Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> A.A.A.& ors -v- Minister for Justice and Equality & ors [2013] IEHC 422 (10 September 2013)
URL: http://www.bailii.org/ie/cases/IEHC/2013/H422.html
Cite as: [2013] IEHC 422
[New search] [Help]
Judgment Title: A.A.A.& ors -v- Minister for Justice and Equality & ors Neutral Citation: [2013] IEHC 422 High Court Record Number: 2011 1007 JR Date of Delivery: 10/09/2013 Court: High Court Composition of Court: Judgment by: McDermott J. Status of Judgment: Approved |
Neutral Citation: [2013] IEHC 422 THE HIGH COURT JUDICIAL REVIEW [2011 No. 1007 J.R.] BETWEEN A.A.A. AND J.A. (AN INFANT SUING BY HIS MOTHER AND NEXT FRIEND A.A.A.) AND E.A.A. (AN INFANT SUING BY HER MOTHER AND NEXT FRIEND A.A.A.) AND S.A.A. (AN INFANT SUING BY HIS MOTHER AND NEXT FRIEND A.A.A.) APPLICANTS AND
THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL RESPONDENT JUDGMENT of Mr. Justice McDermott delivered on the 10th day of September, 2013 1. The first named applicant and her two children, the second and third named applicants, arrived in Ireland on 17th July, 2007; she applied for refugee status on her own behalf and on behalf of the children who were born on 12th March, 1998, and 1st June, 2001, respectively, in Nigeria. The fourth named applicant, also a Nigerian national, was born in Ireland on 1st December, 2007. An application was also made on his behalf for refugee status by his mother. These applications were all refused by the Refugee Applications Commissioner and on appeal by the Refugee Appeals Tribunal. Subsequently, the applicants applied for subsidiary protection which was refused on 5th June, 2011. They also applied for humanitarian leave to remain in the State pursuant to s. 3 of the Immigration Act 1999, which was also refused and deportation orders were signed in respect of each of the applicants on 27th September, 2011. No legal challenge by way of judicial review was made in respect of the decisions of the Refugee Applications Commissioner or the Refugee Appeals Tribunal. However, a wide ranging application for leave to apply for judicial review in respect of the refusal of subsidiary protection and the making of the deportation orders was mounted. In a reserved judgment, Cooke J., on 17th May, 2012, refused leave to apply for judicial review in respect of the subsidiary protection decision made by the first named respondent but granted leave to the applicants to apply for orders of certiorari to quash the deportation orders made against each of the applicants on the sole ground that:-
2. The reasons for granting leave to apply for judicial review were set out by Cooke J. at paras. 28 to 31 of the Court’s judgment as follows:-
‘(15) While I accept that the decision to deport is often a complex one which has significant implications for the individual who is the subject matter of the order, I am not satisfied that it is of such intrinsic importance to the community at large that the decision can be made only by the Minister personally. It must also be recalled that the Minister for Justice has many onerous obligations. It cannot be suggested that the Oireachtas must have intended that he alone should personally take the decision to deport a given individual in every single case, since that would mean that he had responsibility for potentially hundreds of such decisions in any given year. (16) It follows therefore, that this is also a case governed by Carltona principles and that the nominated civil servant remains free to make the decision in question.’ 29. The challenge to the deportation orders is governed by s. 5 of the Illegal Immigrants (Trafficking) Act 2000, so that a substantial ground for the grant of leave must be shown. A ground must in the words of Carroll J. in McNamara v. An Bord Pleanála [1995] 2 I.L.R.M. 125, be “arguable, weighty and must not be trivial or tenuous”. She added “a ground that does not stand any chance of being sustained (for example, where the point has already been decided in another case) could not be said to be substantial”. That is the position in relation to the first limb of this ground having regard to the above judgment of Hogan J. 30. Counsel for the applicants, on the other hand, argues that a distinct issue arises in relation to the prohibition of refoulement under s. 5. Relying particularly upon the judgment of Murray C.J. in the Meadows case above, he submits that the decision to be taken under s. 5 is arguably a personal one restricted to the Minister. He points particularly to the passage in which Murray C.J. refers to the Minister’s position when he has before him factual material suggesting that deportation would expose the individual concerned to one of the risks referred to in s. 5:-
3. Section 3(1) of the Immigration Act 1999, provides that:-
(2) Without prejudice to the generality of subsection (1), a person’s freedom shall be regarded as being threatened if, inter alia, in the opinion of the Minister, the person is likely to be subject to a serious assault (including a serious assault of a sexual nature).” 5. In this case, the deportation orders were signed and sealed by Mr. Noel Waters on 27th September, 2011, and each is in the following form:- “Immigration Act 1999 Deportation Order
WHEREAS (named applicant) is a person in respect of whom a deportation order may be made under subsection (2)(f) of the said s. 3; AND WHEREAS the provisions of s. 5 (prohibition of refoulement) of the Refugee Act 1996, and the provisions of the said s. 3 are complied with in the case of (named applicant); NOW, I, Noel Waters, on behalf of the Minister for Justice and Equality, in exercise of the powers conferred by subsection (1) of s. 3, hereby require you the said (named applicant) to leave the state within the period ending on the date specified in the notice served on or given to you under subsection (3)(b)(ii) of the said s. 3, pursuant to subsection (9)(a) of the said s. 3 and to remain thereafter out of the state. GIVEN UNDER the official seal of the
(A person authorised by the Minister for Justice and Quality to authenticate the Official Seal of the Minister)”Minister for Justice and Equality this 27th day of September, 2011 Noel Waters Background 7. The first named applicant’s application for leave to remain pursuant to s. 3 of the Immigration Act 1999, made on her own behalf and that of the children was set out in letters dated 3rd and 4th May, 2011. It was claimed that the applicants would be subjected to a risk of death and/or torture or inhuman or degrading treatment if returned to Nigeria. It was submitted that the children would be subjected to a risk of child trafficking because they would be forced to live in poverty and this contention was supported by country of origin information indicating a significant level of child trafficking amongst the very poor. It was submitted that the applicants’ lives were at risk because of continuing militant activity in the Niger Delta and Port Harcourt areas. It was further submitted that there could be no recourse by the applicants to State protection because the Nigerian Police were corrupt, unwilling to enforce the law or offer protection. In many instances, the country of origin information indicated that Nigerian Police had been involved in gross abuses and breaches of the criminal law and human rights. 8. The submissions made on behalf of the applicants together with extensive country of origin information were considered by a number of civil servants before the deportation orders were signed. On 2nd June, 2011, Ms. Ann Dillon, an executive officer, completed an “examination of file”, a large section of which was devoted to the consideration of the issues arising under s. 5 of the Refugee Act 1996, as amended (prohibition of refoulement). She referred to extracts from a United States State Department Human Rights Report 2009 dated 15th July, 2010, a United Kingdom Home Office Report of 2nd April, 2011, and other material in respect of the inadequacy of policing in Nigeria. She concluded that while there may be problems within the Nigerian Police it was still the case that there was a functioning police force in Nigeria to which recourse could be had by the applicants. 9. The examination of file also addressed the response of the authorities to numerous kidnappings that had occurred in the Port Harcourt and Niger Delta areas and described the considerable security efforts that had been made to reduce the threat of abduction from militants in those areas. In that regard, Ms. Dillon concluded as follows:-
Therefore, on the basis of the foregoing, I recommend that the Minister makes a deportation order in respect of the applicant and her children.” 12. On 27th September, 2011, the deportation orders in the terms already quoted were made by Mr. Noel Waters against the applicants requiring them to leave the State within a specified notice period and to remain thereafter out of the State. It is clear, therefore, that the Minister for Justice and Equality was not involved personally in the consideration of or the making of the decisions to deport the applicants, nor did he personally make, sign or seal the deportation orders. The Carltona Principle 14. It is well established that a Minister cannot personally carry out all of the functions given to him by statute and that ministerial functions may be carried out by members of the Civil Service even though the Minister remains responsible for those decisions. In Carltona Limited v. Commissioner of Works [1943] 2 A.E.R. 560, Lord Greene M.R. stated the principles as follows:-
16. The Supreme Court accepted the quoted extract from the judgment of Lord Greene M.R. in Carltona as embodying the principles applicable to the case. Hamilton C.J. stated:-
Having regard to the extensive powers conferred on the Minister (in) the Aliens Act 1935, and the regulations made thereunder, it cannot be supposed that it was the intention of the legislature that the Minister personally should exercise these powers. The duties imposed upon the Minister and the powers given to the Minister can be and are normally exercised under the authority of the Minister by responsible officials of the Minister’s department. In this particular case, the powers were exercised by…an assistant principal officer in the Department of Justice with particular responsibility for the immigration and citizenship division of the department and in reaching her decision on the applicant’s application was acting on behalf of the Minister. In the execution of this responsibility, she was obliged to act in a fair and proper manner and in accordance with fair procedures.” 17. Counsel on behalf of the applicants submit that the decision to be taken under s. 5 of the Refugee Act 1996, as amended, is one for the Minister personally because of the importance of the decision within the immigration and asylum process relating to the protection of the life and person of the applicants. In addition, it is claimed that since s. 5 requires the Minister to form an opinion which requires a determination of policy as to the effectiveness of the police and judicial authorities in Nigeria in the protection of their citizens, that in the absence of such a policy decision, which could be implemented by officials in the particular circumstances of a case, the Minister is obliged to personally form an opinion regarding an individual application and to give a reasoned decision or rationale for any conclusion reached under section 5. 18. Counsel on behalf of the respondents submits that under the Carltona principle, officials in a department act in the name of the Minister, who is a corporation sole and not his delegate. It was further submitted that the principle should not be limited unless the Minister’s power to devolve or delegate a decision was limited by an express provision requiring the Minister to exercise the power in person. It was further submitted that there was no distinction to be drawn between the powers which the Minister must exercise personally and those which can be exercised by an officer of the Minister’s department: the nature of the decision does not alter the fundamental constitutional rule that absent legislation providing to the contrary, civil servants may act in the name of the Minister. The respondent did not accept that the use of the word “opinion” in s. 5 determined the issue in favour of the applicants. 19. The preponderance of the authorities cited in the course of argument supports the respondent’s submissions that the Carltona principle is applicable to the determination of the prohibition of refoulement issue under section 5. Though the decision in Tang does not concern the making of a deportation order but the refusal of leave to remain in the State by a civil servant, the principles of Carltona were said to apply to that decision. In this case, the decisions to deport the applicants followed their applications under s. 3 of the Immigration Act 1999, for humanitarian leave to remain in the State and the consideration and refusal of those applications. The court is satisfied that the decision to be made under s. 5 is part of a decision making process in which the decision to deport is closely intertwined with the issues that arise under s. 5 and both decisions involved the consideration of important constitutional and European Convention rights: the court is not satisfied that the distinction which the applicants seek to draw between the nature of the decision under s. 5 of the Refugee Act 1996, as amended, and s. 3 of the Immigration Act 1999, is justifiable as a matter of logic, good administration or statutory interpretation. The court is satisfied, therefore, that the Carltona principle applies to the nature of the decisions under s. 3 and s. 5 and that the decision in Tang is ample authority for that proposition. 20. In Devanney v. Shields [1998] 1 IR 230, the Supreme Court considered the application of the Carltona principle to the appointment of a District Court clerk. It was submitted that the appointment of a District Court clerk had to be made by the Minister personally and that it was not a decision open to delegation. It was submitted by the Minister, on the basis of Carltona, that the functions given to Ministers were so multifarious that no Minister could ever personally attend to them and that the powers given to Ministers could normally be exercised under the authority of a Minister by responsible officials of the department, while the Minister remained accountable to the legislature. It was held by the Supreme Court that the Carltona principle was a common law constitutional power but one which was capable of being negatived or confined by express statutory provision. In doing so, the court relied upon the decision of the House of Lords in Regina v. Home Secretary ex parte Oladehinde [1991] 1 AC 254. It also determined that while the appointment of a District Court clerk was an important matter it was not more important than many of the decisions which fell to be made by civil servants, in the name of the Minister. Hamilton C.J. cited with approval the judgment of Lord Donaldson M.R. in the Oladehinde case in which he stated at p. 282:-
The core of the Carltona principle is that as a matter of statutory construction responsible officials may exercise some of the statutory powers of a Minister. The officials would not consult him but may yet recite words such as “I am directed by the Minister”. They are the alter ego of the Minister. They exercise devolved power. In this case the officials spoke of “delegation”. I am satisfied that in the circumstances it is a form of authorisation by the Minister. In fact the officials were acting “as” the Minister in a form of devolved power. The fact that an official is authorised to authenticate by his or her signature orders made by the Minister does not itself create the (Carltona) power of the officer of the Department of Justice but rather among other factors is a recognition that there are situations when officials will authenticate orders. That is entirely consistent with the Carltona principle.” (p. 261) 22. The court is satisfied that there are no words of limitation contained in s. 5 of the Refugee Act 1996, as amended, limiting the application of the Carltona principle to the consideration and making of a decision concerning non-refoulement, and that there is no legal basis, therefore, to exclude its application in accordance with the principles set out in the Devanney case. 23. In LAT. & Ors v. the Minister for Justice and Equality & Ors [2011] IEHC 404, it was claimed that a deportation order made pursuant to s. 3 of the Immigration Act 1999, must be made personally by the Minister for Justice and Equality. Hogan J. determined the case by reference to “a straightforward examination of the question of whether the structure, the context and the nature of the powers thereby conferred impliedly limit the scope of the Carltona doctrine”. In that context, he dealt very succinctly with the issue (in the passage already quoted by Cooke J. in his judgment granting leave):-
16. It follows, therefore, that this is also a case governed by Carltona principles and that the nominated civil servant remains free to make the decision in question. Of course, as I have already stressed, the Minister remains accountable to Dáil Éireann for all such decisions, both as a matter of constitutional law (in Article 28.4.1) and as a matter of political theory and reality.” 24. Hogan J. applied the same analysis to this issue in F.L. v. Minister for Justice and Equality [2012] IEHC 16, and it was also applied by this Court in P.U.O. & Ors v. Minister for Justice and Equality & Ors (Unreported, High Court, 6th November, 2012). 25. The applicants also relied upon the well known passage from the judgment of Murray C.J. (as he then was) in Meadows v. The Minister for Justice [2010] 2 IR 701:-
[80] On the other hand if such material has been presented to him by or on behalf of the proposed deportee, as the case here, the first respondent must specifically address that issue and form an opinion. Views or conclusions on such issues may have already been arrived at by officers who considered a proposed deportee’s application for asylum, at the initial or appeal stages, and their conclusion or view may be before the first respondent but it remains at this stage for the first respondent and the first respondent alone in the light of all the material before him to form an opinion in accordance with s. 5 as to the nature or extent of the risk, if any, to which a proposed deportee might be exposed . . .the fact that certain decisions have been made by officers at an earlier stage in the course of an application for refugee status does not absolve him from making that decision himself.”
28. I am, therefore, satisfied that the decisions considered and made in these cases were made lawfully notwithstanding that they were not made personally by the Minister for Justice and Equality. I, therefore, refuse these applications for judicial review.
|