High Court of Ireland Decisions

1. These cases are a random sample of a large number of cases of which I believe and consider to be of a representative character. The hearings took place separately but consecutively, Judgment being reserved in all cases as there many common characteristics and arguments adduced, through a number of different Counsel. The applications came before the Court under the procedure provided for by Section 5 (2) of the Illegal Immigrants (Trafficing) Act, 2000. The Section was considered upon reference to it by the Supreme Court, under the title ‘In the Matter of Article 26 of the Constitution and Section 5 and Section 10 of the Illegal Immigrants (Trafficing Bill) 1999: the Judgment of the Court was delivered on the 28th August, 2000.

2. The facts of the individual cases may be very briefly summarised as follows:-

3. He is a Romanian National and was an asylum seeker in the State in November, 1999. His application for asylum was refused by the Minister under the Refugee Act, 1996, on the basis that it was manifestly unfounded and he was so informed by letter dated 31st March, 2000 which informed the Applicant that he had failed to adduce evidence of persecution. This decision was unsuccessfully appealed and the Applicant notified by letter dated 5th July, 2000 a letter enclosed the Appeals Authority’s recommendation the deciding officer being Mr. Mick Quinn and the letter states (inter alia) as follows:-

4. Following upon this letter Mr. Watters the Applicant’s Solicitor by letter 24th July, 2000 wrote to the Minister making representations that he be permitted to remain in the State on humanitarian grounds. This letter was followed up by another from Mr. Watter’s enclosing references favourable to the Applicant. The Minister made a Deportation Order dated 4th September, 2000, the concluding paragraph of which reads:-

5. A letter of notice of the making of the Order is dated 19th October, 2000. In the cases upon which the Minister decided to make a Deportation Order refusing leave to remain on humanitarian grounds, the letters of notice are in a uniform format, and although they are individually addressed and bear distinguishing file reference numbers they are similar in content and read:-

6. The letter proceeds to indicate a number of consequential requirements.

7. While there is no averment in the Applicant’s Affidavit as to the date of receipt of the Order and Notice, no point has been taken by the Minister and it is conceded that the application was made within the time limited by Section 5 of the Act of 2000 as appears from exhibit FP1. The Applicant, perhaps through his Solicitors had secured copies of letters of notice and copies of Deportation Orders sent to Mr. G.N., Ms. M. P. and Mr. C. B. (the latter being one and the same person as is named in the title of the third case referred to herein).

8. He is a Romanian National, by trade a locksmith, and was an Applicant for asylum in the State. He applied on or about 10th August, 1999, having completed an application form he was called for interview which took place on 30th May, 2000. His application was refused and he was so notified by letter dated 22nd June, 2000 which informed the Applicant that:-

9. The Applicant appealed that decision but the appeal was unsuccessful and the Applicant was duly notified by letter dated 15th August, 2000 that the refusal was on the basis that his refugee status within the State was manifestly unfounded. This letter was signed by the deciding officer Linda Grealy which enclosed the Appeal’s Authority’s recommendation. As in the case of P the recommendation was only sent to the Applicant and his legal representatives. In the events the Refugee Legal Service applied by letter dated 5th September, 2000 to the Minister on the Applicant’s behalf to remain in the State on humanitarian grounds. The representations were not successful and the Minister signed a Deportation Order dated 16th November, 2000 of which, the Applicant was given notice of by letter 23rd November, 2000 signed by one Wendy Murray of the Repatriation Unit, Immigration Division of the Minister’s Department. The Order and letter of the notice of the making of the Order are in the same terms as in the case of P.

10. The Applicant’s application for leave to apply for Judicial Review as provided for under Section 5(2) of the Act of 2000 was outside the period of 14 days, but I was satisfied that there was good and sufficient reason for extending the period which I did on the hearing. [Mr. Bradley for the Minister correctly did not press the issue unfairly and no point arises for determination in this regard].

11. He is a Romanian, by trade a metal worker. He was an Applicant for asylum in the State. It appears that he arrived in Ireland on or about 21st April, 1997 and wished to claim asylum. An application for same was apparently made, although not exhibited. However a report was made of an interview with the Applicant dated 2nd June, 1998. A decision of the Minister to refuse the Applicant refugee status was made and conveyed to him on 27th July, 1998. On 18th August, 1998 the Applicant married another Romanian person who was and still is in Ireland, one spinster N. A. who status and entitlement to remain in the State is not before the Court. A letter dated 25th September, 1998 was written to the Respondent on behalf of the Applicant, by his Solicitor Mr. James Watters indicating the Applicant’s intention to appeal the Minister’s decision. By letter dated 15th January, 1999 addressed to the Applicant’s Solicitors and signed by Annmarie Quarray of the Asylum Appeals Unit of the Respondent’s Department refused to recognise the Applicant as a refugee on a consideration of all of the evidence provided by the Applicant. The letter enclosed all the material (other than material which had been supplied to the Department on the basis that it would not be disclosed further) on which the decision was made. By letter 23rd March, 1999 one Richard Fennessy the officer authorised by the Minister of the Asylum Division of the Respondent’s Department having considered the recommendations of the Appeals Authority decided to uphold the original decision and refused the appeal on the ground that the refugee status within the State was not such as to qualify for recognition in accordance with the definition of refugee contained in the 1951 UN Convention as amended and defined.

12. The Applicant’s Solicitor by letter dated 9th April, 1999 made representations as to why the Respondent should not make a Deportation Order. In short the Applicant made an application for leave to remain in the State on humanitarian grounds and this was supported by some testimonals as to his upright character, religious observance and education. The foregoing representations were made prior to the coming in to effect of Section 3 of the Immigration Act 1999.

13. By letter dated 20th January, 2000 signed by Eileen Doyle, Repatriation Unit, Immigration Division of the Respondent’s Department and addressed to the Applicant’s Solicitor it is stated as follows:-

14. This letter was accepted in a letter from the Applicant’s Solicitor dated 4th February, 2000 which (inter alia) states:-

15. The letter concludes thus:-

16. In or about this time the Illegal Immigrants (Trafficing) Bill 2000 was being considered by the legislature and on the passing of the Bill it was forwarded to the President for her signature. By Order given under her hand and seal on the 30th June, 2000 the President referred Section 5 and Section 10 of the Bill of the Supreme Court for a decision on the question as to whether the said sections or any provisions thereof were repugment to the Constitution or any provision thereof. The decision of the Supreme Court is contained in the Judgment of the Court delivered on the 28th day of August, 2000.

17. The Respondent made and signed a Deportation Order on the 28th September, 2000 requiring the Applicant within the period ending on the date specified in the notice served on the Applicant under subsection (3)(b)(ii) of Section 3, pursuant to subsection (9)(a) of Section 3 and to remain thereafter out of the State. The notice of the making of the Order is dated 16th October, 2000 and signed by one Wendy Murray, Repatriation Unit Immigration Division of the Respondent’s Department.

18. The text of the letter of 16th October, 2000 is identical to that in the case of P in particular as to the reasons of the Minister’s decision.

19. Why this arose at all as an issue in these proceedings I found difficult to understand as it was considered in detail by the Supreme Court on the Reference (p.27-32 (inclusive) of the unreported Judgment.

20. There are other categories of persons in respect of whom deportation orders may be made but as all the Applicants come within category (f) it is unnecessary to consider such other categories. Much of the debate before the Court expressed by Counsel in their submissions related to the mandatory provisions binding on the Minister in the provisions of Section 3(a) and which reads as follows:-

21. In my Judgment it is not imperative that the Minister uses the expression “proposes to make” what is mandated by the subsection is that it is clear to the recipient what is that the Minister is about.

22. In the case of P the letter signed by Mick Quinn dated 5th July, 2000 (inter alia) states:-

23. I am unable to accept counsel’s submission that the letter failed to give a reason for the Minister’s proposal or that the letter fails to identify a reason for doing so. The word reasons (plural) embraces the singular reason. However where one of a number of reasons is given by the Minister he cannot afterwards rely on any other uncommunicated reasons to defend his compliance with the subsection.

24. In the case of L (argued very ably by Mr. Shipsey) excepting the fact that the relevant letter is dated 15th August, 2000 and bearing the signature of Linda Grealy the circumstances are identical. There is no statutory form to which the proposal of the Minister must comply, neither is there inhibition or impropriety of advancing as a reason that given in these cases.

25. In the case of B it is to be noted that when the process under the Refugee Act 1996 came to a conclusion with the letter from the Aslyum Division signed by Richard Fennessey who was the officer authorised by the Minister (see paragraph (3) of the letter) it is dated 29th March, 1999 . The Immigration Act 1999 became law on 7th July, 1999. Nevertheless the letter of 29th March, 1999 did clearly indicate to Mr. B that if he wished to make written representations as to why the Minister should not make a Deportation Order, he should do so within 14 days of the date of the letter. This invitation was taken up on Mr. B’s behalf by his Solicitor in a letter dated 9th April, 1999 and I note in particular that there is a medical certificate furnished to vouch that Mr. B “is suffering from diabetes”. The Act having become law a period of time of 6 months elapsed, and on 20th January, 2000 Eileen Doyle of the Respondent’s Department wrote as follows:-

26. This is the linkage to the previous correspondence prior to the Act becoming law. The response to that letter is dated 4th February, 2000, which copper fastens the link. It is there in these terms:-

27. This letter concludes with a reference to a letter dated 12th April, 1999 which is not with the papers.

28. The Immigration Act 1999 does not contain any transitional provisions (analogous to those contained in Section 28 of the Refugee Act 1996) nor is such contained in the several amendments to the Act of 1999 by the Illegal Immigrants (Trafficing) Act, 2000 nor are the categories of cases to which Section 3(3) applies extended by way of any amendment of Section 3(5) in particular. Accordingly notwithstanding the unity of the correspondence as a whole by internal reference I am satisfied a this stage that the mandatory provisions of Section 3(3)(a) was not complied with after the Act becoming law. According all steps that flow or follow upon same under Section 3(3)(b) no matter how carefully or fully complied with by the Minister are of any effect.

29. However in each of the cases listed argument was advanced by Counsel concerning the observance or non observance of the provisions of Section 3(3)(b) and in particular sub clause (ii) thereof.

30. The Section also enjoins the Minister specifically in this way.

31. All three cases were decisions by the Minister refusing the Applicants leave to remain in the State upon humanitarian grounds and what is of importance is the first three paragraphs which are identical in each Letter of Notice, which notwithstanding its earlier citation in full in this Judgment, I insert herein for convenience of narrative which reads:-

32. The submissions made on behalf of the Applicants centred on this letter (but were not exclusively so confined) the contentions may be summarised as follows:-

33. The response made by the Respondent is that Statutory Instrument (S.I. No 319 of 1999, the Immigration Act, 1999 Deportation) Regulations, 1999 made by the Minister under seal on 18th October, 1999 exercising the powers conferred on him by Section 7 of the Act of 1999 is the prescribed form for the purposes of Section 3(7) of the Act. The form of deportation order used in all three cases is as in accordance with the Statutory Instrument. The Respondent also submits that the documents are clearly to be read together and that they are expressly related by internal reference one to the other. In the course of the argument it was contended that the provisions that S.I No 319 of 1999 were repugnment to the Constitution. The legal process by which a specified range of decisions made under the Act of 1999 and other enactments and orders is to be challenged set out in Section 5 of the Illegal Immigrants (Trafficing) Act, 2000. The constitutionality of that section has been determined in the decision on the Article 26 reference (see p.51 et seq. of the unreported Judgment of the Supreme Court). What is of importance in the context of the case of B in particular (and many other cases) is that the provision of Section 5(3)(b) of the Illegal Immigrants (Trafficing) Act, 2000 which reads:-

34. While the restricted right of appeal contained in Section 5(3)(a) is part of an overall scheme of the Acts it clear that there is an unrestricted right of appeal in any case in which there is a constitutional issue raised as envisaged by the Section. B’s case specifically (see Notice of Motion paragraphs 4 and 5) contain specific constitutional challenges. While no such specific challenge appears in the papers in the case of P and L Counsel intimated to the Court that in the event of leave being granted to apply for Judicial Review application would be made to extend the grounds upon which the Court would be moved to include the constitutional challenge to the existing legal provisions: the right to which Mr. Bradley, with customary conciseness, challenged. I acknowledge that the 14 day limitation as set out in Section 5(2)(a) imposes a degree of pressure upon applicants and their advisors who in their anxiety to try and avoid having to seek an extension of the period within which application shall be made, present papers to the Court that may be less than complete to found the case they wish to present to the Court. Accordingly it may be from time to time be necessary to take this factor in to account. While not wishing to be in any way critical of any Applicant in this regard, the cases, not only those in this adjudication, but in the numerous other cases which have come to my attention, particularly on applications to extend time for the bringing of proceedings, reveal almost invariably a constitutional challenge having regard to the validity of a legal provision. By the insertion of such a ground for seeking leave the whole statutory scheme for the restricted appeal provisions is being sought to be circumvented. In my opinion an Applicant is entitled to challenge if so advised in an appropriate case the validity of any law having regard to the provisions of the Constitution but not as an integral part of an application for leave to apply for Judicial Review under the statutes.

35. I approach a consideration of these matters on the basis of the decision of Keane J. (as he then was) in Golding & Ors-v-The Labour Court & Cahill May Roberts Ltd [1994] ELR 153 at 159 -

36. The topic was again dealt with by Finlay C.J. in O’Keeffe -v-An Bord Pleanla [1993] 1 IR 37 at 39 in this way:-

37. The Judgment in the Supreme Court Ní Éili-v-The Environment Protection Agency [unreported 30th July, 1999] Murphy. J, referred to an earlier Judgment of his in O’Donoghue-v-An Bord Pleanala [1991] ILRM 750 (at 757) as to the nature and extent of the reasons which administrative tribunals must give for their decisions, in these terms:-

38. The Applicants in summary came to rely on the decision (quoted by Murphy. J in Ní Éili case of Evans, L.J. In MJT Securities Ltd-v- Secretary of State for the Environment [1989] JPL 138 (at p 144) thus

39. I am satisfied and find as a fact that the letter read in context:-

40. Having considered the Judgments in Orange Communications-v-The Director of Telecommunications Regulations and Anor (Supreme Court 18/5/200.; unreported and in particular the Judgment of Murphy J. (p 19-30) I am satisfied and find as a fact that the reasons given in the instant case are proper, intelligible and adequate. The case of Flannery-v-Halifax Estate Agencies [2000] 1 All E.R. 273 p 377/8 was relied upon as obligating of the giving of reasons in the context of litigation in cases of conflicting (expert) evidence in particular; in the instant case it is no function of the Court ‘to enter in to the issues’ that give rise to the decision. The case of Baker-v-Canada [1999] 2 R.C.S. 817 (p 844 section entitled “(4) The Provisions of Reasons” paragraphs 35 and 43 were of more interest than assistance on a topic that the jurisprudence of our courts deals with more than adequately.

41. The Judgment of Murphy. J in the State (Haverty)-v-An Bord Pleanla and Anor [1987] IR 485 (p.493) was advanced as assistance to me on the requirements of natural justice applicable to the cases before me. It is I hope clear from the narrative facts in this Judgment that, as the letter of Notice made clear the adjudicator considered the applicants submissions had regard to the requirements of Section 3(6) and carried out a balancing exercise and found that one “ outweighed” the other.

42. The Applicants submitted that there was an onus on the Respondent to define or explain the expressions “common good “ and “public policy” both referred to in the letter of Notice and in Section 3(b)(j) and (k) respectively. I do not consider the Respondent to be under any such obligation, he is obliged by statute to have regard to them with the other matters listed in Section 3(6) so far as appear or are known to him.

43. Much argument focused on the extent to which the Minister in stating that he he had regard to the factors set out in Section 3(6) in the letter of Notice failed to say what weight he attached to each particular heading for each particular Applicant and that there ought to have been some form of points or other system applicable to each heading so that each Applicant could know under which heading he fell short and by mathematical calculation or by what number of points or what percentage he fell short of success he might then perhaps make a further application or applications to the Minister or the Courts and have the Minister’s decision adjusted or altered. There is no such statutory requirement upon the Minister and the Court must not seek to legislate to obligate him so to do.

44. The concept of the common good, altogether for the necessity for the Minister to have regard to it, expressly under Section 3(6) is a proper basis for the Minister approaching the issue of the entitlement of non nationals to remain in the State. The Judgment of Gannon J. in Osheku-v-Ireland [1986] IR 733 was cited with approval in Tang-v-The Minister for Justice [1996] 2 ILRM 46, that decision was approved of in the Supreme Court decision of Laurentiu-v-The Minister for Justice, Equality and Law Reform and the Attorney General [1999] 4 IR 27 and in the decision of the Supreme Court in the Article 26 reference.

45. The Applicants’ counsel asserted difficulty in deriving any meaning in the expression “the Minister is satisfied that in the interests of public policy and the common good in maintaining the integrity of the asylum and immigration system....” referred to in the letter of Notice. The asylum and immigration system is that set out in the Acts and Regulations. Keane J. (as he then was) in Laurentiu hereinbefore cited at page 93 of the report states:-

46. The letter of Notice in the expression in point merely but properly records that the Minister is satisfied that he is observing, as indeed he must, the material wholeness or completeness of the asylum and emigration systems which are contained in the Acts and Regulations.

47. In the case of B who married a fellow Romanian on 8th August, 1998 considerable stress was laid on the fact that both applications were not taken together, that one ought not to have been determined and the other left outstanding, that the married state albeit to a non national gave added status or weight to the application. It was a disclosed fact. The Minister’s letter of Notice in the third paragraph stating that the provisions of Section 3(b) were considered would include the provision in Section 3 subsection 6

48. I prefer the detailed submissions of Miss Barrington on the Respondents behalf on this issue and the extent to which marriage attracted rights and the distinguishing features of Fajujonu-v-The Minister for Justice Ireland and the Attorney General [1990] 2 IR 151 where the married non nationals had children born as Irish citizens who had rights as such.

49. This matter was considered by the Supreme Court at p.44 et seq of the unreported Judgment on the Article 26 References whose decision made clear that the interpretation placed on the word substantial grounds by Carroll J. in the case of McNamara-v-An Bord Pleanala [1995] 2 ILRM 125 was appropriate. The case of O’Dowd-v-North Western Health Board [1983] ILRM 186 is referred to in the Judgment of Carroll, J but only in the context of a quotation from the Judgment of Egan. J in the Supreme Court decision of Scott-v-An Bord Pleanala , the High Court 1994 No 274 RJ (Costello J.) 27th July, 1994; [1995] 1 ILR 424. It is not possible to say whether the O’Dowd case was opened in full to Carroll. J. It is clear from the Judgment of Egan. J in the Scott case that he did not find the O’Dowd case to be of any assistance. While it is true that in the case of O’Dowd, Scott and the present cases each deal with different Acts of the Oireachtas both the case of O’Dowd and Scott are Supreme Court decisions.

50. There is no official report to show that the O’Dowd case was opened to the Supreme Court the case of the Article 26 reference. In the course of his Judgment in the O’Dowd case Griffin. J considered and adopted what was said by Denning L.J. and Parker L.J. in Richardson-v-London County Council [1957] 1 WLR 751 to the effect that:-

51. In my Judgment in seeking to properly apply the law as I understand it to be the test is substance and reality, rather than technicalities and ingenious argument. In RGDATA Limited-v-An Bord Pleanala and Anor (unreported 30th April, 1996) Barron. J observed :-

52. In the cases with which this Judgment is concerned time was liberally given to counsel to elaborate on their cases in full (not because that in anyway betokened an acceptance by me as sought to be construed by Mr. McDonagh that it proved that there were substantial grounds) but, so that if I considered my decision warranted a certification of a point of law of exceptional public importance and that it would be desirable in the public interests that an appeal should be taken to the Supreme Court there would be a reasonably wide and proper basis for so doing.

53. Paragraph of the subsection refers to the High Court being “satisfied”. In O’Dowd’s case it ws held that the use of the word satisfied in the Mental Treatment Act 1945 indicated that the Oireachtas had in mind a higher standard of proof than that which a plaintiff would ordinarily would be required to discharge in a civil case. The Supreme Court in G-v-DPP [1994] 1 IR 374 set forth the burden of proof on an applicant to obtain liberty to apply for Judicial Review in ordinary course under The Rules of the Superior Courts O.84 r.20. Such applications are ex parte. All that is required of an applicant is that he establish a statable case. I am not satisfied that such a low standard is appropriate on an inter partes hearing and I consider it as appropriate and proper and propose to adopt the views of Glidewell L. J. In Mass Energy Limited-v-Birmingham City Council [1994] Env L.R. 298 (at p.307-8) wherein it is stated:-

54. That view was approved by Keene J. in R.-v-Cotswold District Council Ex Parte Barrington Parish Council 75 P. and C.R. 515 at p.530 where he said:-

55. Kelly J. who considered these cases in the case of Gorman and Others-v-The Minister for the Environment and Others [unreported 7th December, 2000] stated as follows:-

56. I agree with the expression of view of Kelly J. and it seems to me appropriate in the cases under the Acts of 1999 and 2000.

57. I am satisfied in the evidence before me:-

58. Accordingly I refuse the leave sought by P. And L.