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Cite as: [2015] IESC 73

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Judgment

Title:

W.T. & ors -v- Minister for Justice and Equality & ors

Neutral Citation:

[2015] IESC 73

Supreme Court Record Number:

440/11

High Court Record Number:

2011 796 JR

Date of Delivery:

31/07/2015

Court:

Supreme Court

Composition of Court:

Hardiman J., MacMenamin J., Laffoy J., Dunne J., Charleton J.

Judgment by:

MacMenamin J.

Status:

Approved


Judgments by	Link to Judgment	Result	Concurring
MacMenamin J.	Link		Hardiman J., Laffoy J., Dunne J., Charleton J.
Charleton J.	Link

Outcome:

Dismiss

___________________________________________________________________________

THE SUPREME COURT

[Appeal No. 440/11]

Hardiman J.
MacMenamin J.
Laffoy J.
Dunne J.
Charleton J.

JUDICIAL REVIEW

BETWEEN:

W.T., A.T. (A MINOR SUING BY HER FATHER AND NEXT FRIEND W.T.), B.G. AND M.T. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND B.G.)

APPELLANTS

MINISTER FOR JUSTICE & EQUALITY, THE ATTORNEY GENERAL AND IRELAND

RESPONDENTS

Judgment of Mr. Justice John MacMenamin dated the 31st day of July, 2015

Introduction: The Carltona Principle
1. It is now well recognised in the law that each minister must both bear political responsibility to the Dáil, and legal responsibility in the courts, for actions taken by their own departments. In law, ministers are regarded as being one and the same as the government departments of which they are the political heads. Conversely, departmental officials act in the name of the minister. In making administrative decisions, therefore, discretion is conferred on a minister, not simply as an individual, but rather as the person who holds office as head of a government department, which collectively holds a high degree of collective corporate knowledge and experience, all of which is imputed to the political head of the department. Frequently a minister’s officials will prepare documents for consideration, consider objections, summarise memoranda, and outline a policy approach to be taken by the Minister as an integral part of the decision-making process. Part of this arrangement, identified as the eponymous Carltona principle, is that the functions entrusted to departmental officials are performed at an appropriate level of seniority, and within the scope of responsibility of their government department. No express act of delegation is necessary. When the principle became a recognised part of Irish law, it was characterised as being a “common law constitutional power” (see Carltona Ltd. v. Commissioners of Public Works [1943] 2 All E.R. 560; Bushell v. Secretary for State for the Environment [1981] AC 75 HE Lord Diplock; R. v. Home Secretary, ex p. Oladehinde [1991] 1 AC 254, at 282, per Lord Donaldson M.R.; approved by Hamilton C.J. in Tang v. Minister for Justice [1996] 2 ILRM 46; and in Devanney v. Minister for Justice [1998] 1 ILRM 81). The constitutional origins of the power derived from the executive power of the State, identified, inter alia, in Article 28 of the Constitution.

2. The principle, clearly, involves a significant degree of reciprocal trust between ministers and officials. An actual decision-maker is vested with the Minister’s devolved power. As a matter of prudence, if no more, a minister may often put in place sufficient procedures to ensure that decisions taken, which are of high significance to individuals (such as deportation), are actually reflective of government policy, and are, truly, exercised in a manner which is genuinely discretionary.

The Test for Excluding Carltona
3. In law, the principle, thus expressed, is capable of being negatived or confined by express statutory provision to the contrary, or by necessary implication (see generally, Chapter 11 Administrative Law in Ireland 4th Edition, Hogan & Morgan, Roundhall Press). In such cases, then, the test is whether it can be established that a statute clearly conveys that the Carltona principle is not to be recognised, or clearly implies such a conclusion. Although the doctrine was devised under the exigencies of administration in the United Kingdom in World War II, it is now seen as a judicial recognition of the complexity of the administration of modern states, where it would be impractical, that a minister, as political head of a department, could personally take every decision.

4. In identifying the scope of this principle, a distinction is made when a decision maker is a statutory office holder; then different considerations arise. For present purposes, I distinguish between devolved Carltona powers and what I characterise as delegated statutory powers. The Carltona principle does not apply to statutory office holders exercising decision-making functions delegated by Statute. If, on the other hand, the decision-maker is a civil servant assigned specific duties under Statute, but who operates a devolved power vested in the Minister, then the Carltona principle will apply.

5. The Oireachtas can, by legislation, restrict or prohibit a Minister’s power to devolve a decision, and may require the Minister to exercise such decision-making power in person. This will require very clear statutory terminology; for example, words to the effect that a direction, or decision, should be made or performed by a Minister “and not by a person acting under his authority”. It follows that a court will be very slow to read into a statute any such implicit limitation; providing that the devolved power does not conflict with the duties of an official in the discharge of their specific functions, and that the decision in question is suitable to their grading and experience.

The Circumstances of the Appeal
6. These general considerations form the background to this appeal brought by the appellants, who are Nigerian nationals who have failed to obtain political asylum, and are now the subject of deportation orders. No material has been placed before the Court to show that their cases are exceptional, in the sense that some particular features, as identified in s.3 of the Immigration Act, 1999, concerning humanitarian considerations, the common good, national security, or public policy, arise. The deportation orders were signed by Mr. Noel Waters, a senior official in respondent’s department on the 29th July, 2011. Mr. Waters was then the Director General of the Irish Naturalisation and Immigration Service, which is part of the respondent’s department. In that year 1,334 such decisions fell to be considered.

7. The appeal before this Court is against a succinct judgment and order of Hogan J., delivered in the High Court, dismissing the claim for judicial review of the Minister’s decision to deport the appellants, which order was made in the name of the Minister. In so holding, however, and pursuant to s.5 of the Illegal Immigrants (Trafficking) Act 2000, the judge certified the following point of law of exceptional public importance, such that it was desirable in the public interest that an appeal should be taken to the Supreme Court thereon:

“Whether the decision of the Minister for Justice & Equality to make a deportation order in respect of the appellants pursuant to s.3(1) of the Immigration Act, 1999 must be taken personally by the Minister.”

8. The appellants submit the deportation order concerning them must, in law, be taken by the respondent Minister. To succeed, they must show that the Carltona principle has been negatived or confined, either by express statutory provision, or by clear necessary implication, such that it must be the Minister who alone makes the decision to deport.

9. The appellants face the difficulty that there is already clear authority on the principle, insofar as it applies to the area of immigration. The Act now in question is the Immigration Act 1999. This is the successor to the Aliens Act 1935. But certain of the devolved functions, (such as those in question here), are very similar in nature to the predecessor 1935 Act. In Tang v. Minister for Justice (referred to earlier), a case brought under the Aliens Act 1935, a senior departmental official refused permission to Hong Kong immigrants to reside in the State as they had breached the terms of their entry conditions. The official in question was in charge of the Immigration and Citizenship Section in the Department of Justice, the position occupied by Mr. Waters, the decision-maker in this appeal. The official acted in the name of the Minister when making the decision. The Minister was not consulted about the decision to refuse residence. In Tang, this Court rejected the proposition that the refusal of permission to reside in Ireland should have been made personally by the Minister. Having specifically approved the Carltona doctrine, as enunciated in the Carltona judgment itself and Oladehinde (both cited above), Hamilton C.J. explained in Tang:

“Having regard to the extensive powers conferred on the minister by 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.” ([1996] 2 ILRM 46 at 60 to 61).

10. This broad expression of principle is very much on point to this appeal. No convincing argument has been advanced that Tang was distinguishable in any significant way, or that the judgments in Devanney were wrongly decided. It is true that the decision here is to deport, rather than to revoke a residence permission. But I consider the principles expressed in Tang are binding on this Court, unless we are persuaded the facts were distinct. I reiterate the frequently made observation that the doctrine and hierarchy of precedent is as applicable to immigration law as to elsewhere in the law.

11, The Carltona principle was again considered in Devanney (cited earlier), where the issue was whether the Minister was obliged, personally, to consider the appointment of each District Court clerk, having regard to the provisions of s.46(2) of the Court Officers Act 1926. This provision provided that every District Court clerk “shall be appointed by the Minister and shall … hold office at the will of and may be removed by the Minister.” Reversing the High Court judgment, which had been to the effect that it was “perfectly practical” for the Minister personally to appoint such officials, Hamilton C.J., again speaking for this Court, acknowledged the importance of the appointment in question, but nonetheless made clear:

“The appointment of a District Court clerk is, no doubt, an important matter. But it is not more important than

many of the decisions which fall to be made by civil servants, in the name of the Minister, under the Aliens Act1935. Yet the practice under the Aliens Act 1935, was expressly approved by this Court in the Tang case, as being a correct application of the Carltona principle

. Logically, therefore, it appears to me that the Court must regard what happened in this case as being also a correct application of the Carltona principle.” [1998] 1 ILRM 81 at 102

(emphasis added)

12. These statements of principle show that while it cannot be said the Carltona doctrine is of ‘general application’, it is nonetheless one where a court must carefully analyse the scope of the administrative decision making power through the prism of the statute involved. The intention of the Oireachtas is expressed in the legislation. Excluding the doctrine requires very clear words. The principle can be dis-applied only where the Oireachtas clearly intended, or clearly implied, in the legislation, that the Minister, and the Minister alone, should make the decision. Is there a real difference in nature between the decisions referred to in Tang and Devanney, quoted above, and the decisions in question in this appeal? To revoke a permission to reside has an effect very similar to making a decision to deport. Obviously, the criteria for making such decisions vary greatly, but to my mind, their nature and effect are too similar to ignore in this context.

13. A Department of State makes many decisions each week. The Carltona doctrine, therefore, has a strongly practical dimension. Up to the year 2011, the then Minister, in fact, signed each deportation order. Then the practice changed. This Court was made aware at the appeal that, in the year 2010 (the year before the function was devolved) 1,034 deportation orders were made. In the years following numbers are given and not disputed, in 2011 (the relevant year to these deportation orders), 1,334 decisions in 2012, 1,619; in 2013, 1,726 orders; and finally in the year 2014, 739 decisions. It is clear that the idea of a minister signing (still less considering) each order is impractical

14. As a consequence of Tang and Devanney, the two authorities cited earlier, Carltona is therefore an integral and settled part of our law, now encompassing even administrative decisions which have significant consequences. The clear effect of both judgments is that prior observations by this Court are no longer part of our law (see, previously, to apparently contrary effect, Geraghty v. Minister for Local Government (No. 2) [1976] IR 153). On the basis of Tang, there can be no doubt that the decision in question here is one within the scope of the relevant official’s scope of authority. The decision differs hardly at all from that taken in Tang. Both concern authorisation to reside or continue to reside in the State. The official is carrying out duties, expressed to be vested in the Minister, as defined in the Immigration Act 1999. The decisions undoubtedly hold significant consequences for the appellants. But if there is no explicit legislative intention confining decision-making to the Minister, then Carltona will apply, and the principle, as enunciated in Tang and Devanney, is applicable.

15. I turn next to the appellants’ case, bearing in mind that Tang and Devanney pre-date the Immigration Act, 1999. I first address the question whether it can now be said that Tang and Devanney were wrongly decided.

Should Tang and Devanney be Overruled?

16. No convincing case has been advanced that the two authorities are incorrect. I mention here two judgments from other common law jurisdictions sought to be relied on by the appellants in order to support their case that this Court should depart from established precedent. But no argument was made, within the recognised framework of reference, that Tang and Devanney were in error. The established criteria for such a determination are clear (see, most recently, the judgments of this Court in Jordan v. Minister for Children & Youth Affairs [2015] IESC 33); and see, more generally, Mogul of Ireland v. Tipperary (NR) County Council [1976] I.R. 260. I make this observation, even bearing in mind that the issues here have very significant implications for the appellants, and where, having regard to their rights, the basis for departing from precedent may be more flexible.

Are the Facts Distinguishable from Tang and Devanney?
17. Can it then be said that there are persuasive authorities which indicate Tang and Devanney should be distinguished? Be it said that to find such authorities would be a formidable task, bearing in mind how close are the facts in Tang, (and the passages in Devanney), quoted above, to the point at issue.

Minister for Aboriginal Affairs v Peko-Wallsend
18. Two cases were referred to. The most recent in time was the Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40, a judgment concerning s.76 of the Aboriginal Land Rights (Northern Territory) Act of 1976. But the facts in these authorities are entirely distinct. In the Australian High Court, Mason J. did, in express terms, set out the steps to be taken by a minister when delegating a function under the Australian legislation. There was no evidence the Minister had done so. There was a statutory procedure for what is called “delegation” in the judgment. An issue also arose that the relevant minister had failed to take relevant submissions into account, and that, consequently the decision was an improper exercise of the power conferred on him by the Act. But, as can be seen immediately, the issue of delegation which Mason J. had to consider was within a quite different statutory framework. Furthermore, the terms of the legislation were such, the Australian High Court held, that it could only lead to the conclusion that the Minister’s role was a central function of the statutory scheme. The case is not relevant to the terms of the 1999 Act, where, as will be explained, the Act does not lead to the conclusion that the Minister must decide personally. The judgment cannot be used as an avenue for distinguishing the decision in suit from that in Tang and Devanney; nor does it provide any basis for holding that these authorities were wrongly decided. Ultimately, the case was decided on the Minister’s failure to take into account relevant considerations as provided for in the Scheme.

Bushell v. Secretary for State
19. I turn then to a second persuasive authority cited, that of Bushell v. Secretary for State for the Environment [1981] AC 75 HL. I do not consider it helpful for much the same reason. It deals with a different legislative framework. There are undoubtedly useful observations by Lord Diplock in his speech on the respective functions of ministers and government departments. They are touched on in the introductory section of this judgment. But again, the facts of Bushell were far removed from those in this appeal. Bushell, as Peko-Wallsend, also concerns fair procedures to be followed in enquiries carried out under the United Kingdom Highways Act 1959. These concerned the construction of motorways and connecting roads. What was in question in that appeal was the procedure followed by the relevant Secretary of State in carrying out the enquiry; specifically, whether the department was entitled to rely on particular methods for determining road usage, and whether the Secretary of State had been bound to communicate departmental advice, which he received after the enquiry, to objectors so as to give them an opportunity of commenting thereon. The various speeches in Bushell do not directly concern the Carltona doctrine.

The Nature of the Decisions
20. As mentioned earlier, no material has been placed before the Court which indicates that the circumstances of the appellants are in any way exceptional. The Court has not been referred to any specific humanitarian considerations arising in these cases (see s.3(6)(h) of the Immigration Act 1999 cited below). The question of the common good has not been adverted to, in any significant way (see s.3(6)(j) cited below). While questions of national security and public policy have been mentioned, no specific aspect of any of these statutory criteria have been identified as being applicable to the applicants’ cases (see s.3(6)(k) cited below). The appellants must be treated, therefore, as not belonging to a category of persons where any of those specific criteria arise for assessment. The case advanced on behalf of the appellants, therefore, is quite narrow, hinging largely, if not entirely, on the proposition that the Minister should personally sign the deportation orders, and that a restrictive or confining provision preventing the devolution of decision-making to civil servants can be found either expressly or by implication in the statutes. The nature of the decisions taken by the officials referred to in the passages cited from Tang and Devanney are such that, in my view, they preclude any argument distinguishing the appeals based on the gravity of the decision itself.

The Immigration Act, 1999
21. A deportation order is now made under s.3(1) of the Act of 1999. This provides:

“3.-(1) Subject to the provisions of

section 5 (prohibition of refoulement)

of the Refugee Act, 1996, and the subsequent provisions of this section, the Minister may by order (in this Act referred to as “a deportation order”) require any non-national specified in

the order to leave the State

within such period as may be specified in the order and

to remain thereafter out of the State

.”

(emphasis added)

22. The “prohibition of refoulement”, referred to in s.3 (1) above, is contained in s.5 of the Refugee Act 1996 as follows:

“5.-(1) A person shall not be expelled from the State or returned in any manner whatsoever to the frontiers of territories where, in the opinion of the Minister, the life or freedom of that person would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion.”

Comparison of the Statutes
23. Although the statute under which Mr. Waters was operating post-dated Tang and Devanney, the nature of the power, on which this decision based, was very similar. Subject to the ‘refoulement proviso’, therefore, the provisions are very close to each other. That proviso does not arise in this case. By virtue of s.5(1) of the Aliens Act 1935 the Minister was empowered to make an ‘aliens order’ providing for the exclusion of an individual or a class of persons from the State. By virtue of the Aliens Order 1946 (S.I. No 395/1946) the Minister might, upon such conditions as he may think fit, grant leave to remain in the State. By virtue of Article 13(1) of the Order of 1946 the Minister, if he deemed it conducive to the public good, may make a deportation order requiring an alien to leave and thereafter remain outside the State.

24. Counsel for the appellants places particular reliance on provisions of s.3(6) of the 1999 Act, and emphasises that, in making a decision to deport, the Minister is to, inter alia, have regard to:

“…

(h) humanitarian considerations;

.........

(j) the common good; and

(k) considerations of national security and public policy, so far as they appear or are known to the Minister. …” (Emphasis added)

25. It is said that these are questions which are more “personal” to the Minister. But can it be contended, either expressly, or by clear implication, the statute requires that the decision to deport must be taken only by the Minister? Counsel for the appellants contends that the decision is of such gravity that, by implication, if not expressly, this is so. But, in the light of Tang and Devanney, I believe this argument is unsustainable.

26. On a broad consideration is the 1999 Act, one can say unequivocally that there are no specific words which prohibit a devolving of a discretionary power to officials. It is true that there is a definition of the term “the Minister”, at s.1 of the Act of 1999, as referring to the Minister for Justice, Equality & Law Reform, as then designated. Section 3(1) states that the Minister may, by order, require a non-national to leave the State within a specified period. Section 3(2) identifies the categories of person concerning whom a deportation order may be made. These include persons who have served, or are serving, a term of imprisonment; a person whose deportation has been recommended by a court; persons who are required to leave the State pursuant to economic communities aliens regulations and non-economically active persons; persons whose application for asylum has been transferred to a convention country for examination under s.22 of the Refugee Act 1996, and specifically:

“(f) A person whose application for asylum has been refused by the minister”

and

“(g) A person to whom leave to land in the State has been refused.”

27. But nowhere are there words to the effect that the Minister, and no other person, must make the decision or sign the order.

28. Pursuant to s.3(3) of the Act of 1999, where the Minister proposes to make a deportation order, she is to notify the person concerned of her proposal by virtue of what is termed a “three options” letter. The individual concerned may make representations in writing, and the Minister shall, before deciding the matter, take into consideration such representations, and notify the person in writing of her decision, and the reasons therefore. But, again, there is nothing there, or contained in s.3(4) of the Act (which concerns the contents of a notification), which either expresses or implies that the duty is to be carried out by the Minister personally.

29. Section 3(6), briefly referred to earlier, outlines a broad range of criteria, including the age of the person who is to be the subject of the deportation order, their duration of residence, their family and domestic circumstances, the nature of their connection with the State, their employment status and record, both within and outside the State, and representations duly made on their behalf. The section then refers to the three factors identified earlier (emphasised in the quotation from s.3(6)), namely, “humanitarian considerations”, “the common good”, and the “considerations of national security and public policy, so far as they are known to the Minister”. But these words are clearly insufficient to restrict the duty to the Minister personally. The section would have to go much further so as to indicate that it must be the Minister, and no other person, who must make the decision. The words “so far as they are known to the Minister” are insufficient to dis-apply the Carltona principle. There is nothing there which imputes some unique or specific role, or knowledge, to the Minister alone.

30. I observe here that the appellants have not identified any error or deficiency in the decision-making procedure itself. They do not claim any specific prejudice or detriment as a result of the fact that it was Mr. Waters, the Director of the Service, rather than the Minister, who signed the orders. It is not said that some other relevant procedural step was omitted or some point ignored.

Meadows
31. As a support for their argument for a restrictive interpretation of the term “Minister”, counsel for the appellants sought to rely on a passage from Murray C.J., as he then was, in Meadows v. The Minister for Justice, Equality & Law Reform, Ireland and The Attorney General [2010] 2 IR 701. It is true that Murray C.J. there discussed the ‘Minister’s’ role in making deportation orders in the following terms at p. 733:

“He has to balance, on the one hand, the personal circumstances and other matters referred to in s.3(6) and the common good, public policy including the integrity of the asylum system, on the other. In virtually every case there will be some humanitarian consideration and, unlike s.5, even if he is of the opinion that there are humanitarian considerations which tend to support a claim that a deportee be permitted to remain, even temporarily he is not bound to accede to such a request since he has to balance those considerations with broader public policy considerations which may not be personal to the person concerned.”

He went on to observe at p. 734:

“This is quintessentially a discretionary matter for the first respondent in which he has to weigh competing interests and only the first respondent, who has responsibility for public policy in this area, is in principle in a position to decide where that balance lies.”

32. But Meadows did not concern the Carltona principle at all. The reliance on these passages is misconceived. Meadows concerned, inter alia, the nature of a decision to be made under s.3 of the Act of 1999, including the considerations necessary in deciding on refoulement under s.5 of the Refugee Act 1996. The point in question was not the role of the Minister, but rather the standard and scope of review to be applied to such decisions when subject to judicial review in the courts. It is true, that, at the time of Meadows, the deportation order was then signed by the Minister personally. But the references in Murray C.J.’s judgment must be read in the context of the issue then before this Court. What the court was addressing was the requirement, under s.3 of the Act of 1999, that the question of non-refoulement be actually considered by the decision-maker, and that it was not permissible for the decision-maker to rely on the fact that the grounds upon which a proposed deportee may assert a risk to his life or freedom had previously been considered and rejected in the asylum process. The judgment concerned the decision, and the duties of the decision-maker, not the identity of the official or person who, specifically, made the decision. The Court was emphasising that the factual material presented in the context of a s.3 process, must be considered by the person making the deportation order. As a matter of fact, it was the then Minister who personally made that decision. But the Carltona doctrine was not in issue in that case, and neither the principle itself, nor any of the authorities applying that doctrine in Ireland were considered by any of the five judgments of this Court (see observations to the same effect by Hogan J. in F.L. (Louinis) v. Minister for Justice [2012] IEHC 189). This authority does not assist the appellants.

Are There Implied Words Disapplying Carltona?
33. As there are no express words restricting the decision to the Minister, are there then implied words or can it be said that the nature and gravity of the decision are such that it requires the Minister personally to make the order? An implication negating the Carltona principle in this case, again, must be found in the terms of the statute, rather than in the nature of the decision (see again the judgment of Hamilton C.J. in Tang which is clearly to the effect that the nature of the decision itself, subject to the constraints he identifies, does not present an obstacle to devolved decision-making). I am unable to find any words of implication in the Act of 1999. The words would have to go much further to imply the decision must be taken by the Minister.

34. The appellants argue that the nature of a deportation order of itself, qua order, is a matter of such gravity as to preclude the Carltona principle. It is submitted that such orders, even by a senior civil servant authorised to make them, are null and void, because by their very nature they should be made by the Minister. This can only be viewed as a submission that there is a statutory implication that the Minister must make the decision because of the consequences.

35. In Tang, and still more in Devanney, Hamilton C.J. laid emphasis on the fact that such powers are normally exercised by responsible and senior officials under the authority of the Minister. He pointed out that public business could not be carried on if this were not the case. He did, of course, express the caveat that if, in an important matter, a Minister selected an official of such junior standing that he could not be expected competently to perform the work, that Minister would have to answer for that, but in Parliament. However, as the then Chief Justice pointed out, the whole system of departmental organisation and administration is predicated on the view that ministers, being responsible to Parliament, will see that important duties are committed to experienced officials.

The Refugee Act 1996 as an Aid to Interpretation
36. I turn next to submissions made, primarily in reliance on the provisions of the Refugee Act 1996. It is said these imply the Minister’s functions under the Act of 1999 are to be made personally. The powers and duties of the first two stages of the refugee asylum process were fully set out by Charleton J., speaking for this Court, in M.A.R.A. (Nigeria) (An Infant suing by her mother and next friend OA), applicant/appellant v. The Minister for Justice & Equality, The Refugee Applications Commissioner, Ireland and The Attorney General, respondent/respondent [2014] IESC 71 (see in particular paragraph 6 to 12). I do not consider it as necessary to repeat those provisions in this judgment, save, insofar as to point out that, by statute, under the Act of 1996, the functions of making primary and appeal determinations on asylum applications were, in terms, delegated to independent, designated, bodies and office holders, and were, therefore, not to be exercised in the name of the Minister by officials in the Minister’s own department. This is an entirely distinct situation from the Act of 1999. I do not consider the Act of 1996 can be an aid to interpretation of the 1999 Act in this context.

37. The Act of 1999 does not express delegating power or functions in this area. In making a decision under that Act, officials are not exercising any power designated by statute, but rather functions in the name of the Minister, as her alter-ego. The Carltona doctrine is not a principle of delegation, but rather a practice of devolution by the Minister to departmental officials. As Keane C.J. pointed out in AO & DL v. Minister for Justice [2003] 1 I.R at p. 25, the Refugee Act 1996 sets out an “elaborate statutory framework under which non-nationals, such as the applicants, are entitled to have their claims for asylum status given fair consideration, which embodies an appeal procedure to an independent tribunal and which preserves the right of the applicants to have the relevant decisions judicially reviewed in the High Court, albeit subject to particular provisions designed to ensure the more expeditious processing of such applications.” But these powers were delegated by statute to be carried out by designated decision-makers. The position under the Immigration Act 1999 is different.

38. There is no implicit limitation in the Act of 1999 on the Minister’s power to devolve a decision to authorise a civil servant to make a deportation order. It has been suggested that the fact that a Minister might sign a deportation order would “give comfort” to those the subject of such orders. I am afraid that this is not a persuasive submission, particularly having regard to the factual circumstances of this case

Conclusion
39. I am not persuaded that the appellants have succeeded in demonstrating that the decision-making power in question has been negatived, confined, or restricted by express statutory provision, or by clear necessary implication. The statute of 1999 simply does not allow for such an interpretation. It is true that the Carltona doctrine can sometimes be criticised as imposing an exception of uncertain scope to what is sometimes called the rule against “sub-delegation”. But what is in question in this appeal is clearly devolved power to an official, rather than delegation per se. Effectively, the principle is that departmental officials are the alter-ego of the Minister and their decisions are, legally and constitutionally, the Minister’s acts and decisions. The decisions here cannot be impugned on the basis of the case made. But this is not to ignore the principle of vires. I would dismiss the appeal therefore.

Judgment of Mr Justice Charleton delivered on Friday the 31st day of July 2015

1. I agree that the judgment of Hogan J should be upheld and with the judgment of MacMenamin J. The principle of the delegation of powers by ministers of Government to their officials was part of the administrative system inherited by the State under Article 50 of the Constitution. As Hamilton CJ stated in Devanney v Shields [1998] 1 IR 230 at 254, the delegation of decision-making from a minister to his or her officials is “a common law constitutional power, but one which is capable of being negatived or confined by express statutory provision.” When any issue arises as to whether any such delegation has been rendered impermissible by statute, as Denham J states at page 261 of Devanney, the task of a court becomes “a matter of construing the relevant legislation.”

2. Any such delegated power, though exercised by an official, remains the responsibility of the minister; the decision, though made by an official in the name of the minister, is that of the minister. As Denham J put the matter at page 261 of Devanney:

The core of the

Carltona

principle is that as a matter of statutory construction responsible officials may exercise some of the statutory posers 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.

3. In referencing such power as being devolved by the minister to his or her officials, it should not be thought that what is involved is the transmission of decision-making by a minister to officials without recourse to the ultimate source of power. For the correctness or incorrectness of decisions, when subject to judicial review, it is always the minister who is the respondent. Were any legal defect in administration to result in a decision being overturned, the responsibility there is that of the minister. Hence, while it may be seen as merely a quibble over words, it seems preferable to regard the exercise of power through officials as being delegated: the minister continues to carry responsibility, enjoys an entitlement at any time to personally exercise the relevant power, and may see it as part of the good administration of his or her department to engage in periodic discussions with officials as to their approach. Resort by officials to their minister, through the proper channels and in appropriate cases, is part of the balance in this delegation of powers. In that regard, it is not for the courts to interfere with the way in which such administration is structured. Particular instances are the only material ever available to courts and these do not, of themselves, necessarily demonstrate the efficiency of any administrative system.

4. Where migrants come to Ireland and claim that they are being persecuted in their country of origin and that they are thus entitled to refugee status, elaborate machinery responds to their claims. Such migrants have a duty to fully and truthfully cooperate with that system. At least three occasions are presented to them to unfold their case. Firstly, having been interviewed and having filled out answers to precise questions, a hearing is enabled before the Refugee Applications Commissioner. Where the result is not to recommend to the minister that an applicant migrant be given refugee status, applicants may appeal to the Refugee Appeals Tribunal. Save in exceptional cases, this involves a further hearing and amounts to an effective rehearing of the case made on the points appealed. Where, again, a recommendation is not made, the minister writes what is known as the ‘three options letter’ as part of the consideration of deportation. Included in that letter is a further opportunity to make representations as to subsidiary protection. This concept arises not from a fear of persecution but enables migrants to represent that their country of origin is in such a state that it is not safe for them to return there. While, in the past, various courts have commented on the length of time that these steps take, no reasonable view is open that the machinery of government has not given to migrants, through legislation in setting up these bodies and through administration, ample opportunity to responsibly make a case. Experience shows that resort to this transparently fair process can be used by migrants to delay an ultimate decision.

5. While the Refugee Applications Commissioner is independent of any ministerial supervision, save as to broad policy and other matters that in no way trammel decision-making powers, and so is the Refugee Appeals Tribunal, the final step of deciding on the deportation of migrants is with the minister. I agree with the judgment of MacMenamin J that nothing in the legislation requires that the minister take such decisions personally. I would also comment that by the stage of deportation there will exist an abundance of material showing the credibility, background and motivation of the migrants involved. The approach of each minister may be different, as indeed this case demonstrates. The principle of delegation with responsibility resting with the minister involved means that an otherwise impossible task is fulfilled within a very busy department. Such delegation does not mean that the minister’s responsibility is removed. How the interplay of minister and officials is managed is not for a court to decide, though the fact that there is access between ministers and officials can be a comfort.

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