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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> O. (B.F.) v. Governor of Dochas Centre [2003] IEHC 622 (8 May 2003)
URL: http://www.bailii.org/ie/cases/IEHC/2003/622.html
Cite as: [2003] IEHC 622
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[2003 No. 265 S.S.]
IN THE MATTER OF ARTICLE 40.4 OF THE CONSTITUTION
BETWEEN
APPLICANT
RESPONDENT
[2003 No. 103 J.R.]
BETWEEN
APPLICANTS
RESPONDENTS
Judgment of Ms.Justice Finlay Geoghegan delivered the 8th day of May 2003.
By an affidavit sworn on the 5th February, 2003, Suzanne Glazier, solicitor, made a complaint pursuant to Article 40.4 of the Constitution that the applicant was being illegally detained in the Dóchas Centre, Mountjoy Prison. Upon the ex parte application of counsel for the applicant grounded upon the said affidavit I made an order pursuant to Article 40.4.2 of the Constitution that the respondent produce to the court at 2 pm on the 6th February, 2003, the applicant and certify in writing the grounds of her detention.
The certificate was furnished by Mr. Colm Barclay, deputy governor of the Dóchas Centre, on behalf of the respondent, to the effect that the applicant was being held pursuant to a detention order dated the 27th January, 2003, addressed to the Governor of Mountjoy Women's Prison, annexed to the certificate, which was in the following terms:
"In exercise of the powers conferred on me by the Immigration Act 1999 (Deportation) Regulations, 2002 (S.I. No. 103 of 2002) made in exercise of the powers conferred by Section 7 of the Immigration Act, 1999 (No. 22 of 1999), 1 direct that pending the making of arrangements for his/her removal from the State, that:
B. F. O. and baby in arms be detained in Mountjoy Women's Prison a prescribed place for the purpose of Section 5(1) of the Immigration Act, 1999 (No. 22 of 1999)
Signed: Pat Duggan
Authorised Person"
The detention order bore the stamp of the Garda Síochána Immigration and Registration Office, Ballybricken, Waterford City with a date of 27th January, 2003. The detention order was endorsed as executed by lodging Ms. B. F. O. at Mountjoy Women's Prison on the 27th January, 2003, at 5.45 pm.
On the 6th February, 2003, at 2 pm, Ms Moorhead, counsel for the respondent, informed the court that earlier on that day a decision had been made by the Minister for Justice, Equality and Law Reform ("the Minister") refusing an application for residency made in January, 2003, by the applicant upon the basis that she was then the mother of an Irish born son namely Daniel O. who had been born in the State on the 15th December, 2002. The matter was adjourned to the 7th February, 2003, to permit the respondents file affidavits.
On the 7th February, 2003, the respondents filed in court an affidavit of Garda Patrick Duggan dealing with the circumstances of the applicant's arrest and detention on the 27th January, 2003 and an affidavit of Charles G. O'Connell Assistant Principal Officer of the Repatriation Unit, Immigration Division of the Department Justice Equality and Law Reform, dealing with the orders and decisions made by the Minister in respect of the applicant and her four year old daughter Toke O. On that date the respondents consented to the release of the applicant on bail pending the full hearing of the Article 40 Inquiry and also an intended application for leave to issue judicial review pursuant to s. 5 of the Illegal Immigrants (Trafficking) Act, 2000, seeking inter alia to challenge the decision made by the Minister on the 6th February, 2003. The application for leave to issue judicial review was commenced by notice of motion dated the 12th February, 2003 (Record No. 103 JR/2003) on behalf of B. F. O., Daniel O., a minor suing by his mother and next friend B. F. O., Toke O., a minor suing by her mother and next friend B. F. O., applicants, against the Minister for Justice Equality and Law Reform, Commissioner of An Garda Síochána, Governor of Mountjoy Prison Attorney General and Ireland, respondents. Further affidavits were sworn by the applicant and her solicitor in the application for leave to issue judicial review proceedings. A statement of opposition was prepared on behalf of the respondents and not delivered and no further affidavits were sworn on behalf of the respondents.
The Article 40 Inquiry and the application for leave to issue judicial review proceedings came on for hearing together before me. There was some confusion as to the position in the judicial review proceedings referred to below. It was agreed that all the affidavit evidence be evidence in both sets of proceedings and that both proceedings be heard together. Counsel for the respondents stated that there were factual matters stated by the applicant in her affidavit, which were not accepted by the respondents but were not considered germane to the issues to be determined. It was further agreed that the legality of the arrest and detention of the applicant at the date of commencement of the Article 40 inquiry must be determined in the Article 40 inquiry. Whilst the legality of continued detention was also sought to be raised in the judicial review proceedings it was agreed that it was not appropriate to determine it in those proceedings but that the remaining issues sought to be raised would be dealt with in those proceedings.
As the identical evidence was adduced in the two sets of proceedings, it appears convenient to give a single judgment, but it is intended that the first part of the judgment be the judgment in the Article 40 Inquiry and the second part the judgment in the intended judicial review proceedings.
ARTICLE 40 INQUIRY
Background Facts
The applicant is a national of Nigeria and arrived in the State on the 23rd December, 2000, with her daughter Toke O. who was born on the 27"' July, 1998 and claimed asylum. The applicant was at the time pregnant and subsequently suffered a miscarriage in February, 2001. The applicant was then residing at a hostel at Woodland Avenue, Mosney, Co. Meath.
The applicant's application for asylum appears to have been processed in the usual way up to the recommendation of the Commissioner pursuant to s.13 of the Refugee Act, 1996. In December, 2001, a report on behalf of the Refugee Applications Commissioner pursuant to s.13 found the applicant to have given a credible account of an objectively well founded fear for her husband's life from criminals in the area in Lagos in which they lived. However, it determined that the fear of the applicant was not based on a convention ground and accordingly, the recommendation was that the applicant should not be granted a declaration of refugee status.
The applicant in her affidavit states that following her miscarriage in February, 2001, she was in a depressed state and found it difficult living apart from her husband and two step children who were, she believed, still in Nigeria. She states she became more depressed after her application for asylum was rejected and had decided to return to Nigeria and visited a self-help group for persons so returning, in Dublin in January, 2002. She states that her husband visited her in Ireland in February, 2002 and persuaded her not to return to Nigeria because of the dangers there. She further states that after her husband left she was even more depressed and left the hostel in Mosney and went to live with a friend in Tralee. That friend, she states, left in
September 2002 and the applicant then moved to be with another friend Funke Dawoda at 23, William Street, Waterford, where she continued to reside up to the date of her arrest. The applicant admits that she did not notify her change of address to the authorities as she is required to do under the Refugee Act.
The applicant states that she found herself pregnant after her husband left and following her move to Waterford sought the assistance of the South Eastern Health Board. A copy letter from a consultant obstetrician with the South Eastern Health Board dated the 6th December, 2002, exhibited in the applicant's affidavit states she attended ante-natal clinics with the South Eastern Health Board from the end of October, 2002 and that she had previously suffered a number of miscarriages.
The applicant's son Daniel was delivered in Waterford Regional Hospital by caesarean section on the 15th December, 2002. The applicant states she remained there for five days and thereafter returned to reside with her friend at 23, William Street, Waterford.
The Refugee Legal Aid Service applied on behalf of the applicant for residency based upon the birth of her son Daniel on the 15th December, 2002. That application appears to have been made to the "Irish Born Child Section" of the Department of Justice Equality and Law Reformat 13/14, Burgh Quay, Dublin 2. An acknowledgment was received in what appears to be a standard form, which stated "Please be advised that there is a backlog of applications of this nature and it may be some time before your application is dealt with. Applications for parents of children born in September, 2001, are currently being processed." This communication was signed by Ms. Colette Spillane of the Immigration Division and bore a date stamp of the 3td January, 2003. The date "September 2001" refeired to above was inserted in handwriting.
The applicant states that she could not initially afford a birth certificate for her son Daniel and she subsequently raised the money to purchase this, sent it in, and received a further acknowledgement form in the same format this time signed by "N. Clyne" and dated the 15th January, 2003.
Daniel O. became ill in the middle of January and he and the applicant were admitted to Waterford Hospital. On discharge, the applicant states that she was advised to seek assistance from the South Eastern Health Board. The representative of the South Eastern Health Board was concerned at her living conditions (on the living room floor of her friend's apartment) and advised her to go to the immigration officer at Waterford Garda Station and tell them of her address.
The applicant presented herself with her son Daniel at Waterford Garda Station on the 27th January for the purpose of furnishing her current address and was then arrested because it was alleged she had not complied with a notice allegedly served on her under s. 3(3) (b) (ii) of the Immigration Act, 1999 (as amended). The applicant states that she showed Garda Duggan, the arresting guard, the acknowledgement received from the Department of Justice of her application for residency dated the 3`d January, 2003 and told Garda Duggan of the existence of her four year old daughter.
Garda Duggan in his affidavit confirms that the applicant came to Waterford Garda Station on the 27th January, for the purpose of informing the authorities of her address in Waterford. He states that he carried out a search on the computer and confirmed that a deportation order had issued against the respondent on the 21St August and that a notification had been sent to her on the 6th September, 2002, under s. 3(3) (b) (ii) of the Immigration Act, 1999,( as amended) requiring her to present herself to the member in charge at Drogheda Garda Station on Friday, 130' September, 2002, to make arrangements for her deportation from the State and that she had failed to turn up. He further states that by reason of the fact that he had concluded that she was in breach of the provisions of s. 5(1)(a) of the Immigration Act, 1999, (as amended) and accordingly he arrested her and made arrangements to convey her to Mountjoy Women's Prison. Whilst Garda Duggan's affidavit was sworn prior to the affidavit of the applicant no further affidavit was sworn on behalf of the respondents contradicting the assertion that Garda Duggan was shown the acknowledgement by the Department of Justice of the application for residency dated the 3'd January, 2003.
The applicant and her infant son Daniel were lodged in Mountjoy Women's Prison on the 27"' January, 2003. Her daughter, Toke O., remained with her friend in Waterford.
The applicant instructed her present solicitors from Mountjoy Women's Prison on the 30`x' January. The solicitors appeared to have made efforts by fax communication addressed to a number of authorities to obtain her release upon the grounds of the pending application for residency. When they failed to get agreement to this, the application under Article 40.4 was made. The detail of the communications after the 27 t" January and the decision taken by the Minister do not appear relevant to the issue, which I have to determine on the Article 40 Inquiry, save to the extent referred to below.
Statutory Scheme
Section 3 of the Immigration Act, 1999, (as amended), authorises the Minister to make a deportation order inter alia in respect of a person whose application for asylum has been refused (subs. (2)(f)).
The Minister is obliged to notify such persons of his decision and the reasons for it (subs. (3) (b) (ii)) and such notice may require the person, the subject of the deportation order to do any one or more of the matters set out in subs. (9) (a) (i) for the purpose of ensuring his or her deportation from the State. These matters include presenting himself or herself to a member of the Garda Siochana or immigration officer at such date time and place as may be specified in the notice.
It is an offence for a person to contravene the provisions of a deportation order or a requirement in a notice given under subs. 3(3) (b) (ii), (subs. 3(10)). Section 6 of the Act of 1999 requires notices permitted or required to be given under the Act to be served on or given to the person either by delivering it to him or her or "by sending it by post in a prepaid registered letter, or by any form of recorded delivery prescribed by the Minister addressed to him or her at the address most recently furnished by him or her ... to the Refugee Applications Commissioner pursuant to s. 9(4A) of the Refugee Act 1996." Subsection (2) provides that where a notice has been sent in accordance with subs. (1) (b) the notice shall be deemed to have been duly served on or given to the person on the third day after the day on which it was so sent.
There are two provisions of particular relevance to the arrest and detention of persons against whom deportations orders have been made. Firstly, subs. IA of s. 3 of the Act of 1999 (as amended) which provides:
"(1A) A person the subject of a deportation order under this section maybe detained in accordance with the provisions of this Act for the purpose of ensuring his or her deportation from the State."
Secondly, s. 5 as amended which provides:
"(1) Where an immigration officer or a member of the Garda Siochana, with reasonable cause suspects that a person against whom a deportation order is in force-
(a) has failed to comply with any provision of the order or with a requirement in a notice under section 3(3)(b)(ii),
(b) intends to leave the State and enter another state without lawful authority,
(c) has destroyed his or her identity documents or is in possession of forged identity documents, or
(d) intends to avoid removal from the State, he or she may arrest him or her without warrant and detain him or her in a prescribed place.
(2) A person arrested and detained under subsection (1) may be placed on a ship, railway train, road vehicle or aircraft about to leave the State by an immigration officer or a member of the Garda Siochdna, and shall be deemed to be in lawful custody whilst so detained and until the ship, railway train, road vehicle, or aircraft leaves the State.
(3) The master of any ship and the person in charge of any railway train, road vehicle or aircraft bound for any place outside the State shall, if so required by an immigration officer or a member of the Garda Siochdna, receive a person against whom a deportation order has been made and his or her dependants, if any, on board such ship, railway train, road vehicle or aircraft and afford him or her and his or her dependants proper accommodation and maintenance during the journey.
(4) (a) Subsection (1) shall not apply to a person who is under the age of 18 years.
(b) If and for so long as the immigration officer or, as the case may be, the member of the Garda Siochdna concerned has reasonable grounds for believing that person is not under the age of 18 years, the provisions of subsection (1) shall apply as if he or she had attained the age of 18 years.
(c) Where an unmarried child under the age of 18 years is in the custody of any person (whether a parent or a person acting in loco parentis or any other person) and such person is detained pursuant to the provisions of this section, the immigration officer or the member of the Garda Siochana concerned shall, without delay, notify the health board for the area in which the person is being detained of the detention and of the circumstances thereof.
(5) Where a person detained under this section institutes court proceedings challenging the validity of the deportation order concerned, the court hearing those proceedings or any appeal there from may, on application to it, determine whether the person shall continue to be detained or shall be released, and may make any such release subject to such conditions as it considers appropriate, including, but without prejudice to the generality of the foregoing, any one or more of the following conditions:
(a) that the person reside or remain in a particular district or place in the State,
(b) that he or she report to a specified Garda Siochana station or immigration officer at specified intervals
(c) that he or she surrender any passport or travel documents in his or her possession.
(6) (a) A person shall not be detained under this section for a period or periods exceeding 8 weeks in aggregate.
(b) The following periods shall be excluded in reckoning a period for the purpose of paragraph (a):
(i) any period during which the person is remanded in custody pending a criminal trial or serving a sentence of imprisonment.
(ii) any period spent by the person on board a ship, railway train, road vehicle or aircraft pursuant to this section, and
(iii) if the person has instituted court proceedings challenging the validity of the deportation order concerned, any period spent by the person in a place of detention between the date of the institution of the proceedings and the date of their final determination including, where notice of appeal is given, the period between the giving thereof and the final determination of the appeal or any further appeal therefrom or the withdrawal of the appeal or, as appropriate, the expiry of the ordinary time for instituting any such appeal."
Issues
There is no real dispute between the parties as to the facts upon which I have to determine the legality of the detention of the applicant.
It was not disputed on behalf of the applicant that a deportation order was validly made by the Minister in August, 2002 and that by reason of s. 6 of the Act of 1999, the notice issued under s. 3(3)(b)(ii) to the applicant on the 6th September, 2002, is deemed to have been served on her.
On behalf of the respondents it was accepted that by reason of the application for residency as mother of her Irish born son and the acknowledgement of same on the 3'd January, 2003, the applicant could not be deported from the State without a decision being made by the Minister on such application. It was submitted that the decision should more correctly be considered as a decision whether or not to revoke the deportation order under s. 3 (11) of the Act of 1999.
While s. 3(10) of the Act of 1999 makes it an offence to fail to comply with a notice issued under s. 3 (3) (b) (ii) there was no suggestion made on behalf of the respondents that there was any intention to charge the applicant with such an offence and it was not sought to justify the legality of the arrest and detention as being in anyway connected with an intended charge.
The only issue I have to determine, is whether, upon the particular facts of this case s. 5(1) of the Act of 1999 authorised the arrest and detention of the applicant on the 27 `h January, 2003. On behalf of the applicant it was primarily submitted by Mr. Christle S.C. that the power of arrest and detention given under s. 5(1) of the Act of 1999 is only given for the purpose of ensuring or facilitating the deportation from the State of the person arrested and detained. Hence, it may only be exercised where there is a proximate or concluded intention to deport the person concerned from the State. Reliance was placed upon subs. 3(1 A) of the Act of 1999 and the decision of the Supreme Court in The Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360. On the facts of this case it was submitted that, having regard to the application for residency as the mother of an Irish born son and the acknowledgment and representation that a decision would be made but not for some time and the acceptance that a decision had to be made by the Minister on the residency application before deportation could be effected, that s. 5(1) did not authorise the arrest and detention of the applicant on the 27"' January, 2003.
The submissions in response were two fold. Firstly, it was submitted by Mr. Paul O'Higgins SC, counsel for the respondents, that the power of arrest and detention under s. 5(1) (a) is not limited to ensuring or facilitating the deportation of the person concerned from the State. He sought to separate the power of detention given under s. 3 (1 A) and that under s. 5(1) of the Act of 1999. Secondly, and in the alternative it was submitted that if it was so limited it did not require a proximate or concluded intention to deport. Once a deportation order had been made and notice given to the person then there was prima facie an intention to deport which permitted the arrest and detention under s. 5(1), notwithstanding that a further decision might have to be taken before the deportation could be effected. It was, however, accepted that having regard to s. 5(6) which limits the period during which a person may be detained to not exceeding eight weeks in aggregate, if the s. 5(1) is to be construed as only being for the purpose of facilitating or ensuring deportation, it would be an abuse of the power conferred by the section to arrest and detain where it was known that the person could not be deported within a period of eight weeks.
There therefore are two issues arising for determination.
1. Is the power of arrest and detention under s. 5(1) of the Act of 199 exercisable only for the purpose of facilitating or ensuring the deportation o the person concerned from the State: and
2. If the proper construction is that the power of arrest and detention is limited to ensuring or facilitating the deportation of the person concerned must there be a proximate or concluded intention to deport or may it be exercised in the circumstances as they pertained to this applicant on the 27th January, 2003, where a deportation order had been made in August, 2002, but where it is accepted that there was a pending application for residency based upon a subsequent Irish born child which required determination by the Minister before deportation could be effected?
POWER OF DETENTION UNDER ACT OF 1999
While s. 5(1) gives a power of arrest and detention, it does not appear necessary to consider separately the power of arrest. It is a power given preliminary to and for the purpose of the detention authorised under the Act. I propose therefore subsequently in this judgment only to refer to the power of detention.
As already indicated the first submission made by counsel for the respondents, was that it is necessary to distinguish between the powers of detention authorised by s. 3(IA) and s. 5(1) of the Act of 1999. He sought to submit that these were separately authorised powers and sought to contrast the express wording of s. 3(l A) which limits the power to ensuring the deportation of the person concerned with the absence of any such express wording in section 5.
This submission may be shortly disposed of and indeed is surprising, having regard to the submission which appears to have been made on behalf of the Attorney General to the Supreme Court in The Illegal Immigrants (Trafficking) Bill 1999
[2000] 2 IR 360. Section 3(1A) of the Act of 1999 was inserted by s. 10 of the bill. The Court at p. 404 of its judgment quotes from the written submission of counsel for the Attorney General on the proposed subsection as follows:
"The suggestion that the new s. 3(1 A) of the Immigration Act, 1999, would have the effect of widening the power to detain - a suggestion which appears at p. 1 of the submission in opposition to the Bill - is misconceived. Section 3(lA) confers no new power of detention. On the contrary, it effectively limits the power of detention conferred by s. 5 of that Act by providing clearly that that power may only be exercised in respect of any person `for the purpose of ensuring his or her deportation from the State'."
The Court agreed with that submission and stated:
"As counsel for the Attorney General point out, the inherent power to deport is now regulated by s. 3 of the Act of 1999 and the power to detain under s. 5 is consequential upon and ancillary to the power to deport. The amendment proposed to be effected to s. 3 of the Act of 1999 by the insertion of the new subs. (1 A) is simply for the purpose of making express, what would at any rate have been quite clearly implied, namely that the powers of detention are for the purpose of ensuring deportation.
The court agrees with the submissions of counsel for the Attorney General in this regard. There is no question of any new or draconian power of detention being introduced by the Bill. The detention, if it is to remain lawful, must be confined to the statutory purposes in accordance with the principles enunciated by Flood J. in Gutrani v. Governor of Wheatfield Prison (Unreported, High Court, Flood J., 19`h February, 1993)."
Accordingly, on the first issue I conclude that the power of detention under s. 5(1) of the Act of 1999 is exercisable only for the purpose of ensuring deportation. The more difficult question is whether even in the light of the above construction it was permissible on the facts of this case to arrest and detain the applicant on the 27 `h January, 2003. The submission made by Mr. O'Higgins was that it was permissible to detain a person against whom a deportation order had been made even in circumstances where there is a further decision to be made by the Minister prior to the effecting of the deportation, so that the person would be available "in the event that the Minister does not revoke the deportation order'".
Counsel for the applicant relied in particular upon the consideration given by the Supreme Court to s. 5(1) of the Act of 1999 as inserted by s. 10 of the Illegal Immigrants (Trafficking) Act, 2000 and considered in The Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360. Counsel for the respondents again sought to distinguish the decision of the Supreme Court upon the basis that it was primarily considering the additional grounds upon which a person might be arrested and detained under s. 5(1) namely those included at subparas. (b), (c) and (d) and which do not arise on the facts of this case. Counsel for the respondent pointed out, as is correct, that the ground at issue in these proceedings namely subpara. (a) had formed part of s. 5(l) of the Act of 1999, as originally enacted.
Nevertheless, it appears to me that the consideration given by the Supreme Court to the constitutional use of the power of detention under s. 5(1) applies to all the circumstances in which the power is exercised under subs. 5(1). On the issue which I have to consider, there does not appear to me to be any valid distinction to be made which would suggest that what was stated by the Supreme Court in The Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360 should not apply where a person is detained under s. 5(1)(a).
The following appears to me to be the essential matters determined by the judgment of the Supreme Court relevant to the issue, which I have to decide:
(i) The purpose of the power of detention given under s. 5(1) is to "secure the implementation of the deportation order" (p. 408).
(ii) A person against whom a deportation order has been made, is a person not entitled to be in the country at all. However, this does not mean that he or she is without rights (p. 409).
(iii) The power of detention must be exercised in accordance with the principles set out by the Supreme Court in East Donegal Co-operative Lh~estock Mart Ltd. 1,. The Attorney General [1970] I.R. 317. This means that the executive power of detention must not unnecessarily be exercised. (The Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360, pp. 410 -411.)
(iv) The power of arrest and detention may only be used where it is determined that it is necessary to do so in order to ensure the orderly deportation of the person concerned. (pp. 410 - 411)
At p. 410 of its judgment, the court stated:
"Common sense suggest that there will always be cases where an immigrant who has gone through, or had an opportunity to go through, all the application and appeal procedures for asylum or for leave to remain in the country on humanitarian grounds will still attempt to evade the execution of a deportation order. Depending on the country of origin, travel arrangements may be extremely difficult to put in place and powers of detention between the making of the deportation order and in advance of the deportation itself may well be necessary in some instances.
As already pointed out, the principles set out by this court in East Donegal Co-Operative v. Attorney General [1970] I.R. 317, must be applied to the statutory powers of detention. It does not follow that because the section permits of detention for up to eight weeks in the aggregate, the proposed deportee may necessarily be detained for that period if circumstances change or new facts come to light which indicate that such detention is unnecessary."
And at p. 411:
"There are a number of safeguards available to a person who is detained under the extended grounds. They can be summarised as follows:-
(1) Under the principles of East Donegal Co-Operative v. Attorney General [1970] I.R. 317, and indeed in the light of modern jurisprudence at common law, an executive power of detention must not be unnecessarily exercised. Even if the power is properly exercised in the first instance, the relevant executive authority must be vigilant to ensure that the detention be brought to an end if, having regard to new circumstances or discovery of new facts or for some other reason, it is no longer necessary. This should be done independently of any application in that regard by the person concerned."
Having regard to the above considerations and in particular the requirement that the power of detention be exercised in accordance with the principles of constitutional justice as set out in East Donegal Co-Operative Livestock Mart Ltd. v. Attorney General [1970] I.R. 317 and be considered to be necessary for the purposes of ensuring the deportation, it appears to me that there must be as a precondition to the valid exercise of the power, a concluded intention to deport the applicant concerned. It was submitted on behalf of the applicant that it must be a proximate intention. This does not appear to me to arise on the facts of this case in the light of my conclusion that there must be a definite or concluded intention to deport. Until such time as there is a definite or concluded intention to deport the person in question, it cannot be said that detention is necessary for the purpose of ensuring deportation.
In most instances, the making of a deportation order will be evidence of a final or concluded intention to deport the person in question. The facts of this case are unusual. The deportation order was made in August, 2002. At that stage there was a final or concluded intention to deport the applicant. The birth of her son Daniel in the State changed in a significant way her family circumstances. Mr. O'Higgins submitted that the making of the application for residency based upon the birth of her Irish born son and the acknowledgement received did not alter the legal status of the applicant in Ireland. This is correct in the sense that the applicant remains a person who has no right to be in Ireland. However as stated by the Supreme Court in the Article 26 reference this does not mean that she is a person without rights. In addition there now exists her son Daniel, an Irish citizen with rights.
As already stated, it was accepted on behalf of the respondents that subsequent to 3`d January, 2003, the applicant could not be deported without a decision made by the Minister on her application for residency. Hence, I have concluded that there was not, at any time subsequent to the application for residency based upon her Irish born son, which was acknowledged on the 3rd January, 2003, a final or concluded intention to deport the applicant. Hence, a necessary pre-condition to the exercise of the power of detention under s. 5 of the Act of 1999 did not exist on 27'h January, 2003.
It was accepted on behalf of the respondents, that the legality of the applicant's detention must be decided on the facts as they existed on the 27th January, 2003 and that if illegal on that date it could not be cured by a subsequent valid decision of the Minister. Accordingly, I have concluded that the detention of the applicant pursuant to the arrest made and detention order of the 27"' January, 2003, is not legal and therefore order the release of the applicant pursuant to Article 40 of the Constitution.
APPLICATION FOR LEAVE TO ISSUE JUDICIAL REVIEW
By notice of motion issued on the 12"' February, 2003, leave is sought to apply for judicial review seeking a number of reliefs. The application is made on behalf of Ms. B. F. O. the applicant in the Article 40 Inquiry and her Irish born son Daniel O. and her daughter Toke O. in respect of whom a deportation order also exists. The reliefs may be summarised as follows:
1. Reliefs relating to the alleged illegality of the detention of the first named applicant;
2. Certiorari of the decision of the Minister dated the 6th February, 2003 refusing the application for residency and related declarations;
3. An order of mandamus directing the Minister to grant the applications for residency and an order quashing the deportation orders made on the 21St August, 2002.
The claims relating to the legality of the detention were not pursued as these were to be determined in the Article 40 Inquiry. The primary relief pursued on a number of grounds referred to in greater detail below, was an order quashing the decision of the Minister made on the 6"' February. The further reliefs sought were not advanced on separate grounds but rather claimed as ancillary relief pursuant to the ground of bias advanced in respect of the decision made on the 6th February.
It appears that a dispute had arisen between the parties prior to the commencement of the hearing before me as to exactly what had been agreed and directed at earlier appearances before me in relation to the application for judicial review. The first applicant understood that it had been conceded that this was an application in which substantial grounds existed and that the hearing was to be treated as the full hearing of the application for judicial review. The respondents did not accept that they had made any concession to that effect. However, they had prepared a draft statement of opposition in the event that the hearing was to be treated as the full hearing of the application for judicial review. In the interests of expediting the procedure, but without requiring any concession which would prejudice the position of the respondents, I suggested and it was agreed by counsel for both parties that I would deal with the application upon the basis that it was an application for leave to issue judicial review; that in advance of the beginning of the hearing I would give the respondents leave to deliver and file in court the draft notice of opposition upon the basis that it was without prejudice to their position that the substantial grounds requirement in s. 5 of the Illegal Immigrants Trafficking Act, 2000, was not met; that the affidavits already sworn in the Article 40 Inquiry could be treated as evidence in the judicial review proceedings and, in the event that I determined that substantial grounds did exist, that I would then proceed also to determine the full application for judicial review.
Having considered the submissions made on behalf of the parties and the evidence herein I have concluded that the applicant has advanced substantial grounds for contending that the decision of the Minister made on the 6th February, 2003, is illegal and accordingly I am granting leave pursuant to s. 5 of the Act of 2000 to apply for an order of certiorari quashing the decision of the Minister made on the 6th February, 2003. In making this order, I am not determining that all of the grounds put forward on behalf of the applicant meet the threshold of substantial grounds. Certain of the grounds were not seriously pursued and others may not meet the threshold. I propose dealing, however, with the grounds pursued in the context of my determination of the application for judicial review. The order granting leave will be leave to apply for the relief sought at para. 4 (d), (k), (1) of the statement of grounds upon the grounds set out at para. 5 (8) and (11).
EVENTS FOLLOWING ARREST OF FIRST NAMED APPLICANT
It is necessary for the purpose of considering the challenge made to the Ministers decision taken on the 6"' February to consider in greater detail the events following the arrest of the first named applicant on the 271h January, 2003. The applicant's present solicitors were instructed by her on the 30 t" January, 2003. On the same day, it is stated that they wrote to the member in charge in Waterford Garda Station, The Garda National Immigration Bureau, Dublin, the Dochas Centre, Mountjoy Prison and the Department of Justice, Equality and Law Reform. In a letter sent by fax, having referred to the arrest and detention of the first named applicant and her infant son, the birth of her son an Irish citizen on the 15th December, 2002 and the application for residency and acknowledgement (which they enclosed) they stated
"We respectfully say that in the light of B. O. 's application for residency which is under consideration, that she is being unlawfully detained and -we request that you release her forthwith and this is a matter of urgency and, not only is B. O. and her six week son being detained in a prison, but B.'s four year old daughter is currently having to live in Waterford without her mother a single parent.
We would be obliged for your urgent response.
A further fax appears to have been sent on the 3rd February, to each of the above and the Chief State Solicitors office referring to the correspondence dated the 30th January, to which they had not received a reply and requesting immediate response. That communication did not contain the name or reference number of the applicants but it elicited a reply from the Department of Justice, Equality and Law Reform requesting the name and reference number, which was sent to them on the 4th February.
On the 5"' February, at approximately 4.00 p.m., the application for a conditional order under Article 40 was made to me and was granted at approximately 4.30 p.m. It was returnable at 2.00 p.m. on the 6t" February.
The first named applicant states that on the 6"' February she was brought from Mountjoy jail to a vehicle at about 1.15 p.m. in order that she be transported to the Four Courts and that as she was getting into the vehicle an official from the
Department of Justice, Equality and Law Reform approached her and served her with a letter on behalf of the Minister stating that her application for residency had been refused. Further, she states that when she arrived at the Four Courts and met her counsel, they explained the matter to her and showed her a handwritten note in the Minister's handwriting setting out the decision, which he had made.
The letter given to the first named applicant was from a Mr. Michael Gleeson of the Department in the following terms:
"Dear Ms. O.,
I am directed by the Minister for Justice, Equality and Law Reform to refer to your application to remain in the State based on parentage of an Irish born child.
I am to inform you that the Minister has decided that there are no grounds of substance on which to grant the residency application. The application is therefore refused.
In relation to the birth in Ireland of Daniel F. O., the Minister is of the opinion that his birth o f the 15t" December, 2002 and citizenship would not warrant the granting of a residency application to his mother.
The Minister is of the view that there is no infringement or breach of Daniel's legal or constitutional rights in accommodating him in Mountjoy Women's Prison with his mother. He can see no basis for separating hint from his mother who is his parental guardian. Therefore it is the Minister's view that there are no new grounds for according residency rights to B. F. O. and he considers that in this case the execution of the deportation orders is required in the interests of the common good in maintaining respect for, and the integrity of the asylum and immigration systems.
The Minister also wishes to advise you that the deportation orders already in place in respect of you and your daughter Toke, are to be executed. The execution of these orders is a matter for the Garda National Immigration Bureau.
Should you have any further enquires concerning this matter please contact the Repatriation Unit, 13-14 Burgh Quay, Dublin 2.
Yours faithfully,
Michael Gleeson,
Immigration Operations,
6'h February, 2003.
Cc. c/o Mountjoy Prison, Dublin 7 (By Hand). "
The note in the Ministers handwriting was handed into court at 2.00 p.m. on the 6"' and together with the letter from Mr. Gleeson was exhibited in the affidavit of Mr. O'Connell sworn on the following day. The Ministers note is in the following terms:
6/2/03
Re: B. F. O. TRC No: 69122808100B
1. 1 have carefully read the submission of Charles G. O'Connell and the attached papers where relevant.
2. I am of the opinion that there are no grounds of substance on which I would decide to grant the residency application sought. 3. In relation to the birth in Ireland of 'Daniel F. O., I am of the opinion that his birth on 15'h December, 2002 and citizenship would not warrant the granting of a residency application to his mother.
4. In my view, there is no infringement or breach of Daniel's legal or constitutional rights in accommodating him in Mountjoy Women's Prison with his mother. On the contrary, I can see not basis for separating him from his mother who is his parental guardian.
In my view, there are no new grounds for acceding residency rights to B. F. O., as I consider that in this case the execution of the deportation orders is required in the interest of the common good in maintaining respect for, and the integrity of, the asylum and immigration systems.
Signed: Michael McDowell
Minister.for Justice Equality and Law Reform.
As is clear from the Minister's note, he considered for the purpose of making his decision a submission of Charles G. O'Connell. As already stated, Mr. O'Connell is an assistant principal in the repatriation unit of the Immigration Division of the Department of Justice, Equality and Law Reform and swore an affidavit on behalf of the Minister on the 7th February. In that affidavit, he seeks to explain the timing of the decision made by the Minister in the following terms.
"5. I say that the applicant made the application for residency, received in the Department on the 3rd January, 2003. She was informed that there was a backlog of applications of this nature and it would be some time before her application was dealt with.
6. I say that having regard to the fact that the applicant has been detained and that her detention is a matter of concern to the first named respondent, the first named respondent carried out a review of the applicant's file in order to assess her application for residency based on the birth of her Irish born child
7. I say that a submission was made by me, of the first named respondent's staff in respect of the applicant's situation and I beg to refer to the said submission upon which marked with the letter "B " I have endorsed my name prior to the swearing hereof.
8. I say that following the preparation of the submission, the process engaged in by the Department of the first named respondent was to assess the submission and to request the first named respondent ('Minister for Justice, Equality and Law Reform ) to adjudicate on the application to remain in the State based on the birth of the Irish born child.
9. I say that the Minister personally reviewed the file on the 6'h February, 2003. He was of the view that there were no grounds of substance on which to grant the residency application which was duly refused. "
Insofar as Mr. O'Connell is seeking to state at para. 6 of his affidavit that the Minister was asked to carry out a review of the applicants file, out of concern for the applicant following her detention, I do not accept that evidence as stating the full position. There is an inescapable conclusion to be drawn from the content of the submission of Mr. O'Connell dated the 5"' February, 2002, that what triggered the submission to the Minister was the conditional order made by this court at approximately 4.30 p.m. on the 5"' February and it appears probable that arrangements were made to have the submission considered by the Minister prior to the return time of 2.00 p.m. on the 6"' February.
At para. 6 of his submission to the Minister Mr. O'Connell states
"On 21h January, 2003 Ms. O. was arrested by Gardai in Waterford on foot of the deportation order of 21" August, 2002. I understand that she is currently detained in Mountjoy Prison and that her Irish born son, Daniel Oluwatofunmi Akanni O. is accompanying her there. Ms. O.'s legal representatives have called for the release of their client. I understand that there is now an Article =l0 (Habeas Corpus) inquiry to be heard in the High Court on 6`h February, 2003. (Tab Z). The successful defence or otherwise of the Habeas Corpus proceedings may rely to an extent on the Minister affirming or revoking the original deportation orders in light of the new information concerning Ms. O.'s Irish born child. "
In reaching the conclusion as to the trigger and timing of the Minister's decision, I am not in any way concluding that the Minister in the decision made was influenced by the existence of the Article 40 Inquiry but the procedure leading to the decision, the context in which it was taken and the timing of same is important to certain of the submissions made on behalf of the applicants.
ALLEGED GROUNDS OF ILLEGALITY
The grounds upon which the Minister's decision was challenged on behalf of the applicants may be summarised as follows:
1. The decision is unlawful as there was objective bias on the part of the Minister in the circumstances in which the decision was taken.
2. The decision was taken in breach of the principles of constitutional justice and fair procedures and that in particular:
(a) The Minister and/or his departmental officials took into account irrelevant considerations including the fact of the Article 40 Inquiry;
(b) The decision was taken at a time when it was admitted that the Minister and/or his officials had not yet completed their consideration of the details of Osayande, Lobe and others v Minister .for Justice (Unreported, Supreme Court, 23`d January, 2003) in consultation with the Attorney General.
(c) The circumstances and timescale within which the decision was made was so short that it cannot have been taken or perceived to have been taken with a full and proper consideration of the rights of each of the applicants.
(d) By reason of the prior administrative scheme in relation to applications for residency the form of the acceptance of the application for residency and the fact of the judgments given by the Supreme Court in Osayande, Lobe and others v Minister for Justice (Unreported, Supreme Court, 23`d January, 2003) the first named applicant had a legitimate expectation and/or had a right as a matter of fair procedures to consider with and obtain advice from her lawyers on the consequences for her application of the Supreme Court judgment and to make further representations to the Minister having regard in particular to the constitutional rights of the second named applicant.
3. The taking of the decision by the Minister subsequent to the commencement of the Article 40 Inquiry was an unlawful interference with the judicial organ of State.
4. A further ground was relied upon in support of the consequential reliefs sought that the Minister and his officials were so tainted and biased that if the decision of the Minister were quashed the applicants could not obtain a fair reassessment and adjudication of their application and the only effective remedy was the order of mandamus sought or declaration as to their entitlement to residency.
I have had considered the submissions made by counsel for both parties in relation to the above grounds, the authorities to which I was referred and in addition have since the hearing had the opportunity of reading in full the judgments given by the Supreme Court in Osayande, Lobe and others v Minister for Justice (Unreported, Supreme Court, 23rd January, 2003). The majority judgments in that case clarify both the legal context in which the Minister took his decision and the obligations of the Minister in taking such a decision.
PRINCIPLES APPLICABLE TO MINISTER'S DECISION
Having regard in particular to the judgments of the majority of the Supreme Court in Osayande, Lobe and others v Minister for Justice (Unreported, Supreme Cowl, 23`d January, 2003) and the judgment of the Court in The Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360 and the submissions made by counsel for both parties herein, the following appears to be the legal context and nature of the Minister's decision and the obligations imposed on him in relation to same as determined by the Supreme Court:
1. The power to expel or deport non-nationals is inherent in the State as a sovereign state and not because it has been conferred on particular organs of the State by statute.
2. That inherent power is now the subject of detailed regulation by both domestic law and international instruments.
3. Where the power to take such decisions is conferred on a particular organ of the State by statute (such as the power conferred on the Minister by s. 3 of the Act of 1999 to make or revoke an order of deportation) it must be exercised in accordance with the principles of constitutional justice as set out in East Donegal Co-operative Livestock Mart Ltd. v. Attorney General [1970] I.R. 317
4. The Minister, in making a decision as to whether a non-national should be deported, is entitled to take into account the then policy of the State in relation to the control or admission of non-nationals.
5. The first and third named applicants, as persons against whom deportation orders have been made, are persons who have no right to be in the State. This does not mean that they are persons without rights. They appear entitled to have any powers being exercised in relation to them, exercised in accordance with the principles of constitutional justice.
6. The second named applicant is a citizen of Ireland. As such, he enjoys the right not to be expelled from the State but this is not an absolute right. Furthermore, he enjoys constitutionally protected family rights but no constitutionally protected right to the company or protection of his mother or sister in Ireland.
7. The existence of an Irish born child to a non-national does not fundamentally transform the right of the parent though "it requires the specific consideration of the Minister who must reasonably be satisfied of the existence of a grave and substantial reason favouring deportation." (Osayande, Lobe and others v Minister for Justice (Unreported, Supreme Court, 23`d January, 2003) Hardiman J.at p. 58).
8. Where there is an Irish born child, the Minister is obliged to consider the facts of each case by an appropriate inquiry in a fair and proper manner as to the facts and factors affecting the family. If the Minister is satisfied for good and sufficient reason that the common good requires that the residence of the parents within the State should be terminated even though that has the necessary consequence that in order to remain a family unit the child who is an Irish citizen must also leave the State then that is an order he is entitled to make. (Osayande, Lobe and others v Minister for Justice, Denham J. at p. 28).
9. In deciding whether there is such good and sufficient reason in the interests of the common good for deporting the non-national parents, the Minister should ensure that his decision to deport, in the circumstances of the case, is not disproportionate to the end sought to be achieved. (Osayande, Lobe and others v Minister for Justice, Murray J. at p. 42).
ADMINISTRATIVE SCHEME
There is one further important aspect of the context in which the legality of the Minister's decision of the 6t" February, 2003, must be considered. It is the administrative scheme, in existence for some time, according to which rights of residence, known as "a green card" were granted to parents of an Irish born child. The facts relating to this scheme were not set out on affidavit. At the hearing, I was informed by counsel for the respondents that there had been in place for a number of years an administrative scheme, not based on any legislative provision, under which applications for residency were considered and `green cards' issued. The acknowledgement sent to the first named applicant herein in January was done pursuant to that scheme. I was informed that the scheme continued to be administered up until the Supreme Court decision in Osayande, Lobe and others v Minister for Justice (Unreported, Supreme Court, 23~d January, 2003). I was not given any figures as to the number of persons to whom residency was granted under the scheme based on an Irish born child but it was accepted that there were significant numbers granted over the past few years.
The scheme as explained to me and its administration accords with the description of the scheme and the statistics referred to by Hardiman J. and Fennelly J. in their judgments in Osayande, Lobe and others v Minister for Justice (Unreported, Supreme Court, 23`d January, 2003).
CONCLUSIONS
1. Bias
I have concluded that the submission of the applicant based upon the alleged objective bias of the Minister in the circumstances of this case is not well founded. That submission was based upon an assertion that the Minister's decision must be considered to be a judicial or quasi judicial decision in which he is adjudicating upon inter alia the alleged constitutional rights of the second named applicant the Irish citizen. Counsel for the applicants submitted that if the decision is so characterised that the test of objective bias as set out by Denham J. in Dublin Well Woman Centre Limited v. Ireland [1995] 1 I.L.R.M. 408 applied. In that judgment, Denham J. stated at p.421:
"There is no suggestion or finding that the court gave or would have given anything but an honest answer. But the test is objective; not whether the learned High Court judge considered she was or was not biased; nor whether the appellant considered the judge was or was not biased; but whether a person in the position of the appellant in this case, a reasonable person, should apprehend that his chance of a fair and independent hearing by reason of the actions by the learned High Court judge in her capacity as chairwoman of the Commission on the Status of Women would prevent a completely fair and independent hearing of the issues which arise. The apprehension of the reasonable person in the position of the appellant is what has to be considered."
It was submitted that, by an analogy, the first named applicant in this case could reasonably apprehend that by reason of the existence of the Article 40 proceedings, the fact that the Minister was named as a respondent therein and the fact that he had been informed in the submission to him that his decision might affect the ability to defend those proceedings would prevent a completely fair and independent adjudication by the Minister.
It does not appear to me that the principles in relation to objective bias apply to the decision being made by the Minister. Having regard to the nature of the decision and legal context in which it is taken, as set out above, it appears to me that the decision is neither a judicial decision nor a quasi judicial decision. In making the decision, the Minister is exercising the sovereign power of the State. He is the person designated by the statute to take the relevant decision. He is not adjudicating on any substantive rights of any of the applicants. In so far as the first and third named applicants now have rights in Ireland, those rights appear to be confined to procedural rights. As already stated they have the right to have decisions concerning them taken in accordance with the principles of constitutional justice. The Minister is not adjudicating on any alleged constitutional right of the second named applicant, the Irish citizen. What he is, of course, obliged to do is in making the decision as to whether or not the first and third named applicants should be entitled to remain in Ireland or be deported, is to have regard to the constitutional rights of the second named applicant. However, he is not in any sense adjudicating on those constitutional rights.
I accept the submission of Mr. O'Higgins that the closer analogy to the type of decision being taken by the Minister is the decision taken by Bord Na Mona, which was under consideration in O'Brien v. Bora'Na Mona [1983] IR 255. In that case, the power of Bord Na Mona to make an order for compulsory acquisition was considered to be "essentially an administrative act". The decision required to be taken by the statute by Bord na Mona was a "decision in principle as to whether, balancing the desirability of the production of turf on the one hand and the interests of an individual owner of land on the other, the production of turf or the agricultural interests of the land owner should prevail."
Whilst there is the possible distinction that the decision to be taken by the Minister is not an administrative act and is rather an executive act exercising the sovereign power of the State it is similarly a decision as to whether the interests of the common good should prevail over the interests of an individual citizen and his or her family.
2. Constitutional Justice
The obligation of authorities taking decisions to comply with the principles of constitutional justice derives from the well-known statement by Walsh J. in East Donegal Co-operative Livestock Mart Ltd. v. The Attorney General [1970] I.R. 317 at p. 341
"At the same time, however, the presumption of constitutionality carries with it not only the presumption that the constitutional interpretation or construction is the one intended by the Oireachtas but also that the Oireachtas intended that proceedings, procedures, discretions and adjudications which are permitted, provided for, or prescribed by an Act of the Oireachtas are to be conducted in accordance with principles of constitutional justice. In such a case any departure from those principles would be restrained and corrected by the Courts."
There is no decision, which precisely determines the boundaries of what the obligation to act in accordance with the principles of constitutional justice requires for a decision of the type taken by the Minister. The consideration given to this in East Donegal Co-operative Livestock Mart Ltd. v. The Attorney General [1970] I.R. 317 does not appear of assistance as it clear that the court considered the Minister to be under an obligation to act judicially in relation to the decision in that case. The decision in O'Brien v. Bord Na Mona [1983] IR 255 is of some assistance. In delivering the judgment of the court O'Higgins C.J. at p. 283 stated
"Such a view of the purpose and effect of the statue does not vest in Bord na Mona an arbitrary or capricious power. Nor is it exempt in any way from review by the courts and should it, in any particular instance, act from an indirect or improper motive or without due fairness of procedure or without proper consideration for the rights of others."
The judgments of the majority of the Supreme Court in Osayande, Lobe and others v Minister for Justice (Unreported, Supreme Court, 23`d January, 2003), whilst using different wording, all import a concept of the Minister taking a decision in a fair and proper manner and giving particular consideration to the facts and factors affecting the family in question.
The requirement that the Minister take a decision in a fair and proper manner means that there must be "due fairness of procedure" in relation to the complete procedure commencing with the application for residency and terminating with the Minister's decision. It also requires that there be proper consideration for the rights of others including the constitutional rights of the Irish born child. The requirement that there be due fairness of procedures and due and proper consideration for the rights of others appears to require, firstly, that if, in the course of the procedure being followed, there is a material change in the context in which the decision is being taken, the applicant be given a reasonable opportunity of considering the new context and making submissions relevant thereto. It appears to me there was such a material change on the facts of this case.
It is common case, that there existed an administrative scheme under which the applicant applied for residency based on her Irish born child. Further that this scheme continued in operation until the decision of the Supreme Court in Osayande. Lobe and others v Minister for Justice (Unreported, Supreme Court, 23rd January, 2003) and that it was pursuant to this scheme that the application was accepted. Whilst evidence was not given of the detail of the scheme nor the criteria according to which decisions were made under the scheme it appears that there were large numbers of applications granted under the prior administrative scheme. The decision of the Supreme Court in Osayande, Lobe and others v Minister for Justice at minimum had a significant impact on the prior administrative scheme. It may have ended it. It also, at minimum must be considered to have significantly clarified the matters, which may and should be taken into account by the Minister in deciding whether or not to deport the parent of an Irish born child.
In the light of this decision of the Supreme Court given only on 23rd January, 2003 and the fact that the application herein had been made under the prior administrative scheme, I have concluded that, as a matter of fair procedures, the applicant was entitled to an opportunity of having the Osayande, Lobe and others v Minister for Justice judgments considered by her lawyers; receiving their advice thereon and having further representations made on her behalf in support of her application for residency in the context of a decision to be taken by the Minister in accordance with the Osayande, Lobe and others v Minister for Justice judgments. No such opportunity to make further representations was afforded to the applicant herein. Having regard to the representations made in January, 2003, that the decision would not be taken for some time; the relatively short period since the Supreme Court decision and the fact she was in custody for much of it, the first named applicant could not have been under any obligation to make further representations prior to the 6"' February. Accordingly, I have concluded, on this ground alone, that the procedures followed did not comply with the requirements of constitutional justice. The requirement that there be due fairness of procedures and due and proper consideration for the rights of others also appears to require that such procedures and consideration be capable of being objectively perceived to be fair. I have concluded that the procedures and decision in this instance fall short of this requirement. The most pertinent facts, which lead me to this conclusion, are the following.
The first named applicant had been informed on two occasions in the month of January, 2003, that her application for residency based upon her Irish born child would be considered but that it was unlikely to be considered for some considerable time. Those acknowledgements were made to her as part of an administrative scheme, which had existed for some time and was known to the applicant and others concerned with the asylum system. In the applicant's affidavit, she refers to the experience of her friend with whom she was living at the time of her arrest and detention, who applied for residency based on an Irish born child on the 5"' August, 2001 and received permission to reside in the State in October, 2002.
In addition, there was uncertainty following the decision of the Supreme Court in Osayande, Lobe and others v Minister for Justice (Unreported, Supreme Court, 23rd January, 2003) for those seeking residency based upon an Irish born child. It appears from Mr. O'Connell's submission to the Minister that at the time the contested decision was taken in relation to the applicant, there had not yet been any decision taken by the Minister on a future general policy to applications from parents of Irish born children in the light of the decision of the Supreme Court. In Mr. O'Connell's submission, it is stated "the details of the judgment are still being considered by the Minister in consultation with the Attorney General in relation to a general policy in this matter". This position of the Minister appears to have been public knowledge. The applicant in her affidavit exhibits by way of example, a report in the Irish Times of 4th February, 2003, in which it is stated:
"A spokesman for the Minister said he would bring an aide memoire to the Cabinet today, but a government decision on how to handle the issue would be taken at a ftiture Cabinet meeting".
Thirdly, the applicant had been arrested and detained in Mountjoy since the 27th January, 2003. Solicitors on her behalf had been communicating with the Department since the 31St January seeking her release. However, the submission to the senior departmental officials and the Minister requesting a decision was not made until 5th February, after an application had been made to the courts under Article 40 of the Constitution upon the ground, inter alia, that there was a pending application for residency upon which no decision had been made. That submission, which recommends that the Minister reject the application for residency, contains the statement already referred to that the successful defence or otherwise of the habeas corpus proceedings may rely, to an extent, on the Minister affirming or revoking the original deportation orders in the light of the new information concerning the applicant's Irish born child.
In the above factual context, I have concluded that the procedure which commenced with the application made on behalf of the applicant for residency based on her Irish born child and culminated in the decision of the Minister taken on the 6th February, 2003, cannot objectively be considered to have been fair or one in which a fair and proper consideration was given to the rights of others. On this second and separate ground, I have concluded that the procedures followed by the authorities, which culminated in the decision of the Minister, were in breach of the requirement of fair procedures required by the principles of constitutional justice.
3. Interference with Judicial Organ of State
I reject the submission that the Ministers decision was an unlawful interference in the judicial domain. Notwithstanding the timing of same, the decision taken by the Minister is one which is his alone to take. He was not in any way deciding an issue which fell to the court to determine in the Article 40 Inquiry.
4. Consequential Reliefs
As I have rejected the claim based on bias it follows that the application for mandamus must also fail. There is nothing in the evidence which in any way suggests that if the decision of the 6th February is quashed and the matter remitted to the Minister with a requirement that the first named applicant be given an opportunity to make submissions in the light of Osayande, Lobe and others v Minister for Justice (Unreported, Supreme Court, 23`d January, 2003) that there would not be full and proper consideration of all relevant facts and factors relating to all the applicants by the Minister in taking a new decision.
5. Conclusion
In the judicial review proceedings, I will grant an order of certiorari quashing the decision of the Minister of the 6th February, 2003.