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THE SUPREME COURT

O'Donnell J.

McKechnie J.

MacMenamin J.

Dunne J.

Charleton J.

BETWEEN

Supreme Court Record No: S:AP:IE:2018:000118

High Court Record No: 2018/469 JR

P.N.S (CAMEROON)

APPLICANT/APPELLANT

BETWEEN

AND

THE MINISTER FOR JUSTICE & EQUALITY,

IRELAND AND THE ATTORNEY GENERAL

AND

RESPONDENTS

K.J.M. (D.R. CONGO)

APPLICANT/APPELLANT

AND

THE MINISTER FOR JUSTICE & EQUALITY,

IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 31st day of March,

2020

Introduction:

1. The appellant, Mr. K.J.M.in the second action listed (para. 9 below), brought an

application for judicial review in the High Court seeking various declarations as to his legal

position in the State, pending a “decision…at first instance”, made by the first named

respondent on his request for consent to re-enter, for a second time, the international

protection process, pursuant to s. 22 of the International Protection Act 2015 (“the 2015

Act”). In essence, he asserts a right to remain in this State until such decision has been

made and further, he also seeks an injunction preventing his removal pending that

decision. Humphreys J., in a judgment delivered on the 16th July, 2018, dismissed the

proceedings and ordered that the injunction which he had previously granted, be

discharged. The factual circumstances which gave rise to this decision will be explained in

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further detail in a moment. The legal issue arising involves a consideration of certain

provisions of the 2015 Act, as well as ‘Council Directive 2005/85/EC of 1st December,

2005, on Minimum Standards on Procedures in Member States for the Granting and

Withdrawing of Refugee Status’ (“the Procedures Directive” or “the Directive”). The

learned judge also refused, in a later judgment dated the 27th of July, 2018, to grant a

Certificate of Leave to Appeal his decision to the Court of Appeal. By a Determination

dated the 30th October, 2018 ([2018] IESCDET 159), a further appeal to this Court was

permitted.

Factual Background

2. The appellant was born in the Democratic Republic of Congo (“DRC”) in 1972. He

travelled from South Africa to the Netherlands in 2005, having deserted from the

Congolese Defence Forces. He made two asylum applications there, based on an asserted

fear of persecution due to his desertion, one on the 24th January, 2005 and another on

the 10th February, 2005, both of which were rejected. The immigration authorities in that

country attempted to have him removed on the 27th April, 2005: however he resisted

such attempts, with the result that his removal did not take place until the 17th May,

2005. He was sent to Cape Town in South Africa, because it was there whence he had

travelled to the Netherlands. Upon returning to South Africa, he successfully applied for

asylum and was granted a permit which allowed him to stay for two years: however, he

used a false name in the course of that application. The permit expired in 2010 and he did

not apply to have it renewed.

3. It appears, based on the documents exhibited by Mr. K.J.M., in his affidavit of the 8th

June, 2018, that he returned to the DRC at some point between the expiry date of his

South African permit and May 2011, which is when he arrived in Ireland. In this

jurisdiction he applied for asylum on the 31st May, 2011 to the Office of the Refugee

Applications Commissioner (“ORAC”). As part of his application he falsely stated that he

had previously been returned to the Congo, whereas in fact it was to South Africa. On the

9th June, 2011, the Irish authorities requested the Netherlands to take the appellant

back: this was refused. K.J.M.’s asylum claim was rejected by ORAC on the 12th

September, 2011, a decision which he appealed: however the appeal was also rejected by

the Refugee Appeals Tribunal on the 12th December, 2011. He then sought judicial

review of this decision on the 23rd January, 2012 (K.J.M. v Minister for Justice and

Equality [2012] No. 45 JR); however, this was struck out with no order on the 15th

December, 2014.

4. While those applications and proceedings were in being, the appellant, having once more

travelled to the Netherlands, was again refused entry into that country on the 31st

January, 2013: however, he proceeded to make a further application for asylum there.

During his subsequent period of detention, the Dutch authorities sent a “take-back”

request to Ireland under Article 16(1)(c) of the Dublin II Regulation, which was acceded

to and the appellant thereafter re-entered the State. Mr. K.J.M. then applied for

subsidiary protection on the 5th May, 2015, which was refused on the 20th September,

2016, with an appeal from that decision being withdrawn on the 17th October, 2016. He

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had by then a partner, a Ms. C.M. and two children with that partner: all three were

granted Stamp 4 residency here as of the 25th August, 2016, having been in the asylum

application system for 5 years.

5. In accordance with s. 3(3)(a) of the Immigration Act 1999 (“the 1999 Act”), the appellant

was notified of a proposal to make a deportation order in respect of him, to which he

responded by way of written submissions on the 5th December, 2016. On the 13th

January, 2017, a deportation order was made under s. 3(1) of that Act. He applied to

revoke this order in August of that year, under s.3(11) of 1999 Act; an application which

remained outstanding at the time of the first High Court judgment. On the 10th October,

2017 he took steps to be readmitted to the protection process by making an application

for the Minister’s consent to that end, as required under s. 22 of the 2015 Act. On the

26th October, 2017, a letter issued notifying him that a recommendation had been made

to the Minister by the international protection officer (or “IPO”) that this request be

denied. It is this recommendation and its legal consequences which are, amongst other

matters, the subject of these proceedings. Attached to the letter was the report of the

IPO who had carried out the preliminary examination of Mr. K.J.M.’s application. He

appealed the recommendation to the International Protection Appeals Tribunal (“IPAT”)

on the 3rd November, 2017 and that appeal remains pending, though receipt of the

appeal was acknowledged on the 8th November, 2017. The office of both the IPO and that

of IPAT are provided for in the 2015 Act.

6. Having initially failed to report on foot of the deportation order, the appellant was

eventually arrested and detained in Limerick Prison, on 31st May, 2018, following which

he brought an Article 40 habeas corpus application on or about the 1st June, 2018 (K.J.M.

v. Governor of Limerick Prison [2018] No. 702 S.S): this was moved on the basis of an

asserted right to remain in this jurisdiction until a “first instance decision” within the

meaning of Article 7(1) of the Directive had been made (para.7 infra): as no such decision

existed at that time, his detention was therefore unlawful. Keane J. ordered that an

enquiry be held on that same evening, with the Governor, at the commencement of the

hearing, consenting to the appellant’s release on bail pending the conclusion of the

application. Subsequently, on the 6th June, 2018 the appellant’s unconditional release

from detention, was not objected to, on the basis that the warrant in question was

defective. Nothing now turns on these proceedings.

7. On the day of his release, the 6th June, 2018, the appellant’s solicitors wrote to the

Minister for Justice, seeking an undertaking that no further steps would be taken to

deport their client, until such time as the Minister had made a decision under either s.

22(13), to grant consent, or s. 22(15) of the 2015 Act, to refuse consent, to re-enter the

process (para. 5 above): the Minister declined to provide such an undertaking. The

appellant then brought plenary proceedings on the 11th June, 2018, raising very much

the same issues which he ventilates in the judicial review action presently under

consideration by this Court: however objection was taken to such proceedings on the

basis of s. 5 of the Illegal Immigrants (Trafficking) Act 2000, as amended (“the 2000

Act”), which prohibits any challenge to the validity of a deportation order made under the

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1999 Act, lest it be done in the manner, and within the timeframe provided for by that

section. As these requirements were clearly not satisfied, he withdrew such proceedings

on the 11th June, 2018.

8. On the day following, namely the 12th June, 2018, the appellant sought and was granted

leave to apply for judicial review by Humphreys J.. Amongst the reliefs claimed were:

(i)

A declaration that he had not yet been afforded ‘a decision at first instance’

within the meaning of Article 2(e) and/or Article 7 and/or Chapter III of ‘Council Directive

2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States

for granting and withdrawing refugee status’ (“the Procedures Directive or “the

Directive”);

(ii)

A declaration that he could not be removed from the State unless and until he

had received a decision from the Minister pursuant to s. 22(15) of the 2015 Act, and,

thirdly;

(iii)

An injunction preventing the Minister from removing the appellant from the

State until such time as such a decision had been made.

The learned judge duly granted the injunction sought until the return date of the motion

and further continued the order until judgment was delivered.

High Court Judgments

9. Humphreys J. has delivered two judgments in this case. As it happened, because of close

issue similarity, K.J.M.’s case was heard in conjunction with another: P.N.S. (Cameroon)

v. Minister for Justice, Equality and Law Reform, which also had a very similar fact

setting. The trial judge dismissed both sets of proceedings and then subsequently refused

to grant a certificate of leave to appeal in either. However, before the question of leave

had been determined by the High Court, P.N.S.’s deportation order was withdrawn, which

had the effect of rendering his intended appeal, largely moot. Nonetheless, he still applied

to this Court for leave and by way of a Determination, dated 30th October, 2018 (

[2018] IESCDET 160) it was held that due to the extreme factual and legal similarities in both

cases, it would make most sense to adjourn consideration of his application, until such

time as the companion case, being that of the within, had been determined.

10. The first judgment of the High Court was delivered on the 16th July, 2018. The learned

judge held that the entitlement to remain in the State pending the outcome of a s. 22

application for ministerial consent to be re-admitted to the protection process, no longer

continues once an adverse “recommendation” had been made by an IPO under subs (5)

of that section. This and other related provisions of the 2015 Act are intended, in his

view, to give effect to the Directive: Article 7(1) provides for a right to remain pending

the making of a “decision…at first instance”, by “a determining authority” in accordance

with the procedures listed in Chapter III of the Directive. Even though the IPO’s

recommendation in question, was responding, not to an initial application for subsidiary

protection, but rather to an application to be readmitted to the process (a “subsequent

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application”: being referenced in Article 32 of the Directive), that in and of itself made no

difference to the legal issue: the learned judge went on to hold that such

recommendation must be regarded as a first instance decision for the purpose of Article

7(1). (S.H.M. v. Minister for Justice and Equality [2015] IEHC 829, (Unreported, High

Court, Humphreys J., 21st December, 2015)). Therefore, the right to remain ceases at

that point.

11. In his analysis, the learned judge adopted a purposive interpretation of the legislative

scheme, and even though Ireland had not opted into the recast of the Directive

(2012/32/EU), and therefore remains bound by its predecessor, nonetheless, the recast

could be used to assist in the interpretation of the original Directive (2005/85/EC), as the

same was a clarifying as opposed to an amending recast. In passing, but of note is the

fact that this was contrary to the view expressed by Hogan J. at para. 64 of X.X. v.

Minister for Justice and Equality [2018] IECA 124 (Unreported, High Court, 21st

December, 2015) (“XX”). This is a point which I will return to (para. 77 below).

12. The respondents argued that the question before the High Court was whether the

“recommendation” made by the IPO amounts to a “decision” within the meaning of Article

7 of the Directive, despite how it is described by the Oireachtas. Relying on the decision

of Hogan J. in Hampshire County Council v C.E. [2018] IECA 154 (Unreported, Court of

Appeal, 7th June, 2018), the trial judge held that such recommendation should be

regarded in substance, as a “decision” for the purposes of the said Article. He did so for

two reasons, firstly the autonomous meaning of EU measures and secondly, the

automatic nature of the Minister’s approval of such a recommendation under s. 22 of the

2015 Act.

13. In short, the learned trial judge outlined his conclusion by reference to the sequential

nature of the protection process, as provided for by the 2015 Act, and did so in the

manner following:

i) The first instance decision under Chapter III of the Directive is that of the

recommendation made by the IPO, and the appeal decision for the purposes of Chapter V

of the Directive is the appeal decision of the IPAT.

ii)

The ministerial decision made after the IPO’s recommendation, in this instance

to refuse, is a mere formalisation step and of itself does not constitute a first-instance

decision for the purposes of Chapter III.

iii)

Therefore, the right to remain given under art. 7(1) of the Directive applies only

until such point as the IPO’s recommendation has been made, in particular it does not

have effect while an appeal is underway to the IPAT nor during any subsequent judicial

review process: this because Article 7(1) only applies until the first instance decision of

the determining authority is made and does not continue into any appeal or other

“effective remedy process”, as mentioned in Chapter V of the Directive.

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It followed from this that no basis existed for continuing the injunction: it would therefore

be discharged.

14. Humphreys J., having established that a right to remain no longer existed following the

making of a recommendation by the IPO, went on to consider a secondary matter and

stated that relief(s) by way of judicial review, being a discretionary remedy, should not be

available to an appellant who had abused the underlying process. In his view, Mr K.J.M.

had engaged in “a massive abuse of the immigration system both of Ireland and the

Netherlands”, this by using different names and by evading his presenting obligations. He

also withdrew his subsidiary protection application; thus impliedly abandoning a claim of

real risk of harm and only re-applying some months later. On this basis the trial judge

said that even had he not rejected the claim on its merits, he would have done so on a

discretionary basis.

15. Finally, the trial judge held that the reliefs sought had a direct effect on the enforceability

of the deportation order, and consequently the proceedings were covered by s. 5 of the

Illegal Immigrants (Trafficking) Act 2000, as amended; and therefore would be subject to

its provisions, including the time limits therein specified. Given the timeline above

outlined, it was quite evident to the learned trial judge that these proceedings were out of

time. In dismissing the case, the trial judge also ordered that the injunction restraining

the appellant’s deportation be discharged.

16. The second judgment was delivered on the 27th July, 2018, in which the application for

leave to appeal the substantive decision to the Court of Appeal was refused on all

questions submitted.

Application for Leave and Grounds of Appeal

17. The application to this Court was filed on the 1st August, 2018 and a Determination

issued on the 30th October, 2018, in which leave was granted to appeal on six of the

seven asserted grounds, each of which reads as follows: -

i) The learned trial judge erred in holding that “the entitlement to remain in the State

pending refusal of a s. 22 application does not apply after an IPO recommendation has

been made”;

ii)

The learned trial judge erred in finding that “given the automatic nature of the

Minister’s approval of the recommendation under s. 22, the protection view [sic] is in

substance, a decision”;

iii)

The learned trial judge erred in departing from the literal meaning of a

“recommendation” in circumstances where the designation of the function of the IPO as

the making of a recommendation was not absurd nor did it fail to reflect the plain

intention of the Oireachtas, as gleaned from the 2015 Act as a whole;

iv)

The learned trial judge erred in holding that the appellant’s plenary proceedings

were governed by s. 5 of the 2000 Act;

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The learned trial judge erred in refusing an injunction;

vi)

The learned trial judge erred in indicating that he would refuse relief on

discretionary grounds.

18. These grounds can conveniently be structured into raising three issues: which were dealt

with by both the appellant and respondents in this matter. Those issues may succinctly be

stated as follows:-

i) Do these proceedings amount, in substance, to a collateral attack on the validity of the

deportation order, with the result that they are captured by s. 5 of the 2000 Act and

subject to its procedural requirements?

ii)

Can a recommendation made by the IPO under s. 22 be regarded as a “decision

at first instance”, within the meaning of Article 2(e) and for the purposes of Article 7(1) of

the Directive?

iii)

In circumstances where the appellant has asserted a right to remain in the State

under and by virtue of EU law, in what circumstances is a court seized of judicial review

proceedings entitled to refuse relief on a discretionary basis?

Submissions:

Issue 1: Section 5 of the Illegal Immigrants (Trafficking) Act 2000

19. The appellant’s first submission on whether these proceedings amount to a “collateral

attack” on the validity of the deportation order made on the 13th January, 2017 with the

result that they are “captured” by the named section and subject to its procedural

requirements is that, the proceedings do not challenge the validity of the deportation

order per se, rather they challenge the enforceability of the order until such time as a first

instance decision on his s. 22 application has been made. It is submitted that this Court

has implicitly accepted the distinction between validity and enforceability: at the very

least it was accepted in In Re Illegal Immigrants (Trafficking) Bill 1999, [2000] 2 IR 360

that the validity of the detention of a person which appeared to flow from a deportation

order could be challenged otherwise than by way of judicial review. (p. 398 of the report):

“Section 5 deals only with the procedural remedy of judicial review as a means of

challenging the validity of the administrative decisions in question. It makes no

reference to proceedings challenging the legality of the detention of a person who is

also the subject of a deportation order. It is in its terms solely concerned with

proceedings challenging the validity per se of the administration decision.”

Further cited is the dicta of Cooke J. in Q.L. & Y.Y. v. Minister for Justice, Equality and

Law Reform [2010] IEHC 223 (Unreported, High Court, Cooke J., 15th June, 2010) (“Q.L.

& Y.Y.”).

20. The appellant rejects the contention that Nawaz v. Minister for Justice and Ors

[2012] IESC 58, [2013] 1 IR 142 is an authority for the proposition that the instant proceedings

are governed by s. 5 of the 2000 Act, something which was asserted, in similar

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circumstances, by Hogan J. in his judgment in B.S.S. & A.S. v. Minister for Justice and

Equality & Ors [2017] IECA 235 (Unreported, Court of Appeal, 31st July, 2017) (“B.S.S”).

Rather, he says that the point in Nawaz was that any constitutional attack on the

underlying measures, necessarily meant that any order made or capable of being made

thereunder was likewise under challenge. Furthermore, it is said that the reasoning of

Cooke J. in Q.L. & Y.Y. sits more comfortably with this court’s judgment in Nawaz than

with the judgments of the High Court and Court of Appeal in B.S.S. and X.X.

21. Furthermore, it is submitted that the judgments of the High Court and Court of Appeal in

B.S.S. and X.X. respectively, are not compatible with Article 34.4.1° of the Constitution,

as both decisions effectively restrict the constitutional right of appeal from a decision of

the High Court to the Court of Appeal. In the light of this Court consistently holding that

any such restriction must be in clear terms, it is respectfully submitted that the

constitutional right of appeal cannot be restricted on the basis that an application for

injunctive relief to restrain the enforcement of a deportation order on grounds unrelated

to its validity is captured by s. 5 of the 2000 Act.

22. The final submission made by the appellant on this issue is that the High Court, by relying

on the decisions of B.S.S. and X.X. has impermissibly construed s. 5 of the 2000 Act, so

as to capture the within proceedings. This has been done by effectively amending the

section to add the words “or the enforceability” after the word “validity” where it appears

in subsection (1). The appellant also draws attention to the judgment of Humphreys J. in

which it is submitted that, as though quoting from s. 5 itself, he says “the time limits run

from when the grounds of unenforceability arise” (para. 42 of the judgment). This

approach it is said, is to trespass upon the exclusive legislative role of the Oireachtas. It is

also claimed that even though these proceedings broadly concern Mr. K.J.M’s presence in

the state and his removal therefrom, nonetheless, they do not come within the powers

given to the Minister by s. 5(9)(a) and & (b) of the 2000 Act, to prescribe “enforceability”

as a further measure for the purposes of s. 5(1) of the Act. Accordingly, for this reason

the learned judge was also incorrect in his conclusion.

23. On this first question, the respondents also examine the reasoning of this Court in Nawaz

and several of the other decisions mentioned by the appellant, however they distinguish

such cases for several reasons. Even though EU law is the founding basis for the

legislative scheme, nonetheless the challenge is equally an attack on the validity of the

deportation order, as would be a constitutional challenge such as that mounted in Nawaz.

The seeking of an injunction to restrain or prevent deportation is confirmatory of this

viewpoint.

24. The respondents submit that although not expressly framed in such a way, the basis upon

which the appellant seeks an injunction restraining the Minister from enforcing the

deportation order must be that the provisions of s. 3 of the Immigration Act 1999 are in

conflict with Article 7(1) of the Directive. This can be compared directly to Nawaz wherein

this Court found that a constitutional challenge to that section amounted to a collateral

attack on the Minister’s power to make a valid deportation order.

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25. In response to the appellant’s reliance on In Re Illegal Immigrants (Trafficking) Bill 1999

[2000] IESC 19, [2000] 2 IR 360 as an authority for the proposition that enforceability

of a deportation order could be challenged otherwise than via judicial review proceedings,

the respondents claim that this is incorrect. They say the Court clearly envisaged that in a

situation where the basis for detention is a deportation order and the detained person

makes an Article 40 application, that person would still have to institute separate judicial

review proceedings in order to challenge the deportation order. This step could not be

avoided by simply making a habeas corpus application.

26. Finally, the respondents reject the submission that the judgment of Cooke J. in Q.L. &

Y.Y. could be used to support the appellant’s position, as that case involved the seeking of

a declaration that in the changed circumstances which had occurred, the implementation

of a valid deportation order had become unlawful: it is said that such relief was not in fact

captured by s. 5 at that time. Furthermore, the respondents state that the judgment

makes clear that the appellant could not challenge the validity of the deportation order

and that the granting of an injunction would be exceptional. The respondents conclude on

this point by saying that the clear intention of these proceedings is to undermine the

deportation order, by way of a collateral attack.

Issue 2: Can a recommendation made by the IPO be regarded as a decision at first

instance within the meaning of Article 2(e) and for the purposes of Article 7(1) of the

Directive?

27. The appellant’s case in essence is that he has a right to remain pending a first instance

decision by a “determining authority”: that step is not reached in this jurisdiction until the

Minister for Justice makes his decision after a recommendation by the IPO where no

appeal has been taken, and after the intervention of IPAT where such an appeal has been

taken. In particular, that point is not reached after a recommendation by the IPO itself.

As previously stated, such a right to remain is given by Article 7(1) of the Directive, whilst

the decision of the Minister for Justice is provided for in s. 22(13) or (15) of the 2015 Act

(para. 7 above). As his appeal to IPAT has not as yet been determined, he has a right to

remain under EU law: the fact that this is a second application made under s. 22 of the

Act, does not affect this right. Accordingly, he is entitled to enforce such right in domestic

law.

28. The appellant then sets out to test this interpretation by asking whether such could be

said to create an absurd result when viewed as part of the 2015 Act as a whole. He

submits that there cannot be a doubt but that the legislature intended to distinguish, as a

matter of law, a recommendation of the IPO from the subsequent decision of the Minister.

This it is claimed adds credibility to the submission as expressed. Accordingly, as the

appellant has yet to benefit from such a decision, his entitlement to stay in this State

remains.

29. A further point made by the appellant stems from a comparison between the 2015 Act

and the Refugee Act 1996. Under the latter, it was provided that the recommendation of

the Office of the Refugee Applications Commissioner (“ORAC”) would be non-binding, the

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reason for which is to reflect the longstanding recognition that the residency, exit, and

entry of foreign nationals is an aspect of the executive power of the State to protect the

nation’s integrity. The appellant submits that the Oireachtas has consciously chosen to

continue this approach in the 2015 Act: this is supported by the long title of the Act in

which it is said that the overall scheme, as outlined, has had regard to the power of the

executive in such matters.

30. In further support of the argument that he has not yet received a decision at first instance

within the meaning of the Directive, he refers to Annex I of the Directive, wherein ORAC

was given a specific concession as being a determining authority for the purposes of

making decisions of first instance. The appellant questions why there is no equivalent

transposing proviso for the ORAC’s successor, being the IPO. The wording in question in

Annex I is as follows:

“‘Definition of a determining authority’ – When implementing the provision of this

Directive, Ireland may, insofar as the provisions of section 17(1) of the Refugee Act 1996

continue to apply, consider that:

‘Determining authority ‘provided for in Article 2(e) of this Directive shall, insofar as

the examination of whether an applicant should or as the case may be, should not

be declared to be a refugee is concerned, mean the Office of the Refugee

Applications Commissioner”

31. The appellant disagrees with the trial judge’s reasoning that since the Minister no longer

has any discretion in the implementation of a recommendation made by the IPO, unlike

that of ORAC, such a recommendation can be regarded as being equivalent to a decision

at first instance. It is not correct in his view to say that the Minister is simply formalising

a decision previously made. Even if such should be the case, the particulars contained in

Annex I of the Directive should have been updated. As there is no longer an office or

officer called the “Refugee Applications Commissioner”, such effectively being replaced by

the IPO, the appellant submits that there is no longer any basis to continue the

“concession” made to Ireland as outlined in Annex I of the Directive. Furthermore, and in

conclusion on this particular issue, the appellant submits that the transposing legislation

is not sufficiently clear, precise and predictable as is required under EU law: in addition,

for this reason, the Court should grant the injunction as sought.

32. The respondents firmly reject Mr. K.J.M.’s interpretation of s. 22 of the 2015 Act. They

say that there is no basis upon which it can be contended that the Minister exercises any

role as a ‘determining authority’ under either Article 2(e) or Article 7 of the Directive: the

body which examines all subsequent applications under s. 22 is the IPO. The respondents

contrast the situation which prevails under the 2015 Act, wherein the assessments of the

IPO and the IPAT are followed by a grant or refusal of the Minister’s consent, with the

situation under the 1996 Act where an assessment of ORAC or the Refugee Appeals

Tribunal were non-binding on the Minister. It followed therefore that neither body in the

previous process had any defining role in the making of a decision in relation to such

applications. The role of the Minister under the 2015 Act, is, it is submitted, very

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different: there is no discretion and his only function is to notify the applicant of the IPO’s

recommendation and of the right of appeal to the IPAT.

33. The Oireachtas clearly wished to conform with the Directive when it enacted the 2015 Act,

and in this regard the respondents draw our attention to Article 34(3)(a) of the Directive,

which obliged Member States to ensure that an applicant is informed in an appropriate

manner of the outcome of the preliminary examination and, in case the application will

not be examined further, the reasons for the decision. In the respondents’ view, s. 22(6)

which requires the Minister to notify the applicant of the recommendation of the IPO, is a

proper implementation of Article 34(3)(a). The interpretation of the appellant of the s. 22

process is strained, as it would lead to the Minister’s decision being one of first instance,

without an effective remedy as is demanded in Article 39 of the Directive. Whereas, the

respondents’ interpretation gives, in their view, a much more logical interpretation

wherein the IPO’s recommendation is the decision at first instance, with a right of appeal

i.e. an effective remedy, to the IPAT and, an appropriate notification in the form of the

Minister’s mandatory grant or refusal.

34. Finally, the respondents say any consideration of Annex I of the Directive is irrelevant.

The ORAC made non-binding recommendations under the 1996 Act which, but for Annex

I, such a procedure would not have complied with the Directive, in that such

recommendations would not otherwise have been considered decisions. However, this

does not apply to the situation in s. 22 of the 2015 Act since the IPO’s recommendations

are binding and as such constitute decisions.

Issue 3: In circumstances where the appellant has asserted a right to remain in the

State by virtue EU law, is a court seized of judicial review proceedings entitled to

refuse relief on a discretionary basis?

35. The appellant submits that the High Court judge should not have, as he did, engaged in

an analysis of whether the appellant was entitled to the reliefs sought, by looking at his

history in the immigration and asylum process here and in the Netherlands. Only

designated bodies, with up-to-date information about the country of origin are in a

position to assess whether an application based on risk of being subject to inhuman or

degrading treatment upon forcible return should objectively succeed. As well as this, the

appellant questions the manner in which the trial judge engaged in this exercise of

discretion and whether same was done fairly, by setting out only established facts and

uncontroverted evidence. The appellant points to several pieces of uncontroverted

evidence which were not mentioned by the trial judge and do not appear to have been

taken into account by him.

36. Notwithstanding the above, the appellant submits that none of the range of factors which

would normally be taken into consideration by a court as being relevant to the application

of discretion are present here. The appellant questions therefore whether this was a

correct exercise of the court’s discretion and in this respect delves into the principles

espoused in both Smith v Minister for Justice [2013] IESC 4 (Unreported, Supreme Court,

1st February, 2013) and also De Smith’s Judicial Review, in particular at para. 18-059, in

Page 12 ⇓

which the author has said “the claimant’s motive in making a claim for judicial review is

not a relevant consideration in the court’s decision to grant or withhold a remedy”.

37. Particularly in the context of a claim based on an assertion of EU rights, the appellant

submits that, though there is no suggestion that a claimant is entitled to abuse or

fraudulently rely upon EU rights, the Court of Justice’s decision in Cussens and Ors v. T.G.

Brosnan (Case C-251/16) [2017] BVC 61 is a clear authority for the proposition that a

refusal of a right or advantage on account of abusive or fraudulent acts is simply the

consequence of finding that, in the event of fraud or abuse, the objective conditions

required in order to obtain the advantage sought are not, in fact met.

38. The appellant submits that the only matter at issue in this case is whether he has the

right to remain, as a matter of law, while he awaits a decision of the first respondent on

his application for readmission to the protection process. None of the issues seemingly

taken into consideration by the trial judge would have been relevant to the issue of

whether it would have been pointless to grant him injunctive relief by way of judicial

review.

39. In conclusion, the appellant believes that for the reasons above outlined, the appeal

should be allowed, or, in the alternative, that the Court should find for the appellant on

the jurisdictional ground and abstain from deciding the others and remit the balance of

the appeal the Court of Appeal.

40. On the final issue, the respondents have pointed out that the real the basis upon which

the learned trial judge exercised his discretion as he did was set out in more detail in his

second judgment, relating to the granting of a Certificate of Leave to Appeal to the Court

of Appeal. The respondents posit the idea that the discretionary refusal of relief could

have been more policy-based, centred around the court’s concern for the integrity of the

asylum process, of which judicial review forms a very important part. This was alluded to

in Dimbo v. Minister for Justice [2008] IESC 26, [2008] 27 I.L.T. 231. The respondents

further submit that whether there were falsehoods employed with the intention of

grounding litigation, or there were falsehoods employed when corresponding with the

Minister and the IPO, the fact remains that such falsehoods were used to improperly

advance the same set of rights and therefore in both cases the appellant would be poorly

positioned to obtain relief from the system which he has so abused. It is submitted also

that as well as the foregoing, the High Court judge had ample material before him which

would allow him to conclude that the appellant’s previous behaviour gave rise to a lack of

bona fides.

41. While the appellant has submitted that rights which derive from EU law in particular

should not be overruled by such considerations, the respondents on the other hand state

that the abuse of rights doctrine in EU law provides an additional support for the

proposition that rights should not be abused or utilised to a fraudulent end. Furthermore,

while the respondents do accept that the application of discretion should be done by

reference to a framework of principles rather than an “ad hominem dispensation of just

Page 13 ⇓

desserts”, in their view the trial judge took only relevant factors which went to the heart

of the appellant’s conduct and history in the immigration process into consideration.

42. In conclusion, the respondents submit that the appellant has managed to successfully

ventilate his claim before both the High Court and this Court while remaining within the

confines of judicial review and therefore it is difficult to ascertain any discernible prejudice

suffered by him from the procedural requirements of s. 5 of the 2000 Act. His entitlement

to remain in the State under Article 7 of the Directive ceased when the IPO made their

recommendation on the 3rd of November 2017, and, finally, with the identified incidents

of deceit on the part of the appellant throughout his immigration history, the trial judge

was perfectly entitled to rule that the claim would have been refused on a discretionary

basis had it not first been refused as a matter of law.

Issue No. 1 (para. 18 above):

43. The Oireachtas has decided that any challenge to the various and numerous notifications,

decisions, orders, determinations, refusals, etc (“the measures”), set out in s. 5 of the

2000 Act. is to be regulated in a manner more restrictive than where the provisions of

Ord. 84 RSC apply. It should be noted that s. 5 has been amended, first by s. 34 of the

Employment Permits (Amendment) Act 2014 and then s. 79 of the 2015 Act. The

constitutionality of the section, in its original form, has been tested and found compatible:

there is no reason to believe that the version which applies to this case is any different.

Insofar as is relevant, the section reads as follows:-

“5.(1) A person shall not question the validity of –

(a) a notification under s. 3(3)(a) of the Immigration Act 1999,

(b) a notification under s. 3(3)(b)(ii) of the Immigration Act 1999,

by way of an application for judicial review under Ord. 84 of the Rules of the

Superior Courts (S.I. No. 15 of the 1986) (hereinafter in this section referred to as

‘the Order’)

(2)

An application for leave to apply for judicial review under the Order in respect of

any of the matters referred to in subs (1) shall –

(a) be made within the period of fourteen days commencing on the date on which

the person was notified of the decision, determination, recommendation, refusal or

making of the order concerned unless the High Court considers that there is good

and sufficient reason for extending the period within which the application shall be

made, and

(b) be made by motion on notice (grounded in the manner specified in the order in

respect of an ex parte motion for leave) to the Minister and any other person

specified for that purpose by order of the High Court and such leave shall not be

granted unless the High Court is satisfied that there are substantial grounds for

contending that the decision, determination, recommendation, refusal or order is

invalid or ought to be quashed

Page 14 ⇓

(3) …

(a) the determination of the High Court of an application for leave to apply for

judicial review as aforesaid or of an application for such judicial review shall be final

and no appeal shall lie from the decision of the High Court to the Supreme Court in

either case except with the leave of the High Court which leave shall only be

granted where the High Court certifies that its decision involves a point of law of

exceptional public importance and that it is desirable in the public interest that an

appeal should be taken to the Supreme Court.

(b) this subsection shall not apply to a determination of the High Court insofar as it

involves a question as to the validity of any law having regard to the provisions of

the Constitution.”

Accordingly, the procedure specified must be adhered to where the validity of a

deportation order is questioned (ss. (1)(c) of s.5).

44. The manner in which a cause of action is pleaded may differ greatly from case to case,

even when traversing the same tramlines. By such means, the requirements of a regime

like that in s. 5 of the 2000 Act, may be skilfully avoided. As a result, the courts have

developed a line of jurisprudence, so as to ensure that the will of the Oireachtas is not

frustrated and that the intention behind the provision, as evidenced by its terms, is not

circumvented. Hence, the concept of a “collateral attack” which, when so established, will

be regarded as if it were a direct challenge to the measure itself. (para. 42 of the High

Court judgment in this case).

45. When discussing the case law which we have been referred to, it is important not to treat

passages from the judgments, in isolation from the facts of the individual case as

establishing freestanding or self-supporting principles. A simple example will suffice. At

para. 19 above, I have quoted from the judgment of this Court in the Article 29 Reference

of a Bill which subsequently, was enacted as the Illegal Immigrants (Trafficking) Act 2000

(“the Article 29 Reference”) ([2000] 2 IR 360). It is cited by the appellant in this case as

a general authority for making a distinction between questioning the validity of an

administrative decision (such as a deportation order), and its enforceability: such a

submission in and of itself is not correct as it is devoid of context (para. 63 below). So, at

a general level as we will see, care must be taken to position what judgments have said

in their established context. However before summarising what principles can be deduced

from the case law, I should first conduct a brief survey of some of the more important

decisions in this area: I will start with “Nawaz” (Haq Nawaz v. the Minister for Justice &

Ors: [2012] IESC 58, [2013] 1 IR 142).

46. In Nawaz, there were two sets of proceedings: the judicial review questioned whether the

bifurcated system then in place whereby an application for subsidiary protection could not

be made unless the subject person was a failed asylum seeker, was compatible with

Council Directive (2004/83/EC) (“the Qualifications Directive”): we are not concerned with

those, but we are with the second set of proceedings which were commenced by plenary

Page 15 ⇓

summons. Therein, Mr. Nawaz in the following circumstances, sought a declaration that s.

3 of the 1999 Act was unconstitutional.

47. An asylum seeker, following notification of a proposal by the Minister for Justice to make

a deportation order in respect of him/her, and who makes representations against that

proposal, could still voluntarily leave the State at any time before the Minister makes a

final decision in that regard: the notification mentioned must expressly give the person

that option (s. 3(4)(b) of the 1999 Act). In effect, Mr. Nawaz wanted the same

opportunity but after the Minister notified him that his representations had been rejected.

This was not provided for in s. 3 or elsewhere in the 1999 Act. Rather, Mr. Nawaz took s.

3 as meaning that a deportation order would be made at the same time as notification

would be given, that he was not being permitted to remain in the State on what is

generally referred to as “humanitarian grounds”. So, he read the section as meaning that

once rejection had been decided upon, a deportation order would necessarily be made at

the same time as the notification issued: there being no time gap between either. As a

result, he would have no opportunity in those circumstances of voluntarily leaving the

State before such an order was made. Based on an asserted constitutional right to have

that opportunity, he submitted that s. 3 was unconstitutional. In effect, the attack on the

section, was really one of omission rather than prohibition. But the import of what he

sought to achieve was clear.

48. As it transpired, the Minister had not issued any notification of his decision on the

representations made under s. 3(3)(b)(ii) of the 1999 Act, nor had he made any

deportation order in respect of the appellant, at the time of the hearing. The action was

therefore “a pre-emptive strike”, not against being notified of the rejection decision as

such, but rather against the anticipated deportation order, said to immediately follow.

This Court saw no distinction in terms of legal principle between a “quia timet” type move

and where a deportation order in fact had been made. The approach would be the same

in both instances. A central question therefore was whether the plenary proceedings,

which challenged s. 3(1) of the 1999 Act, should be regarded as a direct attack on the

Minister’s ability to, in fact make a deportation order. (s. 3(1) of the 1999 Act).

49. As part of its consideration this Court in Nawaz looked at two earlier High Court decisions,

Goonery v. The County Council of the County of Meath & Ors [1999] IEHC 15 (High Court,

Unreported, 15th July, 1999) (“Goonery”) and Lennon v. Cork City Council [2006] IEHC 438

438 (High Court, Unreported, 19th December, 2006) (“Lennon”). As cautioned earlier, the

facts were as different from each other as they were from Nawaz. However, the relevant

statutory provisions, although on the planning side were of similar import to s. 5 of the

2000 Act. In short, Mrs. Goonery sought a declaration (i) that Meath County Council, as

planning authority, could not have properly determined or made a valid decision on a

planning application by a third party because of its failure to have regard to Council

Directive 85/337/EC (“the Environmental Impact Assessment Directive”) (relief no. 4) and

(ii) that by virtue of the provisions of s. 26(1)(a) of the 1963 Act as amended

(implementing the Directive), Meath County Council could not have made a valid decision

on the planning application (relief no. 11). The fact that she did not seek a declaration

Page 16 ⇓

that the planning permission as granted, was invalid did not prevent the High Court from

concluding that the reliefs as mentioned were indeed an attack on the validity of such

permission and accordingly, were captured by the comparable section, namely s. 82(3A)

of the Local Government (Planning and Development) Act 1976, as inserted by s. 19 of

the Local Government and Planning Act 1992. Kelly J. held that: -

“Whatever about the way in which these (reliefs) are worded, they plainly seek to impugn

the validity of the decision to grant permission. If these reliefs were granted, they would

undoubtedly mean in practical terms that the decision of [the Council] was invalid. This is

particularly so in the case of relief No. 11. The mere fact that an order was not sought

quashing the permission in question does not mean that the validity of the permission

was not being questioned. It was, and so the provisions of the section applied and were

not complied with since the application was moved before Budd J. ex parte and not on

notice as the section requires.”

(See also Kinsella v. Dundalk Town Council & Ors [2004] IEHC 373 (Unreported, High

Court, Kelly J, 3rd December, 2004) at p. 10).

50. The second case referred to (Lennon v. Cork City Council [2006] IEHC 438) where the

facts disclose what an innovative mind, creative spirit and indomitable personality, Mr. J.

V. Lennon, a consulting engineer with a keen eye for law, practising largely in Cork and

Munster, had. The planning application, described by the trial judge as a “bold and

imaginative scheme” was for the construction of a bridge with a commercial centre and

residential development across the River Lee, at a point between St. Patrick’s Quay and

Andersons Quay in the City of Cork. Smyth J. went on to say:-

“This …development had as its inspiration the Ponte Vechio in Florence. The plaintiff who

appeared in person on this hearing (and conducted the case with great skill and

courtesy), is a Consulting Civil Engineer by profession…[who had formulated] a design to

give effect to the concept that would do credit to Benvenuto Cellini. The plaintiff like the

great 16th Century goldsmith and sculptor, had lived in Florence and thence moved to

Rome.”

51. As plaintiff, Mr. Lennon sought a declaration that one Marie Lennon made a valid planning

application to Cork City Council on 10th August, 1998, for the development just

described. The authority took the view that the planning notice did not comply with the

time requirement, specified in Article 14(1) of the Local Government (Planning and

Development) Regulations 1994. The application was therefore treated originally as

incomplete and ultimately was rejected on the 29th October, 1998. Having lodged an

appeal to An Bord Pleanála, that appeal was withdrawn in March, 1999 against the

declared position that the original application was valid and accordingly, that under the

provisions then in force, Ms. Lennon was entitled to a default permission as and from 10th

October, 1999. Amongst many of the issues dealt with by the trial judge, was a

contention that the declaration sought constituted an attack on the validity of the decision

by the planning authority. Smyth J. so agreed. Citing Goonery, he was of the view that

the fact that no formal order was sought attacking that decision was not determinative,

Page 17 ⇓

rather one had to look at the substance of the relief claimed. On that basis, the

proceedings were captured by the relevant provision of the Planning Act. (para 49 above).

52. Drawing on the above line of authorities, this Court (Clarke J., as he then was) held that

the correct approach was one of substance and not form and rhetorically asked what

would the grant of relief, in that case, a declaration, mean in practical terms for Mr.

Nawaz? Ultimately, the learned judge held that a constitutional challenge to the statutory

provisions under which an “adverse order” may be made, being one of the specified

measures (para. 43 above), should of itself be regarded as a pre-emptive attack on the

validity of such a possible order, which of course in that case was a deportation order;

with the result that such proceedings were therefore captured by s. 5 of the 2000 Act.

53. The strict issue of whether there was a valid distinction between the validity of a measure

captured by s. 5 of the 2000 Act (a “s. 5 measure”), such as a deportation order, and its

enforceability, was at stake in Q.L and Y.Y v. Minister for Justice and Equality [2010] IEHC 223

(“Q.L. and Y.Y.”): again, the facts were very much in play as they were in the High

Court authority cited by Cooke J. which suggested that both were inseparable. That

authority, Lelimo, had a complicated procedural history, largely to do with the scope of

the grounds upon which the substantive application could proceed. Such may very well

have had an influence on the relevant passage from the decision of Laffoy J., when

dealing with a submission that a valid and unchallenged deportation order, made prior to

the European Convention of Human Rights Act 2003, could not be enforced post its

enactment, as it may constitute a breach of s. 3(1) of the Act. The learned judge in

response said that this could not be correct and explained:-

“…such authority as any organ of state has to enforce the deportation order derives solely

from the deportation order. The enforcement process cannot be severed from and has no

basis in law distinct from the order itself.” (Lelimo v. Minister for Justice, Equality and Law

Reform [2004] 2 IR 178 at 190)

In Q.L. & Y.Y., Cooke J. was not convinced that in all circumstances such a statement

could be taken at face value, or could have general application, a viewpoint which I will

come back to in a moment.

54. The case of F.O. v. the Minister for Justice and Equality, Ireland and the Attorney General

[2013] IEHC 206 (Unreported, High Court, Mac Eochaidh J., 9th May, 2013) (“F.O.”) is of

interest, where the facts show that on 17th January, 2013, a deportation order was made

in respect of a Ms. F.O., to which there was no challenge. Whilst her pre-history in the

asylum system was indeed notable, it is not of direct relevance to this case. In response

to being notified of that order and a requirement to leave the State by a certain date,

representations were made to the Minister, for her to remain on humanitarian grounds. A

decision on that application remained outstanding at the time of the proceedings. Having

failed to comply with the notification requirement, she was arrested and detained: in

response, she instituted proceedings seeking a declaration that she was entitled to make

a subsidiary protection application and have a decision thereon, prior to deportation

taking place: any move to deport her pending that would be invalid. She sought an

Page 18 ⇓

injunction to prohibit her actual deportation until the proceedings had concluded. As a

matter of note, no such application had been made by the date of the proceedings. (F.O.

v. Minister for Justice, Equality and Law Reform, Ireland and the Attorney General

[2013] IEHC 206).

55. In his judgment, Mac Eochaidh J., reviewed a number of earlier decisions and concluded

that the effect, object and purpose of the proceedings was to challenge the validity of the

deportation order previously made. In his view, the proceedings inescapably meant “that

the deportation order could not be implemented and that it was unlawful on the day that

it was made as it precluded such application being made and determined with the

presence of the plaintiff in the State”. He continued “an unlawful deportation could not

happen on the back of a lawful deportation order…if the deportation would be unlawful

because there had been no prior determination of an application for subsidiary protection,

that implies a defect in the deportation order. I therefore conclude that the effective

success by the plaintiff in these proceedings would require an actual or implied finding of

invalidity in a deportation order and therefore, the proceedings would have the effect of

questioning the validity of that order”. He continued “I find that the purpose of these

proceedings, having regard to this timing, is to prevent a deportation order from having

effect. Preventing such an order from having the force of law because of an error

allegedly extant on the date it was made inevitably questions its validity”. In essence, he

held that the enforcement process could not be separated from and was indivisible from a

valid deportation order. In a memorable phrase he also added “The deportation and the

deportation order are as inseparable as the dancer from the dance, to borrow a phrase”.

Accordingly, s. 5 of the 2000 Act had to be complied with.

56. With respect there was in my view a more straightforward way of arriving at the

conclusion which the learned judge did. Taking his view of the pleaded action, it was

being suggested that enforcement, by way of deportation, could never take place until an

application for subsidiary protection had been made and then duly determined. In effect,

until such events occurred, the making of a deportation order would be at best futile and

most probably invalid. Such a claim was certainly an adventurous call on what the

legislation provided for, and on any reading of the scheme, could not possibly succeed, as

at the most basic level such a protection application might never be made. So

undoubtedly as framed, the challenge, even though no reference was made to the

“deportation order” as such, rather simply to “deportation”, clearly was an assault on the

order itself.

57. A similar issue arose in a number of other decisions, including B.S.S. (an infant acting by

his father and next friend A.S.) and A.S v. the Minister for Justice, Equality, Ireland and

the Attorney General [2017] IECA 235 (Unreported, Court of Appeal, 31st July, 2017)

(“B.S.S.”). In that case, a deportation order, was made in respect of the second

appellant, A.S., on the 24th October, 2016, to which there was no challenge. Having

failed to comply with its terms, he was subsequently arrested as part of the execution

process. At that point, he informed the authorities that he had a son (B.S.S.) whose

mother was an EU citizen and as a result, he asserted a derivative right to remain in the

Page 19 ⇓

State under Article 20 TFEU. Proceedings then followed in which he sought a declaration

that the “implementation of the deportation order…at this juncture would be unlawful”. At

para. 12 of the court’s judgment, Hogan J. said:-

“A key point to bear in mind regarding the present proceedings is that the second

applicant has sought an order restraining the enforcement of the deportation order. There

may well be instances where certain post hoc events would render a deportation order

either spent or unenforceable: examples here would include cases where the subject

matter of the order had become a naturalised Irish citizen and could include cases where

the individual in question had validly married an EU national who was genuinely

exercising free movement rights so that the third country national could only be removed

from the State in accordance with the procedures contained in Article 20, et seq of

Directive 2004/38/EC, or where the effect of the order would actually infringe the

Zambrano rights of a child who is an EU citizen by obliging that child to leave the State.”

58. The learned judge continued:-

“A valid administrative decision generally has both retrospective and perspective effects in

the sense that a legal adjudication to this effect carries with it not only the implication

that what has been done in the past was valid, but that the giving effect to that order in

the future will also be valid. In the specific case of a deportation order, a finding of

validity implies that the enforcement of that order by actually removing the applicant

from the State would also be valid. The corollary therefore is that any application (as in

this case) to restrain the enforcement that the deportation order amounts in substance to

a questioning of the validity of that order so that the provisions of s. 5(1)(c) of the 2000

Act accordingly apply.” (para. 14)

In so concluding he cited a passage from Nawaz (p. 160 of the report) as well as affirming

his view that the essence of the High Court’s decision in F.O. was correct. On that basis,

the Court of Appeal had no jurisdiction to entertain an appeal from the High Court unless

such was moved within the parameters of s. 5 of the 2000 Act or the trial judge certified

under subs (6)(a) thereof. As neither had taken place, the action was dismissed.

59. A further decision is also worth mentioning. One of the issues raised in X.X. v. Minister for

Justice, and Equality [2018] IECA 124 (Unreported, Court of Appeal, 4th May, 2018)

(“X.X.”), arose in the following matter. On the 15th day of April, 2015, solicitors on behalf

of the appellant, made an application to the Minister for Justice for his consent to re-enter

the asylum process pursuant to s. 17(7) of the Refugee Act 1996. That application, which

was marked “without prejudice”, was refused by the Minister on 17th June, 2015. Such

consent would be required where the Minister had previously “refused” to grant to the

subject person concerned a refugee declaration. The reference to “without prejudice” was

based on an assertion that the previous application so made had been withdrawn by the

Page 20 ⇓

appellant, and therefore had not resulted in any refusal by the Minister. In any event,

judicial review proceedings were instituted seeking a declaration that on the 8th April,

2015, he had made a valid de novo application for asylum, which it was claimed had been

refused by the Refugee Applications Commissioner, on the erroneous basis that

ministerial consent was required, when in fact it was not.

60. One of the many issues raised was whether or not the declaration sought constituted an

impermissible attack on the Minister’s decision of the 17th June, 2015: it being accepted

by all that a decision under s. 17(7) of the 1996 Act, was a prescribed measure for the

purposes of s. 5 of the 2000 Act. Applying the principles set out in Nawaz, Hogan J. for

the Court of Appeal, took the view that in substance the challenge amounted to a

collateral attack on the Minister’s refusal to permit the appellant to re-enter the asylum

process. That conclusion was reached because in his view if the appellant was correct

“then the Minister had no power to adjudicate on the s. 17(7) application because by

definition that power only arises if the applicant had already made a prior application for

asylum which had been “refused” in the broader sense by which that term has been

defined. It is in that sense that the applicant would in substance be challenging the

validity of the s. 17(7) decision, otherwise than by way of an application for judicial

review. I appreciate that the applicant only made this application in 2015 on a strictly

without prejudice basis, but this nonetheless cannot take from the conclusion” (para. 71

of X.X.). In passing, it should be noted that in a further appeal to this Court, the decisions

of both the High Court and the Court of Appeal on this point were affirmed ([2019] IESC 59).

61. Mr. K.J.M., very much relies on Q.L & Y.Y. in support of his submission that by confining

his challenge to the issue of “enforceability” and not “validity”, he was not thereby

attacking the order’s validity and accordingly, s. 5 of the 2000 Act was not engaged. The

first named applicant sought, an order of mandamus compelling the Minister to give a

decision on an application under s. 3(11) of the 1999 Act for revocation of a deportation

order made against him, a declaration that deportation would be unlawful pending that

decision and finally an interlocutory injunction to give effect to that claim. The revocation

application, was made on the basis of a change in circumstances, namely that in the

intervening period the applicants had married and had a daughter and secondly, that they

had become deeply involved in a cult which gave rise to a risk of persecution by the

Chinese authorities if returned to that country. Being entirely satisfied that no grounds

existed in respect of the mandamus application, what agitated the mind of the learned

trial judge was whether, in such circumstances leave could be granted to seek the

declaration where no other substantive relief was prayed for. He was satisfied that the

court could so do under O. 84, r. 18(2) of the Rules of the Superior Courts, where it was

“just and convenient” for that course to be adopted. That decision is not of concern to us:

rather what is, is the next issue addressed, namely whether the declaration could be said

to be an impermissible attack on the deportation order, which validly had been made a

number of years earlier, and never challenged.

Page 21 ⇓

62. Cooke J. distinguished the judgment of Laffoy J. in Lelimo and effectively held that such

should be confined to its own facts (para. 53 above). Secondly, drawing some tenuous

support from L.C. v. Minister for Justice, Equality and Law Reform [2007] 2 IR 133 at

155, the learned judge concluded as a matter of principle “[that]…the sole fact that a

valid deportation order exists does not preclude the possibility that in the exceptional case

of a material change of circumstances since the order was made, it may be just and

necessary for the courts to intervene to stay its implementation until a serious legal issue

has been resolved. The court cannot quash the valid order but it can delay its execution

until… [the Minister has made a decision]…”. He went on to say that for this jurisdiction to

be exercised, the proceedings could not have as their purpose the striking down of the

deportation order, but rather would have had to be motivated by some other objective

such as the revocation of a valid order.

63. A further authority relied upon by the appellant is the following passage from the

judgment of this Court in Re Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360:-

“Section 5 deals only with the procedural remedy of judicial review as a means of

challenging the validity of the administrative decisions in question. It makes no reference

to proceedings challenging the legality of the detention of the person who is also the

subject of a deportation order. It is in its terms solely concerned with proceedings

challenging the validity per se of the administration decision…

The fact that the deportation has previously unsuccessfully challenged in judicial review or

had not been challenged at all within the time permitted by s. 5 may be sufficient to

constitute the deportation as a lawful basis for that person’s detention.”

64. The passage as quoted arose in the context of a submission made to the court that s.

5(1) of the 2000 Act, then evidently in Bill form, would have the effect of preventing a

detained person from challenging the validity of, for example, a deportation order in

habeas corpus proceedings, that is in an application made pursuant to Article 40.4.2° of

the Constitution. The Chief Justice said that the Oireachtas would have no competence to

limit or interfere with a right guaranteed by the Constitution. He continued: -

“It is a necessary consequence of the presumption of constitutionality that it must be

presumed that it was not the intention of the Oireachtas in enacting this provision to

amend or circumscribe that right in any way.”

There then followed the passage as above quoted. Quite evidently, what Keane C.J. was

dealing with was the assertion that by enacting s. 5, the Oireachtas in fact had abridged

the constitutionally protected guarantee given in Article 40.4.2° of the Constitution. Such

passage was simply addressing that context. In my view it has no wider application than

that.

Page 22 ⇓

65. It seems to me that by far the most established line of jurisprudence in this area is that

commencing with Nawaz and followed thereafter by a series of decisions, both from the

High Court and Court of Appeal, some of which have been mentioned above. I do not

believe that Cooke J. in Q.L. & Y.Y. was saying any more but that in the very rarest of

circumstances, the court might intervene in the implementation of a deportation order if

grave facts demanded the exercise of such a jurisdiction. If the learned judge intended to

convey a more general or widespread view than this, I would respectfully reassert the

authority of Nawaz and those other cases as above discussed. Further, I would point out

that Q.L & Y.Y. was a decision on a leave application, made ex parte, and therefore took

place in circumstances where full argument was not heard and consequently, the learned

trial judge did not have the benefit of being fully addressed on these central issues.

Accordingly, it seems to me that the established and preferred line of authority is the

Nawaz line.

66. The following therefore is my view of what the situation is in the context of this aspect of

the appeal:-

(i) It is common case that subject to the following, a “collateral attack”, properly so

classified, should be regarded as the equivalent of a direct attack on the subject

measure for, inter alia, procedural purposes.

(ii) In deciding upon the question, the Court looks at the gist and essence of the

proceedings and in particular at the substance of the reliefs claimed. The

phraseology used in the pleadings is not determinative: neither is a submission that

there is no “per se” challenge to the captured measure: substance prevails over

form.

(iii) It is an oversimplification to pitch the test only as being whether the purpose or

motivation, object or effect of the proceedings is to mount a challenge to the

measure in question. Purpose and motive alone may be sufficient: but on many

occasions will not be: object together with effect will almost always be sufficient.

(iv) If an applicant can assert a right, either legally or constitutionally based, which is

independently sourced, from that which underpins the validity of a deportation

order, whether within the asylum process or otherwise, such a right should be

given effect to even if there is consequential effect for the enforcement of the

order: either conditioned in terms of time, steps or measures: such may arise in a

variety of circumstances.

(v) Hogan J. gave examples of what he described as post hoc events which may have

this effect: such as the naturalisation of the subject person as an Irish citizen, the

bona fide exercise of free movement rights following a valid marriage to an EU

citizen, and the application of some form of judicial protection such as that resulting

from Zambrano etc. There may well be other like examples of supervening events

which fall into this category.

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(vi) In Mekudi Yau v. Minister for Justice, Equality and Law Reform and the Governor of

Cloverhill Prison [2005] IEHC 360 (Unreported, High Court, O’Neill J, 14th October,

2005) O’Neill J. said “there are many instances where an order which was made

validly can cease to have force and effect, for example a deportation order which is

excessively delayed or which is used for an ulterior purpose”: one may add to this,

where bad faith can be established.

(vii) In addition, there could be cases where ancillary steps may have to be taken to

enforce the deportation order. The arrest and incarceration of an intended deportee

immediately comes to mind. Where necessary, the legal requirements for such a

step(s) must be adhered to. If not, the arrest may be unlawful and even if a

declaration to that effect would have consequences for the actual deportation of the

individual concerned, such a challenge would not be captured by section 5.

(viii) In my view, it would be entirely contrary to law, if any of the examples given, were

denied effect simply because s. 5 of the 2000 Act was not complied with. The right

which these examples give rise to, could be asserted and must be recognised, if in

itself, it is not captured by s. 5 of the 2000 Act. In those circumstances, the right

must be fully vindicated.

67. In the context of the above circumstances, the precise procedural way, by which it is

sought to prevent actual deportation on foot of an order, not challenged within the

specified time, may be open to debate. Some discussion must yet be had as to whether, if

such circumstances should arise, it would also be necessary to have the order itself set

aside. If that should turn out to be the preferred route I would not anticipate any difficulty

in an applicant getting the required extension of time for the purposes of s. 5 of the 2000

Act, provided of course the application was made with diligence and proximate to such

events being discovered. However, as this issue did not arise in the case and therefore

was not the subject of debate, I express no concluded view on what the most appropriate

procedure might be.

68. Thus far the situation is reasonably clear: but how do these principles play out in this

case? In my view, it is necessary to explore Issue No. 2 before coming to a conclusion on

this point (paras. 91 and 92).

Issue No 2. (para. 18 above).

69. To get a greater overall sense of the legal framework involved and to further assist in

understanding the discussion which follows, it would be helpful at this stage to refer in

some detail to the pertinent measures of the Directive as well as the relevant domestic

provisions. First, the Directive:

The Procedures Directive – 2005/85/EC:

70.

(i) As its title states, this Directive sets the minimum standards on procedures for the

granting and withdrawing of refugee status within Member States. It came into

force on the 1st day of December, 2005 and the transposition deadline was the 1st

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December, 2007. It is divided into six Chapters and has forty-six Articles. Following

its initial implementation, the domestic provisions giving effect to it have changed

over the years, with the version currently applicable to this case being found in the

2015 Act. It is not suggested that this Member State has failed in its obligation to

reflect in Irish legislation the provisions of the Directive.

(ii) Article 7, in Chapter I of the Directive, which is headed “Right to Remain in the

Member State Pending the Examination of the Application”, reads as follows: -

“(1)

Applicants shall be allowed to remain in the Member State, for the sole

purpose of the procedure, until the determining authority has made a decision in

accordance with the procedures at first instance set out in Chapter III. This right to

remain shall not constitute an entitlement to a residence permit.”

Subparagraph (2) creates an exception to this obligation but is not relevant to this case.

(iii) A “determining authority” is defined as meaning “a quasi-judicial or administrative

body in a Member State responsible for examining applications for asylum and

competent to take decisions at first instance in such cases subject to Annex 1”

(Article 2(e)).

(iv) The procedures within which such a decision is made by the determining authority,

are set out in Chapter III. This Chapter starts with Article 23 and ends with Article

37. It is headed “Chapter III – Procedures at First Instance”.

(v) Within Chapter III, there is Section IV which includes Article 32, under the heading

“Subsequent application”. It is such an application that this case is concerned with.

(vi) The Directive provides for an “Appeals Procedure” in Chapter V which has a single

Article, namely Article 39. This provision obliges each Member State to ensure that

aggrieved applicants have a right to an effective remedy before a court or tribunal.

So, a clear distinction in procedural terms is made between the minimum

requirements of the process at first instance level and those which apply at

appellate level. In this regard the recitals may be of relevance, and as such I will

revert to them.

The above represents a brief summary of the Directive’s requirements in the overall

protection process.

71. Some key elements should be emphasised:

• The Directive clearly recognises a distinction between a first instance process and an

appellate process;

• The right to remain as provided for is anchored in and is a requirement only of the first

instance process;

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• Central to that process is a “determining authority”, either quasi-judicial or

administrative, which is competent both to examine and make decisions in respect of

applications which are covered by the Directive;

• The process, by which such decisions are arrived at, is via the procedure outlined in

Chapter III, which by its very heading applies only to “Procedures at First Instance”;

• The right to make more than one application is recognised: a subsequent application to

re-enter the process is permitted: whilst some procedural derogation from the basic

assessment is provided for, nonetheless such an application is otherwise within the first

instance process;

• At appellate level Member States must provide appropriate procedures so as to ensure

that an aggrieved party has a right to an effective remedy. This is provided for in Article

39 contained in Chapter V under the heading “Appeals Procedure”.

The International Protection Act 2015 (“the 2015 Act”):

72. Whilst s. 22 is the most direct provision of the Act which applies to this case, it would

possibly if not probably, convey little if that section only was quoted; that is, in isolation

from an understanding of the sequential structure of the entire protection regime, which

is set out in the Act as a whole. Stripping that to what is necessary, it will be sufficient in

broad terms to describe the entities or bodies and their respective roles, which are

influential in the process under discussion. It will of course also be necessary to identify

and position the role of the Minister in this process. This exact exercise is in fact one

which I have conducted in A.W.K. (Pakistan) v. Minister for Justice & Equality, Ireland and

the Attorney General [2020] IESC 10, where the arrangement, distribution and

organisation of the Act is reviewed. From paras. 4 – 7 inclusive of that judgment, I

identified how the process was intended to operate both at first instance level and at

appellate stage.

73. Basically, could I summarise the position as follows:-

(i) Under Part 5 of the Act, which is headed “Examination of Applications at First

Instance”, every application for international protection is in the first place

examined by the IPO, who makes a recommendation under s. 39(2)(b) of the Act;

such may be that a refugee declaration should be granted, that it should not but in

its place a subsidiary protection declaration should be granted, or that neither

should be given.

(ii) Evidently, no appeal is provided for or required when the recommendation is that a

refugee declaration should be given, for the simple reason that no higher protection

is available under the Act. In either of the other situations the recommendation as

made can be appealed.

(iii) That appeal is to IPAT under s. 41, which is contained in Part 6 of the Act under the

heading “Appeals to Tribunal”. Depending on the nature of the appeal, that body

has a number of options open to it, but it cannot downgrade or reduce the status of

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any positive recommendation previously made by the IPO. It can of course elevate

or enhance that status by substituting a recommendation that a refugee declaration

should be given, in place of a subsidiary protection declaration. Finally, it can

recommend that neither should be given.

(iv) The role of the Minister in this context is set out in Part 7 of the Act which is headed

“Declarations and Other Outcomes”. By virtue of s. 47, the Minister is obliged to

give effect to the involvement of both the IPO and IPAT, which as the Act makes

clear, is via “recommendations”. Even as described however, the Minister, as

stated, has no discretion but must give full effect to such recommendations. He

does so by making a “decision” to that end.

(v) The only exceptions are where in his/her view, to follow a recommendation would

endanger the security of the State, or where by reason of a criminal conviction for a

serious offence, the subject person would constitute a danger to the “community of

the State”.

This brief description relates to the process for dealing with a straightforward refugee or

subsidiary protection application.

74. As above noted, the principal statutory provision applicable to this case is s. 22 of the

2015 Act. It is headed “Subsequent application” and in its material aspects reads as

follows: -

“22. (1) A person shall not make a subsequent application without the consent of the

Minister given under the section.

(2) An application for the consent referred to in subs (i) shall include…

(4) An international protection officer shall recommend to the Minister that the Minister

give his or her consent…[in the circumstances therein outlined].

(5) An international protection officer shall recommend to the Minister that the Minister

refuse to give his or her consent…[in the circumstances therein outlined]

(6) Where an international protection officer makes a recommendation under subs

(5)…[the Minister shall notify the applicant of the recommendation, of the reasons

therefor and inform him or her of a right to appeal under subs (8)]

(8) A person to whom a notification under subs (6) is sent may…[appeal to the Tribunal

against the recommendation concerned]

(9) Sections 41, 44, 45 and 46(8) shall apply to an appeal under subs (8) subject to the

following modifications, and any other necessary modifications:

(a) the Tribunal shall make its decision without an oral hearing,

(b) ….

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(10) Before reaching a decision on an appeal under subsection (8), the Tribunal shall …

(11) In relation to an appeal under subsection (8) the Tribunal may decide to,

(a) affirm the recommendation of the [IPO], or

(b) set aside the recommendation of the [IPO],

(12) The decision of the Tribunal… and the reasons for the decision…shall be

communicated…to the person concerned, to the Minister…

(13) Where - -

(a) an International Protection Officer makes a recommendation under subsection

(4), or

(b) the Tribunal…sets aside a recommendation under subsection (5),

the Minister shall give his or her consent to the making of a subsequent application

by the person concerned

(15) Where a recommendation is made under subsection (5) and

(a) [there is no appeal therefrom], or

(b) the Tribunal…[affirms the recommendation]

The Minister shall refuse to give his or her consent to the making of a subsequent

application by the person concerned”

Accordingly as can be seen, the Minister is bound to give effect to a positive

recommendation of the IPO and likewise to a positive decision by IPAT. It is clear and not

argued otherwise, that he has no discretion in any of the circumstances as outlined.

75. As stated, there is no challenge to the transposition of the Directive: the real issue is

what interpretation should be given to the relevant provisions of the 2015 Act, in light of

the requirements of that Directive, and in particular Art. 2(e) and Art. 7 (1) thereof. In

this context, the primary focus must be to determine at what point it can be said, within

the domestic legislation, that “a decision at first instance”, by a “determining authority” in

accordance with the procedures provided for in Chapter III, has been taken. Because

when that has been determined, the right to remain under the Directive, no longer

applies. This in turn involves an understanding of the process provided for in the 2015 Act

and coming to a conclusion as to when the first instance process ends and on the flip side,

when the appellate process commences.

76. With great respect to the trial judge, I am not convinced that this process necessarily

involves a choice of construction approach: whether that be literal or purposive or

otherwise. The underlying obligation in respect of all legislation, whether primary or

secondary, enacted or made to implement EU law, is that, subject to the contra legem

rule, the same should be given a conforming interpretation. That approach, in the context

of a Directive, is influenced by the requirements of Article 288 of TFEU. As distinct from a

Regulation, which is binding in its entirety and directly applicable to all Member States, a

Page 28 ⇓

Directive is said to be binding as to the result to be achieved. Consequently, whilst the

purpose and objectives of every Directive have to be satisfied, the precise means by

which that is done, allows for a margin of judgment to the implementing state. Therefore,

there is some discretion in the procedural or process regime, provided always that the

core elements of a Directive are substantially given effect to. In other words, that the

domestic regime, howsoever structured, satisfies in essence both the procedural and

substantive rights contained in the Directive.

77. Before I pass from this question of interpretation however, I wish to make an observation

on what the learned trial judge had to say at para. 31 of his judgment (para. 11 above).

Even though Ireland has not adopted the recast Directive, nonetheless, that could be

considered as an aid to interpretation because in his view it should be regarded not as an

amending Directive, but as a clarifying one. That view, as previously noted, was directly

contrary to the expressed opinion of the Court of Appeal, in a judgment delivered by

Hogan J. in X. X. In that case, the learned judge, now Advocate General in the Court of

Justice, had this to say at para. 64 of his judgment: “…One can, I think, leave to one side

the provisions of the recast Asylum Procedures Directive (2012/32/EU) since it does not

apply to Ireland. It could not, therefore, be relied for any purpose in interpreting the

relevant provisions of s. 17(7).”

78. Whilst it is not necessary to be definitive on this point, I am very much inclined to the

view that the restraint expressed by Hogan J. is far more appropriate than the adventure

which the learned trial judge would have us take. At the level of principle, if a Member

State remains bound by an original Directive, as a result of a deliberate decision to opt

out of its replacement, then it seems somewhat troublesome to suggest, that

notwithstanding such decision, the courts of the Member State concerned could and

should have regard to the later Directive, in their interpretation of the original one. There

is certainly a high level of disconnect with this proposition. However as stated, whilst I do

not have to express a definitive view on the point, I am much inclined towards the opinion

of Hogan J.

79. Another aspect of the approach adopted by Humphreys J., is based on his reference to a

publication by Hart and Sacks, which in another case (A.W.K. (Pakistan) v. Minister for

Justice & Equality, Ireland and the Attorney General, para. 72 above) the learned judge

cited therefrom the following general proposition: a purposive interpretation can be

applied to every legal text (para. 55, [2020] IESC 10). The rationale for this is given as

being a particular passage from a publication by the authors just mentioned: “Law is a

doing of something, a purposive activity, a continuous striving to solve the basic problems

of social living… Legal arrangements (laws) are provisions for the future in aid of this

effort. Sane people do not make provisions for the future which are purposeless” (The

Legal Process (Cambridge C.U.P 1958 at 148)). Let me immediately say that I greatly

encourage and applaud any judge to cite prestigious works of authority in his/her

judgment. However, the publication of Hart and Sacks runs to some 1536 pages and is

really a philosophical discussion about the theories of law. Such an exercise has engaged

brilliant and scholarly minds for several centuries, if not longer. Multiple theories and

Page 29 ⇓

variations on basic themes have emerged, with many of the most commendable

academics having expressed a variety of diverse views. However, I see great difficulty

with quoting a passage from a text, even as renowned as this is, but one with such a

complex subject matter, in the expectation that it might establish a precedent in a given

area: this is highly dubious. Of course, I understand that not more than a short passage

can be quoted, but for such passage to have any traction in the precedent area, it must

be contextualised. It is virtually impossible to do so in a judgment as distinct from

perhaps some academic writing. Whilst therefore I gratefully appreciate, the value of such

studies, articles and related matters, and the knowledge which my judicial colleagues may

have of them, nonetheless it must be understood, from a point of view of statutory

interpretation, that such an isolated manner of reference cannot really establish a sound

basis for the creation of a precedential platform.

80. There is no doubt but that for compliance with the Directive, a “determining authority”

must have the power to examine and make a “decision”, in accordance with “Chapter III”

of the Directive, on the application before him or her. The Member State concerned can

designate who is the “determining authority” for the purposes of the Directive. It is

certainly not challenged that the IPO qualifies in this respect (para. 73 (i) above) and

depending on the argument, IPAT, may also qualify; in fact it is also said that in either

situation such “decision” is not made until the involvement of the Minister is complete.

The conditional reference to “IPAT” is in respect of the submission made that its role in

the protection process as outlined in the 2015 Act, remains part of the “first instance”

process, rather than being that of and comprising the appellate element. Leaving that

aside for a moment, at what point can it be said that a “decision” is taken under the 2015

Act which represents the objective of Article 7(1) of the Directive?

81. The word “decision” is not defined in the Directive, nor is the word “recommendation”

defined in the 2015 Act. A reference to established and well recognised dictionaries will

not answer this question, save and except to illustrate, vividly it must be said, the

different meanings which both words may have in different contexts. For the purposes of

an applicant, who makes an application for international protection, a decision, for him or

her, must be a decision which affects or, subject to an appeal, potentially affects his

rights, including his status, either current or future, within the State. Asked differently, at

what point would a lawyer, experienced in this area, advise an applicant that his interests

have been affected. either in a positive or negative way?

82. Would the lawyer concentrate on what precise badge, description or label is put on what

may constitute the “decision” in question? Taking a main stream application, as an

example, once the IPO has made a recommendation that neither a refugee declaration or

a subsidiary protection declaration should be made, how would a competent lawyer advise

his client, in respect of such recommendation, having regard to the other relevant

provisions of the Act? That lawyer would know that if no appeal is taken, the Minister

must implement such recommendation. At that point, the applicant has no method of

influencing what the Minister might do, and neither does the Minister have any discretion

in that regard. In those circumstances, it is correct in my view to say that his involvement

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is but the formalisation of that recommendation. If, for example, for some reason the

Minister refused to implement the recommendation, let’s assume one to grant a refugee

declaration, an applicant would have an unanswerable right to enforce the

recommendation as against the Minister. An order ex debito justitiae might certainly

follow, unless for example, the Minister could argue that the existence of state security

grounds or the interests of the community as a whole, should prevail. Thus, in doing what

he must, the Minister has no independent role: he simply completes the process. It is

therefore the antecedent recommendation which critically affects the interests of the

applicant. Accordingly, no matter what definition or description the word “decision” is

given, a “recommendation”, within the 2015 Act, has the same effect. Therefore, I reject

the view that somehow such a recommendation is provisional or tentative and requires an

additional step to be taken before the interests of the affected applicant is known.

83. According to the ordinary meaning of the relevant provisions, read in the context of the

Act as a whole and having regard to its structure, the involvement of IPAT starts only

when an aggrieved party lodges an appeal to it. Indeed, the Act describes Part 6, under

which its role kicks in, as “Appeals to Tribunal” (para 73 (iii) above). In respect of a first

time application, such an appeal is moved under s. 41 of the Act; in respect of an appeal

from the IPO recommendation that the Minister should refuse his consent to a re-entry

request, that step is taken under s. 22(8) of the Act, In the latter situation the provisions

of sections 41, 44, 45 and 46(8) apply as to how such an application is dealt with. Staying

with the facts of this case, having conducted the exercise as provided for, the IPAT may

decide under s. 22(11) of the Act either to affirm the recommendation of the IPO, or to

set aside the recommendation as made. As with the situation where no appeal has been

taken, the Minister, under s. 22(13) or (15) of the Act must give full effect to what the

Tribunal has decided.

84. As we have seen in all cases the IPO and the Minister for Justice will be involved, with

IPAT also having a role where an appeal is taken. In essence, the critical argument

advanced by the appellant is that the involvement of both the Minister for Justice and

IPAT takes place as part of the first instance process, whereas the respondents assert the

contrary, namely that once a recommendation is made by the IPO, that process is at an

end. When that point arises, it is also said that the right to remain ceases. Of course, it is

acknowledged that the Oireachtas could have made provision in the 2015 Act so as to

permit an appellant to remain until the decision of IPAT has been arrived at; however it is

not suggested that such a provision exists. Having carefully considered what has been

urged and the text of both the Directive and the 2015 Act, I am satisfied that the

submission of the Minister on this aspect of the case is correct.

85. Although Mr. K.J.M.’s application was to re-enter the process, it is accepted by all that the

same must be treated for Article 7 purposes, as a first-time application. Accordingly his

right to remain, under that Article of the Directive, as given effect to in domestic law,

lasts until a decision is made by the designated body in accordance with the specified

procedure. A “determining authority” means the body “responsible for examining

applications for asylum and competent to take decisions at first instance in such cases,

Page 31 ⇓

subject to Annex I”. In national law it seems clear to me that the IPO is that authority.

This because its recommendation has all the hallmarks and characteristics of a decision

which impacts on the rights or entitlement of, or those asserted on behalf of, an

applicant. Those rights, if resulting from a positive recommendation, must be given effect

to. Accordingly, as described at para. 82 above, I do not see the Minister’s involvement as

conferring upon him any power or authority to make substantive decisions which affect an

applicant. His role is I think as the learned trial judge said, purely a formulistic one, which

is to implement the determination of either the IPO or IPAT, as the case may be.

86. To my mind it is extremely difficult to suggest that the role of IPAT is part of the first

instance process. What is critical is the substance of its role and the actual power which it

exercises: rather than what particular tag might be given to its final view. Its

involvement, in that substantive sense, is as a body determining an appeal from the IPO.

Therefore, it seems to me that a clear division exists between the responsibility of the IPO

and IPAT.

87. In ordinary parlance an “appeal” conveys simply that, which is, that subject to the scope

of the providing measure, some other and independent body gets to re-hear or review

what has occurred at the previous stage of the process. If the role of IPAT is not that, one

must ask what precisely is it? What would be the purpose of getting a second body to

perform the same function and traverse the same grounds as that dealt with by the

previous entity? If IPAT is to operate at the same level as the IPO, why should its decision

supersede that of a body with equal authority? Why would the Oireachtas establish a

regime with such a role, which to my knowledge, would be the first time for it to have

done so in an administrative context? Such is certainly not demanded by the Directive. To

give the legislation the meaning which the appellant argues for, would result in a

superfluous, cumbersome and indeed in a totally confusing regime. What is provided for

is a two-stage process, with the role of IPAT satisfying the effective remedy requirement.

I am therefore satisfied that the interpretation suggested by the Minister fits a good deal

more appropriately with the demands of the Directive and the wording of the 2015 Act,

than that as advanced by the appellant.

88. Although curious I do not think the following offsets this view point. As previously outlined

the structure of the Act is that in general terms, both the IPO and IPAT make

recommendations which the Minister must give effect to. In s. 22 sub sections (4) to (6),

of the 2015 Act the latter is referred to in the context of making “recommendations”,

whereas in sections (9) to (13) as well as subsection (15) IPAT is said to make

“decisions”. It is difficult to understand why this is so, nonetheless it does not in my view

change the proper meaning and operation of that section.

89. Lest there was any doubt about my conclusion, the same is I think confirmed by the

content of Annex I of the Directive. As previously outlined in the regime which existed

prior to 2015, the “determining authority” within the meaning of Article 2(e) of the

Directive, was expressly declared to be the “Office of the Refugee Applications

Commissioner” (paras. 29-31 above). That office of course was quite distinct from the

Page 32 ⇓

Refugee Appeals Tribunal. In very broad terms, the former can be aligned to the IPO and

the latter to IPAT. It would therefore be entirely surprising for Ireland to opt for a

significantly changed regime post-2015 than what existed prior to that. In my view, this

is a telling feature of what the true intent of the Act is.

90. In that context, I do not believe that any legal consequences, certainly at domestic level

and certainly between the appellant and the respondents, emerge from the fact that

Ireland has not notified the Commission of the repeal of the 1996 Act, and of the

enactment of the 2015 Act. Whilst formally perhaps that should have been done, in

essence there was no need for this step as the office of ORAC no longer exists. I am

therefore satisfied that what is stated is how the 2015 Act should be interpreted.

91. The result therefore is that the appellant no longer has a right to remain in this

jurisdiction, either under the Directive or the 2015 Act after the IPO has made its

decision. In light of this conclusion, can I now refer back to Issue No. 1.

92. To recall, the subject matter of that ground of appeal: it was whether or not the

appellant’s asserted right to remain in the State pending a decision at first instance on his

application to be readmitted to the protection process under s. 22 of the 2015 Act,

constitutes an indirect challenge, (a “collateral attack”), on the deportation order made on

13th January, 2017, which he has not sought to review? The answer to this question,

indeed the application of the above principles to this case, turn on whether his

submissions on Issue No. 2 are correct. If for the purposes of the Directive, the “decision”

is that of either IPAT or the Minister, then as a matter of EU law he is entitled to remain

until such decision has issued. On the other hand, if the submissions of the State are

accepted, as upheld by the High Court, then the right to remain ceases at the time of the

IPO’s recommendation. I do not understand him to argue that even if the latter is correct,

nonetheless he still has in such circumstances, a right to remain until the appeal has been

heard and the Minister formalises whatever the resulting recommendation might be.

Accordingly given the view which I have expressed on the right to remain, Issue No.1 is

not as critical or as central as first thought. It is not therefore necessary to express a

concluded view on it.

Issue No. 3 (para 18 above).

93. The final ground upon which leave to appeal was granted was whether, if the appellant’s

asserted right to remain under the Article 2(e) and Article 7(1) of the Directive was found

to exist, the judge seized of the judicial review proceedings was nonetheless entitled to

refuse the reliefs sought, on a discretionary basis. Humphreys J. made it quite clear that

he would have dismissed the case on such grounds, by reason of his findings that the

appellant had engaged in a massive abuse of the immigration system, in both Ireland and

the Netherlands. In response the appellant’s main argument was to focus on the fact that

the right being relied upon, is one derived from EU law. Despite the Directive having been

transposed domestically through various pieces of legislation up to and including the 2015

Act, it still provides the original basis for and the original source of that right. Without a

doubt, therefore the right being asserted, is so based.

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94. As is readily acknowledged, there is no separate system, external to that of each Member

State for the enforcement of EU measures: so the mechanism is through the laws of each

State. This was articulated many years ago in Case 33-76, Rewe-Zentralfinanz eG and

ReweZentral AG v Landwirtschaftskammer für das Saarland [1976] ECR 1989 (“Rewe”)

where at para. 6, the Court of Justice held that in the absence of community rules in any

given sector, it would be a matter for each Member to determine the procedures which

would govern proceedings intended to ensure the protection of citizen’s rights under EU

law. In this context, ‘procedural autonomy’ has been variously described as ‘procedural

competence’ and ‘national procedural responsibility’: however, the CJEU will most

frequently use the term ‘national procedural autonomy’ (EU Law: Text, Cases and

Materials, Craig and de Búrca, Oxford University Press, 2015, 6th Ed, pg. 227). Although

it is commonly said that all Member States, in this area, retain their individual

competence when it comes to the implementation and enforcement of Union law,

nonetheless that statement is quite conditional. For our purposes it must be viewed, at

the very least, in line with the twin concepts of effectiveness and equivalence.

95. Again in the seminal case Rewe, the Court stated that the procedures chosen by a

Member State for the enforcement of EU measures could not “be less favourable than

those relating to similar actions of a domestic nature”. In other words, the processing of

EU asserted rights or actions must be equivalent to that available in respect of

comparable rights or actions litigated under domestic law. This is complimented by its

sister rule, of effectiveness, or as Craig and De Búrca describe it, ‘practical possibility’:

meaning that national law is also obliged not to render it practically impossible or

excessively difficult to exercise the rights conferred by EU law (Palmisani v. INPS (Case C-

261/95) [1997] ECR I-4025). So, we have the parallel principles of equivalence and

effectiveness.

96. There can be no doubt but that a judge’s capacity to condemn abusive conduct by the

exercise of discretion, is fundamental to the functioning of any legal system. It is certainly

part of our national law and where EU rights or entitlements are asserted, it is almost

certainly also to have a foundation there. The ‘qualification’ of it being a ‘general principle’

relates only to the manner in which the case law of the Court of Justice has developed: in

broad terms it seems to have been sector by sector (Halifax plc and Ors v. Customs and

Excise Case (C-255/02) [2006] ECR I-1609 and Cussens and Ors v. T.G. Brosnan (Case

C-251/16) [2017] BVC 61). In any event such power is particularly important in the

context of refugee and asylum cases, as where an applicant engages in serious abusive

practices, they put the integrity of the entire system in jeopardy. That system, to

successfully reflect genuine cases depends on fairness, good faith and transparency; all

are seriously at risk with such abuse Therefore, there is and must be the jurisdiction for

such behaviour to be recognised and controlled at a judicial level.

97. In the context of a case like this, it is of interest to note that in the latest edition of their

works the authors of Hogan and Morgan point towards a contemporary line of authority

which suggests that courts have become increasingly less patient with immigrants and

asylum seekers who have in some way illegal tried to circumvent the rules of the

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immigration and asylum system (Administrative Law in Ireland, Hogan and Morgan, 5th

Ed, Round Hall, 2019 at p. 1047). Although understandable, restraint must be exercised

in this respect. However, sight must not be lost of the nature of the asserted right.

98. In my view, this jurisdiction must be used sparingly and in a cautious manner; it should

only be resorted to, where the abuse in question is serious and flagrant; where it has

been deliberately engaged in, such that self-evidently the applicant, by his or her actions,

has shown a clear disregard for the asylum system. This may take a variety of forms,

such to be determined by the trial judge. In this respect, I would tend to agree with the

views expressed by Birmingham J., as he then was, in D.W.G v. Minister for Justice and

Equality [2007] IEHC 231 (Unreported, High Court, Birmingham J., 26th June, 2007). The

applicant in question in that case wished to benefit from subsidiary protection which, at

the time, came from European Communities (Eligibility for Protection Regulations, 2006)

S.I. 518/2006: however the learned judge felt that his conduct was such that it had

disentitled him to any relief in judicial review, he described the backdrop of the applicant’s

situation as being one of quite serious delay and ongoing illegality. He was careful to

point out however that he reached this decision while also holding the view that only in

certain rare cases would the conduct of an applicant disentitle them to relief (pg. 15 of his

judgment)

99. Given the views which I have expressed in regard to the other issues, it is not necessary

to reach a separate conclusion on this ground; but I should add the following. Firstly, a

court undoubtedly has jurisdiction to terminate the proceedings on such basis and may do

so where it is satisfied that the disclosed facts so demand. However and secondly, given

the clear desirability of reaching a conclusion on the facts and the law, particularly where

the asserted right is EU derived, a court should be reluctant to exercise this power unless

quite satisfied that it should do so.

Conclusion

100. In relation to the three issues as posed (para. 18) the answer to each is as follows:

i) Issue No. 1: Does not strictly arise in this appeal.

ii) Issue No. 2: The right to remain ceases once the IPO has made a recommendation

under 22(5) of the 2015 Act.

iii) Issue No. 3: The court has jurisdiction to dismiss an application for judicial review

under the 2015 Act for abusive conduct but the same must be exercised sparingly

and only where that conduct can be considered serious and significant in the

context of the system as a whole.

Therefore, I would dismiss the appeal.

Result: Appeal Dismissed.