THE SUPREME COURT
S:AP:IE:2023:000086 [2024] IESC 58
Murray J.
Donnelly J.
Between
CHAIN WEN WEI
Applicant
and
MINISTER FOR JUSTICE AND THE COMMISSIONER OF AN GARDA SÍOCHÁNA
Respondents
and
TANG TING TING
Applicant
and
MINISTER FOR JUSTICE AND THE COMMISSIONER FOR AN GARDA SÍOCHÁNA
Respondents
JUDGMENT of Mr. Justice O'Donnell, Chief Justice delivered on the 19th day of December, 2024
1. I have read in draft the judgments about to be delivered by Woulfe and Hogan JJ. I agree with Woulfe J. that the appeal must be dismissed for the reasons he gives. However, since this case turns almost entirely on a question of statutory construction which is of more general application, and since the particular circumstances relate to the interpretation of legislation regulating an important State function, I wish to add certain observations.
2. The facts are set out in some detail in the judgments of my colleagues. It is sufficient for present purposes to observe that the applicants in this case were refused leave to enter the State at Cork Airport on 12 December 2020, which, it is not irrelevant to observe, is almost exactly four years ago. It is not in dispute that they entered the State in order to pursue a full-time course in the English language due to commence on 4 January 2021, and that they were refused entry pursuant to s. 4(3)(j) of the Immigration Act 2004 on grounds of public policy.
3. Section 4(3)(j) provides as follows:
"4(1) Subject to the provisions of this Act, an immigration officer may, on behalf of the Minister, give to a non-national a document, or place on his or her passport or other equivalent document an inscription, authorising the non-national to land or be in the State (referred to in this as "a permission").
(2) A non-national coming by air or sea from a place outside the State shall, on arrival in the State, present himself or herself to an immigration officer and apply for a permission.
(3) Subject to section 2(2)[ [1]], an immigration officer may, on behalf of the Minister, refuse to give a permission to a person referred to in sub (2) if the officer is satisfied –
...
(j) that the non-national's entry into, or presence in, the State could pose a threat to national security or be contrary to public policy."
4. The public policy relied upon in this case is the general policy that entry into the State would not be permitted for the purpose of pursuing a language course where that course was not being provided in person, but was rather being provided online or through distance learning. This was set out in general terms in January 2011 by the Irish National Immigration Service ("INIS"), in a document entitled "New Immigration Regime for Full Time Non-EEA Students: Guidelines for Language [...] Students" ("the 2011 guidelines") and set out at paragraph 5 of the judgment of Woulfe J., which specified that "it is not permissible for a student to come to Ireland to undertake a...distance learning course".
5. As of 5 December 2020, the world was in the grip of the Covid-19 pandemic. Travel and education in particular were significantly affected. In August 2020, all immigration officers in the State received an email in the terms set out at paragraph 6 of the judgment of Woulfe J., dealing specifically with the position of students seeking to enter the State to pursue online courses. It referred to the 2011 guidelines, and to the fact that certain exemptions had been issued to students whose courses had gone online as a result of the public health emergency, but stated expressly that the exemption applied only to students already resident here, and did not extend to persons seeking to enter the State to pursue their studies. Subsequently, guidelines issued by the Government on 27 October 2020 addressed the issue, and stated:
"Prospective students seeking to enter the State should wait until in person tuition has been resumed. Failure to do so may result in students being refused leave to land and refused registration. Providers have been requested to bring this to the attention of prospective students."
6. At the level of public administration, there was, in this regard, a relatively high degree of coherence, transparency, and publication. On its face, the 2004 Act provided that entry to Ireland by non-EEA residents was a matter within the Minister's discretion, and that entry into the State could be refused on grounds of public policy, and the relevant State bodies had both articulated a policy in that regard and publicised it. It was not suggested that this was something of which either the institution which the applicant sought to attend, or the applicants themselves, were unaware. As policy it is itself coherent, logical, and internally consistent. There is, generally speaking, no reason why a person should be entitled to expect to receive permission to enter Ireland in order to participate in a course which is not being provided in person.
7. Here, the applicants, having been refused leave to land on 12 December 2020, were required to stay overnight at a designated hotel with a view to either leaving the State voluntarily or being deported. The applicants were, however, able to contact a solicitor that day, and later that evening an urgent application was made to the High Court in Dublin seeking leave to apply for judicial review by way of orders of certiorari quashing the decisions to refuse permission to enter the State, and injunctions prohibiting the removal of the applicants from the State pending the determination of the proceedings. The application was adjourned, but a stay on the order was granted which, while it remained in force, had the effect of precluding any removal from the State and was therefore the functional equivalent of the injunction originally sought by the applicants. Leave to seek judicial review was granted on the 21st of December 2020. The stay was continued pending the hearing.
8. An array of points was made by way of challenge to the validity of the order, but this case has now resolved itself to one, albeit significant, point. The applicants relied on the judgment of the High Court in Ezenwaka & Anor. v the Minister for Justice, Equality and Law Reform [2011] IEHC 328 ("Ezenwaka"), in which it had been held that the public policy ground referred to in s. 4(3)(j) had a narrower meaning akin to national security, and furthermore required something personal to the individual concerned, rather than the application of considerations of general policy. This interpretation was, it was said, consistent with the law of the European Union, and the narrow definition of national security adopted there. The interpretation was also said to be an application of the principle of the canon of construction - noscitur a sociis - that a word could be understood by reference to its neighbours. It was also based on the contention that the word "or" was not to be read disjunctively and as suggesting that the concept of public policy had a separate and distinct meaning from that of national security. Rather, it was said 'or' was to be read conjunctively, in that 'public policy' should be read together with the term 'national security' and as essentially directed towards the same individualised determination, albeit on a slightly more flexible basis.
9. As is set out in the judgment of Woulfe J., the judgment in Ezenwaka had not been followed at the level of the High Court in the case of Li and Wang v. the Minister for Justice, Equality and Law Reform [2015] IEHC 638 ("Li and Wang"). There was thus a divergence of opinion within the High Court at the time this case came on for hearing in the High Court.
10. Judgment was delivered by Burns J. in this matter in March 2021. She dismissed the claim. On the central issue as to the interpretation of s. 4(3)(j) she found herself in agreement with Li and Wang and disagreed with the judgment in Ezenwaka. However, in the light of that divergence of authority, she granted leave to appeal to the Court of Appeal, pursuant to s. 5(2) of the Illegal Immigrants (Trafficking) Act 2000 on the issue of the proper construction of the meaning of the phrase "public policy" in s. 4(3)(j). The Court of Appeal (Faherty J.; Ní Raifeartaigh and Binchy JJ. concurring [2023] IECA 138) dismissed the appeal, upholding the judgment and reasoning of the High Court. On 27 November 2023, this Court granted leave to appeal on the "precise ambit of the public policy provisions contained in s. 4(3)(j)".
11. The interpretation and application of legislation is a central function of the courts, and unsurprisingly there are a large number of cases on the topic, and some substantial textbooks setting out the law. This Court has recently restated the applicable principles in Heather Hill Management Company v. An Bord Pleanála [2022] 2 ILRM 313 (Murray J.). As expressed lucidly in that judgment, the words of a section are the first port of call in its interpretation. While the courts must construe those words having regard to the context of the section and of the Act in which the section appears, the preexisting relevant legal framework, and the object of the legislation insofar as discernible, the onus is on those contending that a statutory provision does not have the effect suggested by the plain meaning of the words chosen by the legislature to establish this. It can be said that the many subsidiary principles of interpretation set out in the jurisprudence sit comfortably within this general framework. In my view, all available guideposts in the law point in the same direction in this case; upholding the decision of the High Court and Court of Appeal.
12. The plain meaning of the words "public policy" comfortably encompasses the refusal in this case. A policy had been established: entry into the State for education purposes would only be permitted for in-person courses. Entrants would be permitted to remain in the country if they were attending an in-person course which was required to be delivered online but because of the Covid-19 pandemic, but non-nationals would not be permitted to enter the country for the purposes of enrolling in such a course, until such time as it was being delivered in person again. This policy was public policy. It had been articulated by public bodies with particular responsibilities and was plainly developed and promulgated in the public interest. There is an obvious public interest in permitting entrance to the country only for educational purposes which are being delivered in person but not for those which are being delivered remotely, and which can be accessed from outside the country. There was a particular public interest in the context of the Covid-19 pandemic in restricting travel into the State for purposes which were not necessary or deemed to be of particular public importance.
13. Legislation can be complex and difficult to interpret, but it remains the case that it is intended to be applied by and to persons who are not qualified in law, but who nevertheless have an obligation to comply with it. Such persons should be able to understand what the law requires. It is not unreasonable therefore to consider how the statutory language would be likely to be understood by its addressees. In this case, in my view, having regard to the plain meaning of the words used, public policy in s. 4(3)(j) would be naturally understood as capturing exactly the type of public policy expressed in this case. This is perhaps implicitly accepted in the applicants' arguments, insomuch as they argue for what can be described as a narrow (and indeed a particularly narrow) interpretation of the words "public policy", implying perhaps that any broader interpretation, and arguably the natural interpretation, would capture this case. In my view the plain meaning of the words permits refusal of leave to land on the basis it was in fact refused in this case.
14. It should not be necessary to go further, but if regard is had to the context, background, and objective of the legislation, the initial interpretation is only reinforced. Subsection (j) is the tenth of eleven subsections, the preceding nine of which, while phrased in broad terms, apply in specific circumstances such as the suffering from a condition set out in the first schedule (sub (c)), or conviction for an offence punishable on conviction by imprisonment for a period of one year or more (sub (d)). The range of matters covered by the subsections is extensive, but it is plain that subsection (j) is intended to be a catch-all subsection that covers grounds for refusal of leave to land not already enumerated in the earlier subparagraphs, which themselves may be considered to be aspects of public policy. It is also important that s. 4 is in broad and permissive terms. It is clear that a person described as a "non-national" has no entitlement to enter the State. Entry is subject to the decision of the Minister, and an immigration officer may grant a permission but is not required to do so. Section 4(3) is therefore an enumeration of specific situations in which that permission may be refused. Nothing in the text or structure of the section is consistent therefore with giving a narrow interpretation to subs (j).
15. This conclusion is reinforced when the Act as a whole is placed in the context of the preexisting law. That background is to be found in the decision of this Court, in Laurentiu v. the Minister for Justice [1999] 4 IR 26 ("Laurentiu"). In that case, this Court, by a majority of three to two, held that s. 5(1) of the Aliens Act 1935 was unconstitutional, in so much as it purported to permit the Minister to make regulations for the exclusion or deportation of aliens from Saorstát Eireann. The Aliens Order 1946, purporting to implement the power granted by s. 5(1) and Article 13(1) of that order provided that the Minister might "if he deems it to be conducive to the public good so to do make an order [...] requiring an alien to leave and to remain thereafter out of the State". The majority of this Court held that s. 5(1) of the 1935 Act was unconstitutional because it did not set out any standards, guidelines, principles or policies to control the apparently absolute discretion it conferred upon the Minister to make regulations for exclusion or deportation from the State. On this view the Legislature had impermissibly conferred a power of legislation upon a member of the Executive in breach of Article 15.2 of the Constitution.
16. The context of Laurentiu was very particular, and directly relevant to this case. It was accepted by both the majority and the minority that the power to permit entry to the State, and to deport from it, was inherent in the nature of a sovereign State. All members of the Court accepted the statement of principles set out by Gannon J. in Osheku v. Ireland [1986] I.R. 733, at 746, "the control of aliens...is an aspect of the common good related to the definition, recognition, and protection of the boundaries of the State. That it is in the interests of the common good of a State that it should have control of the entry of aliens, their departure, and their activities and duration of stay within the State is and has been recognised universally and from earliest times". Keane J. referred to the general principle that the right to expel or deport aliens "inheres in the State by virtue of its nature and not because it has been conferred on particular organs of the State by statute" from which it followed that the Minister retained the executive power to deport someone who was not a citizen and had no other right to remain here. He quoted the observations of Lord Atkinson in the Privy Council, in Attorney General for Canada v. Cain [1906] AC 542, at 546: "One of the rights possessed by the supreme power in every State is the right to refuse to permit an alien to enter that State, to annex what conditions it pleases to the permission to enter it, and to expel or deport from the State, at pleasure, even a friendly alien, especially if it considers his presence in the State opposed to its peace, order and good government, or to its social or material interests: Vattel, Law of the Nations, Book 1, s.231; Book 2, s.125." Accordingly, the State had power to deport aliens independent of any statutory power, and that executive power was in the broadest terms.
17. The decision in Laurentiu turned on the fact that the Oireachtas had sought to regulate this power by legislation, but had then conferred upon the Minister a general power and had not set out any guidance as to how that power was to be exercised. In effect, therefore, the Oireachtas having invoked its own power to make law (in a field which had previously been controlled solely by executive discretion) had in effect delegated to the Minister a power of legalisation which was exclusively conferred on the Oireachtas itself by Article 15.2. For present purposes, however, what is important is that the outcome of Laurentiu meant that legislation was required to replace the Aliens Order (unless the State was content to revert to an entirely executive scheme), that such legislation would be enacted against a background that it was acknowledged that the executive power was of the broadest possible scope (a power to deport "at pleasure") and where the power conferred by the Aliens Act was in similarly broad terms to the point where the Court considered that no guidance had been given as to its exercise. Section 3 (2)(i) of the Immigration Act 1999 permitted a Minister to deport a person whose deportation would in the opinion of the Minister be in accordance with the common good, and sections 3(6) (j) and (k) of the same Act provided that in making any deportation order the Minister shall have regard to the common good and "considerations of national security and public policy".
18. Section 4 of the 2004 Act was enacted as part of a more comprehensive review of immigration law in the context established by the judgment in Laurentiu and the Immigration Act of 1999. In theory, the law could have been amended by setting out principles and policies for the exercise of ministerial power, by specifying terms on which someone could be refused admission or deported from the State. Instead, and perhaps understandably given the increasing importance of immigration and in consequence the increasing number of challenges to decisions, the course was taken of attempting to specify grounds for refusal of leave to enter the State in primary legislation. Nothing in this background suggests however that the Oireachtas wished in any way to limit the grounds upon which it was possible to refuse a permission to enter the State. Indeed, one of the risks in the statutory enumeration of specific grounds to refuse entry could be that without a broad catch-all it might be contended that the specific enumeration of grounds was exhaustive. Viewed in this light, it becomes, if anything, clearer that the purpose of subsection (j) was to avoid the possibility that it would be argued that, unless a case could be brought within the preceding subsections, leave to enter the State must be granted. This background speaks, therefore, to a broad interpretation of subsection (j), and gives no support to the narrow interpretation contended for.
19. If the applicants were to succeed it appears to be on the basis that whatever the natural meaning of the words, the law requires a narrower interpretation to be given to s. 4(3)(j) than the language of the subsection, its context, and the object of the statute taken together might suggest. This is argued to be so on the basis of three interlocking arguments.
20. First, it is said that this follows from European law where public policy takes on a meaning close to national security, and which in turn is limited to circumstances or events involving the personal conduct of the individual concerned. It is submitted that this is a permissible approach to the interpretation of s. 4(3)(j) because s. 4(3) is expressed to be subject to the provisions of s. 2(2) which, as already set out, provides that nothing in the Act shall derogate from the obligation of the State in European law, or indeed in international refugee law. Thus, it is cited, for example, that Article 27(2) of the Citizenship Directive provides "Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned." [2] It is also said that s. 4(3)(j) would have to be read in this light if it were sought to be applied to an EU citizen, or a citizen of an EEA State or Switzerland, therefore, it should be interpreted in the same way when applied to citizens of other states. Second, this reading is, it is argued, reinforced by the canon of construction of noscitur a sociis which means that a word takes some of its meaning from its neighbours. In this case it is said that public policy should be read in the light of the reference to national security and as comprehending only grounds of public policy which are in essence related to national security concerns and moreover such concerns as are related to the personal conduct of the individual. Finally, it is argued that in this regard the word "or" in s. 4(3)(j) should not be read disjunctively, in the sense of the word so clearly set out in a different statutory context by Hardiman J. in Montemunio v Minister for Communications [2013] IESC 40, as distinguishing the words from each other and indicating that they are "different in nature or meaning", but rather should be read conjunctively in the sense of being read together as a single and narrower concept.
21. I cannot accept this argument. It is important in my view, that the principles of statutory interpretation should not be applied mechanically, but rather should be applied sensitively in an exercise directed towards identifying the meaning of legislation enacted by the Oireachtas. It was established a long time ago that the canons of construction if taken in the abstract, can point in different directions. In a famous article, [3] Karl Llewellyn pointed out that for almost every rule of statutory interpretation there existed either an opposing rule, or an exception almost as great as the supposed general rule. It may, thus, be possible to construct some argument for an interpretation favouring one party by employing some canon of construction in isolation, but that is to employ the principles of interpretation to defeat the greater objective of ascertainment of the meaning of the statutory phrase. This case is a good example.
22. First, even assuming for a moment that the terms "national security" and "public order" have a specific and narrower meaning in EU law, that in itself would be no guide to the meaning of this phrase in national legislation of general application. As Faherty J. pointed out, the 2004 Act was not enacted to give effect to the Citizenship Directive (which postdated it) or any provision of EU law. If, therefore, national security or public order as grounds of refusal of entry and/or deportation must be given a narrower field of application when applied to a citizen of a Member State of the EU, or an EEA state or the UK or Switzerland, then that is because of the specific provisions of s. 2(2) of the Act and the provisions of EU law. That reasoning, on its own terms, leads to the conclusion that as set out in s.4(3)(j) the term public order is of broader application unless and until narrowed pursuant to the obligation set out under s. 2(2).
23. Furthermore, it is in any event doubtful that such a narrow meaning is compelled even within the field of European law. It is arguable that Article 27(2) of the Citizenship Directive provides expressly that measures based inter alia on public policy or public security shall be based exclusively on the personal conduct of the individual concerned, because that limitation is not implicit in that term public policy or public security themselves.
24. The principle of noscitur a sociis, also known as the ejusdem generis rule, is, as set out in Craies on Legislation, 9th edition, 2008 "like so many other rules of construction a mere application of common sense" and "being an application of sense the rule has to be applied with common sense and with proper caution". The author cites Lord Diplock's dictum in Customs and Excise Commissioners v Viva Gas Appliances Limited [1984] 1 All ER 112,116:
"The maxim noscitur a sociis may be a useful aid to statutory interpretation, but the contexts in which it is applicable are limited. In the case of a word which is capable of bearing various shades of meaning, the fact that it is included in a list of words of greater precision in which some common characteristic can be discerned may enable one to say that the chameleon word takes its colour from those other words, and of its possible meanings bears that which shares the characteristic that is common to the others."
25. But there must in general be more than one other word to give rise to the principle of the ejusdem generis principle having any application. It must normally be a word of more general meaning and be included in a list, normally of more specific and precise words, from which some unifying principle can be deduced. As it was put by Farwell L.J. in Tillmanns & Co v SS Knutsford Limited [1908] 2 KB 385, 403: "Unless you can find a category there is no room for the application of the ejusdem generis doctrine". The principle is noscitur a sociis, not noscitur a socio. There is no better reason to read down the breadth of 'public policy' by reference to the concept of 'national security' than there is to expand the application of 'national security' by reference to the supposedly broader understanding of 'public policy'. In either case, it is doubtful that the term necessarily imports, on its own, the idea of personal conduct of the individual, and in any event, as Woulfe J. observes, it can be said that the decision here is one made on the personal conduct of the applicants, in that they chose to travel to Ireland to seek entry to attend a course which was not being held in person, when they knew or ought to have known that this would not be permitted.
26. Finally, I very much doubt debating whether the word "or" in s. 4(3)(j) is conjunctive or disjunctive is anything but a distraction in this case. As was observed in Craies on Legislation 9th edition, at para. 8.2.11, if one had to choose two words as being more difficult to use and understand in legislative drafting than any others they would be "or" and "any". A conjunctive word is one which joins other words or phrases together, and a disjunctive is one that separates them, sometimes but not always in a mutually exclusive fashion so that a choice of one excludes the other. Normally the word "or" is used disjunctively in the sense of separating two concepts, although not necessarily to the exclusion of each other, but can be used conjunctively. It does not follow that one use is expansive of meaning or application and the other restrictive: that will depend upon the context.
27. A simple example is provided by the well-known terms of Article 101 of the Treaty on the Functioning of the European Union ("TFEU") prohibiting agreements between undertakings "which have as their object or effect the prevention, restriction or distortion of competition". This does not mean that a prohibited agreement must be only one which has as its object the restriction of competition, or that effect, but not both; by the same token it does not mean that the only prohibited agreements are those which have as both their object and effect the prevention, restriction or distortion of competition. It is tolerably clear that it is sufficient that if an agreement has either that object or effect, and if, as will often happen, it satisfies both requirements, it will still fall foul of Article 101. It is doubtful if that straightforward conclusion is helped rather than hindered by attempting to apply the labels conjunctive or disjunctive to the reasoning.
28. Furthermore, where the plain meaning of words, particularly when read in their context having regard to the object of the statute, would lead to one interpretation, it should not be readily assumed that such an interpretation should be set aside by reference to canons of construction or grammar. In most cases these guideposts should point in the same direction.
29. The function of grammar is, or ought to be, to promote accuracy and precision in expression, and therefore to facilitate comprehension. It is not an end in itself and cannot and should not be allowed to become a detour which may well become a frustrating cul-de-sac. Here, there is no question or argument but that public policy is to be understood as something distinct from national security, and it is not suggested that a refusal under s. 4(3)(j) must be grounded on both national security and public policy. What is contended, is that they are related concepts - that national security is limited to matters of personal conduct, and that public policy must be similarly construed in a similarly limited fashion, and more narrowly than the ordinary understanding of that term. For reasons I have already set out, I cannot agree with that interpretation of the section. But whatever interpretation of the section is correct, it is not in my view assisted by applying the language of disjunction and conjunction to it.
30. While I fully respect the position of those who take a different view, it seems to me reasonably clear that the refusal of leave to land in this case was properly made under s. 4(3)(j), and that therefore the High Court and Court of Appeal were correct. However, at the time when leave was sought, there was a clear difference of opinion at the level of the High Court, and it was unavoidable that leave would therefore have to be granted and perhaps almost inevitable that an appeal to at least the Court of Appeal would be necessary to seek to resolve the interpretative issue definitively.
31. However, it is surely a matter of legitimate concern that the process has taken four years, and that during that time the order of the Minister has been stayed without there ever having been an inter partes hearing on that issue, and without the question of the appropriateness of any stay being analysed or determined. In this case, an application for leave to seek judicial review was made at short notice and included a claim for an interim and/or interlocutory injunction restraining the respondents from taking any step to deport the applicants prior to the determination of the proceedings. On Sunday 13 December 2020, the High Court made an order that "the notification of refusal of leave to land dated and furnished on the 12th December 2020 be stayed until after Monday the 21st day of December 2020 or until further Order in the meantime". On 21 December 2020 leave to seek judicial review was granted and, it appears, the stay continued.
32. In Gearty & Anor. v Director of Public Prosecutions & ors [2024] IESC 45, Charleton J., writing for this Court, explained that where a point of law was raised with the possibility of systemic delay on the enforcement of legislation, the hearing of any such claim should be expedited, and any appeal given priority.
33. In MD v Board of Management of a Secondary School [2024] IESC 11, Collins J. addressed the question of the grant of an injunction or a stay in judicial review proceedings. At paragraphs 2-5 of his judgment, he said:
"An applicant for judicial review is not entitled to a stay or injunction as a matter of right.[...] Insofar as, in practice, there may previously have been an understanding or presumption that once a public law measure was challenged its implementation should be suspended, any such (mis)understanding was - or ought to have been - dispelled by this Court's decision in Okunade v Minister for Justice [2012] IESC 49, [2012] 3 IR 152. As Okunade explains, the entitlement of those conferred with statutory or other power or authority to make legally binding decisions is an important part of the structure of any legal order based on the rule of law and it follows that significant weight must be given to permitting measures that are prima facie valid to be "carried out in a regular and orderly way" (per Clarke J (as he then was), Denham CJ, Hardiman, Fennelly and O' Donnell JJ agreeing) at para 92. All due weight needs to be accorded to "allowing the systems and processes by which lawful power is to be exercised to operate in an orderly fashion" (ibid). As the Court also made clear, there may be (and in many cases will be) compelling considerations going the other way. Okunade certainly does not exclude the making of a stay or injunction that suspends or otherwise affects the implementation of a prima facie valid administrative measure. But Okunade counsels that such orders must not be made reflexively or as a matter of routine.
That fundamental point is reinforced by this Court's decision in Merck Sharp & Dohme v Clonmel Healthcare [2019] IESC 65, [2020] 2 IR 1, per O' Donnell J (Clarke CJ, McKechnie, Dunne and O' Malley JJ agreeing) at para 62.
[...]
It follows that, where a court is asked to make an order having the effect of suspending or otherwise significantly affecting the due implementation of a presumptively valid public law measure - whether in the form of a stay or an injunction - it should do so only after carefully identifying and weighing all of the rights and interests engaged. That ordinarily requires that the decision-maker (and, potentially, third parties who would be affected by the order sought) should be afforded an effective opportunity to be heard before any such order is made."
34. As was observed by Hogan J in that case, it is possible that the terms of Order 84 rule 20(8)(b) may have contributed to the misunderstanding identified in this passage. That rule provides, correctly, that where leave to seek judicial review is granted, the Court may, should it consider it just and convenient to do so, and on such terms as it thinks fit, grant such interim relief as could be granted in an action begun by plenary summons, or where the relief sought is an order of prohibition or certiorari, "make an order staying the proceedings, order or decision to which the application relates until the determination of the application for judicial review or until the Court otherwise orders".
35. Where an interim order is sought in proceedings begun by plenary summons, it is made only for a short time and pending an application for an interlocutory order made at a hearing at which the defendant is present or may be represented. By the same token, it should follow that where a stay is granted which has the same or similar effect, it should not be made until the determination of the application for judicial review without at least affording the affected party the opportunity to argue that the impugned decision, order, or determination should not be disapplied pending the determination of the judicial review. Any such hearing might also afford the parties an opportunity to address the question of the possibility of an expedited hearing, and whether the measure in question should be stayed, or not, pending such hearing. Consideration might be given therefore to making express provision in Order 84 for the possibility of interlocutory hearings in cases where injunction and or stays are granted ex parte on the grant of leave to seek judicial review.
36. There is no doubt that, as observed in MD v Board of Management of a Secondary School, it may be extremely difficult in some cases to ascertain where the balance of justice lies between permitting a potentially invalid decision to continue to take effect, and suspending the operation of a presumptively valid decision or order made in the exercise of public law powers, presumptively in the public interest. There is a spectrum of cases; running from perhaps a single decision exhibiting a patent flaw and affecting an individual in a manner which if given effect to would have irreversible consequences perhaps for fundamental constitutional rights, on the one hand; and running to the further extreme, where the judicial review challenges, perhaps on flimsy grounds, a measure of general application made in the public interest, perhaps even where the challenge is itself one based on a challenge to the validity of legislation enacted by the Oireachtas, and where the interest of the applicant is both commercial, and limited.
37. In the present case, the enforcement of the Minister's order would undoubtedly cause inconvenience and perhaps expense to the applicants. If their claim was successful, they would also be delayed in the commencement of a course of education which they had chosen to pursue in Ireland. However, it cannot be said that the enforcement of the order would preclude them, or hinder them in any significant way, in the prosecution of the claim, and unlike other cases of removal from the State, could not be said to put any fundamental right at risk.
38. On the other hand, while the decision challenged might at first sight appear to be an individualised decision affecting only the applicants, on closer analysis it is apparent that it has much further significant implications. As already discussed, the capacity to control entry to the State is a fundamental attribute of sovereignty and it is therefore a serious matter when the State's power to do so is disabled in any individual case without a determination that its exercise was in some way unlawful. Furthermore, the nature of the challenge here had implications for other cases. It meant that any other person seeking entry to Ireland to pursue online language courses during the Covid-19 pandemic could, if refused entry, challenge any such proceedings, and secure the right to remain in Ireland on a similar basis. Furthermore, the operation of this vital State function would be disabled not merely in the factual context arising here - entry to Ireland for an educational course - but more generally, since it would follow that the interpretation of public policy in s. 4(3)(j) could not be given a broader, and as it happens, correct, interpretation, without risk of a similar challenge, giving rise to a similar stay. If moreover, the proceedings became protracted, then it is plain that even if the State succeeded in defending the claims (as it has at every level of the Court system in this case), the factual circumstances in which any removal from the State might occur would be different than if the order had been allowed to take effect when it was made.
39. The enforcement of what are prima facie valid orders is a matter to which significant weight must be given in any consideration of the appropriateness of granting a stay. An order is valid and effective until otherwise ordered by a court of competent jurisdiction. That is, as the passage from MD explains, itself a component of the rule of law.
40. It follows that the grant or withholding of a stay may be a very difficult balance to achieve, perhaps more difficult than the issues which routinely arise in applications for interlocutory injunctions in inter partes private law proceedings, since the interests involved are more substantial, are not commensurate, and the award of damages on the one hand, and an undertaking to damages on the other, are not matters which can mitigate the impact of the grant or refusal of a stay. It is in the nature of things that there will be many cases in which, after consideration, the appropriate course is to order a stay and perhaps an expedited hearing. The fact that a respondent ought to be given the opportunity of contesting a stay application does not mean that all such applications need be contested: parties ought to be able to make a realistic assessment of the manner in which the balance should be held in any given case, particularly in circumstances where the court can separately award the costs of any stay application. However, the issue must at least be capable of being addressed. It is surely wrong that an important power, regarded as intrinsic to the existence of a sovereign state, should be disabled merely because an applicant has advanced a sufficient argument to satisfy the relatively low threshold for the grant of leave to seek judicial review, and without affording a hearing to the respondent, or a consideration of the significant factors which weigh in the balance in any case against the grant of a stay.
41. These cases proceeded with admirable expedition in the High Court, and the High Court judge initially granted a stay on her judgment and order only for so long as would allow the matter to be advanced in the Court of Appeal. In the circumstances, this was a correct course. The fact that an applicant has failed in a claim for judicial review in the High Court is an additional relevant factor in considering whether the stay on the impugned order should be continued pending a hearing in the Court of Appeal. In the circumstances recounted in the separate judgment of Burns J. [2021] IEHC 546, events occurred shortly after of the High Court judgment which may have deflected the course of the appeal somewhat, and perhaps made it imprudent for the State authorities to seek to insist upon a separate stay application in the Court of Appeal. While therefore this case might not itself exhibit all the faults which can arise when public law measures are stayed on an ex parte hearing, it does nonetheless provide an opportunity to emphasise that what was said in MD applies with if anything greater force where a stay is sought in judicial review proceedings regarding public law measures adopted in the public interest. I would dismiss the appeal.
[1] Which provides that nothing in the Immigration Act 2004 shall derogate from, inter alia, obligations of the State under the treaties governing the European Communities, or s. 9(1) of the Refugee Act 1996.
[2] Directive 2004/38/EC
[3] Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to Be Construed, (1950) 3 Vand. L. Rev. 395.