THE SUPREME COURT
Supreme Court record no: S:AP:IE:2017 :000113
O’Donnell J
McKechnie J
MacMenamin J
O’Malley J
Finlay Geoghegan J
MAK
APPELLANT
AND
THE MINISTER FOR JUSTICE AND EQUALITY
RESPONDENT
Judgment of O’Donnell J delivered the 13th of March 2018
1 The applicant is a Pakistani national. On the 23rd of March 2012 he arrived in Ireland and sought asylum status. That application was refused later that year. By October 2016 he had been refused his application for subsidiary protection and accordingly was issued with a proposal to issue a deportation order under s.3(3)(a) of the Immigration Act 1999 (as amended). Submissions were made on his behalf, considered by the Minister and rejected. Accordingly a deportation order was made on the 13th of January 2017. This order is in standard form. It is however central to the argument in this case, accordingly it is desirable to set it out in full.
“ IMMIGRATION ACT 1999
DEPORATION ORDER
WHEREAS it is provided by subsection (1) of s.3 of the Immigration Act 1999 (No. 22 of 1999) that, subject to the provisions of section 5 (prohibition of refoulement) of the Refugee Act 1996 (No. 17 of 1996), and the subsequent provisions of the said section 3, the Minister for Justice and Equality may by order require a 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;
WHEREAS M A K is a person in respect of whom a deportation order may be made under subsection (2)(f) of the said section 3;
AND WHEREAS the provisions of section 5 (prohibition of refoulement) of the Refugee Act 1996 and the provisions of the said section they are complied with in the case of MAK;
NOW, I, Michael Kirrane, on behalf of the Minister for Justice and Equality, in exercising the powers conferred by subsection (1) of section 3, hereby require you the said M A K 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 section 3 pursuant to subsection (9)(a) of the said section 3 and to remain thereafter out of the State.
GIVEN UNDER the official seal of the Minister for Justice and Equality this 13th day of January 2017.”
2 Along with the deportation order, as anticipated in the order itself, the applicant was served with a letter by way of registered post issued pursuant to s.3(3)(b)(ii). That letter informed the applicant that the Minister decided to make a deportation order in respect of him and a copy of that order and the Minister’s considerations pursuant to s.3 of the Immigration Act were enclosed with the letter. The letter stated that the reason for the Minister’s decision was that the applicant was a person whose application for international protection had been refused. Having regard to the factors set out in s.3(6) of the Immigration Act 1999, the Minister was satisfied that in the interest of public policy and the common good in maintaining the integrity of the asylum and immigration systems, any feature of the case which might tend to support the applicant being granted leave to stay in the State was outweighed by the foregoing. The operative part of the letter for present purposes was then set out in bold print as follows:
“The Deportation Order requires you to leave the State and to remain outside the State thereafter.
You are obliged to leave the State by 3rd March 2017. Please advise this office of your travel arrangements that you make to comply with the Deportation Order.
If you do not leave the State by 3rd March 2017 you are liable to be deported and the following requirements under the provisions of section 3(9)(a)(i) of the Immigration Act 1999 (as amended) must be observed:
- you are required to present yourself to the member in charge Booth number 1 Garda National Immigration Bureau, 13-14 Burgh Quay, Dublin 2, on Wednesday the 8th of March 2017 at 10am to make arrangements for your removal from the State.”
3 The letter went on to require the applicant to produce any travel documentation or passport which may assist in or facilitate his removal from the State, and was required to cooperate in any way necessary to enable a member of the Garda Síochána or immigration officer to obtain such document or passport and required him to reside at the address set out in the letter pending removal from the State. He was also informed that failure to leave the State by the 3rd of March was a failure to comply with the provision of the Deportation Order and could result in arrest and detention without warrant and failure to comply with any other provisions of the Deportation Order might also give rise to arrest. Further requirements under s.3(9)(a)(i) could be made.
4 There is no lack of clarity about what was contemplated, and the appellant in this case, being served with the letter of the 31st of January, the Deportation Order of the 13th of January, and the Minister’s considerations pursuant to s.3 of the Immigration Act 1999, was clearly put on notice by the contents of this documentation which was served on him at the same time, of what he was required to do under the Deportation Order. The clarity of what was done in this regard is not therefore in issue: what is challenged is its legality.
5 In essence what is contended here is that there was a failure to comply with s.3(1) which provides that 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”. Undoubtedly the date on which the specified non-national, in this case the appellant, was required to leave the State was not specified in the order itself, but rather in the accompanying s.3(3)(b)(ii) letter which was served upon the appellant in accordance with the provisions of the Act. The question is, whether what was done was in sufficient compliance with the requirements of the Act, that the period within which the non-national was required to leave the State be specified in the order. This however is a point which does not arise for the first time in this case, and it is accordingly necessary to consider the background law.
6 The Immigration Act 1999
Although the Immigration Act 1999 followed from the enactment of the Refugee Act 1996, and many, if not by far the majority, of challenges to deportation orders are made by persons, like the appellant in this case and the companion case of E v The Minister for Justice and Equality, or persons whose application for asylum have been refused, it is perhaps important to recall that the Act sets out the general code in respect of admission to and removal from the State, and accordingly, the failure of an asylum application is only one of the nine grounds specified for the making of a deportation order by s.3(2) of the Act. It is accordingly in that general context that the Act must be interpreted.
7 As might be anticipated the Act requires quite elaborate procedures before a deportation order is made under s.3(1), notwithstanding the fact that one of the conditions under s.3(2) has been satisfied. In particular, there is a requirement of prior notification of a proposal to deport and reasons for such a proposal, an opportunity for the receipt and consideration of submissions, and then a further requirement of the notification of a decision and the reasons for it. As is observed in the companion case of E v The Minister for Justice and Equality, the Act requires service of each of these notifications (described respectively as the s.3(3)(a) notification of a proposal, and s.3(3)(b)(ii) notification of the decision), but does not require service of the deportation order itself. There is perhaps a logic in this in that the decision under s.3(3)(b)(ii) may not involve the making of a deportation order. The decision must still be notified to the individual. It is however difficult to envisage the circumstances that a deportation order would be put into effect without being served upon or notified to the person concerned, as indeed occurred in this case. However, it is important to note that the requirements for notification (and consequently service under subsection 6) relate to the s.3(3)(a) proposal, and s.3(3)(b)(ii) notification of decision. Section 3(7) provides that “a deportation order shall be in the form prescribed or in a form in the like effect”. Section 3(9) is an important provision. It provides that subject to paragraph 9(b) (which provides for an extended period of notice in the case of a person ordinarily resident in the State for a period not less than five years and employed in the State or engaged in business or a practice or profession in the State) that where the Minister has made a deportation order under this section, the notice under subsection (3)(b)(ii) (which is the notification of the decision) may require the person to do any one or more of the following things for the purpose of insuring his deportation from the State, such as present himself to a member of the Garda Síochána at such date, time and place as may be specified in the notice, produce travel documentation etc. It may be recalled that specifications under s.3(9)(a)(i) were made in the letter of the 31st of January 2017 referred to above. It may be noted in passing that subsection 9 clearly contemplates the sequential making of a deportation order, and then the issuance of a notice under subsection (3)(b), and furthermore that the making of a deportation order will precede the notification of the decision and reasons for it under s.3(3)(b)(ii).
8 Section 3(7) provides that the deportation order shall be in the form “prescribed” but it is permitted that some deviation from that form is permitted since it is contemplated that it may be “in a form in the like effect”. Section 1 of the Act is the interpretation section and provides that “prescribed” means prescribed by regulations made by the Minister. In fact, three sets of regulations have been made since the coming into force of the 1999 Act prescribing the form of the deportation order. Insofar as the issue in this case is concerned, they have been in identical terms. Thus, the form prescribed by the original regulations SI No. 319/1999 Immigration Act, 1999 (Deportation) Regulations 1999, is as follows:
“ IMMIGRATION ACT 1999
DEPORTATION ORDER
WHEREAS it is provided by subsection (1) of section 3 of the Immigration Act, 1999 (No. 22 of 1999) that, subject to the provisions of section 5 (prohibition of refoulement) of the Refugee Act, 1996, (No. 17 of 1996) and the subsequent provisions of the said section 3, the Minister for Justice, Equality and Law Reform may by 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;
WHEREAS............................................is a person in respect of whom a deportation order may be made under subsection (2) (insert applicable paragraphs) of the said section 3;
AND WHEREAS the provisions of section 5 (prohibition of refoulement) of the Refugee Act, 1996 and the provisions of the said section 3 are complied with in the case of (insert name of person);
NOW I............................................., Minister for Justice, Equality and Law Reform, in exercise of the powers conferred on me by the said subsection (1) of section 3, hereby require you the said................................................. 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 section 3, pursuant to subsection (9)(a) of the said section 3)* (within the period ending on the date specified by me in the notice served on or given to you with a copy of this order)** and to remain thereafter out of the State.
GIVEN under my Official Seal, this 18th day of October, 1999.
Minister for Justice, Equality and Law Reform.
* Delete in the case of a person for whom a notice under subsection 3(b)(ii) is not required.
** Delete in the case of a person for whom a notice under section 3(b)(ii) is required.”
It will be observed that the relevant regulations at the time of this case, were those prescribed under the Immigration Act 1999 (Deportation) Regulations 2005 (SI No. 55 of 2005), and are in essentially identical terms. In particular, other than a change in instructions, in that the 2005 form specifically instructs the person making the order to insert the name of the person the subject of the order, the relevant part and operative part of the order is in precisely the same form as that contained in the 1999 Regulations. For the sake of completeness it may also be noted that the Regulations have been amended by SI No. 74 of 2017, Immigration Act 1999 (Deportation) Amendment Regulations 2017, which again, in this case with the necessary change of title in respect of the relevant Minister, reproduces the form in the identical terms.
9 It is also relevant to these proceedings, that the point raised in these proceedings has been considered in some previous decisions. In particular, FP v The Minister for Justice [2002] 1 IR 164, was a comprehensive consideration by the Supreme Court, of a number of linked challenges brought to the operation of the deportation procedure under the relatively recently enacted 1999 Act. Judgment was delivered by Hardiman J with whom the other members of the court agreed. At page 168 of the report Hardiman J noted that a number of points were taken in the proceedings in relation to “(a) the proposal to make a deportation order; (b) the consideration given to the representation; (c) the order actually made”. [Emphasis added]. The appellants had challenged among other things the trial judge’s refusal of leave to seek judicial review of the deportation order and notification on the grounds that the form of the order was defective. This argument was dealt with in short order by Hardiman J at page 175:
“Form of order
A further point taken on behalf of the applicants was that the deportation order itself, as opposed to the notification of the decision, should contain the reasons for the Minister's decision and the date of effect of the deportation. I can see no substance in this point. The statutory obligation on the Minister is to notify the applicant in writing of his decision and of the reasons for it. He is entitled to do so by letter if he wishes and this indeed is the most obvious way to do so.
Section 3(7) of the Act of 1999 provides that:-
“A deportation order shall be in the form prescribed or in a form in the like effect.”
The form actually employed in these cases is the form prescribed by The Immigration Act, 1999 (Deportation) Regulations, 1999. Moreover, the letter in each case refers to the order, a copy of which is enclosed with it. I can see no substance whatever in any submission that there is inadequacy, technical or otherwise, in either the letter or the order or in both of them taken together.”[emphasis added]
10 On the hearing of this appeal there was some debate as to the extent to which there had been argument in that case on the specific point raised here. The respondents purported to produce the written submissions filed which showed, it was said, that the issue was very specifically raised and debated. I do not think it is either appropriate or permissible to introduce material in this way, on what is, after all, an appeal from the refusal of a judge of the High Court to grant leave to seek judicial review, which is an ex parte application. The respondent is only present on this appeal by reason of the fact that the application for leave to appeal to the Court of Appeal is required to be made on notice. In any event, no affidavit was sworn exhibiting the submissions. Furthermore, the respondent was only in a postion to produce this material because of the fact that the respondent is the common party to all challenges to deportation orders. An individual applicant might not have the same facility. In the circumstances, I have not had regard to this material. I am however satisfied that the point was in contemplation in the judgment of Hardiman J and is captured by his decision. In particular, it appears that the form contained in the 1999 Regulations was to that extent approved. I acknowledge however that there is no specific reference in the judgment to the terms of s.3(1) upon which the present appellant place most emphasis, and consequently no discussion of its terms in the judgment.
11 In any event, on this appeal, Mr Conor Power SC, accepted, realistically, that it was part of the ratio decidendi of FP that the form prescribed by the 1999 Regulations was not defective by failing to prescribe in it the date of effect of the deportation, and accordingly the decision was binding on the High Court. However, he wished to invite this Court to overrule it. This necessarily involves a consideration of the circumstances in which this Court may depart from and overrule one of its previous decisions.
12 The parties hereto accepted that since the landmark decision in AG & anor v Ryan’s Car Hire Limited [1965] 1 IR 642, this Court is not rigidly bound by the rule of stare decisis and is at liberty to refuse to follow previous decisions of the court if it is satisfied they were “clearly wrong”. Stare decisis is however, a necessary feature of the certainty of the law in a common law system, and it is clear that it was not contemplated that the Supreme Court would depart from an earlier decision simply because on further consideration it might have come to a different conclusion. Further guidance was given in Mogul of Ireland v Tipperary (NR) County Council [1976] 1 IR 260. There the court had to consider the question of the correctness of the decision of the former Supreme Court in Smith v Cavan & Monaghan County Councils [1949] IR 322, a court in the words of Henchy J “whose jurisdiction to declare the law authoritatively was no less comprehensive than that of this court”. The observations of Henchy J at pages 272, 273 are well known:
“This Court while affirming its general adherence to the doctrine of stare decisis, has asserted its freedom to depart from a previous decision, but only for “the most compelling reasons” – see The State (Quinn) v Ryan – or, as it was otherwise put, where the “Court is clearly of opinion that an earlier decision was erroneous it should be at liberty to refuse to follow it, at all events in exceptional cases” – AG v Ryan’s Car Hire Ltd. Therefore, the primary consideration is whether this Court is clearly of opinion that the decision in Smith’s case was erroneous. If the point were res integra, one might reach the opposite conclusion, but I do not think it is possible to assert a clear opinion that Smith’s case was wrongly decided. I do not propose to set out the arguments for or against the acceptance of the conclusion reached by the majority in Smith’s case but, in my opinion, the tenability of that conclusion cannot be clearly rejected in the fact of its supporting reasoning – to which must be added the opinion of Holmes LJ in Brackley Co-operative Society v Tyrone County Council, of Sir John Ross L.C. in Leyburn v Armagh Council (No. 2) and McKnight v Armagh County Council and of Kennedy CJ, Fitzgibbon and Murnaghan JJ in Kennedy v The Minister for Finance.
A decision of the full Supreme Court (be it the pre 1961 or the post 1961 Court), given in a fully argued case and on a consideration of all relevant materials, should not normally be overruled merely because a later Court inclines to a different conclusion. Of course, if possible, errors should not be reinforced by repetition or affirmation, and the desirability of achieving certainty, stability and predictability should yield to the demands of justice. However a balance has to be struck between rigidity and vacillation, and to achieve that balance the later Court must, at the least, be clearly of opinion that the earlier decision was erroneous. In AG v Ryan’s Car Hire Ltd, the judgment of the Court gave examples of what it called exceptional cases, the decisions in which might be overruled if a later Court thought them to be clearly wrong. While it was made clear that the examples given were not intended to close the category of exceptional cases, it is implicit from the use in the that judgment of expressions such as “convinced” and “for compelling reasons” and “clearly of opinion that the earlier decision was erroneous” that the mere fact that the later Court, particularly a majority of the members of a later Court, might prefer a different conclusion is not in itself sufficient to justify overruling the earlier decision. Even if the later Court is clearly of the opinion that the earlier decision was wrong, it may decide in the interests of justice not to overrule it if it has become inveterate and if, in a widespread or fundamental way, people have acted on the basis of its correctness to such an extent that greater harm would result from overruling it than from allowing it to stand. In such cases, the maxim communis error facit jus applies: See per Lord Buckmaster in Bourne v Keane; Ross Smith v Ross Smith; R v National Insurance Commissioner: Ex p. Hudson.”
13 While this lengthy citation is well known and justly celebrated, it is I think useful to have regard to the manner in which the principle set out so clearly was applied in that case. In the subsequent paragraph Henchy J pointed out that the issue was a pure question of statutory interpretation and that there were no new factors, no shift in the underlying considerations, and no suggestion that the decision had produced untoward results not within the range of that court’s foresight:
“In short, all that has been suggested to justify a rejection of that decision is that it was wrong. Before such a volte-face could be justified it would first have to be shown that it was clearly wrong. Otherwise the decision to overrule it might itself become liable to be overruled. In my opinion counsel for the applicants have, at most, established no more than that the interpretation for which they contend might possibly be preferred to that which commended itself to the court in Smith’s case. That is not enough. They should show that the decision in Smith’s case was clearly wrong and that justice requires that it should be overruled. They have not done so. I would therefore decline the invitation to overrule the decision in Smith’s case.”
14 The parties also accepted a suggestion by the court that a further principle may be involved, and made detailed and helpful submissions upon it. As had been argued by counsel for the respondent in Mogul (R. Keane SC), the Oireachtas is presumed to know the law and to legislate in the light of it. The re-enactment may therefore be seen as an endorsement of the interpretation given by the courts to the previous section, or at a minimum a clear intention that it should be interpreted or understood in the same way. This is known sometimes as the Barras principle, after the decision of the UK House of Lords in Barras v Aberdeen Steam Trawling and Fishing Company Ltd [1933] AC 402.
15 The principle was applied in Clinton v Dublin City Council [2006] IESC 58 where this Court had to consider the interpretation of s.50(4)(f) of the Planning and Development Act 2000, which limited certain appeals from decisions of the High Court in planning matters to those where the appellant had received a certificate from the High Court stating that the decision involved a point of law of exceptional public importance. The section in question reproduced identical language used first in the Irish context in s.29 of the Courts of Justice Act 1924, which created the Court of Criminal Appeal and provided for appeals from that court to the Supreme Court in cases where the court certified that the appeal involved a point of law of exceptional public importance. In People (A.G) v Giles [1974] IR 422, it had been held that an appeal under the 1924 Act was not limited to the point certified: rather the section was to be understood as providing that where the appeal involved a point of law of exceptional public importance and was so certified by the Court of Criminal Appeal the appeal could be brought to the Supreme Court where the appellant was entitled to advance other grounds of appeal. In Clinton, Fennelly J speaking for the Supreme Court said:
“In this legal context, the re-enactment of the relevant provisions of s.19(3) of the 1992 Act in 2000 must be regarded as indicative of a legislative intention to continue the interpretation which had been generally and consistently followed to date.
It was in this context that Mr O’Donnell submitted that the Oireachtas must be presumed to have enacted the legislation in the knowledge of the legal and judicial history of the wording and with the intention, or at least on the assumption that it would be accorded the same meaning. The proposition is thus expressed in Bennion, Statutory Interpretation (Fourth Ed. Butterworths, London, Dublin and Edinburgh 2002):
Under the Barras principle … where an Act uses a form of words with a previous legal history, this may be relevant in interpretation. The question is always whether or not Parliament intended to use the term in the sense given by this earlier history.”
16 Some of the earlier statements of this principle contained in the text books and the decided cases suggested that this is a rule of interpretation. It seems clear however that the better view, as indeed expressed in Clinton, is that it is merely a presumption. The position is put thus in the most recent edition of Bennion on Statutory Interpretation (London: LexisNexis 7th edition 2017) p.596, section 26.4 under the heading, “Judicial Interpretation of Earlier Legislation”:
“Where an Act uses a word or phrase that has been the subject of previous judicial interpretation in the same or a similar context it may be possible to infer that parliament intended the word or phrase to bear the same meaning as it had in that context. This is sometimes known as the Barras principle.
This is at most a presumption the strength of which will vary according to the context: there is no rigid rule and words must be given the same meaning that they have been given in an earlier Act. The question in the end is always whether parliament intended the term to be given the meaning it had been given previously. The principle has most recently been endorsed by a majority of the UK Supreme Court in R (on the application of ZH and CN) v London Borough of Newham and London Borough of Lewisham where Lord Hodge said:
“When parliament re-enacts a statutory provision which has been the subject of authoritative judicial interpretation, the court will readily infer that parliament intended the re-enacted provision to bear the hearing that case law had already established.”
This is however at best a presumption and a guide to interpretation rather than an iron rule and it is well to remember the criticism offered by Lord Simon of Glaisdale in Farrell v Alexander [1977] AC 59, 91:
“To pre-empt a court of construction from performing independently its own constitutional duty of examining the validity of a previous interpretation, the intention of Parliament to endorse the previous judicial decision would have to be expressed or clearly implied.”
Similarly, Denning LJ (as he then was) said in Royal Crown Derby Porcelain Co. Ltd v Raymond Russell [1949] 2 KB 417, 429 said:
“I do not believe that whenever a Parliament re-enacts a provision of a statute it thereby gives statutory authority to every erroneous interpretation which has been put upon it. The true view is that the court will be slow to overrule a previous decision on the interpretation of a statute when it has long been acted on, and it will be more than usually slow to do so when Parliament has, since the decision, re-enacted the statute in the same terms. But if a decision is, in fact, shown to be erroneous, there is no rule of law which prevents it from being overruled.”
17 Despite the use of language in some cases which may suggest that decisive weight should be given to this approach it is clear that it is an interpretative approach rather than a binding rule. This was well put as long ago as the 12th edition of Maxwell on the Interpretation of Statutes (Langan ed. 1969 reprinted Triparthi Bombay 1976):
(See also Craies on Legislation Greenberg Ed. London Sweet & Maxwell 2008, at page 795 and the helpful commentary in Dodd, Statutory Interpretation, Tottel, Dublin 2008, para 8.48). It is accepted that this principle applies in the same way to subordinate legislation.
18 In this regard, it is relevant that the same conclusion was reached by the High Court in Kumar v Minister for Justice, Equality and Law Reform [2016] IEHC 677 (Faherty J, 17th of November 2016) and was assumed to represent the law in Parvaiz v Commissioner of an Garda Síochána [2016] IEHC 772 (MacEochaidh J, 21st December 2016) and of course in the judgment of O’Regan J appealed against in this case. It was noted however that in a different case Lin Qing v Governor of Cloverhill Prison [2016] IEHC 710 (MacEochaidh J), leave was granted to pursue the issue in judicial review proceedings, which have not yet been determined.
19 The point raised by the appellant is one of statutory construction alone, and does not pretend to any claim of substantive merit. It is clear that the appellant was notified of not just the period but the precise date by which he was required to leave the State. Furthermore, this was done at the same time and in the same communication as he was provided with the deportation order itself. The specific date is contained in a document that is of particular significance because it is the document required to be served on the appellant under s.3(3)(b)(ii). As already observed, in theory at least, the deportation order could be made and not served upon him. From the point of view of practicality or the basic interest in bringing the period to the attention of the person it is proposed to deport, there could be no benefit and arguably a disadvantage, in specifying a period or date in the order itself. No question of rights is involved at this stage. By the time a deportation order is proposed in a case such as this, a claim for asylum and perhaps subsidiary protection have failed and the person concerned has no lawful entitlement to remain in the State. Furthermore the order can only validly be made when it has been determined that no rights will be infringed by deportation. Nevertheless, the appellant maintains that the decision in FP is clearly erroneous and should be overruled.
20 It is easy to state the appellant’s argument in this regard, although it was put with force and ingenuity by his counsel. It is said, that the requirement of s.3(1) is mandatory and requires in effect that the date by which a person is required to leave the State should be contained in the body of the deportation order itself. In this regard counsel relies on the fact that s.3(1) refers to the period being “specified”. However, and whatever the merits of this interpretation it cannot be said to be the only interpretation of the section. Rather as the respondent points out the Act does not require that the date be specified in the deportation order: rather it requires that the period is specified. It is argued therefore that a period is indeed specified in the deportation order, namely the period ending on the date set out in the s.3(3)(b)(ii) notice. Furthermore, the respondent argues that it is possible to read the documents together, and therefore even if it is considered that a date need have been specified in the deportation order, the principle of incorporation by reference can apply where the deportation order is brought to the appellant’s notice by the service upon him of the s.3(3)(b)(ii) notice enclosing the order and containing the date.
21 It is certainly the case that if this matter were res integra that it could be recognised that there is some force in the appellant’s arguments. However, this question must be approached both through the Barras principle and the test set out in Mogul. First, it is noteworthy that the decision in FP made specific reference to the fact that the order in question was in precise conformity with the terms contained in the 1999 statutory instrument. Given the central importance of deportation in immigration matters it seems reasonable to assume that had any doubt been expressed as to the conformity of that form with the requirements of the Act, it would have been changed long ago. Given the notorious fact that deportation orders and notices under s.3(3)(b)(ii) are regularly and continually the subject of legal challenge, it would, to put it at a minimum, be unsurprising that a form which had received approval in the decision of the Supreme Court would continue to be employed. Here in the language of Mogul, there are no new factors, no shift in the underlying considerations, and no suggestion that the decision has produced untoward results, not within the range of the court’s foresight when FP was decided. Furthermore the decision has to that extent become inveterate and acted on, on that basis to such an extent that greater harm would result from overruling it than from allowing it to stand. It is sufficient to decide this case to conclude that there are competing interpretations of the section, one of which has been adopted by this Court. The best that can be said of the interpretation for which the appellant contends is that it may have force, but it is not unanswerable. But it is not for this Court to choose between interpretations as if the matter came before the Court for the first time. The approach of the courts to a provision which has been the subject of consideration by both the judicial and legislative branches is well established and provides clear guidance in this case. Adopting the language of Henchy J in Mogul it has not been shown that the decision in FP’s case was clearly wrong, nor that justice requires that it should be overruled. Accordingly, I would dismiss the appeal and uphold the decision of the High Court refusing leave to seek judicial review.
