e) of the Aliens Act, 1935 is inconsistent with the Constitution and does not form part of Irish law. I will make consequential Declarations that Article 13(1) of the Aliens Order, 1946 and the deportation order made in this case are invalid. I am prepared however to listen to submissions by Counsel as to the precise form of the Order to be made.