Supreme Court of Ireland Decisions

Judgment Title: Adio & Ors -v- Minisiter for Justice, Equality & Law Reform

Neutral Citation: [2007] IESC 63

Supreme Court Record Number: 481/2006

High Court Record Number: 2006 43 JR

Date of Delivery: 20 December 2007

Court: Supreme Court

Between/

1. Issue
At issue in this case is the decision of a Minister of the Government made in an administrative scheme established as an exercise of executive power, to deal with a unique group of foreign nationals. It is submitted, on the one hand, that, inter alia, in this scheme the Constitutional and Convention rights of applicants were required to be considered in accordance with law. On the other hand, it was submitted that neither Constitutional nor Convention rights arose to be considered. Thus the nature of the scheme is at the core of the appeal, and, with it, the nature of any judicial review. Also, at the kernel of the case is the fact that the position of a foreign national, who failed in an application under the scheme, remains the same as it was prior to the application, with all relevant Constitutional and Convention rights remaining yet to be considered.

At the core of the case is the refusal by the Minister of the first named applicant's application under the IBC 05 Scheme.

2. Eight Cases
The Minister for Justice, Equality and Law Reform, the respondent/appellant, hereinafter referred to as the 'the Minister', has appealed from the judgments of the High Court (Finlay Geoghegan J.) in seven cases where the High Court quashed the decision of the Minister to refuse applications for permission to remain in the State to foreign national parents of Irish born children under a scheme which he had introduced. In the eighth case the Minister is appealing against the order for costs made in the High Court.

3. These related cases are:

(i) Bode v. The Minister, Appeal No. 485/2006
(ii) Oguekwe v. The Minister, Appeal No. 489/2006
(iii) Dimbo v. The Minister, Appeal No. 484/2006
(iv) Fares v. The Minister, Appeal No. 483/2006
(v) Oviawe v. The Minister, Appeal No. 480/2006
(vi) Duman v. The Minister, Appeal No. 482/2006
(vii) Adio v. The Minister, Appeal No. 481/2006
(viii) Edet v. The Minister, Appeal No. 005/2007

4. The general facts and law relating to the Minister's decision in the administrative scheme in the seven cases are set out in the Bode judgment. The particular facts, law, and decision of this case are set out herein.

5. Parties
Farouq Adio (a minor suing by his mother and next friend Folashade Olubunmi Adio), the third named applicant, and hereinafter referred to as 'the third named applicant' was born in the State on the 27th March, 2003. The third named applicant is the son of Folashade Olubunmi Adio, the first named applicant, and hereinafter referred to as 'the first named applicant'. The first named applicant is a national of Nigeria and arrived in the State in March, 2003. Fuad Adio (a minor suing by his mother and next friend Folashade Olubunmi Adio), the second named applicant, is hereinafter referred to as 'the second named applicant'. He is also a son of the first named applicant, he was born in Nigeria in 2001.

6. Particular Facts
This case raises the issue of the time limit requirements for applications under the IBC 05 Scheme.

The learned High Court judge found that the first named applicant submitted an application form to the IBC 05 Scheme on the 26th April, 2005, which was received by the Minister on the 5th May, 2005.

The decision of the Minister was given by letter dated 29th November, 2005, in the following terms:-

"I am directed by the Minister for Justice, Equality and Law Reform to refer to the IBC/05 application form submitted by you in connection with the revised arrangements announced by the Minister on 15th January 2005 for the processing of applications for permission to remain in the State from the non-national parents of Irish born children born before 1st January, 2005.

As stated on the application form, and in the Minister's announcement, the closing date for the submission of applications for consideration under the revised arrangements was 31st March 2005. Your application, which was received by this Department on 5th May, 2005, was too late for consideration. Accordingly, I am to inform you that an application from you cannot be considered under the revised arrangements. The IBC/05 application form and your original supporting documents are returned herewith."

7. High Court Proceedings
By order of the High Court on the 13th February, 2006, the applicants were granted leave to apply by way of an application for judicial review for:

"1. An order of certiorari by way of an application for judicial review quashing the decision of the [Minister], dated 29th November, 2005 and re-issued by letter dated 19th December, 2005 refusing to consider the first named applicant's application for permission to reside in the State;

2. An order of mandamus by way of an application for judicial review directing the [Minister] to consider the application of the first named applicant to reside in the State with the second and third named applicants."

The High Court held, having considered issues of Constitutional and Convention rights:-

"Accordingly, I have concluded that in relation to the application submitted on 26th April, 2005 by the first named applicant, whilst the Minister was not obliged by the terms of the revised arrangements known as IBC/05 to consider that application, neither was he precluded from doing so by the terms of the IBC/05. He retained a discretion to consider and determine the IBC/05 application and having regard to the existence of that discretion he was bound in determining whether or not to consider the application to consider the personal rights of the citizen child protected by Article 40.3 and to exercise the discretion so as to respect and as far as practicable vindicate and defend the qualified right of the citizen child to live in Ireland.

No submission was made that any interest of the common good required the respondent to refuse to consider an application on IBC/05 submitted after the 31st March, 2005, without considering the constitutionally protected rights of the citizen child. Submissions were made as to the necessity for a time limit but not for a time limit which automatically excluded consideration of a late application where the vindication of the citizen child’s constitutional right to live in Ireland so required.

Accordingly, I have concluded that the decisions made herein to refuse to consider the applications of the first named applicant for permission to remain in the State were invalid as they did not consider the personal rights of the citizen child and were taken in breach of the third named applicant’s rights under Article 40.3 of the Constitution."

10. Decision
I would allow the appeal of the Minister. My general reasons are set out in the Bode judgment. My particular reasons are set out in this judgment.

11. Conclusion
The application was misconceived. The IBC 05 Scheme was an administrative scheme established by the Minister exercising executive power to deal with a unique group of foreign nationals in a generous way, on the criteria of the scheme. The parameters of the scheme were clearly set out and included time limits for applications. The scheme was administered by the Minister within the criteria of the scheme.

At no time was it intended, within the ambit of the scheme, that the Minister would consider Constitutional or Convention rights of applicants. The grounds of the application and the appeal relating to Constitutional or Convention rights were misconceived, and premature. Applicants who are unsuccessful on an application to the IBC 05 Scheme are in the same position after the application as they were prior to the application. Constitutional and Convention rights await consideration.

It was a requirement of the scheme that applications be made within a specified time. The first named applicant did not make his application within the time required in the scheme. The Minister consequently acted correctly within the scheme in refusing to consider the application.

Bearing in mind the analysis of the IBC 05 Scheme in Bode, and the extent of judicial review of such an administrative scheme, I would allow the Minister's appeal on this matter, and reverse the decision of the High Court.

The Constitutional and Convention rights of the applicants remain to be considered in another, appropriate, process.