Judgment of Mr. Justice Hardiman delivered the 10th day of November, 2015.
1. In these judicial review proceedings the applicant (Mr. Hussein) sought an order of certiorari quashing the respondent’s (“the Minister’s”) decision of 3rd November, 2011, and also a reviewed decision of the 23rd November, 2011, upholding the first decision. There are other claims to ancillary reliefs, which are not immediately relevant.
2. The decision in question was a decision to reject Mr. Hussein’s application for “long term residence with exemption from work permit conditions”. This is sometimes referred to as “Stamp 4 permission”. It was argued by the applicant that the permission could only be granted pursuant to the statutory discretion provided to the Minister by s.4 of the relevant statute, the Immigration Act, 2004. Mr. Hussein claimed that the Minister erred in failing to determine the application by reference to Mr. Hussein’s particular circumstances. It was also claimed that the Minister had unlawfully fettered her discretion and that of her servants or agents by adopting an unreasonable and fixed policy to refuse long term permission to reside to eligible persons on the basis of convictions for relatively minor offences, here the Road Traffic Offence of driving without insurance.
3. The application was successful in his High Court proceedings. The Minister appeals against the decision of the High Court. On the hearing of this appeal we were told that she was particularly concerned about what the learned High Court judge held at para. 21 of the judgment.
4. In that paragraph, the learned trial judge referred to what had been said by Cooke J. in Saleem v. Minister for Justice [2011] 2 IR 386 to the effect that the scheme for granting the relevant form of residency was operated under s.4 of the Immigration Act, 2004.
Declarations had been sought in Saleem to the effect that the scheme for long term residency permission was an extra statutory scheme. These declarations, were held (see para. 11 of the judgment) to have become irrelevant by reason of a clarification of the Minister’s stance to the effect that the Minister had, in fact operated a statutory scheme in Saleem. Having regard to what was said on behalf of the Minister at the hearing of the present appeal it will be seen that the facts of this case, too, left no scope to argue whether there was a residual non-statutory discretion available to the Minister, presumably based on the inherent executive power of the State.
The learned trial judge referred to a letter of the 5th October, 2011, issued in a different case, for the proposition that there was a policy in the relevant section of the Department “to refuse applications from those convicted of offences such as driving without insurance because it was considered to be a serious offence”. The learned trial judge continued:
“In that case because the applicant had been convicted of driving without insurance, a decision was made not to grant long term residency. In this case the applicant failed because he committed the same offence and was therefore deemed not to be of good character. It was made clear that the applicant was refused as a result of his criminal conviction alone. That refusal is inconsistent with the spirit terms and intention of s.4(3) [of the 2004] Act. The good character condition of the residency scheme, insofar as it permits a refusal because of a conviction for a s.56 offence, is at variance with the policy of the Oireachtas expressed under the Act. The respondent has offered no evidence to explain the letter or to refute the existence of such a policy. I am satisfied that the unexplained letter, together with the decision in this case, indicate that such a policy exists. I am also satisfied that the respondent has unlawfully and unreasonably restricted his discretion by adopting this policy and moreover, in refusing the application on the sole ground of this conviction, was acting contrary to the intention of the Oireachtas as set out in s.4 (3) which precisely delineates the nature of a criminal conviction which may result in a refusal. I have no doubt that the Minister is entitled to construct a conditional scheme for particular classes of applicants as he had done in respect of the various Stamp 0, Stamp 1, Stamp 2, 3 and 4 visas to be and remain in the State. However in doing so the respondent must act within the framework of the statutory discretion conferred by s.4.”
It was common case on the hearing of this appeal that the learned trial judge in this case had not been invited to quash the Minister’s decision on that ground.
5. Subsequent to the High Court decision, but before the coming on of the appeal, Mr. Hussein’s proceedings became moot because he was granted a Certificate of Naturalisation and became an Irish citizen, in September 2014. Accordingly, since Mr. Hussein had acquired citizenship he obviously had no interest in pursuing an application for the lesser form of immigration status known as “Long Term Residency”.
6. Nevertheless, this Court by order of the 12th January, 2015 directed that the appeal proceed “notwithstanding its mootness”. This was done on the Minister’s undertaking to pay Mr. Hussein’s costs of the appeal.
7. By order perfected the 7th March, 2014 the learned trial judge certified that the judgment involved points of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Supreme Court. The points of law certified were:
(i) Whether the respondent retains an executive power notwithstanding the provisions of Sections 4 and 5 of the Immigration Act 2004, to operate schemes for the grant of permission to be or remain in the State which are not subject to the said provisions.
(ii) Whether the terms of the Long Term Residency Scheme published by the respondent and by virtue of which permission to remain in the State for a period of five years may be granted by the respondent, is governed by s.4 of the Act of 2004.
(iii) Whether if s.4 of the Act of 2004 applies to such schemes, the respondent has a discretion as to the terms on which a non-national may be qualify for the benefit of such a scheme.
(iv) Whether the provisions of s.4(3) applies to a refusal to vary or renew a permission to be and remain in the State pursuant to s.4(7) and
(v) Whether the respondent has the power to refuse applications for Long Term Residency for reasons other than those set out in s.4(3).
8. When this appeal came on for hearing, however, Ms. Nuala Butler S.C., for the Minister, informed the Court that she was not in a position usefully to argue the first and widest point of those certified. This was as to whether or not, apart altogether from any statutory power, the Minister retains and enjoys an executive power to operate schemes for the grant of permission to be or remain in the State, which are not subject to the statutory provisions. This is a point of difficulty and significance, which might perhaps be dispositive in another case. It may therefore be important to stress that though the question was raised and certified in the present proceedings Ms. Butler very properly stated that she was not in a position to argue this, wider, point because there was no evidence in the present case as to the basis on which the Minister had approached the decision.
Accordingly, the case was argued only on the statutory interpretation points, and the point that the Minister had fettered her discretion and on an assumption the power being exercised was purely statutory. The Court did not, therefore, address the question of the existence or continued existence of any inherent executive power in the relevant area, or of the interpretation of s.5 of the Act.
9. When the appeal came on for hearing before this Court it became clear that the Minister’s concerns were limited to the effect of paragraph 21 of the learned trial judge’s judgment. In particular the Minister was concerned with the finding there that her discretion in relation to an application of the sort made by Mr. Hussein was entirely constrained by statute, specifically s.4(3) of the 2004 Act. She was also concerned to challenge the finding that she had adopted a policy on “good character” as a condition of the residency scheme so rigid that “it permits a refusal because of a conviction for a s.56 offence”, and is therefore “at variance with the policy of the Oireachtas expressed under the Act”.
10. These two points might be described as the statutory construction point and the fettered discretion point. I will deal with them in that order.
11. The first point requires a rather detailed analysis of s.4 of the 2004 Act. Two decision making powers which are created under that Act, by s.4(2) and 4(6) respectively, are the subject of requirements, in different forms of words, that certain specific matters, to be discussed below, are to be considered in making the relevant decisions.
12. The decision in relation to the renewal or variation of the applicant’s permission to remain in the country, on the other hand, was taken under s.4(7) of the Act. The applicant says that the Act must be read as requiring a consideration of the matters set out at s.4(3) and 4(10) when making a decision under s.4(7). If this is not done, he claims, then the statute has created an entirely unfettered discretion which, following Laurentiu v. Minister for Justice [1994] 4 I.R. 26, would be unconstitutional. He says that only by importing the criteria set out in s.4(3) and 4(10) can the Minister’s discretion be exercised in a constitutional manner.
13. If the respondent, Mr. Hussein, is correct in this then a conviction for driving without insurance would not meet the s.4(3) criteria because it does not carry the maximum penalty of twelve months imprisonment or more. If the s.4(10) criteria apply then, the applicant says, there is no good character requirement at all, so that the conviction is simply irrelevant.
14. The Minister, on the other hand, submits that the criteria set out in s.4(3) apply only to the statutory discretion contained in s.4(2) and that the criteria set out in s.4(10) apply only to a decision to be taken under the powers conferred by s.4(6). She says that the power contained in s.4(7) is unaffected by either of these sets of criteria. It is not denied that the decision under s.4(7) must be taken rationally, and in accordance with the principles of Natural Justice, but they are not constrained by the specific matters relied on by the applicant.
15. This is a net question of statutory construction and it was argued with commendable focus and brevity on both sides.
The Statutory provisions.
16. Section 4(2) of the Immigration Act, 2004 provides as follows:
“A non-national coming by air or sea from a place outside the State shall on arrival in the State present himself or herself to an Immigration officer and apply for a permission”.
The following subsection provides that an Immigration officer to whom a non-national applies may “refuse to give a permission… if the officer is satisfied…”. There then follows a list of eleven things, some of which are expressed in the alternative, which justify a refusal of permission to enter the State. The relevant one for the purposes of the present case is the fourth, set out at s.4(3)(d):
“that the non-national has been convicted (whether in the State or elsewhere) of an offence that may be punished under the law of the place of conviction by imprisonment for a period of one year or by a more severe penalty”.
17. The other grounds on which permission may be refused are not immediately relevant. But in relation to the one expressed at subsection 3(d) the applicant makes the obvious point that the Irish offence of driving without insurance does not attract a sufficiently severe penalty to be caught by subparagraph (d).
18. But the decision which Mr. Hussein seeks to challenge in this case was not a decision by an Immigration officer who is asked by a non-national for permission to enter the country. That permission was successfully sought years previously, in 2005. Rather, Mr. Hussein was asking the Minister for the exercise of a discretion under s.4(7) of the Act. This provides that:
“A permission under this Section may be renewed or varied by the Minister, or by an Immigration officer on his or her behalf, on application therefor by the non-national concerned”.
Mr. Hussein was seeking that the permission to be and remain in the State which he had had since 2005, be varied by permitting him to remain “without work permit conditions”. This permission, which would last for five years, would allow him to work in the State without having to nominate any particular employer to the authorities. In other words it would allow him to change employment at will. Furthermore it would give him a period of five years during which he would not be subject to the direct supervision of the Naturalisation Service. If he completed this period uneventfully he would be in a strong position to apply for naturalisation, which he has in fact since achieved.
19. It is not clear to me, on the face of the statute, that the grounds for refusal of permission to land set out in s.4(3) have any application at all to an application for variation under s.4(7). The list of matters justifying refusal is introduced thus in subsection 4(3):
“Subsection to s.2(2) an Immigration officer, may, on behalf of the Minister, refuse to give a permission to a person referred to in subsection (2) if the officer is satisfied…”.
There follow the eleven grounds of refusal already discussed.
It seems perfectly clear to me that these grounds are listed as grounds on which an immigration officer may refuse a permission to land a non-national who is entering the State from a place outside the State. This is something quite different to the decision to be made by the Minister under s.4(7). Firstly, in the present case, that latter decision is made some six years after Mr. Hussein had got an original permission to land and remain in the State. During that time his employment and conduct generally had been reviewed at least annually and a good deal was known about him as an Irish resident. There seems to me to be no basis for implying any statutory constraint at all on the Minister’s power under s.4(7) other than the very general ones mentioned above. The decisions made in the two cases (under s.4(3) and s.4(7)) are quite different and there is no reason a court should read the criteria laid down for the consideration of one decision, by an immigration officer, into the criteria of the exercise of another decision, of a quite different nature, by the Minister.
20. The applicant also refers to s.4(6) of the Immigration Act. This allows an immigration officer to attach conditions to a permission. By s.4, subsection (10) it is provided that:
“In performing his or her functions under subsection (6) an immigration officer shall have regard to all of the circumstances of the non-national concerned known to the officer or represented to the officer by him or her and in particular, but without prejudice to the generality of the foregoing to the following matters…”.
There then follows seven specific matters which are to be considered without prejudice to the requirement to consider all of the circumstances of the person in question. These matters are:
“(a) The stated purpose of the proposed visit to the State,
(b) The intended duration of the stay in the State,
(c) Any family relationships (whether of blood or through marriage) of him or with persons in the State,
(d) His or her income, earning capacity and other financial resources,
(e) The financial needs, obligations and responsibilities which he or she is likely to have in the foreseeable future,
(f) Whether he or she is likely to comply with any proposed conditions as the duration of stay, an engagement in employment, business or profession in the State,
(g) Any entitlements of him or her to enter the State under the Act of 1996 or the treaties governing the European communities within the meaning of the European Communities Acts, 1972 to 2003.”
In considering the significance of subsection (10) it must first be observed that the purpose of that subsection is a very specific one. It is to guide and constrain immigration officers “in performing [their] functions under subsection (6). There is nothing on the face of the statute to suggest a more general application. Secondly it is clear that the decision being addressed by the Immigration officer is of quite different nature to that addressed by the Minister under subsection (7). It is clear especially from the first two phrases set out above that the Immigration officer’s decision is one taken in advance of the non-national’s first legal entry into the State. This emerges clearly from the use of the phrases “proposed visit to the State” and “intended duration of the stay in the State”. On the other hand the Minister’s decision relates to a decision as to whether or not to vary the conditions the permission to remain in the State enjoyed by a person who is already established here, in Mr. Hussein’s case, for six years.
21. I can see no basis for the argument that the criteria set out either in subsection (3)(a) to (k) or in subsection (10) should be read into the powers provided by subsection (7). The applicant’s argument was advanced on the basis of, or by analogy with, the decision of this Court in Laurentiu, cited above.
That was a decision relating to the necessity to provide “principles and policies” in creating a power to make law in the form of delegated legislation. I entirely agree that such principles and policies are necessary in those circumstances. I cannot see that the case relied upon has any relation to a power which is not of a legislative nature at all but merely a power to make a decision in an individual case. which is an exercise of an executive power.
In Laurentiu the High Court held that Article 13(1) of the Aliens Order, 1946 contained substantive legislation, which was prohibited by Article 15.2 of the Constitution and thereby rendered s.5(1)(e) of the Aliens Act, 1935, and any orders made thereunder, inconsistent with the Constitution.
The Supreme Court dismissed the respondent’s appeal and held, as summarised in the head note:
“(3) that the test to be applied was whether that which was challenged, as an unauthorised delegation of parliamentary power was more than a mere giving effect to policies and principles contained in the statute itself. If so, then it was not authorised.
(4) that the power to dispel or deport aliens inhered in the State as a sovereign State and not because it had been conferred on particular organs of the State by statute. The power to deport aliens was of an executive nature as it could be exercised by the Executive in the absence of legislation.”
There is, of course, no question of the Minister’s power under s.4(7) being a “delegation of parliamentary power”. The contrary was not contended.
22. The applicant’s contention that the Minister had fettered her discretion to deal with an application under s.4(7) is simply unfounded on the evidence. The Minister certainly regarded a conviction for driving without insurance as a serious matter. She was entitled to do so. In the context of the present case, this offence was committed because the applicant could not get insurance in his own name because he held only a Bangladeshi driving licence and had apparently taken no steps to get an Irish one. This occurred, of course, in the case of a man who had been in the State for some years. However, there is no evidence whatever that the Minister regarded this as a permanent bar from Stamp four status. This is evidenced by a letter from the Long Term Residency section of the Irish Naturalisation and Immigration Service. It is signed by a civil servant and reads as follows:
“I am directed by the Minister for Justice and Equality to refer to your correspondence on behalf of your client received in this office regarding the refusal of his long term residency application.
Having reviewed the issues involved, I am to advise that the decision not to grant your client long term residency stands. However, should he so wish, it is open to him to reapply. While it not possible to state that a different decision will be made in any new application, the department would take account of the additional time spent in the State without further convictions”.
It is also very relevant to notice that the applicant has since become an Irish citizen, thereby demonstrating that the authorities have indeed taken into account the further period he has spent in the State without coming to unfavourable notice.
23. Accordingly, there is no evidence whatever of an inflexible policy towards any application made by the applicant, by reason of his conviction for driving without insurance or for any other reason.
24. Accordingly the Court will reverse the decision of the learned High Court judge and refuse the applicant’s application for relief by way of judicial review of the decision of the 3rd and 25th days of November, 2011. In those circumstances his ancillary claims do not arise for consideration.
