Assessment of Application

Cases

A. W. K. v The Minister for Justice & Equality & ors

 

[2020] IESC 10 (23 March 2020)
]

Page 1 ⇓THE SUPREME COURTO’Donnell J.McKechnie J.MacMenamin J.Charleton J.Irvine J.Supreme Court Record No: S:AP:IE:2018:000169High Court Record No: 2018/430 JRBETWEENA.W.K. (PAKISTAN)ANDApplicant/AppellantTHE MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THEATTORNEY GENERALRespondentsPage 2 ⇓JUDGMENT of Mr. Justice William M. McKechnie delivered on the 25th day ofMarch, 2020Introduction:1. The applicant in this case was born in Pakistan in 1991. Having arrived in thisjurisdiction in August, 2015, he made an application for asylum because at that timethe International Protection Act 2015, was not in force. That application was rejected,but whilst his appeal was pending before the Refugee Applications Tribunal, the mostimportant and significant provisions of the Act were activated, as and from 31stDecember, 2016. As a result, he made an application for international protectionunder its terms which was rejected at both first instance and on appeal.2. After the initial decision, the first named respondent (“the Minister for Justice”or “the Minister”) considered, as he is required to do, whether or not to grant theapplicant permission to remain in the state. He declined to do so. Subsequent to theappeal being dismissed, the Minister, on receipt of further information from theapplicant, reviewed that decision but saw no reason to alter its outcome. That reviewwas conducted under s. 49(7) of the International Protection Act 2015 (“the Act” or“the 2015 Act”). The most crucial question on this appeal is whether that “review”should be regarded as a “decision” under s. 49(4)(b) of the 2015 Act, for the purposesof the application of s. 5 of the Illegal Immigrants (Trafficking) Act 2000, asamended. Whilst a number of other matters were canvassed, particularly by therespondents, this by far is the most significant point of contention, between theparties.2Page 3 ⇓The International Protection Act 2015 (“the 2015 Act”):3. The Act, from an overall perspective, is, in its substantive terms logicallystructured and orderly laid out, in the manner in which it deals with the various stepsof the regime, that is from inception to conclusion. Leaving aside legal challengesand the implementation phase of a deportation order, the process in substancecommences with an application for international protection and reaches a near endpoint when a “review” decision by the Minister for Justice issues pursuant to s. 49(7)of the Act: if such a decision is negative, the final step is for the Minister to make adeportation order, which he is obliged to do, in respect of a person who is the subjectof that decision. There are of course several intermediate junctions at which, for avariety of reasons, the process might terminate: but if the entire course should benavigated, the start and end points broadly speaking, are as indicated.4. As this case is essentially concerned with the provisions of the 2015 Act, itwould be helpful, in order to understand and follow the issues, if I were to give a shortoutline of its main sequential features, to be followed by a more focused look at themost pertinent provisions which affect this case. Unfortunately, what follows is alittle dense, but probably unavoidable. Initially, a number of key definitions shouldbe noted:-● An “applicant”: is a person who has applied for internationalprotection in accordance with s. 15 of the Act, and who has not ceasedto be such, under s. 2(2) of the Act.● “international protection” means a status in the State either –(a) as a refugee, on the basis of a refugee declaration, or3Page 4 ⇓(b) as a person eligible for subsidiary protection, on the basis of asubsidiary protection declaration● “Refugee” is a person, or a “stateless person”, who owing to a well-founded fear of persecution on any of the grounds set out in the s. 2definition, is unable or unwilling to avail of the protection available inthe country of his nationality or in the country of his former habitualresidence, whichever may apply,● “international protection officer” is a person who is authorised under s.74 of the Act, to perform the functions so conferred on that officeholder (“IPO”),● “Tribunal” means the International Protection Appeals Tribunalestablished by s. 61 (“IPAT”),● The circumstances in which a person ceases to be “an applicant” arethose set out in s. 2(2) of the 2015 Act.5. The various steps or stages in this regime can briefly be described as follows: -(i) A person, either at the frontier of the State or in the State, either legallyor not, who wishes to make an application for international protection andwho, pending the outcome does not want to be expelled for fear of seriousharm or persecution, is firstly interviewed by an officer of the Minister or byan immigration officer: the purpose of this is essentially to determine basicfacts such as the identity, nationality and country of origin of the person inquestion, the route taken to get to this jurisdiction etc. Such a person may thensubmit an application for international protection: when made, that person,unless otherwise disqualified, becomes “an applicant” for the purposes of s. 15of the Act.4Page 5 ⇓(ii) An applicant shall be permitted to enter and remain or to remain in theState for the sole purpose of his or her application being examined and decidedupon by an international protection officer and where an appeal is taken,pending the result thereof. This permission is valid but only until the subjectperson in question ceases to be an applicant under s. 2(2) of the Act.(iii) This “permission to enter and/or to remain” has a purpose totallyseparate and distinct from a “permission to remain” given under s. 49 of theAct. That first mentioned, operates at the commencement of the process,whereas the latter permission only comes into play, if at all, at a point close toif not at the end of the process.(iv) Disregarding the various intermediate steps which are provided for, aninternational protection officer examines each application for the purposes ofmaking a recommendation under s. 39(2)(b) of the Act: as provided for by s.34, the officer in his recommendation has three possible options available:(v) It may be any one of the following:● That the applicant should be given a refugee declaration,● That the applicant should not be given such a declaration but insteadshould be given a subsidiary protection declaration, or● That the applicant should be given neither a refugee declaration or asubsidiary protection declaration.The second option is provided for in s. 39(3)(b) of the Act, with the option torefuse either declaration being provided for in s. 39(3)(c) of the Act. In thisjudgment the former is sometimes referred to as a “s. 39(3)(b)recommendation” and the latter as a “s. 39(3)(c) recommendation”.5Page 6 ⇓(vi) Again, without setting out the notification requirements in respect ofthe actual recommendation made, or the further steps which follow, s. 41permits an appeal against either a s. 39(3)(b) or a s. 39(3)(c) decision.Therefore, whilst evidently no appeal is provided for, from a recommendationthat a refugee declaration should be granted, there is an appeal from arecommendation that such a declaration should not be granted, but instead asubsidiary protection declaration should be, and also from where neitherdeclaration is being recommended.(vii) Under s. 46 of the 2015 Act, the Tribunal, depending on the nature ofthe appeal, has a number of options available to it, but at no time can it disturba positive recommendation previously made by the IPO. So on an appealunder s. 39(3)(b), where a refugee declaration has been refused but asubsidiary protection declaration has been recommended, the Tribunal caneither affirm that recommendation or set it aside and in its place recommendthat the applicant should be given a refugee declaration (s. 46(2) of the Act).On an appeal from a s. 39(3)(c) decision, where neither of these declarationswere recommended, the Tribunal may affirm that decision, or recommend arefugee declaration, or refuse such declaration but instead recommend asubsidiary declaration (s. 46(3) of the Act).(viii) So in substance, a s. 46(2) recommendation deals with a s. 39(3)(b)recommendation, and a s. 46(3) recommendation deals with a s. 39(3)(c)recommendation, at of course appellate level.(ix) The Minister for Justice, by virtue of s. 47 of the Act, is obliged to giveeffect to any recommendation made at first instance or on appeal. He doeshowever have the power to decline to follow any such recommendations, if to6Page 7 ⇓do so would endanger the security of the State, or where the individualconcerned, by reason of having been convicted of a particularly serious crime,either in this jurisdiction or otherwise, constitutes a danger to the “communityof the State”.It must be noted that both the IPO and IPAT issue only “recommendations” and not“decisions”. As nothing turns in this case on that distinction, I have on occasion usedthe phrases interchangeably. However, the wording of the Act refers to“recommendations” and not “decisions”.6. The above overview of these sections brings us to the critical statutoryprovisions, relative to this appeal. These are contained in sections 49 and 51.“49. (1) Where a recommendation referred to in section 39 (3)(c) is made inrespect of an application, the Minister shall consider, in accordance with thissection, whether to give the applicant concerned a permission under thissection to remain in the State (in this section referred to as a “permission”).(2) For the purposes of his or her consideration under this section, the Ministershall have regard to—(a) the information (if any) submitted by the applicant under subsection(6), and(b) any relevant information presented by the applicant in his or herapplication for international protection, including any statement madeby him or her at his or her preliminary interview and personalinterview.7Page 8 ⇓(3) In deciding whether to give an applicant a permission, the Minister shallhave regard to the applicant’s family and personal circumstances and his orher right to respect for his or her private and family life, having due regardto—(a) the nature of the applicant’s connection with the State, if any,(b) humanitarian considerations,(c) the character and conduct of the applicant both within and (whererelevant and ascertainable) outside the State (including any criminalconvictions),(d) considerations of national security and public order, and(e) any other considerations of the common good.(4) The Minister, having considered the matters referred to in subsections (2)and (3), shall decide to—(a) give the applicant a permission, or(b) refuse to give the applicant a permission.8Page 9 ⇓(5) The Minister shall notify, in writing, the applicant concerned and his or herlegal representative (if known) of the Minister’s decision under subsection (4),which notification shall be accompanied by a statement of the reasons for thedecision.(6) An applicant—(a) may, at any stage prior to the preparation of the report under section39 (1) in relation to his or her application, submit information thatwould, in the event that subsection (1) applies to the applicant, berelevant to the Minister’s decision under this section, and(b) shall, where he or she becomes aware, during the period betweenthe making of his or her application and the preparation of such report,of a change of circumstances that would be relevant to the Minister’sdecision under this section inform the Minister, forthwith, of thatchange.(7) Where the Tribunal affirms a recommendation referred to in section 39(3)(c) made in respect of an application, the Minister shall, upon receivinginformation from an applicant in accordance with subsection (9), review adecision made by him or her under subsection (4)(b) in respect of the applicantconcerned.9Page 10 ⇓(8) Subsections (2) to (5) shall apply to a review under subsection (7), subjectto the modification that the reference in subsection (2)(a) to informationsubmitted by the applicant under subsection (6) shall be deemed to includeinformation submitted under subsection (9) and any other necessarymodifications.(9) An applicant, for the purposes of a review under subsection (7), and withinsuch period following receipt by him or her under section 46 (6) of thedecision of the Tribunal as may be prescribed under subsection (10) —(a) may submit information that would have been relevant to themaking of a decision under paragraph (b) of subsection (4) had it beenin the possession of the Minister when making such decision, and(b) shall, where he or she becomes aware of a change of circumstancesthat would have been relevant to the making of a decision undersubsection (4)(b) had it been in the possession of the Minister whenmaking such decision, inform the Minister, forthwith, of that change.(10) The Minister may prescribe a period for the purposes of subsection (9)and, in doing so, shall have regard to the need for fairness and efficiency in theconduct of a review under this section.10Page 11 ⇓(11) (a) A permission given under this section shall be deemed to be apermission given under section 4 of the Act of 2004 and that Act shall applyaccordingly.(b) A reference in any enactment to a permission under section 4 of the Act of2004 shall be deemed to include a reference to a permission given under thissection.”7. Subject to the prohibition of refoulement, s. 51 of the 2015 Act, provides forthe making of a deportation order. The various steps outlined in that process are notof immediate concern, but two important points should be noted: firstly, that wherethe Minister has decided to refuse to give an applicant permission to remain in theState under s. 49(4)(b), he or she is then obliged to make a deportation order inrespect of that individual by virtue of s. 51(1)(c) of the Act: and secondly, if such anorder is made, it shall be deemed to be a deportation order made under s. 3(1) of theImmigration Act 1999, and accordingly, s. 3(11) of that Act will apply. That entitles aperson to make an application to have a deportation order revoked or amended.8. For the purposes of these proceedings two further statutory provisions shouldbe mentioned. The first is s. 5(1) of the Illegal Immigrants (Trafficking) Act 2000, assubstituted by s. 34 of the Employment Permits (Amendment) Act 2014, and assubsequently amended by s. 79 of the International Protection Act 2015 (“s. 5 of the2000 Act”). That section provides that a person shall not challenge the validity of anyof the various measures outlined in that subsection, save in accordance with theprocedures therein specified. Those measures apply to several different situations,such as notifications, refusals, decisions, determinations, recommendations and orders11Page 12 ⇓made, inter alia, under the Immigration Act 1999: included are deportation ordersmade under s. 3(1) of that Act, and also orders made under s. 3(11) of the Act.9. In brief, the requirements specified in s. 5 of the 2000 Act are: (i) that achallenge to any of the steps described must be by way of judicial review proceedingscommenced within a period of 28 days from the date on which the affected person isnotified of the step in question, unless for good and sufficient reason that period isextended by the High Court, and (ii) that the determination of the High Court on anysuch application shall be final and no appeal shall lie from that decision save exceptwith the leave of the High Court, which should be granted only where the decisioninvolves a point of law of exceptional and public importance and that it is desirable inthe public interest that an appeal should be taken therefrom. This procedure can becontrasted with the more generous requirements of Ord. 84 of the Rules of theSuperior Courts which deal with judicial review proceedings other than those capturedby s. 5 or by other similar or analogous provisions.10. As stated, s. 79 of the 2015 Act further amended s. 5(1) of the 2000 Act byinserting, inter alia, the following matters as being included in that provision: -“(og) a recommendation of an international protection officer under para. (b)or (c) of section 39(3) of the International Protection Act 2015,(oh) a decision of the International Appeals Tribunal under subs (2) or (3)of section 46 of the International Protection Act 2015,(oi) a decision of the Minister under s. 49(4)(b) of the InternationalProtection Act 2015, and(oj) a deportation order under section 51 of the International Protection Act2015.”12Page 13 ⇓It is common case that there is no express reference in the amended s. 5 to a reviewdecision under s. 49(7) of the 2015 Act: this omission for the applicant isdeterminative of the issue. Not so, says the Minister. In his view, such a reviewdecision must be regarded as being one and the same as that made under s. 49(4)(b),which clearly is captured by the amendment set out at subpara. “(oi)” thereof.11. The second provision in issue is s. 5(1) of the Interpretation Act 2005, whichreads as follows:-“5.- 1 In construing a provision of any Act (other than a provision that relatesto the imposition of a penal or other sanction) –(a) that is obscure or ambiguous, or(b) that on a literal interpretation would be absurd or will fail toreflect the plain intention of –in the case of an act to which paragraph (a) of thedefinition of “Act” in section 2(1) relates, theOireachtas, orin the case of an Act to which paragraph (b) of thatdefinition relates, the Parliament concerned,The provision shall be given a construction that reflects theplain intention of the Oireachtas or Parliament concerned, asthe case may be, where that intention can be ascertained fromthe Act as a whole.”12. This section may or may not become relevant: if on a literal interpretation ofthe measures in issue the review decision should not be regarded as a decision for thepurposes of s. 49(4)(b) of the 2015 Act, then, it is asserted, that by an appropriate13Page 14 ⇓application of this provision, the conclusion urged by the Minister for Justice shouldnevertheless prevail. This is a point I will come back to a little later. But first a littlemore detail of the background circumstances of the case.The Facts of this Case:13. The applicant arrived in this jurisdiction on 25th August, 2015, just as hisstudent visa, which permitted him to live, study and remain in the United Kingdomwas about to expire. On the 26th August, he applied for asylum which was rejected,and his appeal to the Refugee Applications Tribunal was pending when theInternational Protection Act 2015, or at least its more significant provisions, came intoforce. That date was the 31st December, 2016. On 13th February, 2017, he made anapplication for international protection. That was rejected by the internationalprotection officer on 10th July, 2017: his appeal to the International ProtectionAppeals Tribunal (IPAT) was likewise rejected on the 13th October, 2017. He wasnotified of such decision on the 24th October, 2017.14. Where a recommendation has been made by the international protectionofficer under s. 39(3)(c) of the 2015 Act (para. 5(v) above), the Minister, despite suchrecommendation, is obliged to consider whether or not to give that person permissionto remain in the State. (s. 49(1) of the Act). Having considered the various mattersspecified in subs (2) and (3), a decision is then made under subs (4) which is either togrant permission or refuse it. This obligation is on the Minister irrespective of anyappeal. In this case the Minister by decision dated the 26th July, 2017, refused theapplicant permission to remain (para. 5(iii) above). It will be noted that this predatedthe decision of IPAT.14Page 15 ⇓15. Following that decision which issued on 13th October, 2017, representationswere made to the Minister on the 15th and 24th November, 2017. If suchrepresentations are not made, then the Minister does not have to review his earlierdecision to refuse permission to remain. If however further information is supplied,as it was in this case, the Minister must review that decision. This obligation arisesfrom s. 49(7) of the Act. Having conducted that review, the Minister by decisiondated the 15th March, 2018, saw no reason to alter the previously made decision torefuse permission to remain (para. 2 above).16. Following notification of the Minister’s decision under s. 49(7) of the Act, theapplicant sought a further review on 3rd May, 2018. That was responded to by way ofletter dated the 10th May, 2018, in which it was said:-“A section 49 PTR Review was completed and a decision issued on the 25thMarch, 2018. Under section 49 of the International Protection Act 2015, nofurther review can be considered in this case.Your client is no longer an applicant under the 2015 Act, and his applicationcannot be reconsidered under section 49.Your client has now ceased to be an applicant under the 2015 Act, and nolonger has permission to remain in the State…”As it happened, on the 8th May, 2018, a deportation order was made in respect of theapplicant. Accordingly, subject to challenge, the Minister was entitled to implementor execute that deportation order.The High Court Proceedings:17. Having obtained leave to institute these judicial review proceedings, theapplicant sought an order of certiorari seeking to set aside the “s. 49(9) decision of15Page 16 ⇓15th March, 2018”, and secondly, the deportation order. Further, if successful, anorder of mandamus was sought so as to compel the Minister to consider the secondreview application made by him. The substantive application was ultimatelydetermined by Humphreys J. who delivered his judgment on 25th September, 2018.Purely as an aside, but in the interest of accuracy, the decision of the 15th March,2018, and notified on the 25th March, 2018 (paras. 15 and 16 above) was not madeunder s. 49(9) of the Act: the only decision in issue was that made under s. 49(7) ofthe Act.18. Humphreys J., having correctly identified what the issue was, felt in no doubtbut that by virtue of s. 49(8) of the 2015 Act (para. 6 above), the review conducted bythe Minister under subs (7) of that section was one to which the provisions of subs (4)applied. Accordingly, in his opinion the review must be associated with the originaldecision and like it, must therefore be regarded as being expressly captured by s.5(1)(oi) of the 2000 Act: consequently, it followed that the procedural requirementsof that section had to be met. This conclusion was based on a literal interpretation ofthe measure in question. Even if incorrect in this regard however, the learned judgewas satisfied that the provision in question should be given a purposive construction.19. There were a number of bases advanced in support of this latter approach.Firstly, as decided by him in earlier cases, a rejection of a s. 3(11) request is anadverse immigration decision which is relevant to the continuing presence or absenceof a non-national who illegally remains in this jurisdiction (K.R.A. v. Minister forJustice and Equality [2016] IEHC 289, (Unreported, High Court, Humphreys J., 12thMay, 2016)). Therefore, s. 5(1)(oi) of the 2000 Act should be construed so as to giveeffect to the statutory purpose behind such a decision. Furthermore, it would betotally illogical in his view that where, a refusal under s. 49(4) of the 2015 Act, a16Page 17 ⇓deportation order made under s. 50 of that Act and a refusal to revoke such an orderunder s. 3(11) of the Immigration Act 1999, were all subject to the provisions of s. 5of the 2000 Act, a decision under s. 49(7) was not.20. Another basis, external to the Interpretation Act 2005, which was relied uponwas that a purposive interpretation applies to any legal text. Hart & Sacks werequoted as follows in this regard:-“Law is a doing of something, a purposive activity, a continuous striving tosolve the basic problem of social living…Legal arrangements (laws) areprovisions for the future in aid of this effort. Sane people do not makeprovisions for the future which are purposeless.” (Henry Hart and AlbertSacks, The Legal Process (Cambridge C.U.P 1958 at 148).Reference was also made to similar views expressed by Judge Aharon Barak, and hisexposition on this topic. (Purposive Interpretation Law (Princeton, 2005) at p. XI).Accordingly, on this type of analysis alone, “a purposive interpretation applies to anyform of legal instrument, legislative or otherwise” (para. 7 of the judgment).21. On the statutory side, the learned trial judge was satisfied that in the event ofsome ambiguity arising from the measures in question, s. 5 of the 2005 Act did applyas a fortiori a deportation order in itself was neither “penal” or a “sanction”. Such anorder in his view was simply a civil consequence of a person’s illegal presence in theState. Therefore, by applying this section, the conclusion above stated can equally bereached. Finally, Humphreys J. was unconvinced by the rationale of the majority inSessions v. Dimaya 584 US, [2018] (17th April, 2018, [2018] U.S. Lexis 2497). As aresult therefore, the decision in question, whilst amenable to judicial review, was onecaptured by s. 5(1)(oi) of the 2000 Act. In light of when the application was moved, it17Page 18 ⇓was clear in his view that it was out of time and therefore barred by virtue of theprovision mentioned.22. The applicant, having then been refused leave to appeal to the Court of Appealby the learned trial judge, made an application to this Court to entertain a furtherappeal on the issues arising. Despite being opposed, this Court in its Determinationdated 2nd April, 2019 ([2019] IESCDET 76]), permitted such an appeal being satisfiedthat the constitutional threshold was met. The sole issue permitted however was oneof statutory construction.The Submissions of Both Parties:23. The submissions made to the High Court on behalf of the applicant were inlarge measure repeated before this Court and as their essence can be seen from thisjudgment, it is therefore not necessary to separately cite them at any great length.24. It is accepted that s. 5 of the 2000 Act does not infringe the applicant’s right ofaccess to the court, but nonetheless it does represent a restriction or limitation on thatright. Accordingly, any provision to have that effect, must be clear and unambiguousand when in issue, must be strictly construed. A number of cases were referred to insupport of this proposition. In the more specific context of this case, it is claimed thata negative review decision under s. 49(7) of the 2015 Act is one which implicates aperson’s right of access, as for all practical purposes it renders his presence in thestate unlawful, thus inevitably leading to the making of a deportation order. It istherefore striking to note that whilst s. 5(1) of the 2000 Act covers a decision under s.49(4)(b) of the 2015 Act, as well as a deportation order made under s. 51 thereof(para. 10 above), there is a no reference to a decision taken under s. 49(7)(b). Themaxim expressio unius est exlusio alterius applies: what in effect the High Court has18Page 19 ⇓done is to rewrite s. 79(a)(ii) of the 2015 Act and/or s. 5(1)(oi) of the 2000 Act, so asto read, “a decision of the Minister under s. 49(4)(b) or s. 49(7) of the InternationalProtection Act 2015”. It is claimed that the emphasised words, inserted for thepurposes of this submission, in effect amend the statute and involves impermissiblejudicial law making. The High Court was incorrect in applying a purposiveinterpretation and cited no judicial authority to support its decision in this regard. Itwas therefore submitted on behalf of the applicant that this is an inappropriate meansof interpretation of the measure at issue.25. There then follows a widespread engagement with s. 5(1) of the 2005 Act, inrespect of which Kadri v. Governor of Wheatfield Prison [2012] IESC 27, [2012] 2I.L.R.M. 392 (“Kadri”), and Nawaz v. Minister for Justice [2012] IESC 58, [2013] 1I.R. 142, and the decision of Gilligan J. in Lackey v. Kavanagh [2012] IEHC 276,[2012] 2 I.R. 585 are quoted. It was said that even if the section should apply, which isvery much disputed, one cannot ignore the obvious, namely that the Oireachtas did notexpressly legislate to have “the review decision” incorporated into s. 5(1) of the 2000Act. There is nothing absurd about this omission. Even if such should be consideredas an anomaly or as a lacuna, nonetheless judicial self-restraint is appropriate. Anydefect, if there be one, must be remedied by the Oireachtas only.26. It is further submitted that s. 5 of the 2005 Act does not apply to a deportationorder, and likewise should not apply to the impugned decision in this case: in effect,there is no distinction between both. Such an order, even if not a sanction as such,must be regarded as akin to a penalty in that it constitutes a measure adverse to thesubject person, in this case, the applicant. Sessions v. Dimaya 584 US [2018] (17thApril, 2018, [2018] U.S. Lexis 2497), Kagan J “…To the contrary to this Court hasreiterated that deportation is a particularly severe penalty”, which maybe of greater19Page 20 ⇓concern to a convicted alien than “any potential jail sentence”. In conclusiontherefore, for the above reasons the decision of the High Court should be set aside.27. The respondent focuses on that part of the High Court judgment which statesthat there is no uncertainty or ambiguity in the provisions in question and thereforesupports the conclusion that on a literal interpretation, a negative review decision isabsorbed in or is otherwise captured by s. 49(4)(b) of the 2015 Act, and is thereforewithin s. 5(1)(oi) of the 2000 Act. Such a review is an integral part of the process andwhere a negative decision is made it “…entails a refusal to grant the applicant thepermission and is therefore a decision covered by s. 49(4)(b)”. It is further said thatby virtue of subs (8) of s. 49, the reference to information in subs (2) includes thatwhich is submitted under subs (9) and accordingly, these provisions support the sameconclusion.28. If however this Court should not be persuaded by the literal interpretativeapproach, then recourse can be had to s. 5(1) of the 2005 Act, as the Minister’sdecision under either or both s. 49(4)(b) and s. 49(7) of the 2015 Act, could not bedescribed as amounting to a “penal or other sanction”. In this context, even adeportation order itself falls outside this exclusionary phrase. The judge’s descriptionof such an order as simply being “a civil consequence of the applicant’s illegalpresence in the State” is correct. Reliance is also placed on Kadri, which is reliedupon for the proposition that even the deprivation of personal liberty on foot of adeportation order would not necessarily be considered as excluding the application ofs. 5 of the 2005 Act (Clarke J. – para. 3.3 of his judgment). Therefore, the High Courtjudgment should be upheld.29. The Minister also submits that the approach contended for on behalf of theapplicant leads to an absurdity in that all of the critical process decisions in this area20Page 21 ⇓of law, both prior to and after a negative review decision, are subject to the time limitsand other procedural requirements contained in s. 5(1)(a) of the 2000 Act. It would behighly anomalous if for some reason the Oireachtas intended to exclude from thisoverall regime the decision in question. What Ryan P. said at paras. 50 – 51 of hisjudgment in K.R.A. v. B.M.A. (a minor) v. Minister for Justice and Equality[2017] IECA 284 (Unreported, Court of Appeal, 27th October, 2017) are apposite in thisregard, as are the passages from the judgment of Humphreys J. at paras. 41 and 42thereof ([2016] IEHC 289).30. Further, the respondent also suggests that the challenge in question amounts toa collateral attack on the deportation order which was made on the 8th May, 2018,which of course without debate or argument, is covered by s. 5(1) of the 2000 Act.Although, in a sense somewhat different, the decision of Hogan J. in XX v. Ministerfor Justice and Equality [2018] IECA 124 (Unreported, Court of Appeal, 4th May,2018) is said to be an authority for this proposition. Finally, as no argument isadvanced by the applicant which goes to the merits of the decision made by theMinister, there would be no real or practical utility in allowing this appeal.Decision:31. The essential issue in this case is one of statutory construction: it is whetherthe decision of the Minister to refuse permission to remain, taken on review, shouldbe regarded as a decision within s. 49(4)(b) of the Act, or whether it is a decisionseparate and distinct from that. If the former, then any challenge is captured by s. 5 ofthe 2000 Act, with the result that the proceedings are out of time. As no extensionwas sought or argued for, it would follow that the action must fail on this basis.21Page 22 ⇓32. This interpretative issue involves a discussion on the literal approach, andwhat factors may be considered as part of that principle. Secondly, the focus of theparties on what I describe as a purposive approach centred on the application or not,as the case may be, of s. 5(1) of the 2005 Act. Even though I am satisfied that theissue can be resolved by a consideration of the text used, when correctlycontextualised by reference to the subject matter of the legislation as a whole, I shouldhowever make some observations on this statutory provision, as some of thecomments in particular relating to Kadri, are said to influence even the common lawposition.33. The main elements of a literal approach are now so well described thatindividual authority for what follows is hardly necessary. The most basic obligationof such an exercise is to determine the intention of parliament, to assess what thelegislative wishes are. Whilst some may say that even such phraseology is in itselfambiguous, at least one aspect of any uncertainty in this respect, can be immediatelyresolved. It is that which the court is searching for, to identify the objective intentionof the legislature as a whole, and not any subjective intention which it, or its membersmay have. (The State (O’Connor) v. O’Caomhanaigh [1963] I.R. 112, and Crilly v.T&J Farrington Limited [2001] IESC 60, [2001] 3 IR 251).34. The most appropriate way to achieve this objective is by reference to thewords used by the Oireachtas itself: when given their ordinary and natural meaning,the outcome should best reflect the plain intention of that body. The text published isthe basic material involved because it is the most pre-eminent indicator of intention.As stated by the Law Reform Commission, in a publication later referred to (para. 45infra), this approach remains the primary method of construction. Regard toalternative means, by reference to the various and multiple subsidiary rules, which22Page 23 ⇓collectively are called aids to interpretation, are resorted to only where this primaryapproach lacks the capacity to resolve the issue or is otherwise found wanting. Thismethod of construction is variously described as the literal method or, as giving thewords their original meaning or their ordinary and natural meaning. There is nodifference in effect between any of these descriptions. They all entail the samesubstantive drivers in the exercise undertaken.35. As part of this approach however, it has always been accepted that context canbe critical. It is therefore perfectly permissible to view the measure in issue byreference to its surrounding words or other relevant provisions and, if necessary, evenby reference to the Act as a whole. Furthermore, it is presumed that the legislaturedid not intend any provision enacted by it to produce an “absurd” result. That rule,admittedly in a different context, was put as follows in Murphy v. G.M.; Gilligan v.Criminal Asset Bureau [2001] 4 IR 113, “A construction leading to so patentlyabsurd and unintended a result should not be adopted unless the language used leavesno alternative: see Nestor v. Murphy [1979] I.R. 326” (Keane C.J. at 127 of thereport). Accordingly, whilst not in any way trespassing upon a purposive approach,certainly not that as provided for by s. 5 of the 2005 Act, I believe that it ispermissible to have regard to the underlying rationale for the provision(s) in question.On this basis, I propose to examine meaning.36. As above explained, once an international protection officer makes arecommendation under s. 39(3)(c) of the 2015 Act, which is to the effect that both arefugee declaration and a subsidiary protection declaration should be refused, theMinister is obliged to operate the provisions of s. 49 of that Act, which, inter alia,deals with permission to remain. In so doing he considers any information supplied23Page 24 ⇓by the applicant, either under subs (6) or otherwise, and must have regard to thatperson’s family and personal circumstances, a requirement imaging the content ofArticle 7 of the Charter of Fundamental Rights and Article 8 of the EuropeanConvention on Human Rights. On such basis, a decision is then arrived at: it may beto give permission to remain (s. 49(4)(a)): in which case, that is an end to the matter.On the other hand, it may be a refusal under s. 49(4)(b): subject to challenge that isalso an end to the matter, save that a deportation order shall follow in respect of thesubject person. (s. 51(1)(c) of the Act).37. Where however, there has been an appeal to the International ProtectionAppeals Tribunal, a further stage in the process may have to be undertaken. I expressit so because this step is not automatic and becomes mandatory only upon receipt bythe Minister of the information provided for in subs (9) of the section. Whereapplicable, the Minister, pursuant to s. 49(7) of the 2015 Act, engages in a review ofthe decision previously made by him under subs (4)(b) of that section. Onceconcluded the applicant is notified of the outcome, as he was in this case.38. It is instructive to look at context and to note that before a decision is madeunder s. 49(4)(b) of the 2015 Act, or a review undertaken in respect thereof, theapplicant will have had his case fully considered at first instance by an internationalprotection officer and again fully on appeal by IPAT. Both entities in this case cameto the same conclusion, namely that he should not be granted either a refugeedeclaration or a subsidiary protection declaration. In this context, I am disregardingthe situation where a refugee declaration has been refused, but a subsidiarydeclaration has been granted. The next step immediately after notification of such anadverse decision is the making of a deportation order under s. 51 of the 2015 Act. Itis clear beyond doubt that the recommendations which I have mentioned, emanating24Page 25 ⇓from the IPO and IPAT, are captured by s. 5 of the 2000 Act (para. 10 above); as ofcourse is a decision made under s. 49(4)(b) of the Act, and the making of adeportation order. It would therefore seem strange if by deliberate choice theOireachtas had omitted a review decision from this regime. But, if on the applicationof the appropriate principles that should be the result, then so be it.39. Section 49(8) of the 2015 Act specifically applies subs (2) – (5) of that sectionto a review conducted under subsection (7). I will disregard all references tomodification for a moment. What effect do these subsections have on subs (7)? Thatquestion, for greater clarity, can be somewhat more refined and can be asked on theassumption that only subs (4) applies to a review decision. In the context of this case,what would be the outcome of such an analysis? Subsection (4) deals with a decisionto either grant permission to remain or to refuse permission to remain. No otherprovision has the same effect. No review could be conducted in the absence of a subs(4) decision. When a review concludes with a negative decision, what remains? It isof course the original decision made under s. 49(4)(b) of the Act.40. There can be only one decision on whether to grant permission to remain or torefuse it. In an appeal situation, the applicant must activate a review by invoking subs(9), which he does by submitting the information therein provided for. That must bedone “within such a period following receipt by him or her under section 46(6) of thedecision of the Tribunal as may be prescribed under subsection (10)”. By virtue ofthe International Protection Act 2015 (Permission to Remain) Regulations 2016 (S.I.No. 664 of 2016) the prescribed period is five days from as stated, the notification ofthe Tribunal’s decision. That is the only start point and the period provided is theonly period. Consequently, there can be only one review. It therefore seems to me25Page 26 ⇓that there cannot be other than one application to remain and one refusal decision onthat application.41. This can be tested from another view point, namely what is the basis uponwhich the Minister can make a deportation order in the circumstances described? It isa decision made under s. 49(4)(b) of the Act. Unless a review alters that decision bygiving a permission to remain, in which event a deportation order could not be made,then that is the only decision which legally sustains the making of such an order. I amtherefore satisfied that on a literal interpretation of these provisions, the decisionwhich stands after a review, is not the refusal arrived at, but rather is that as originallymade under subs (4)(b) of the Act. Such a refusal in and of itself could never form thebasis of a valid deportation order. As such, since the original decision is expresslywithin s. 5(1)(oi) of the 2000 Act, then the time limits and other requirements thereinspecified must be complied with.42. As is evident from the foregoing discussion, if the submission made on behalfof the applicant is correct, it would have consequences entirely discordant from theoverall scheme of the Act. It would mean that both the antecedent and subsequentdecisions, namely refusing permission to remain and the making of a deportationorder respectively, which are so closely related to a review decision, were subject tothe restrictive regime but not the review. The purpose behind s. 5 of the 2000 Act wasclearly set out by Keane C.J. in the courts judgment in Re Article 26 and the IllegalImmigrants (Trafficking) Bill 1999 [2000] 2 IR 360 at 392. The time limits imposedand the other requirements specified were part of a public policy objective that cases,where issues of the type covered by the section were involved, would be resolved in aspeedy and timely manner. That was seen as being of benefit not simply to the State,but also to the applicants involved. The effectiveness of that objective would be26Page 27 ⇓seriously undermined if challenges to a negative decision under s. 49(7) of the 2015Act were able to avail of Ord. 84 of the Rules of the Superior Court, rather than beingcaptured by s. 5 of the 2000 Act. That in my view could never have been intended:whilst such a result may not accurately be described as an “absurdity”, nonetheless itclearly would not reflect the underlying policy of the legislation in this area, or thespecific intention of the Oireachtas when enacting the 2015 Act.43. A similar type of issue, though not by any means identical, arose in the case ofK.R.A. & B.M.A. v. Minister for Justice and Equality [2017] IECA 284 (Unreported,Court of Appeal, 27th October, 2017). The issue of relevance related to s. 3(11) of theImmigration Act 1999, under which the appellant made an application to revoke adeportation order which was refused by the Minister. It will be recalled that “anorder” made under the section is captured by the restrictive provision. The argumentadvanced on behalf of the applicant was that there was “no order” so made upon thatrefusal. Therefore, s. 5 of the 2000 Act did not apply. At para. 50 of his judgment,Ryan P. had this to say:“50. Humphreys J. held that the legislative purpose behind the new section5 would be frustrated by a literal interpretation of s. 5(1)(m). It would limitthe application of the paragraph so that it would only apply to “the almostunheard-of situation of an amended deportation order. This is not consistentwith the policy of the legislation generally or this particular measure.51. I agree. I do not think that such an interpretation is legitimate. Underthe subsection the Minister has to make a decision which if it is in favour ofthe applicant will not be a matter for judicial review. It is clearly a decisionand the same must apply for a refusal. Although para. (m) could have27Page 28 ⇓specified a refusal, it cannot be the case that a decision to refuse is somehowexcluded as being different. There is no logical basis for that interpretation.52. The process of consideration of an application to revoke a deportationorder comes to a conclusion in a decision by the Minister. A decision underthat subsection is specified in paragraph (m) so there is a clear statutoryapplication of the restriction. It is of course true that any limitation of the rightof appeal from the High Court to this court or the Supreme Court has to beexpressed in clear and unambiguous terms, failing which the right continues tobe available. Having said that, there is no room in this case in my view forany doubt that the legislature intended to impose this restriction on arevocation application or that it actually achieved its purpose.”44. In my view, the facts of the instant case are much stronger than those whichgave rise to the judgment of the President of the Court of Appeal in KRA. I amtherefore satisfied that on a literal interpretation the impugned decision in this case iswithin s. 49(4)(b) of the 2015 Act, and a fortiori is captured by the provisions of s. 5of the 2000 Act. I am not in any way persuaded that this conclusion is disturbed bythe decision of the US Supreme Court in Sessions v. Dimaya, above referred to. Thefacts, circumstances, background, legislation, and the interpretive approach of thecourt in sessions are entirely different. Neither its reasoning or outcome therefore, areof assistance to the issue presently under discussion.Some Observations on Section 5 of the 2005 Act:45. In the year 2000, the Law Reform Commission published a report on StatutoryDrafting and Interpretation, which to a considerable extent informed the drafting of28Page 29 ⇓the 2005 Act. Putting its proposal in context viz-a-viz the literal approach, it had thisto say:-“We recommend a provision which retains the literal rule as the primary ruleof statutory interpretation. The other significant feature of our proposedformulation is that it specifies exceptions to this primary approach, not only incases of ambiguity and absurdity, but also – and here is the slight change fromthe common law as expressed in some judgments – where a literalinterpretation would defeat the intention of the Oireachtas. The draftprovision which we propose also indicates that such an exception should onlyapply where, in respect of the issue before the court, the intention of theOireachtas is plain.” (2.42 of report)Although the Oireachtas did not fully embrace the suggested draft of what ultimatelybecame s. 5 of the 2005 Act, for example the Commission did not exclude any “penalor sanction” provisions from its proposal, nonetheless as is evident from the enactedsection, the substance of what had been suggested was in fact incorporated. Theresulting s. 5 means that for the first time a provision on a statutory footing had beenmade for such an approach in respect of Acts of the Oireachtas generally.46. Even though the section has now been on the statute books for more thanfifteen years, its full effect and implications have yet to work their way through thecase law. It remains unclear what the words “obscure” and “ambiguous” truly meanand to what extent one overlaps with the other. It is curious that the word “purpose”or “purposive” or any derivative thereof, does not feature anywhere in the section, andthat the only reference to a “literal interpretation” is that as contained in s. 5(1)(b):why this is so, is at least for me, not self-evident. The subsection would seem toreject a literal interpretation if such should fail to reflect the “plain intention” of the29Page 30 ⇓Oireachtas, or if its application would be absurd, again a word which is not clear ofuncertainty. In most interpretive situations a court might be satisfied to simply rejecta construction which had such effect, and go no further. However, the sectionrequires the court to give the provision in question a construction that reflects theplain intention of the Oireachtas, but restricts the utility of that obligation by imposinga limitation, namely that such can only be given where the plain intention can beascertained from the Act as a whole. There are therefore several issues which remainunresolved about the true scope and nature of this provision. (see Dodd: StatutoryInterpretation in Ireland, Chapter 8,)47. Even without determining whether a deportation order, or for that matter areview decision under s. 49(7) of the 2015 Act is within or is excluded from the ambitof the section, there also remains uncertainty about the scope of the exclusionprovided for. Whilst much of the debate in this case has been on whether or not, adeportation order from the applicant’s point of view, and a decision under s. 49(7) ofthe Act from the Minister’s point of view, could be considered as either “a penal orother sanction”, that description of itself does not reflect the precise wording of therelevant subsection. The exclusionary element of subs (1) reads:-“other than a provision that relates to the imposition of a penal or othersanction”. (emphasis added)It remains to be seen whether there is any difference where the provision constitutes apenal or other sanction, or where it relates to a penal or other sanction. Given theview which I have taken however, it is not necessary to make any definitive decisionon the rival contentions of the parties regarding either a deportation order, or a reviewdecision.30Page 31 ⇓48. Kadri, has been cited by both parties for somewhat different reasons. In thatcase, the applicant, in respect of whom a valid deportation order existed, was firstdetained in custody on the 8th February, 2012, pursuant to a notification issued inaccordance with s. 5(1) of the Immigration Act 1999. A further such notificationfollowed on the 29th March, 2012. On an Article 40 application, the issue waswhether or not the eight-week maximum detention period specified in s. 5(6) of theAct had been breached in the circumstances of his case. The Supreme Court soagreed with the main judgment being given by Fennelly J. However, both he andMacMenamin J. agreed with the concurring judgment of Clarke J. The applicant hasreferred us to para. 3.4 of that judgment, whereas the Minister has highlighted thecontent of paragraph 3.3.49. When referring to the provisions of s. 5(1) of the Interpretation Act 2005, thelearned judge said as follows:-“3.3 There are a number of features of that section which seem to me to beof some importance. First, it should be noted that no argument was addressedwhich suggested that s. 5 had no application to this case because of theexclusion of “penal” provisions from its ambit. That does not, of course, meanthat the court may not be more circumscribed in the scope of its interpretiveremit in cases, such as this, which involved personal liberty. (emphasis added)3.4 Second, s. 5 is a section which speaks of the court giving aconstruction or interpretation to relevant provisions. It must be borne in mind,therefore, that the mandate given to the court by s. 5 is one to engage inconstructive interpretation rather than rewriting.”31Page 32 ⇓50. It is not entirely clear as to what the passage emphasised accurately intendedto reflect. The parties take a different view on that point. Whichever, as thisjudgment does not rely on s. 5 of the 2005 Act, it is unnecessary to further discuss thispoint. In particular, it is not required to decide whether a deportation order or areview decision is excluded from its operation by the reference to provisions whichare “penal” or “sanction” related. Accordingly, I do not see the direct relevance ofKadri to this case.Some Observations on Hart and Sacks:51. As above mentioned in para. 20, Humphreys J. also advanced, in support ofhis interpretation of the relevant parts of s. 49 of the 2015 Act, a further basisunconnected to the 2005 Act, which is that a purposive interpretation ought to applyto any and every legal text, the source of this assertion coming from thejurisprudential text co-authored by Henry Hart and Albert Sacks, The Legal Process:Basic Problems in the Making and Application of Law (Cambridge C.U.P 1958). It isclear that the proposition stated is of an extremely wide-reaching nature, as well asoverlooking to a large extent the well-established principles of statutory interpretationwhich apply in this jurisdiction, the most pivotal of which is to give a provision aliteral meaning where possible. Whilst immediately acknowledging that any attemptto gain a proper understanding of the theories advanced by Hart and Sacks, is entirelyoutside the scope of this judgment, I would however like to make some observations,even at a cursory level.52. At a more general level, the teaching materials whence the proposition comescentre around a legal theory or school of legal thought formulated by Hart and Sackscalled ‘legal process theory’. Whilst this term is sometimes used to generally describe32Page 33 ⇓the work of a whole host of legal scholars from the 1950s and 1960s, it also derivesfrom the text under discussion here, which was perhaps the most composite attempt atarticulating a process-based theory of law. The book is made up of some of theteaching materials of Hart and Sacks, and despite being planned for publication in1956, this did not occur until 1994: however, the text was widely-circulated inmanuscript form in the 1950s and went through four editions like so.53. Legal process theory centres around several related themes which include: arecognition that courts and the judiciary do not simply apply the law but rather theyoften ‘make’ it; that the role of the courts in the legal system is significant but alsolimited and exists alongside other important players such as the legislature and certainadministrative agencies; and finally that adjudication can be rational, when, ininstances where the legal material in question is indeterminate, the statute orconstitutional provision or case-law is applied in a principled manner and by referenceto its purpose.54. Specifically, in relation to the question of statutory interpretation, legalprocess theory represents a move away from the approach taken in legal realism, inthat it posits that judges should employ a process with a set of interpretative tools inorder to determine what the purpose behind the law in question is and what purposeought to be attributed to the words. Hart and Sacks believed that every law or statutewas developed by way of a decisional process and had some kind of purpose orobjective and their approach to interpretation is based on this idea. They used the term“reasoned elaboration” to describe the ideal process to be employed. Reasonedelaboration asks the judge to elaborate in a procedural manner, on the subject statuteby at all times having regard to any principles or policies contained in it. In situations33Page 34 ⇓where the statute is more general and does not provide such guidelines, the judge isrequired to return to the more basic and underlying purpose of the law in question.55. It seems quite evident even from these few words that little will be gained bycontinuing this dialogue: I must therefore be realistic to that end and accordingly, atthis juncture will have to depart from this fascinating topic. However, just in casethere is any misunderstanding, I do not accept that the theory which underlies thepublication of the text in question can be said to have any over-arching authority onstatutory interpretation which in principle remains governed by well-established rules.Whilst I have been concentrating on the literal approach mention may also be made inthis context to “the mischief rule”. (Heydon’s Case (1584) 76 ER 637). Since itsestablishment it has always been accepted that a statute may be interpreted in light ofits purpose. What was the mischief that led to its enactment? Such approach is quitedifferent from what the learned trial judge describes as “a purposive approach”, onethat extends to achieving a result thought to be intended, even if the words do not lendthemselves to such view. In any event, for the reasons herein outlined, it is in my viewquite unnecessary to have any recourse to the material referred to.Conclusion:56. For the reasons above set forth, I would dismiss the appeal and affirm thedecision of the High Court on the single issue in respect of which permission tofurther appeal was granted.

Result: Appeal dismissed

Z.N.U.D. (Pakistan) v The International Protection Appeals Tribunal & ors

 

[2020] IEHC 7 (15 January 2020)

Page 1 ⇓THE HIGH COURTJUDICIAL REVIEW[2020] IEHC 7[2019 No. 2 J.R.]BETWEENZ.N.U.D. (PAKISTAN)APPLICANTANDTHE INTERNATIONAL PROTECTION APPEALS TRIBUNAL, THE MINISTER FOR JUSTICEAND EQUALITY, THE ATTORNEY GENERAL AND IRELANDRESPONDENTSJUDGMENT of Mr. Justice Richard Humphreys delivered on the 15th day of January,20201. The applicant was born in Pakistan in 1976. He claims to have been a member of the PATparty and to have been threatened by members of another party, the PML-N. He claimedin evidence before the tribunal that violent attacks took place in 2006, 2007 and 2009.2. In 2006 he applied for a UK student visa. That application was refused. On 26th August,2008 he applied again for a UK visa. That was also refused initially. Notwithstanding thealleged attacks the applicant lived in the family home in Lahore until 2010 running ajewellery shop in a shopping plaza. At the end of 2009 he successfully appealed the 2008UK visa refusal and was granted a student visa starting on 7th January, 2010 until 3rdFebruary, 2015. He then moved to the UK in 2010 for a five-year period and did not applyfor asylum there.3. After the applicant had been in the UK for four years, a violent incident took place inLahore on 17th June, 2014 known as the Model Town Massacre, in which some membersof the applicant’s political party were victims. That seems to have related to a particularone-off situation at that time.4. According to the UK Home Office the applicant’s student visa ran out in February 2015(the applicant gave a date of March 2015 in his s. 35 interview). He applied to extend thevisa but that was refused. He then appealed that refusal, but that appeal was dismissedbecause there was no appearance at the appeal hearing on 13th October, 2016. Theapplicant had in the meantime come to Ireland on 4th January, 2016 and on his arrivalhad immediately sought asylum. As noted in the tribunal decision at para. 4.10, in theRefugee Applications Commissioner questionnaire, the applicant did not detail anyparticular attacks or injuries. Nonetheless he was able to give very specific details at thetribunal hearing which differed somewhat from the details given in previous interviews, asnoted by the tribunal member at para. 4.12 onwards.5. Following the commencement of the International Protection Act 2015 on 31st December,2016, he made an application for international protection. On 20th April, 2018 he wasinformed that that had been rejected by the International Protection Office. He appealedto the tribunal on 10th May, 2018 and an oral hearing took place on 26th July, 2018 atwhich Ms. Marie McMahon B.L. appeared for the applicant. The tribunal rejected theapplication on 12th October, 2018. The tribunal member did not accept the applicant’sPage 2 ⇓account of attacks, based on inconsistencies in those accounts. The applicant hadclaimed that the inconsistencies were due to memory loss although there was noreference to memory loss at the time of his initial accounts and he only sought a letterfrom his GP days after the s. 39 report issued. At an earlier stage, in the s. 11 interview,he had said that he had no medical conditions (see para. 4.15 of the tribunal decision).The tribunal also noted that the GP’s letter only referred to the conditions “reported” bythe applicant. Such commendably precise and clear language by the applicant’s doctormaintains the necessary professional standards and does not provide objective supportfor the applicant’s claims of a memory condition (see para. 4.22 of the tribunal decision).The tribunal also noted that the Pakistani medical reports produced referred to assaultsby “unknown persons”. That conflicts with the applicant’s story that he was assaulted bypolitical rivals. The tribunal member accepted that the applicant was an ordinary memberof his political party but held that that did not give rise to grounds for internationalprotection in these circumstances. The tribunal also held that the situation ofindiscriminate violence in the area was not such as to pose a threat to the applicant solelyon account of his mere presence there.6. On 26th October, 2018 the applicant made representations to the Minister under s. 49(7)of the 2015 Act. The present proceedings were filed on 2nd January, 2019 although theywere not moved in court for some time. The major explanation for that as set out by theapplicant’s solicitor on affidavit is that in order to comply with practice direction HC81,further affidavits needed to be sworn and that she understood that the practice directionwas “going through a period of discussion”. That is correct in that the practice directioncommenced one day before the proceedings were filed, and some inevitable clarificationwas discussed and issued during the early teething period of its operation. While on theone hand the practice direction was not actually intended to take away from the need tomove the application in court within a reasonable time, you might on one view say thatthis may not have been spelled out monosyllabically, and that procedures to clarify thatwere not introduced until well after the time with which we are now concerned. At thesame time one can well appreciate the fact that the introduction of a major new practicedirection would have created uncertainty about how it should be implemented, and onecannot say that a reasonable person might not have had some hesitation in moving anapplication until it was made absolutely explicit as to whether the court wished the papersto be put in order before doing so, or that priority should be given to moving theapplication promptly, warts and all (for future reference – it’s the latter). In any event afurther affidavit of the applicant was, pursuant to practice direction HC81, sworn on 24thMay, 2019 and the matter was moved in court rapidly following that affidavit on 27thMay, 2019. I granted leave on that date and in doing so extended time without prejudiceto any point the respondents might make at the substantive hearing.7. On 31st May, 2019 the first of two amended statements of grounds was filed by leave ofthe court. The Minister made a decision rejecting the review application on 26th June,2019. On 21st October, 2019 I allowed the applicant to amend the statement of groundsto challenge the review decision.Page 3 ⇓8. I have now received helpful submissions from Mr. Garry O’Halloran B.L. and from Mr.Michael Moroney, Solicitor, who addressed the court on the time issue, for the applicant,and from Mr. Daniel Donnelly B.L. for the respondents.Challenge to the IPAT decision9. Mr. O’Halloran has helpfully confined his challenge to a single question identified at para.3 of the legal submissions: “Did the IPAT fail to properly consider the issue of prospectiverisk in the light of the Applicant’s factual circumstances and in light of the COI whenviewed rationally?” Paragraph 23 of the applicant’s written submissions complains thatthe tribunal failed to note that the applicant was a member of the Model Town branch ofthe PAT party and that among those massacred were supporters and members of theparty. The assessment of risk of future persecution or harm has to be based on whateverfacts are found by the tribunal, as opposed to what is not found. Here there is no specificfinding as to what branch of the PAT party the applicant was a member of, so the tribunalcannot be faulted for not assessing the risk in the light of such a finding. Hypotheticallythe applicant could have challenged the decision, assuming there were grounds to do so,on the basis that it failed to make such a factual finding, but there is no such challenge inthe amended statement of grounds and nor is it apparent that the applicant would havehad any legal basis for that challenge. Merely because that was what the applicant hadclaimed doesn’t guarantee the success of such a point.10. In any event none of this matters because, even if the applicant is taken to be a memberof the Model Town branch merely because he says so (having first made that claim, orindeed any of his protection claims, after the incident concerned – a not unknownphenomenon where an applicant’s story is conveniently fitted around publicly well-knowninstances of persecution or harm), there is no general obligation on the tribunal toanalyse in such detail an incident, especially one in which the applicant was not involved.The decision says that there is no evidence that “ordinary members of the PAT facepersecution.” That is not inconsistent with there being evidence which the tribunal waswell aware of, and indeed refers to in the decision, of ordinary members being victims ina particular one-off incident several years ago, especially where, as the tribunal notes atpara. 5.7, there has been a change in régime in the country concerned. The decision ofthe tribunal was well within what was reasonably and lawfully open to it.Challenge to the s. 49(9) decision11. As regards the review decision of 26th June, 2019 Mr. O’Halloran has confined hischallenge to the point mentioned above and accepts that the challenge to the reviewdecision is dependent on that to the IPAT decision. Thus in the light of my finding on thelatter, the former does not arise. In any event the Minister was fully entitled to rely onthe previous protection refusals in considering the review application.Time12. As the claim fails on its merits anyway it is not necessary to address the applicant’sdifficulties in terms of time. However, I extended time at the leave stage and in theparticular exceptional circumstances here I probably would have maintained thatextension had it been significantly challenged. As the matter evolved, the reasons for thePage 4 ⇓delay were explained more fully by Mr. Moroney at the hearing and the respondents veryfairly did not press the challenge terribly vigorously after that. I do not think under theexceptional circumstances of the transitional period we are talking about here that theapplicant’s legal advisers can seriously be faulted. I would repeat though that, for futurereference, any shortcomings in the papers as filed are not a reason to delay having an exparte application opened in court on the next Monday within term in line with the currentprocedures. I should clarify that objection to the separate delay period following thetribunal decision up to the filing of the papers wasn’t strongly pressed at the hearing inthe particular circumstances in which this specific applicant found himself at that precisetime.Order13. The applicant is the familiar figure of the Commonwealth migrant who has been seekingto live in the mother country for some time – going back fourteen years in this case. Aftera couple of failed attempts, he eventually succeeded in getting a student visa for the UK.When that ran out he tried unsuccessfully to get it extended and only when that failed didhe move to this State and make a claim of persecution or serious harm for the first time.As it happens he has been unable to keep his story straight, and significantinconsistencies have emerged in his various accounts. The tribunal decision isunsurprising in the circumstances, and certainly no illegality in that decision has beendemonstrated. The application is dismissed.

Result: The application for judicial review is dismissed.

I v The International Appeals Tribunal & Anor

 

[2020] IEHC 63 (18 February 2020)

Page 1 ⇓THE HIGH COURT[2020] IEHC 63[2019 No. 373 JR]BETWEENIAPPLICANT– AND –THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL ANDTHE MINISTER FOR JUSTICE AND EQUALITYRESPONDENTSJUDGMENT of Mr. Justice Max Barrett delivered on 18th February 2020.1. Ms I is a 27-year old Nigerian lady who has been refused international protection by theInternational Protection Appeals Tribunal (“IPAT”) in a now-impugned decision of 2 April2019. Ms I claimed international protection on two bases, viz. that: (i) she had worked asa prostitute in Nigeria since she was a minor and fears the reaction of her family if she isnow to return or be returned to Nigeria; and (ii) she was trafficked to Ireland and fearsthe response of the traffickers if she is returned. The decision under challenge acceptsthat Ms I worked as a prostitute in Nigeria and that she was disowned by her familybecause of her work as a prostitute; it does not accept that her family had attacked ortargeted her. The IPAT did not accept that Ms I was trafficked to Ireland or, therefore,that she faced any risk from traffickers were she to be returned to Nigeria. The focus ofMs I’s challenge is that the IPAT’s assessment of future risk, upon Ms I’s return, failed toconsider properly the issue of Ms I’s family as potential actors of persecution. Ms Icontends, in effect, that the IPAT conflated two grounds and simply considered theposition of former traffickers as the actors of persecution, yielding a situation in whichthere was an unlawful failure to consider future risk from extended family members asthe actors of persecution.2. Turning briefly to the grounding affidavit, the following averments seem worthy ofespecial note in the circumstances presenting:“3. I left Nigeria in 2015 and applied for international protection in Ireland on 16thNovember 2015. The basis of my claim for international protection is that [1] Iface a real risk of persecution or serious harm from my family because I workedas a prostitute in Nigeria and [2] that I had been trafficked out of Nigeria andbeen forced to work as a prostitute in Ireland. [Notably, in the just-quotedaverments, Ms I identifies the two grounds on which protection was sought].”3. In passing, the court notes that in Ms I’s written submissions to the IPAT, she submitted,inter alia, that the core element of her claim was that she was at risk from her family inNigeria because she had worked as a prostitute; a secondary element of her claim wasthat she was at risk from traffickers in Nigeria. In other words, Ms I clearly claimed thatshe was afraid of her family’s response to the fact that she has worked as a prostitute.This is notable because the respondents, in their written submissions, have alleged thatMs I did not allege a fear of persecution on the basis of being disowned by her family.While this submission may technically be correct, the court respectfully considers it clearlyPage 2 ⇓to be the case that Ms I specifically alleged a fear of her family on the basis that she hadworked as a prostitute in Nigeria.4. As part of her written submissions to the IPAT, Ms I provided Country of OriginInformation (“COI”) on the risk faced from domestic actors of persecution. This COI wasprovided not simply by way of reference to same but substantively quoted from.Throughout these submissions a clear separation is made between the alleged riskpresenting from family and that presenting from traffickers.5. Turning to the impugned decision, that decision states, inter alia, as follows:“[2.2] In support of her claim, the Appellant relied on the following documents… Legal Submissions on behalf of the Appellant, referencing or quoting furthersources of COI, dated 23 July 2018[Court Note: This is the extent of the IPAT’s reference to the COI provided on thesubject of family members as actors of persecution.]…[4.8] ….Having regard to all the evidence, the Tribunal concludes that, on the balanceof probabilities…the Appellant did work as a prostitute all around the state of[]…However, for the reasons stated above, it [the IPAT] concludes that she wasnot attacked, or targeted, by her family for her work as a prostitute, even thoughthe family did disapprove of her work.[Court Note: So, the IPAT did accept that Ms I had worked as a prostitute (and, itwould seem, implicitly accepted that this had been so from a point in time whenMs I was a minor), and that she had been disapproved of by her family.]…[4.14] Based on its considerations and for the reasons set out above, the Tribunal findsthat the following core facts of the Appellant’s claim have been accepted: Ms Iworked as a prostitute in the state of []…when living in Nigeria. She wasdisowned by her family but has since reconciled with her mother in Nigeria andher sister in Ireland.…Persecution[5.3] The harm that the Appellant claims to fear is mistreatment by her extended familymembers, on the basis that she had been working, or was likely to return to work,as a prostitute. Additionally, the Appellant claimed to fear harm from the manwhom she claimed trafficked her to Ireland. Physical attacks would clearly amountto persecution, as defined by section 7, International Protection Act 2015.Page 3 ⇓[Court Note: As can be seen, the IPAT unambiguously accepts that two claims ofpersecution have been put forward and that the claimed fear from the familywould amount to persecution if it was accepted to have occurred.]Nexus….[5.5] The Tribunal concludes that there is a clear nexus between the persecution that theAppellant would endure and the Convention grounds, in that such persecutionwould be based on the fact that she had been working, or was likely to return towork, as a prostitute, viz. her membership of a particular social group.[Court Note: The above text clearly accepts that simply and solely because Ms Ihad been working as a prostitute, (i) she had claimed a fear of persecution, and (ii)had a Convention nexus as a member of a particular social group. This groundrequired examination by the IPAT, and this examination, unfortunately, was notcarried out.]Any mistreatment by the man whom she claimed duped her into travelling toIreland and forced her to have sex with men would also be based on hermembership of that particular social group.[Court Note: Here one can see that the IPAT is expressly distinguishing betweenthe two grounds.]Objective basis[5.6] Considering the Tribunal’s conclusions, viz. that while the Appellant had beendisowned by her family at one time for working as a prostitute, she did not endureattacks from her family, and was now reconciled with her mother and her sister(albeit that her sister now lived in Ireland) and considering the COI relevant to theanalysis [emphasis added] the Tribunal finds that there is not a reasonable chancethat if she were to be returned to Nigeria she would face a well-founded fear ofpersecution on the basis of her membership of a particular social group. Forexample [emphasis added], in the UK Home Office’s Country Policy and InformationNote, Nigeria: Trafficking of Women, Version 2.0, November 2016, para. 2.3.12 itstates that, in general, even women are unlikely to be at risk of reprisal on returnto Nigeria and the Tribunal has already concluded that the Appellant had not beentrafficked.[Court Note: This paragraph neatly encapsulates what the IPAT considered relevantto the issues of objective risk and forward-looking fear and simply does not dealwith the risk from family members, i.e. of domestic actors, notwithstanding thatextensive COI was put before the IPAT concerning familial persecution/fear.]”6. The respondents maintain that there was not a sufficient credibility finding made by theIPAT to trigger an obligation to assess family members as actors of persecution. Thus,counsel for the respondents, in her written submissions, submits, inter alia, as follows:“8. Ms I, in her legal submissions, now alleges that there was a conflation of the twogrounds being the fear of her family and the fear of her traffickers. It is clear fromPage 4 ⇓the decision that the Tribunal was taking the country of origin information at itsheight in stating that ‘even women who have been trafficked for sexual exploitationare unlikely to be at risk of reprisal on return to Nigeria’. It is respectfully submittedthat this was not a conflation of the two arguments by the Tribunal but a findingthat Ms I would not face a risk of persecution for having worked as a prostituteeven in circumstances where she had been disowned by her family. These were thematerial facts accepted by the Tribunal and the only ones that had to be consideredin the assessment of whether Ms I had a well-founded fear of persecution. Therewas therefore no obligation, as alleged….to assess any risk from Ms I’s extendedfamily as actors of persecution.”7. Put shortly, Ms I’s case is that the foregoing is incorrect. An immediate difficulty thatpresents in the foregoing is that it would effectively require an applicant to have sufferedpast persecution or past serious harm before an obligation is triggered to assess thefuture risk. That proposition is not supported by authority; and it would also, withrespect, fly in the face of the statutory test identified at s.28(6) of the InternationalProtection Act 2015, which provides as follows:“The fact that an applicant has already been subject to persecution or seriousharm, or to direct threats of such persecution or such serious harm, is a seriousindication of [Ms I’s] well-founded fear of persecution or real risk of sufferingserious harm, unless there are good reasons to consider that such persecution orserious harm will not be repeated.”8. The just-quoted statutory test imposes an obligation where there has been pastpersecution or serious harm: it does not dispose of the obligation to assess the claim putforward by an applicant/Ms I. In this regard, the court has considered P.D. v. The Ministerfor Justice, Equality and Law Reform & Ors. [2015] IEHC 111, a case which supports theproposition that where, as here, an applicant advances a case of risk of persecution byreference solely to her work as a prostitute, a legal obligation arises to conduct a specificinvestigation into that claimed fear. In that case, Mac Eochaidh J. observed, inter alia, asfollows:“51. The authorised officer has not acknowledged that the applicant’s fear of persecutionwas not limited to the mistreatment he feared from his family. A review of the s.11interview, which was conducted by the same authorised officer who wrote the s.13report, indicates that the questions asked and the answers given dealt primarilywith the circumstances in which he allegedly suffered from his family and sought toescape their negative attentions. However, the questionnaire, the statutoryprescribed form by which one applies for asylum and in which an applicant isrequired by law to state why asylum is sought, indicates that the applicant seeksprotection because criminal sanction allegedly applies to homosexuals in Malawiand Zimbabwe.[Court Note: Whether or not the claim was made by Ms I that she faced persecutionby her family is not in issue in the within proceedings: Ms I did so claim.]Page 5 ⇓…57. Having regard to the pleadings, the legal duty on the respondent to investigate anapplication, the legal duty to assess relevant laws in the country of origin and thedefinition of persecution as embracing discriminatory laws as they might apply topersons of a particular sexual orientation, the question which arises is whether theauthorised officer in this case was obliged, as a matter of law, to investigate thelegal regime for homosexuals in Zimbabwe and Malawi once the applicant indicatedhe feared prosecution for being gay.[Court Note: That is essentially the question that arises here. Was the IPAT obligedto investigate Ms I’s claimed fear of her family members in circumstances where itaccepted that she put that forward?]…[Mac Eochaidh J. then proceeds to consider X, Y, Z v. Minister voor Immigratie enAsiel (Case C-199/12, C-200/12 and C-201/12) [ECLI:EU:C:2013:720], beforeconcluding as shown below, at paras. 60 et seq. of his judgment.]60. I have no doubt but that the applicant in this case presented a claim for asylumwhich relied on the existence in Zimbabwe and Malawi of legislation whichcriminalised homosexual acts. Once such a claim was presented it was the duty ofthe authorised officer to investigate that claim by examining the legal regime inthose countries. The authorised officer was also required to consider whatpunishment is provided for relevant crimes and whether the law is actually applied.It is to be recalled in this case that the applicant positively asserted that a personhe knew had been given a 14-year prison sentence because he was gay.61. I have no hesitation in concluding that the failure of the authorised officer to carryout the precise investigation required by law and described in the X,Y,Z caseconstituted an error. Such an investigation, needless to say, could have beencarried out independently of an investigation as to whether the applicant washomosexual. If, on investigation, it emerged that there were no relevant criminalstatutes in Zimbabwe or Malawi or if it emerged, for example, that the criminalstatutes existed but were never applied, it might well be unnecessary to decide onthe sexual orientation of an applicant and the deciding officer could conclude thatthere was an absence of a well-founded fear of persecution because the fearedcriminal sanction is not applied in the country of origin.…63. I find that the failure of the deciding officer to carry out an investigation of theapplicant’s claim in accordance with s.11 of the Act and Article 4 of the Directive(requiring the authorised officer to investigate the alleged anti-gay laws in thecountry of origin) and the failure to bear in mind the provisions of Article 9 of theDirective and of the Irish Regulations, constitutes significant error as to jurisdiction.The investigation of the claim relating to anti-gay laws required by European andIrish law was not attempted in this case. There was a failure to identify that a claimPage 6 ⇓relating to a fear of prosecution was made. There was no recognition whatsoever inthe decision of the authorised officer of the obligations which arise when a personmakes a claim such as that raised by the applicant in this case….[Court Note: Here, likewise, there was, in substance, a failure to assess the COI putforward by Ms I in this case relevant to family members as actors of persecution,and that was unlawful.]”9. Perhaps the salient point from the foregoing is that in this case the forward-looking fearof family as actors of persecution, solely on the basis of Ms I’s having acted as aprostitute, was not addressed by the IPAT. Yet once the fact that Ms I had worked as aprostitute was accepted, the IPAT was required to carry out the precise form ofinvestigation contemplated in P.D. into the case put forward regarding the familymembers as potential actors of persecution, the court recalling again in this regard thatthe material facts underlying that case, viz. that Ms I had acted as a prostitute as aminor, had been disapproved of by her family and had to go and live with somebody else,were all accepted by the IPAT.10. The obligation to assess depends on whether sufficient facts have been accepted. Here,the respondents’ assertion that insufficient facts have been accepted, respectfully, is notaccepted by Ms I or indeed the court. The respondents, in this regard, rely on the decisionof the High Court in M.L.T.T. (Cameroon) v. The Minister for Justice, Equality and LawReform & Anor. [2012] IEHC 568, in particular the observation at para. 13 of thejudgment therein that “where the very core of an applicant’s claim is not believed, thedecision-maker is not obliged to carry out an artificial exercise and assess what mightoccur if a hypothetical person with the applicant’s disbelieved history and characteristicswere returned to the applicant’s country of origin.” Here, however, Ms I’s history andcharacteristics were accepted. So what she seeks, by way of these proceedings, is not thecarrying out of a hypothetical exercise: it was expressly accepted that Ms I worked as aprostitute and implicitly accepted that that encompassed a period of time when she was aminor, and it was accepted that she had been disapproved of by her family because Ms Ihad worked as a prostitute. Here, in truth, the IPAT in what it has done has carried out ahypothetical exercise because it considered the position of trafficked women,notwithstanding that it rejected the trafficking contention.11. A point well made by counsel for Ms I and worth repeating here is that the distinctionbetween mistreatment by family members and mistreatment by others is not a fancifuldistinction; it is as significant a distinction as if in some hypothetical case the IPAT hadconsidered risk from a paramilitary organization and failed to assess risk from a Stateactor. However, this aspect of matters, in truth, does not require detailed explorationbecause the respondents, if the court might use a colloquialism, have ‘nailed their coloursto the mast’ and denied that the contended-for obligation to assess arose. The court, inthis regard, respectfully adopts the following observations in the written submissions ofcounsel for Ms I:Page 7 ⇓“23. The Tribunal’s failure to consider the risk posed by Ms I’s family as the actors ofpersecution is even more striking given that the COI referred to by the Tribunal, theUK Home Office’s Country Policy titled Information Note: Nigeria: Trafficking ofWomen, recognises that separate considerations apply where the potential actor ofpersecution is a family member rather than a trafficker (para.2.3.9):However, there may in some cases be a real risk of serious harm from herfamily, whether or not they were initially complicit in her trafficking for sexualexploitation. ‘It is generally reasonable to conclude that her family wouldexpect an economic and financial return from her consequent upon her travelto Europe. Return to a previous trafficking situation under the duress offamily pressure, family violence, ostracism and stigmatisation by thewoman’s community and possible resultant destitution, homelessness andlack of any financial security is likely in most cases to amount to seriousharm. (emphasis added).24. Admittedly, the above quotation relates to women who are being returned toNigeria having been trafficked, and for the avoidance of doubt Ms I does not makethat case in these proceedings. However, the salient point is that the Tribunal fellinto a category error in its assessment of future risk by solely considering the riskposed by traffickers rather than considering the risk posed by Ms I’s family.”12. So, the trafficker/family member distinction is made in the very COI relied upon by theIPAT.13. As regards the issue of reasonableness, the issue appears no longer to arise, given thatthe respondents have ‘nailed their colours to the mast’ in the manner described above(claiming no obligation to make the contended-for assessment presents). So, the courtwill deal with this aspect of matters relatively briefly.14. Ms I put forward specific COI relating to the risk of violence against women from familymembers as actors of persecution, e.g., United Kingdom: Home Office, CountryInformation and Guidance – Nigeria: Women fearing gender-based harm or violence(August 2016, Version 2.0), available at: https://www.refworld.org/docid/57b70ff44.html(accessed 10 February 2020) which includes the observation, at para. 3.1.2, that “[s]omewomen may be able to demonstrate a real risk of gender-based persecution or seriousharm but…this will depend on their particular circumstances.” Here, the establishedparticular circumstances are that Ms I had been disowned by her extended family becauseof her work as a prostitute, including while she was a minor. That is a specificcircumstance which has to be assessed by the IPAT, yet the IPAT failed to take this aspectof matters into account or refer to, dealing instead only with COI relevant to traffickers.15. Perhaps the clearest example of just how grave the last-mentioned error was is apparentwhen one turns to the COI to which the IPAT did have regard (and which is relevant totraffickers); it specifically notes that different considerations must be applied. Thus theAustrian Centre for Country of Origin and Asylum Research and Documentation(ACCORD), Nigeria: COI Compilation on Human Trafficking (December 2017) available at:Page 8 ⇓https://www.refworld.org/docid/5a79c7114.html (accessed 10 February 2020) (COI thatwas submitted by Ms I) compares the position of sex workers fearing a risk of harm fromtheir families being akin to the position of sufferers of domestic abuse, and points to theneed, when claimed harm relates to family members acting because, e.g., one hasworked as a prostitute, it is necessary to go back to look at the COI generally relevant todomestic violence. This is a point that underlines the unfortunate error into which theIPAT fell in this regard. Also of interest in this regard is the decision of the UnitedKingdom Upper Tribunal in HD (Trafficked Women) Nigeria Country Guidance[2016] UKUT 454 (IAC) which states:“157. There may be a real risk of serious harm from her family, whether or not they[inter alia] were initially complicit in her trafficking for sexual exploitation. It isgenerally reasonable to conclude that her family would expect an economic andfinancial return from her consequent upon her travel to Europe”.16. Reference to this case is made in the COI relevant to trafficked women, the key point forpresent purposes being that when a claim is based on risk of family harm, differentconsiderations apply. Those considerations were, regrettably, not brought properly intoplay by the IPAT in this case. The IPAT does make tangential reference, it is true, to theCOI relevant to domestic type abuse but just in terms of noting it had been submitted,nothing more, a fact which but illustrates further that a specific investigation of the typerequired by law was not carried out in this case.17. Ms I contends, and the court accepts, that, in breach of the law as identified in D.V.T.S. v.Minister for Justice, Equality and Law Reform & Anor. [2008] 3 IR 476, the IPAT, althoughit did offer a reason why it preferred certain pieces of COI over the other, did not offer avalid reason. This is so because what the IPAT in essence states when considering theCOI is that because Ms I had “worked as a prostitute and managed to sustain herself” –through a period that included a portion of her childhood (so as a victim of child sexualabuse) – Ms I would be in a better position than some returnees to resettle, were she toreturn to Nigeria. It is for Ms I to determine how she now chooses to live her life;however, the notion that Ireland would countenance the return of any woman (here awoman who is the accepted victim of child sexual abuse) to any country, by reference,inter alia, to the fact that once there she could return to prostitution to sustain herself isso egregiously offensive to the inherent and natural human dignity of women (and ofmen, were a sometime male prostitute to find himself similarly placed) that the IPAT’sreasoning in this regard cannot be permitted to, and, the court finds, does not have, anylegal weight; hence the reason given for preferring certain COI is invalid.18. In passing, the court notes that there was a point raised by the respondents regardingthe time within this application for judicial review has been made. However, counsel forthe respondents indicated that this point was not being assiduously advanced, the courtconsiders that it was therefore effectively dropped and would in any event have grantedthe extension sought.Page 9 ⇓19. Four questions have been posited by Ms I to arise for resolution by the court. These arebriefly answered below by reference to the analysis in the preceding pages.[1] Did the IPAT assess whether Ms I had a well-founded fear of being persecuted byher extended family? [2] More specifically, did the IPAT conflate this with itsassessment of a well-founded fear of being persecuted on the basis of havingbeen a victim of trafficking?For the reasons stated above, the court’s answer to [1] is ‘no’ and to [2] is ‘yes’.[3] Did the IPAT come to an irrational and/or unreasonable decision by relying onCOI, and particular segments of same, dealing only with the risk faced by victimsof trafficking who had been returned to Nigeria without due regard to the COIsubmitted on the risk faced by women from familial/societal actors?For the reasons stated above, the court considers that the decision wasunreasonable.[4] Did the IPAT provide adequate reasons for preferring certain COI, in particular theUnited Kingdom: Home Office, Country Information and Guidance – Nigeria:Women fearing gender-based harm or violence, over other COI, in particularACCORD, Nigeria: COI Compilation on Human Trafficking?For the reasons stated above, the court’s answer to [4] is ‘no’.26. For the various reasons stated above, the court will grant the order of certiorari soughtand return this matter to the IPAT for fresh consideration.

Result: Judgment in favour of the applicant.

S.H.I. v The International Protection Tribunal & anor No.2

 

[2019] IEHC 269 (03 May 2019)

JUDGMENT of Mr Justice David Keane delivered on the 3rd May 2019
Introduction
1. This is the judicial review of a decision of the Refugee Appeals Tribunal, now the International Protection Appeals Tribunal (“the IPAT”), dated 5 October 2015 and made under s. 16(2)(a) of the Refugee Act 1996, as amended (“the Refugee Act”), affirming a recommendation of the Refugee Applications Commissioner (“the Commissioner”) that the applicant should not be declared to be refugees (“the IPAT decision”).

2. On 29 April 2016, Mac Eochaidh J gave the applicant leave to apply for certain reliefs, principally an order of certiorari quashing the IPAT decision and an order remitting the applicant’s appeal for a fresh determination before a separate member of the tribunal.

3. In an ex tempore decision, sub nom . S .H.I. v Refugee Appeals Tribunal and Minister for Justice and Equality [2016] IEHC 218, Mac Eochaidh J granted the applicant leave to seek judicial review on a single ground. It is that the IPAT acted in breach of fair procedures and natural and constitutional justice, and in particular the principle audi alteram partem , by making adverse findings about the applicant’s credibility in the course of a ‘papers only’ appeal when no such finding had been made at first instance.

4. At the time when leave was granted, the International Protection Appeals Tribunal was known as the Refugee Appeals Tribunal. When s. 71(5) of the International Protection Act 2015 (“the Act of 2015”) came into force on 31 December 2016, the former was substituted for the latter in these proceedings by operation of law.
Background
5. The applicant is a 43-year-old South African national of South Asian ethnicity who applied for asylum in the State upon his arrival at Dublin Airport from South Africa (via Dubai) on 16 January 2014, claiming a well-founded fear of persecution in that country on grounds of race. The applicant was first interviewed by an immigration officer, in accordance with the requirements of s. 8 of the Refugee Act, upon his arrival at Dublin Airport.

6. Having completed the necessary questionnaire for the Office of the Refugee Applications Commissioner (‘ORAC’), he was then interviewed by an authorised officer of the Commissioner, pursuant to s. 11 of the Refugee Act, on 30 January 2014.

7. The Commissioner wrote to the applicant on 7 February 2014, enclosing a report, dated 31 January 2014, pursuant to s. 13 of the Refugee Act, recommending that he should not be declared to be a refugee on the basis that state protection was available to him in South Africa through internal relocation. The report included a finding that the applicant is a national of South Africa, a designated safe country of origin under s. 12(4) of the Refugee Act, bringing his claim within the scope of the s. 13(5) ‘papers only’ appeal procedure by operation of s. 13(6)(e) of that Act. The Republic of South Africa was designated a safe country of origin by operation of the Refugee Act 1996 (Safe Countries of Origin) Order 2004 (S.I. No. 714 of 2004).

8. Through his legal representatives, the applicant submitted a notice of appeal, dated 20 February 2014; written grounds of appeal, dated 3 March 2014; a written statement of the applicant of the same date; and final written submissions, dated 31 August 2015.
Relevant Aspects of the Applicant’s Refugee Status Claim
9. The note of the s. 8 interview, signed by the applicant on 17 January 2014, records that he gave the following reasons for seeking asylum:

‘That he was employed by a company called Bondi Distribution as a truck driver, he was the only Indian truck driver at this company.
After the death of Nelson Mandela, he started to get [harassed] by fellow workers and told to leave the company and the country as Indians were no longer welcome in South Africa. The applicant did not report this as he felt that he could handle it.

Later, when he was on a delivery job, he hired an outside person to assist him. The applicant states that he was allowed by the men who stole his money and phone and told him that, if he was seen again, he would be killed. The applicant thinks that his helper set him up to be hijacked.

The applicant reported this to the police and got a case number but there has been no progress in the investigation, so the applicant decided to leave South Africa for his own safety.

The applicant fears for his safety if he was to return to South Africa.’

10. The undated and unsigned ORAC questionnaire that the applicant completed between his s. 8 and s. 11 interviews, contains the following passage (in which I have corrected the spelling, though not the grammar):
‘I was happy in my country only Nelson Mandela died after every thing’s going wrong. Black persons don’t like other community and they attack me and want to kill me until I leave the country. That’s why I save my life to come here.’
11. The authorised officer’s handwritten note of the s. 11 interview of 30 January 2014, countersigned by the applicant, states in material part:
‘Q.55. What exactly do you fear will happen to you if you were to return to South Africa?
My life is not safe there. I may be killed or badly beaten.

Q. 56. Who exactly do you fear will do this to you?

South African people who are xenophobic.

Q. 57. When exactly did your problems in South Africa begin?

It’s all the time, but after Nelson Mandela passed away it is too much.

Q. 58. Okay, but when did the first incident occur which caused you to fear for your safety in South Africa?

On 30 December 2013.

Q. 59. What happened that day?

The company I worked in is called Bondi Distribution. I was their one Indian truck driver. After Mandela’s death, the other truck drivers and workers were saying to me “Mandela is dead, maybe it is time for your people to go home and leave our country.” I thought they were joking at first. One day, I was doing a delivery and my boss allowed me to bring an assistant to help me. When I loaded the truck and was ready to go, I asked some of the black guys if there was someone to come with me as an assistant. They gave me directions to a place, a corner where people looking for work stand and wait. When I got there, I picked up a guy, we agreed on pay and then we set off. We did the deliveries and collected payments from customers. I had a last delivery to finish and after that I had around 10,000 or 11,000 rand on me. I asked the guy where I could drop him off. He told me to take him to a garage near where I picked him up. I paid him 100 rand and took him to the garage. When we got there, he said just to drive a little further. Then he directed me to pull over where there were 2 guys. He said he was going to go with them. When I stopped, those 2 guys came to the truck with guns. They got in, told to drive to wherever they told me. They took all the money, my phone and they beat me. They smashed my face. They said they will kill me if they see me there again. They said, Mandela is dead, they don’t want me in South Africa anymore.

Q.60. Did you report this attack to the police?

Yes, after I went to the police station in Silvertown. I told them my story.

Q. 61. What did the police say or do?

The opened an investigation into the case. I didn’t get any answer or call from them.

Q. 62. So, did this attack take place in Pretoria?

Yes.

Q. 63. These guys with the guns, whereabouts in Pretoria were you when they got into the truck?

Silvertown. Then they took me and my truck to Mamalodee.

Q. 64. And they guy who was your assistant, he was one of the attackers too, is that correct?

Yes, he was with them.

Q. 65. Did you encounter any further problems in South Africa, after this incident?

No.

Q. 66. Did you return to work?

I returned to the job. I told my boss everything that happened.

Q. 67. Did you remain working until you left South Africa?

Yes. I quit that job.

Q. 68. When did you quit the job?

The same day I returned to the office and spoke to my boss. I told him everything and asked him for help and he said he could not help, that is the way the country is. So then I quit.

Q. 69. So you quit your job on 30 December 2013, is that correct?

Yes.

Q. 70. Could you have moved to another part of South Africa to avoid your problems instead of leaving the country?

In the past I did, but there is no way to avoid this. Xenophobia is everywhere, they treat the white people and the Indian people the same.

Q. 71. From what I have read, xenophobia appears to be prevalent in the townships, so could you have moved somewhere in South Africa other than a township to avoid xenophobia?

It is the same problem everywhere, whether you go to a farm, a village or a town. It is the worst time for South Africa.

Q. 72. Have you personally encountered any other problems, xenophobic or otherwise, in South Africa?

There is no other problem. The main problem is the xenophobia. South Africa is a nice country, nice weather, nice to work in. But these people were getting worse. They are killing white and Indian people. They want to get revenge, they say. The whites and Indians are responsible for the deaths of black people in the past.

Q. 73. Have any of the other truck drivers in your company been robbed before?

There is all the black drivers. I am the only Indian. None of the others were robbed.

Q. 74. We are coming towards the end of the interview. Do you wish to add anything further?

That is all.

Q. 75. Are you satisfied with the way the interview has been conducted today?

I am.

Q. 76. Are you satisfied that you have been given every opportunity to fully relate your claim?

Yes.

Q. 77. Have you fully understood all of the questions I have asked you today?

I understood all.’

12. The applicant relies on two statements in the Commissioner’s s. 13 report of 31 January 2014 for the purpose of the present application.
13. The first is in the section of the report that deals with the issue of ‘persecution’. Having summarised the relevant portions of the applicant’s statements at interview and answers in the ORAC questionnaire, the Commissioner concludes:

‘The applicant’s claim may be considered to constitute a severe violation of basic human rights and therefore may be considered to be of a persecutory nature and as such could satisfy the persecution element of the refugee definition.’
14. The second is at the commencement of the section headed ‘Section 13(6) Findings’, where the Commissioner observes that ‘[n]o credibility issues arose during the assessment of the applicant’s claim’, before making a finding under s. 13(6)(e) of the Refugee Act that the applicant is a national of South Africa, which is a designated safe country under s. 12(4) of that Act.
15. In his first ground of appeal against the Commissioner’s recommendation, the applicant focussed on the finding in the section of the Commissioner’s report headed ‘Well-Founded Fear’ that ‘it is reasonable to assume that the incident on 30 December 2013 was the only time the applicant experienced problems in South Africa.’

16. That ground invoked the applicant’s vague and imprecise statement, when asked at his s. 11 interview when his problems in South Africa began (at Q. 57), that ‘it’s all the time, but after Nelson Mandela passed away it is too much’, while ignoring both his immediate clarification (at Q. 58) that the first incident that caused him to fear for his safety occurred on 30 December 2013, and his subequent statement (at Q. 65) that he encountered no further problems in South Africa after 30 December 2013, to assert that the Commissioner’s assumption of a single incident was an erroneous one.

17. More significantly for the purpose of these proceedings, that assertion was then used as the putative gateway for the submission of what was described as a personal statement by the applicant. Although that document contains a recital beside the applicant’s signature that it was sworn by him on 3 March 2014, it does not comply with the legal requirements for either an affidavit or a statutory declaration, which is a cause for some concern as the applicant was legally represented at that time. It what sense it was, or could have been, sworn remains entirely unclear. It is cast in the following terms:

‘1. I am a South African National of Indian ethnicity. I have sought asylum in Ireland on the basis of xenophobic attacks, which I suffered in South Africa. I believe I suffered these attacks as a result of my race. I fear that my life would be in danger if I were returned to South Africa.
2. I sought asylum in Ireland on the 16th January 2014. I was interviewed for my asylum application on the 30th January 2014. I was asked a number of questions in relation to my asylum application to which I believe I answered honestly and to the best of my ability.

3. I note that I was asked about when the attacks on me began (Q. 57). I note that I stated that they happened all the time but that they became serious after the death of Nelson Mandela. I say that the rest of my interview was focussed entirely on the attack, which occurred on the 30th December 2013, which forced me to flee my country. I say that the authorised officer agreed that this attack occurred and that it was racially motivated. I note that I had informed the State police about this attack but it was not investigated.

4. I say that the authorised officer focussed entirely upon that incident and did not acknowledge that I suffered attacks prior to that incident.

5. I note I have suffered many racially motivated attacks in South Africa. I note that the home that I was residing in with my cousin was broken into and money, laptops and cell phones were stolen. I say that local black people had attacked our home and told us to leave the country. I say that this incident occurred early in 2013.

6. I say that I have always suffered racist abuse while in South Africa. I say that this is a natural daily occurrence. I did not believe that the police would provide us with any help to stop these abuses.

7. I say that this discriminatory treatment occurred all the time and it wasn’t until the incident dated 30th December 2013 where I was attacked beaten and my life was threatened, that I felt that I could no longer survive without seeking police protection. I say that after filing a police report and nothing being done by the police to protect me I had to leave the country to save my life.

8. I believe that I will be killed as a result of my ethnicity if I am returned to South Africa.’

18. Three points have to be made about this statement. The first is that it is difficult to reconcile with the applicant’s earlier statements. He was not asked at his s. 11 interview about when the ‘attacks’ on him began; he was asked when his problems began. He did not state at that interview that attacks upon him happened all the time; he stated that the first incident that caused him to fear for his safety occurred on 30 December 2013 and that he encountered no further problems after that prior to his departure from South Africa. It is very difficult to view the applicant’s subsequent written statement that he has ‘suffered many racially motivated attacks in South Africa’ as anything other than a direct response to the conclusion in the s. 13 report, based upon the applicant’s statements at interview that ‘it is reasonable to assume that the incident on 30 December 2013 was the only time the applicant experienced problems in South Africa.’ And insofar as that response is in conflict with those earlier statements, it can have done nothing to bolster the credibility of the applicant’s claims.
19. The second point is that the authorised officer of the Minister who conducted that interview did not focus specifically on the alleged incident that occurred on 30 December 2013; the applicant did. The authorised officer asked properly open-ended questions, such as ‘when did the first incident occur that caused you to fear for your safety in South Africa?’, ‘did you encounter any further problems?’, and ‘do you wish to add anything further?’. It is, at best, incorrect, at worst, disingenuous to imply that the authorised officer conducted the s. 11 interview in a manner that inhibited or prevented the applicant from fully or properly presenting his claim at first instance.

20. The third point, which follows ineluctably from the first two, is that the applicant was making a wider and, hence, different claim in his written statement of 3 March 2014 than the one he had made in his s. 8 interview, his ORAC questionnaire and his s. 11 interview. That, in itself, would have given rise to an issue on the applicant’s credibility overall. It also meant that the credibility or plausibility of each aspect of the wider claims the applicant was now advancing would have to be assessed for the first time in the context of a ‘papers only’ appeal, something of which the applicant could hardly have been unaware since he was by then legally represented.
The decision under review
21. After various introductory sections identifying the application, the nature of the claim advanced, and the documentation relied upon, the IPAT decision finds that the applicant is, as he claims, a South African national. The central section of the IPAT decision is headed ‘Analysis of Credibility’. It states:

‘[5.1] The core facts of the [applicant’s] claim are; (i) whether the [applicant] home with his cousin was broken into (ii) whether the [applicant] was subjected to racially motiviated abuse at his work place (iii) whether the [applicant] was targeted and robbed on 30th December 2013.

(i) whether the [applicant’s] home with his cousin was broken into and whether personal items were stolen

[5.2] The [applicant] stated in his sworn statement of 3rd March 2014 that the house where he resided with his cousin in Pretoria was broken into in early 2013 resulting in a number of personal valuables being stolen. Specifically, the [applicant] stated that money, laptops and cell phones were stolen from the burglary incident. During the [applicant’s] interview he stated that his problems in South Africa were “all the time, but after Nelson Mandela passed away, it is too much.” The [applicant] did not develop more of what he meant by having suffered problems all the time even before the passing of Nelson Mandela.
[5.3] During the course of the [applicant’s] section 11 interview he was asked and invited to give a full account of all the details material to this claim for state protection…. At no stage during his section 11 interview did the [applicant] refer to the break in of his house as per his sworn statement…. In addition, no reference was made of this incident in the [applicant’s] questionnaire.

[5.4] I do not accept that the [applicant’s] home with his cousin was broken into and that personal valuables were stolen. I reach that determination for the following reasons; I do not find it plausible that the [applicant] would not mention this incident specifically where he stated in his section 11 interview that he had problems with xenophobia even before Mandela’s death. It would then have been prudent to mention this incident as it could have been material to the [applicant’s] clai. No mention of this break-in is evident in the [applicant’s] questionnaire or section 11 interview. In addition, the [applicant] during his section 11 interview was provided with a number of opportunities to expand on the extent of his problems in South Africa including those separate from the incident of 30th December 2013. The [applicant] not withstanding this does not mention the break-in of his home as recounted in his sworn statement. On the balance of probabilities, I therefore do not find it credible that this event occurred and find against the [applicant] on this core aspect of his claim.

(ii) whether the [applicant] was subjected to xenophobic racially motivated abuse at his work place

[5.5] The [applicant] stated that his black co-workers were often insulting him that Mandela is dead and that maybe it is time for you people (meaning people of Indian extraction) to go home and leave our country…. The [applicant] in his questionnaire or section 11 interviw makes no reference of reporting this matter to his employer or the local police. As referred to above, the [applicant] was afforded an opportunity to provide every detail in support of his claim during the course of his section 11 interview…. No evidence of complaints were (sic) provided by the [applicant] to report these instances of racially motivated mistreatment. The [applicant] and ORAC were afforded an opportunity by the Tribunal to provide it with all documentation in support of their respective positions….
[5.6] The [applicant] stated in this claim that when he resigned his position in the company he told his boss of everything in the context of the incident of 30th December 2013 but no specific mention is evidentin the [applicant’s] section 11 interview that he reported this xenophobic racially motivated mistreatment.

[5.7] I do not accept that the [applicant] was subjected to xenophobic racially motivated abuse at his work place. I reach this determination for the following reason; I do not find it plausible that this occurred and that the [applicant] would not report it to the police or bring it to the attention of his employer. On the balance of probabilities, I therefore find against the [applicant] on this core aspect of his claim.

(iii) whether the [applicant] was targeted and robbed on 30th December 2013 on account of his race or ethnicity

[5.8] The [applicant] recounted in his section 11 interview details of being physically attacked and the victim of an armed robbery while conducting deliveries on 30th December 2013. The [applicant] attributed this incident to the fact that he is the only Indian driver that was employed by his former employers. The [applicant] believed therefore that he was targeted on account of pervasive xenophobic attitudes towards Indian people in South Africa. The [applicant] confirmed (in his section 11 interview) that since this incident he has not been the subject of any further problems in South Africa….
[5.9] The [applicant] confirmed that none of his fellow employees have been the subject of any attacks or armed robberies during the course and scope of their duties as truck drivers…. I have rejected that the [applicant’s] fellow co-workers subjected him to racially motivated abuse at his work place. I do not therefore find it credible that the [applicant] was targeted and robbed on 30th December 2013 on account of his race or ethnicity. I do accept that he may have been robbed and physically assaulted but I do not accept that it was for the reasons and motivations which the appellant claims. On the balance of probabilities I therefore find against the [applicant] on this core aspect of her ( sic ) claim.’

22. Having reached those conclusions on the credibility or plausibility of the applicant’s account, the next short section of the IPAT decision is headed ‘Analysis of Well Founded Fear.’ It states:
‘[6.1] Having rejected all of the core aspects of the [applicant’s] claim, I find that there is no need to proceed to analyse whether these facts provide a basis for finding that the [applicant’s] fears are well founded, a Convention nexus, state protection or [the internal protection alternative (‘IPA’)]. I conclude my analysis here as, I find that the [applicant] has not provided a basis for possessing a well-founded fear.’
23. Thus, the IPAT decision affirmed the recommendation of the Commissioner that the applicant not be declared a refugee.
Analysis
i. did the Commissioner accept the general credibility of the applicant?

24. In the affidavit that he swore to ground these proceedings, the applicant avers that the IPAT decision is particularly unfair because the authorised officer who interviewed him had believed his story, whereas the tribunal in the conduct of a papers only appeal had found him not to be credible. This averment echoes or amplifies the request made to the tribunal on the applicant’s behalf in the written submissions, dated 31 August 2015, to note ‘the Commissioner’s explicit finding that no credibility issues arose in respect of [the applicant’s] account.’

25. Contrary to what the applicant states and what his legal representatives have implied, I do not accept that the Commissioner made a positive finding that his claims were generally credible. The statement in the s. 13 report that ‘[n]o credibility issues arose during the assessment of the applicant’s claim’ appears at the commencement of the short section of that report that is headed, and that deals specifically with, ‘Section 13(6) Findings’. Properly interpreted in that context, the statement most obviously refers to the possibility of a finding under s. 13(6)(b), which is:

‘that the applicant made statements or provided information in support of the application of such a false, contradictory, misleading or incomplete nature as to the lead to the conclusion that the application is manifestly unfounded.’
Other findings expressly contemplated under that sub-section are that ‘the applicant showed either no basis or a minimal basis for the contention that the applicant is a refugee’ (s. 13(6)(a)); that ‘the applicant, without reasonable cause, failed to make an application as soon as reasonably practicable after arrival in the State'(s. 13(6)(c)); or ‘that the applicant had lodged a prior application for asylum in another state party to the Geneva Convention’ (s. 13(6)(d)).
26. The Commissioner’s conclusion that no credibility issues relevant to any of the findings contemplated under s. 13(6) of the Refugee Act arose during the assessment of the applicant’s claim is not the same thing as a finding that his claim was credible overall, much less can it be construed as an unqualified expression of belief in the veracity of the applicant’s assertions.

27. Similarly, the conclusion in the ‘Persecution’ section of the s. 13 report that the applicant’s claim ‘may be considered’ a severe violation of basic rights and, therefore, ‘may be considered’ to be of a persecutory nature, such as ‘could satisfy’ the persecution element of the refugee definition, is quite clearly a deliberately conditional statement that cannot properly be characterised as an unconditional finding that the applicant’s claim was credible. Rather, it seems to me to represent the adoption by the Commissioner of the approach commended by the authors of Symes and Jorro, Asylum Law and Practice (2nd ed.) (2010) (at para. 2.6) that ‘[w]hilst recognising the possibility that there will be cases where the story falls to be rejected outright, in general it is safer for adjudicators to first analyse the claimant’s account to determine whether the appeal [or claim] can succeed if true, and, having determined that issue, to proceed to examine the veracity of the asserted factual foundation’ where satisfied that it could then succeed.

28. That approach is plainly within the discretion of the Commissioner or the IPAT in this jurisdiction. As Humphreys J explained in A(R) v Refugee Appeals Tribunal & Ors [2015] IEHC 686

‘24. It is clear at a very basic level that there are a number of conditions for qualifying as a refugee, all of which must be satisfied before a person can be recognised as a refugee. Failure to satisfy even one of these conditions is fatal to an application. These conditions include:-

(i) That the person has a subjective fear of persecution as defined.
(ii) One of the conditions for the existence of a subjective fear is that the asylum seeker is generally credible. If the applicant’s credibility cannot be accepted, it cannot be the case that they can be held to have a subjective fear, still less an objective one.

(iii) The fear of persecution for a convention reason must be objectively well founded.

(iv) The application must relate to persecution within the meaning of the Convention, and not to some lesser form of adverse treatment such as lawful prosecution, hardship or even discrimination.

(v) The persecution must be for one of the specified Convention reasons, namely race, religion, nationality, membership of a particular social group or a political opinion.

(vi) The applicant must be unable or owing their fear of persecution, unwilling to avail themselves of the protection of their country of origin. Thus, a finding that state protection is open to an applicant is fatal to an application.

(vii) As an element of the inability to return to the country of origin it must be shown that the option of internal relocation is not reasonably open to the applicant.

(viii) The fear of persecution must relate to present or future persecution of the applicant. The past persecution in a country where for example the political situation has improved such that there is not now a present or future threat to the applicant is insufficient to ground an application.

(ix) The applicant must not be a member of one of the excluded categories.

25. Again it is important to emphasis as a matter of logic and statutory construction that an applicant must meet all of these criteria. If an application fails to clear any one of these hurdles, there is no obligation on the decision maker to consider the matter any further.
26. There is nothing specific to refugee law about this approach. In any statutory application, a decision maker can only be asked to deal with relevant issues. If an issue is not necessary for a decision, or would make no difference to it, it cannot be said that the decision should be quashed for failure to deal with that issue.

27. Thus returning to the asylum context, an asylum seeker could satisfy all but one of the hurdles I have mentioned above, but failure to clear that final hurdle necessitates the rejection of the application. There are a number of ways in which an individual tribunal member may deal with such a situation. The member may go through every one of the hurdles and explain whether the applicant has met the test or not, and why, concluding with the rejection of the application by reason of failure to meet at least one of those tests. A related option would be to refer to two (or more) grounds of rejection without referring to other possible grounds. Alternatively, the tribunal member may focus only on a single ground which is being decided against the applicant and set out the reason why that issue is being decided against him or her, without dealing with any of the other points in the application.

28. I need to emphasise that each of these approaches is legitimate and any of them is lawfully open to a tribunal member.’

29. It is also important to remember that credibility is not necessarily a single indivisible quality that attaches to an individual. While broad formulations such as ‘X was [or ‘was not’] a credible witness’ are frequently used by adjudicators, what is really meant is that particular statements or claims made by that witness have been broadly or entirely accepted or rejected, as the case may be. It is perfectly possible to find some statements or claims of a witness credible and others not so – indeed, that is what often occurs. Moreover, as O’Donnell J recently pointed out in MM v Minister for Justice and Equality [2018] IESC 10 (at paras. 26-30), the words ‘credible’ and ‘credibility’ are used in at least two different senses. Most obviously, a finding of lack of credibility can imply, in one sense, that the testimony of a witness was deliberately untruthful or, in another sense, that it was merely honestly mistaken.
30. For those reasons also, I am satisfied that there is no basis for the applicant’s unqualified assertion that the Commissioner had believed his story or, differently put, that the Commissioner had accepted his general credibility.

31. And, of course, through his own conduct in raising new and wider claims for the first time before the tribunal – i.e. that, rather than being the victim of a single racially motivated robbery in December 2013, he had suffered many racially motivated attacks, including a racially motivated burglary at his home in early 2013 – the applicant had both created the need for an initial assessment of the credibility of those new or wider claims and, arguably, weakened the credibility of his refugee status claim overall.

ii. did the Commissioner and, by extension, the tribunal fail in their duty of co-operation with the applicant?

32. It is trite law, deriving from the United Nations High Commissioner for Refugees (‘UNHCR’) Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (‘the UNHCR Handbook’) (para. 196), that there is a shared duty between the applicant and examiner to ascertain and evaluate all the relevant facts. A duty upon each Member State of the European Union to assess the relevant elements of the application in cooperation with the applicant is now enshrined in Article 4(1) of Council Directive 2004/83/EC (‘the Qualification Directive’). In Case C-277/11 MM v Minister for Justice, Equality and Law Reform ECLI:EU:C:2012:744, the Court of Justice of the European Union clarified:

‘66. This requirement that the Member State cooperate therefore means, in practical terms, that if, for any reason whatsoever, the elements provided by an applicant for international protection are not complete, up to date or relevant, it is necessary for the Member State concerned to cooperate actively with the applicant, at that stage of the procedure, so that all the elements needed to substantiate the application may be assembled. A Member State may also be better placed than an applicant to gain access to certain types of documents.’
33. The applicant argues that the Commissioner and, by extension, the tribunal failed in that shared duty by, in the case of the former, not properly eliciting what the applicant meant by stating at his s. 11 interview that his problems in South Africa were ‘all the time’ and, in the case of the latter by not seeking further specific explanations from the applicant before reaching its decision.
34. I have already instanced the open-ended attempts that the Commissioner made to elicit from the applicant precisely what he meant by his initial broad, though vague, assertion of problems all the time in South Africa and, indeed, I have set out the clarification that he provided in response. Further, as the applicant accepts, the tribunal wrote to his legal representatives on 21 August 2015, after they had lodged a notice of appeal, grounds of appeal, and his written statement, to offer them a further opportunity to provide whatever additional information or clarification they might wish on his behalf, resulting in the provision of a final submission in an email of 31 August 2015.

35. The applicant suggests that the tribunal should have gone further. I do not agree. I do not accept that the State’s duty to cooperate with the applicant in assembling the elements necessary to substantiate his application extends to an obligation to go behind, or ‘tease out’, the applicant’s own voluntary statements, whether provided in the context of a properly conducted interview or in writing through his legal representatives. After all, regard must also be had to the applicant’s own shared duty of cooperation in the ascertainment of the relevant facts. As Dunne J observed in A.C. v Refugee Appeals Tribunal & Anor [2007] IEHC 369 (Unreported, High Court, 19th October 2007), the applicant is not a passive participant in the process.

iii. did the tribunal act in breach of a requirement to put matters to the applicant for comment before reaching a conclusion on the credibility of his claims?

36. The clear difficulty that the applicant faces in mounting this argument is encapsulated in the following passage from the decision of Mac Eochaidh J in M.A. v Refugee Appeals Tribunal [2015] IEHC 528 (Unreported, High Court, 31st July, 2015):

’20. The essential case made by the applicant is that the Tribunal Member should not have made new credibility findings against the applicant on a papers only appeal without reverting to him and putting these issues to him. I reject this argument. Where the Tribunal intends to make negative credibility findings based on the statements made by the applicant during the asylum process, whether on a papers only appeal or on an oral appeal, there is no obligation to revert to the applicant to give him or her an opportunity of explaining a perceived inconsistency, a contradiction, an implausible suggestion or any other circumstance arising from what the applicant has personally said, during the application process, which causes the Tribunal Member to conclude that credibility should be rejected. The Tribunal is no more required to do this than would a judge be required on hearing implausible testimony or on noticing an inconsistency in evidence to warn a witness that a negative credibility finding is imminent. The fact that the negative credibility finding is made on a papers only appeal is irrelevant. Counsel for the applicant has referred to certain Canadian authorities said to be authority for the proposition that:-

‘the intention to make a negative credibility assessment on the basis of any perceived evidentiary inconsistency must be disclosed in a timely way, and the applicant given a fair opportunity to respond to same’. [see page 158 and footnote 427 of Hathaway & Foster, ‘ The Law of Refugee Status’ (2nd edition)].

I am not of the view that this is the law in Ireland. In any event, I note that negative credibility findings were made in the s. 13 report, yet none of these were specifically addressed in the notice of appeal and the accompanying written submission to the R.A.T.
21. The complaint in this case maybe based on a misconception of the requirement that certain matters must be ‘put to’ a witness. A witness should be given an opportunity of commenting on evidence to be given by another witness which contradicts his or her own evidence. Breach of this rule of fair procedures may result in the other evidence being excluded.

22. No reliance could be placed on material unknown to an applicant to defeat a claim for asylum. Thus, country of origin information which contradicts an applicant’s narrative must be disclosed and an opportunity afforded to address it. Contrarily, it must be assumed that an applicant is aware of what he or she has said during the asylum process. It is noted that an applicant has full opportunity in an appeal, even a ‘papers only’ appeal to address any inconsistency, contradiction, implausibility or any other problem arising from what has been said during the asylum application process.

23. No negative credibility finding was made based on material unknown to the applicant because he is taken to be aware of what he has said personally, and because he was aware of the basis of the rejection of credibility in the s. 13 report, and he had adequate opportunity to address relevant issues during the appeal to the R.A.T.’

37. Nonetheless, the applicant in this case has succeeded in persuading Mac Eochaidh J that he has made out a substantial ground to challenge the lawfulness of the IPAT decision. In his judgment on the application for leave ex parte , Mac Eochaidh J explained:
‘I accept that it might have been unlawful for the decision maker not to revert to the applicant on a credibility issue raised for the first time on a papers only appeal where credibility had been accepted at first instance. The failure to give the applicant an opportunity to deal with this issue could well be a breach of the standard of inquiry required in respect of a papers only appeal. This is particularly so where the papers only appeal results not from a perceived weakness in the applicant’s narrative, but rather from the unrelated fact that South Africa is a so called ‘safe country,’ and pursuant to s. 13(6)(e) a papers only appeal results.
If the papers only appeal had resulted from a rejection of credibility or from the absence of a Convention nexus, an applicant would be on notice that such issue is in play, and that it is required to be addressed by the applicant in the notice of appeal/appeal submissions. Failure to do so could be fatal and a decision maker is not required in such circumstances to revert on that issue.’

38. There is no doubt – and the respondents accept – that heightened vigilance is necessary in the judicial review of a papers only appeal under s. 13(5) of the Refugee Act; see, for example, V.M. v Refugee Appeal Tribunal & Ors [2013] IEHC 24 (High Court, Unreported (Clark J), 29th January, 2013) (at para. 21). It has more than once been stated, almost as a corollary, that the tribunal is required to take ‘extreme care’ in the conduct of such an appeal; see B.Y. v Refugee Appeals Tribunal & Ors [2015] IEHC 60 (Unreported, High Court (Stewart J), 5th February, 2015) following V.M., already cited. I consider the former proposition more correctly states the position than the latter, since, while standards of review can and do vary, I am uncomfortable with the conception of a variable standard of care in decision-making.
39. In seeking to distinguish M.A ., the applicant principally relies on the following passage in Idiakheua v Minister for Justice, Equality and Law Reform & Anor [2005] IEHC 150, (Unreported, High Court (Clarke J), 10th May, 2005):

‘If a matter is likely to be important to the determination of the [Refugee Appeals Tribunal] then that matter must be fairly put to the applicant so that the applicant will have an opportunity to answer it. If that means the matter being put by the Tribunal itself then an obligation to do so rests on the Tribunal. Even if, subsequent to a hearing, while the Tribunal member is considering his or determination an issue which was not raised, or raised to any significant extent or sufficiently at the hearing appears to the Tribunal to be of significant importance to the determination of the Tribunal then there remains an obligation on the part of the Tribunal to bring that matter to the attention of the applicant so as to afford the applicant an opportunity to deal with it. This remains the case whether the issue is one concerning facts given in evidence by the applicant, questions concerning country of origin information which might be addressed either by the applicant or the applicant’s legal advisors or, indeed, legal issues which might be likely only to be addressed by the applicant’s advisors.’
40. The applicant also relies on the following passage from the judgment of Baker J in the High Court in Chawke v Mahon [2014] IEHC 398, [2014] 1 IR 788 (at 799-800):
‘[29] As stated by Clarke J. in Idiakheua v Minister for Justice [2005] IEHC 150 (Unreported, High Court, Clarke J., 10th May 2005) at p. 9:-
“However the substantial obligation to afford a party whose rights may be affected an opportunity to know the case against them remains. In those circumstances it seems to me that whatever process or procedures may be engaged in by an inquisitorial body, they must be such as afford any person who may be affected by the decision of such a body a reasonable opportunity to know the matters which may be likely to affect the judgment of that body against their interest.”

[30] In that case, Clarke J. was dealing with a body of inquisitorial and not adversarial structure and he accepted as a matter of first principles that the rights explained in In Re Haughey [1971] IR 217 would apply to the determinations of such an inquisitorial body when the decision of that body might materially affect the rights of the person, and that imperative was properly met by giving the applicant an opportunity to comment on matters which might materially affect the decision of the Tribunal or as he put it, following White J. in Nguedjdo v. Refugee Applications Commissioner (High Court, White J., 23rd July, 2003) sufficient to meet a test of ” drawing reasonable attention to factors which may influence the Tribunal’s determination “.’

41. The applicant submits that he comes within the principle in Idiakheua because the tribunal’s concerns about the credibility of his claims of racially motivated attacks upon him were not fairly put to him, nor did the tribunal draw reasonable attention to the credibility of those assertions as a factor that may influence its determination, thus depriving him of an opportunity to engage with those issues.
42. It seems to me a point of signal importance that, in the words of Charleton J in M.A.R.A. (Nigeria) (an infant) v Minister for Justice and Equality [2015] 1 I.R. 561 (at 575), an appeal to the tribunal under s. 16 of the Refugee Act, whether it involves an oral hearing or not, provides a complete opportunity to present any new facts or arguments; to reargue the points appealed; to call new evidence for or against the status of the applicant; and to plead the case afresh and in full. While in a papers only appeal there will be no opportunity to adduce new evidence viva voce , it appears to me to follow nonetheless that, in every appeal, the issue of credibility must be assessed anew by the tribunal without regard to any prior finding of the Commissioner on that issue, whether positive or negative.

43. The question, therefore, is not whether the tribunal was entitled to form a negative view about the applicant’s credibility, but whether the applicant was first afforded an opportunity to deal with the credibility issues that led to the judgment of the tribunal against his interest.

44. I conclude that the applicant must have been aware that the credibility of his claims to have suffered many racially motivated attacks in South Africa and, in particular, a racially motivated burglary of his home in early 2013 was a matter likely to affect the judgment of the tribunal, since he had made those claims for the first time in a written statement submitted to the tribunal in March 2014, as part of his appeal against the recommendation made by the Commissioner in January 2014, before whom he had not raised those claims.

45. For the reasons set out earlier in this judgment, I conclude that the submission made on behalf of the applicant that the Commissioner had accepted his general credibility or, in the words of that submission, ‘had believed him’ is incorrect. The Commissioner had considered the substance of the applicant’s claim, on the assumption that it was credible, and had found that the claim could not in any event succeed because of the availability of internal relocation in South Africa as a reasonable alternative to international protection. The Commissioner had later concluded that no issue of credibility arose in the assessment of the applicant’s claim in the limited context of s. 13(6) of the Refugee Act, which contemplates, most notably in that regard, a finding that an applicant has provided statements or information so false, contradictory, misleading or incomplete as to lead to the conclusion that the claim is manifestly unfounded. The absence of any such finding on the applicant’s claim is very different from the presence of a positive finding that it was generally credible.

46. Just as Mac Eochaidh J did in his decision granting the applicant leave to bring the present application, I accept that if the applicant’s general credibility had been expressly accepted at first instance in respect of the same claims as he raised on appeal to the tribunal, then a failure to give the applicant an opportunity to deal with any credibility issue on those claims could well be a breach of the requirements of natural and constitutional justice and fair procedures on a papers only appeal; see the decision of Cooke J in S.U.N. (South Africa) v Refugee Applications Commissioner & Ors [2012] IEHC 338; [2012] 2 IR 555 . But that was not the position on the facts of this case as established by the evidence.

47. Applying the analysis of Mac Eochaidh J in M.A . to the facts of the present case, I conclude that there was no requirement on the tribunal to put its concerns about the credibility of the applicant’s statements to the applicant for his comments before reaching its decision. Thus, its failure to do so did not amount to any breach of the applicant’s entitlement to natural and constitutional justice and fair procedures.
Conclusion
48. The application is dismissed.

 

Ulhaq v. Minister for Justice, Equality and Law Reform

[2001] IEHC 81 (3rd July, 2001)
THE HIGH COURT
JUDICIAL REVIEW
2000 No. 793 JR
BETWEEN
ISRAR ULHAQ
APPLICANT
AND
THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM AND THE REFUGEE APPEALS COMMISSIONER
RESPONDENT
JUDGMENT of Finnegan J. delivered on the 3rd day of July, 2001.
1. This matter comes before me as an application for leave to apply for relief by way of Judicial Review the application being one within the provisions of the Illegal Immigrants (Trafficing) Act 2000 Section 5. On the application for leave the matter was fully argued and the parties agreed that if I was satisfied that they are substantial grounds for contending that the Applicant is entitled to the relief claimed, that I should go on to determine the application. I am satisfied that there are substantial grounds for contending that the Applicant is entitled to the relief sought in the Statement grounding application for Judicial Review at paragraph (d) (i) to (iii) inclusive upon the grounds set out at paragraph

(e) (i) to (viii) therein. The grounds are as follows:-
“A declaration that the application for asylum made herein by the Applicant and dated the 9th day of August, 2000 to the first named Respondent is to be deemed, pursuant to the provision of Section 28 of the Refugee Act 1996, as amended, an application pursuant to Section 8 of that Act falling to be considered under the provisions of Section 13 of the said Act.
In the alternative an Order of Mandamus requiring the second named Respondent to prepare a report in writing of the results of his investigations setting out his findings and recommendations pursuant to the provisions of Section 13 of the Refugee Act 1996, in relation to the application of the Applicant, consequent upon which the Applicant will be entitled to appeal to the Refugee Appeals Tribunal.
An Order by way of interim relief restraining the Respondents from further dealing with the application of the Applicant pending the hearing of the within Judicial Review.

2. The circumstances giving rise to the application for Judicial Review are as follows. The Applicant applied for refugee status on 9th August, 2000. His application was being processed under the procedures which were in place up to the 19th November, 2000 which are known as the Hope Hanlan procedures. The Refugee Act 1996 established new procedures and the relevant part of the Act came into operation on the 20th November, 2000. The Refugee Act 1996 Section 28 thereof contains transitional provisions and provides as follows:-

“28: Where, before the commencement of this Act, a person had made an application to the Minister for asylum but a decision in relation thereto had not being made by the Minister then, the application shall be deemed to be an application under Section 8 and shall be dealt with accordingly; any step taken by the Minister before such commencement in relation to the application (being a step required to be taken under this Act in relation to an application under this Act) shall be deemed to have been taken under this Act.”

3. The position with regard to the Applicant is that his application was being dealt with the Hope Hanlan procedures. The steps taken were as follows:-

9th August, 2000 application completed.
28th August, 2000 interviewed by person appointed by the Minister pursuant to paragraph 8 of the Hope Hanlan procedures.
31st August, 2000 assessment of application by person appointed by the Minister.
17th November, 2000 application for refugee status refused by the Minister.
4. By letter dated 1st December, 2000 the Applicant was informed that his application had been determined and he is not being granted a declaration of refugee status. By the letter the Applicant was further informed as follows:-

“The determination of your application was made prior to the 20th November, 2000 and was undertaken under the Procedures for Processing Asylum Claims which were in use up to 19th November, 2000. Under the transitional arrangements for the Refugee Act this determination is now deemed to have been a step taken under the Act. On the basis of the investigation and report the Refugee Applications Commissioner proposes to furnish a recommendation to the Minister for Justice Equality and Law Reform that you not be granted a declaration of refugee status.

The nett question to arise on this application is the effect of the Refugee Act 1996 on the Applicant’s application for refugee status. Firstly his application is deemed to be an application under Section 8 of the Refugee Act 1996 and this presents no difficulty. However the latter portion of Section 28 requires to be construed in the light of the circumstances. This reads as follows:-
“Any step taken by the Minister before such determination in relation to the application (been a step required to be taken under this Act in relation to an application under this Act) shall be deemed to have been taken under this Act.”

5. I am satisfied that on the true interpretation of this provision any step taken by the Minister before the commencement of the Act which corresponds to a step which is required to be taken by the Refugee Applications Commissioner pursuant to the Act is to be deemed to be a step taken by the Refugee Applications Commissioner under the Act. Thus under the Hope Hanlan procedures paragraph 8 the Minister is required to arrange for the Applicant to be interviewed: the Refugee Act 1996 Section 11 imposes a like obligation so however that the authorised officer is to be authorised not by the Minister but by the Refugee Applications Commissioner. I am satisfied that the effect of Section 28 is that the interview in fact conducted under the Hope Hanlan procedure paragraph 8 is deemed to have been an interview conducted under the Refugee Act 1996 Section 11. Paragraph 8 of the Hope Hanlan letter must be read in conjunction with paragraph 10 thereof and so by implication there must be prepared a report of the interview for the purposes of the assessment pursuant to paragraph 10 of that procedure. Paragraphs 8 and 10 of the Hope Hanlan procedures correspond with Section 11 of the Act. It is the policy of the Geneva Convention and of the Act that applications for refugee status be dealt with promptly and Section 28 of the Act is intended to avoid duplication in the procedures under the Act of those already undertaken under the Hope Hanlan procedures. Both the Hope Hanlan procedures and those under the Act were designed to give effect to the Geneva Convention which enjoins prompt determination of applications and this justifies the provisions of Section 28 their effect being that the interview conducted with the Applicant and the report thereon operated as if undertaken pursuant to Section 11 of the Act.

6. The next step in the Hope Hanlan procedures is that in paragraph 10:-

“10. A person appointed by the Minister will assess the application having regard to the interview, the report of the interview, any written representation and information obtained from the UNHCR or other internationally reliable sources and for such person to make a recommendation to a person authorised by the Minister.”
7. On the papers exhibited on this application it appears that an assessment was indeed carried out by one Tom Conroy a person appointed by the Minister and sent by him to Eamonn Mulligan and Gerry Shannon persons authorised by the Minister. The assessment however does not contain a recommendation. It seems therefore that the next step envisaged by the Hope Hanlan procedures at paragraph 10 was not in fact completed. Notwithstanding the absence of a recommendation Gerry Shannon made a decision on the 17th November to refuse the Applicant refugee status. After the refusal the Act came into force and the Commissioner then made a recommendation to the Minister to refuse the Applicant refugee status. Paragraph 10 of the Hope Hanlan procedures envisages a single step – an assessment by an officer with a recommendation. The Act in Section 13 likewise envisages an assessment and recommendation by the Commissioner. The incomplete step taken under the Hope Hanlan procedures is not in my view a step taken by the Minister and therefore Section 28 of the Act cannot apply to. Had this step been properly completed and a recommendation made by Tom Corroy I would be satisfied that it corresponds with the step required to be taken by the Commissioner under Section 13 of the Act. I am not satisfied that Section 28 permits as has happened here namely

1. An assessment without a recommendation under paragraph 10 of the Hope Hanlan procedures
2. A decision by a person authorised by the Minister made without a recommendation having been received and
3. That that decision be treated by the Commissioner as his report of an investigation under Section 13 of the Act to which he can attach his recommendation.
8. In the circumstances of this case I am satisfied that the only step taken in relation to the Applicant’s application for refugee status which is to be deemed to have been taken under the Act is the conduct of the interview and preparation of a report thereon and which having regard to Section 28 of the Act is deemed to be an interview and report under Section 11 of the Act. In these circumstances I propose to make a declaration in the terms sought by the Applicant at paragraph (d) (i) of the application for Judicial Review but substituting in the last line thereof for “Section 11” the words “Section 13”.

Martins -v- The Minister For Justice And Equality

[2018] IEHC 268 (02 May 2018)
Judgment
Title:
Martins -v- The Minister For Justice And Equality
Neutral Citation:
[2018] IEHC 268
High Court Record Number:
2017 No. 483 JR
Date of Delivery:
02/05/2018
Court:
High Court
Judgment by:
Keane J.
Status:
Approved
[2018] IEHC 268
THE HIGH COURT
JUDICIAL REVIEW
[2017 No. 483 JR]
BETWEEN
SIDNEI DE OLIVEIRA MARTINS
APPLICANT
AND
THE MINISTER FOR JUSTICE AND EQUALITY
RESPONDENT
JUDGMENT of Mr Justice David Keane delivered on 2 May 2018
Introduction
1. The applicant (‘Mr Martins’) seeks, principally, an order of certiorari quashing the decision of the respondent (‘the Minister’), dated 13 March 2017, refusing to grant him a certificate of naturalisation under s. 15 of the Irish Nationality and Citizenship Act 1956, as amended (‘the Act of 1956’) because the Minister was not satisfied that Mr Martins was a person of good character as he had been in continuous breach of the immigration law of the State for several years prior to his application and remained so for some months afterwards. In addition to an order of certiorari, Mr Martins seeks a declaration that the said decision was made in breach of fair procedures and natural and constitutional justice.

2. Mr Martins did not apply for leave to seek judicial review of the Minister’s decision until 9 June 2017, almost three months later. As it was then the Whit Vacation, the application was made to the duty judge and not in the Asylum List in the ordinary way. By Order made on that date, O’Connor J granted the applicant leave to seek the reliefs already described on the grounds set forth in his statement of grounds.
Background
3. Mr Martins was born on 28 February 1991 and is a national of Brazil. His father and mother, who are also both Brazilian nationals, arrived in Ireland from Brazil in 2005. His father obtained a work permit and his mother received permission to remain as his father’s dependent.

4. It seems that Mr Martins arrived in the State from Brazil in 2008. He received the first of a succession of ‘stamp 3’ residence permissions on 5 May 2008. The Irish Naturalisation and Immigration Service (‘INIS’) section of the Department of Justice website includes a web page on ‘permissions, stamps and conditions.’ It provides, as an example of a situation in which a ‘stamp 3’ permission will be given, where an applicant has permission to join a non-EEA/EU/Swiss family member who has a work permit. In this instance, it would appear that Mr Martins was granted permission, as a minor, to join his father, who had a work permit, and his mother. In the summary of conditions attached to a ‘stamp 3’ residence permission, the relevant web page states: ‘You cannot work or engage in any business, trade or profession.’

5. Mr Martins applied for naturalisation under cover of a letter from his solicitors, dated 22 December 2015. That letter was not exhibited to the affidavit he swore on 8 June 2017 to ground his application for leave to seek judicial review, although it was subsequently exhibited on behalf of the Minister.

6. In the completed application form enclosed with that letter, Mr Martins had filled out the section on ‘means of support’ by stating that he was employed. In response to the requirement to provide the name and address of his employer, he had handwritten the single word ‘WERS’, before confirming in response to the next question that he had been employed there as a mechanic from 16 August 2012 to date.

7. In addition to the required application form, appropriate identification documentation and necessary payment, Mr Martins’ solicitors also enclosed with that letter as ‘supporting documents’: a letter from his employer Wheeley Environmental Refuse Services Limited (or ‘WERS’); copies of his payslips between August and December 2015; a copy of his most recent P60; copies of his bank statements for the preceding six months; a copy of each of the residence permissions stamped on his passport since his arrival in the State; and a printout of a screenshot from the Irish Naturalisation and Immigration Service (‘INIS’) web page containing its ‘naturalisation residency calculator’ into which details of Mr Martins’ eight consecutive residency permission stamps had been entered.

8. That was a remarkable combination of documents to submit in support of Mr Martins’ application for naturalisation.

9. Each of the eight consecutive residence permissions stamped on Mr Martins’ passport recites, in material part, that it is a permission ‘to remain in Ireland on condition that the holder does not enter employment’. The printed screenshot of Mr Martins’ entries on the naturalisation residency calculator confirms that each of the eight permissions he obtained was a ‘stamp type 3’.

10. And yet, Mr Martins’ application was also accompanied by a letter, dated 9 December 2015, from the financial controller of a waste services company, confirming that Mr Martins had been in its employment since 16 August 2012 and was anticipated to remain so for the foreseeable future. For good measure, a print out of the payslips that Mr Martins had received from that company each week between 28 August and 4 December 2015 was also included; as was Mr Martins’ P60 certificate of pay, tax, pay-related social insurance, universal social charge and local property tax for the year ended 31 December 2014; and copies of his bank account statements for the period between 12 December 2014 and 13 October 2015, evidencing his receipt of wages from the company during that period.

11. Section 11 of the ‘Form 8 – application by a person of full age for naturalisation as an Irish citizen’, prescribed in the schedule to the Irish Nationality and Citizenship Regulations 2011 (S.I. No. 569/2011), is headed ‘Background’ and is largely directed towards the criminal antecedents, if any, of the applicant concerned whether in Ireland or any other country. However, quite apart from accomplished criminal convictions, it commences with the question at section 11.11: ‘Have you ever committed any offences against the laws of Ireland or any other country?’, beside which the applicant ticked the box marked ‘No.’ Similarly, the final question (11.1) in that section is: ‘Have you engaged in any other activities that might indicate that you may not be considered a person of good character?’ beside which the applicant, once again, ticked the box marked ‘No.’

12. The cover letter from Mr Martins’ solicitors went on to state:

‘We affirm that we have previously acted in an application for naturalisation for the applicant’s mother, Wania Aparacida De Oliveira Martins and we now enclose herewith a certified copy of the relevant naturalisation certificate. As indicated in Section 12.1 our client’s application is based on his own residency and not his Irish associations and [we] write simply to put you on notice that his mother has been long term resident here and is now a naturalised Irish citizen.’
13. Section 12 of the application form is headed ‘Application based on Irish associations’, and contains the following requirement, at section 12.1: ‘If your application is based on your Irish descent or Irish associations, please give details below.’ On his application form, the applicant left the box provided for that purpose entirely blank.
14. In summary, as part of Mr Martins’ application for naturalisation (which he expressly chose to base on the duration of his residence in the State and, by necessary implication, his good character, under s. 15 of the Act of 1956, and not on his Irish associations, under s. 16 of that Act), without comment or explanation, his solicitors provided the INIS with extensive evidence that for several years past he had been working in direct breach of his residence permission and was at that time continuing to do so.

15. It is just as remarkable, if not more so, that the unit or team within the INIS that dealt with Mr Martins’ naturalisation application did not register that fact. Instead, in subsequent correspondence, it merely raised technical issues concerning the execution of the necessary statutory declaration and the form of signature on Mr Martins’ Brazilian passport, which issues Mr Martins duly addressed.

16. On 6 September 2016, the INIS wrote to Mr Martins informing him that the Minister proposed to grant his application for naturalisation, subject to his successful completion of certain administrative formalities, including paying the appropriate fee and also making the necessary declaration of fidelity to the nation and loyalty to the State at a citizenship ceremony.

17. Then, on 27 September 2016, the penny finally dropped for the INIS when a Garda immigration officer carried out a joint inspection with an authorised officer or inspector of the Workplace Relations Commission (‘WRC’), formerly the National Employment Rights Authority (‘NERA’), at the premises of Mr Martins’ employer. Although Mr Martins was not rostered to work that day, his employment ceased immediately afterwards. On the very same day, the INIS wrote again to Mr Martins, informing him that his application for naturalisation was again under review and directing him not to forward payment of the fee or any of the outstanding documents referred to in its previous letter.
The decision under challenge
18. The INIS wrote to Mr Martins on 13 March 2017, informing him of the Minister’s decision, in the exercise of her absolute discretion, to refuse his application for a certificate of naturalisation because she was not satisfied that he was of good character. A copy of the submission prepared for the Minister, with the Minister’s decision annotated upon it was enclosed. That submission recites:

‘Comments: [Mr] Martins’ application for a certificate of naturalisation was approved by the Minister on the 05/07/2016. An approval letter issued to the applicant on the 06/09/2016. However additional information was received advising that the applicant had been in breach of the immigration laws of the State since 2012. He has been working in the State since 2012 while resident here on a Stamp 3 basis. His permission to remain [under] stamp 3 [conditions] prohibits him from working in the State.
Recommendation: Given the applicant’s disregard for the conditions attached to his permission to obtain employment (sic) in the State, and the State’s legitimate interests in ensuring that the integrity of its immigration system and laws are not undermined, I am not satisfied that the applicant is of good character and therefore I recommend the Minister withdraw her intention to grant a certificate of naturalisation and should refuse citizenship in this case.’

Background to the decision
19. After some initial confusion concerning when the INIS (and, by extension, the Minister) first became, or ought to have become, aware that Mr Martins was, and had been for some years, in breach of the employment prohibition condition of his permission to reside in the State, Raymond Murray, an assistant principal officer in the Citizenship Division of the Department of Justice and Equality, swore an affidavit on 7 December 2017, verifying the facts set out in the Minister’s amended statement of opposition.
20. In it, Mr Murray avers that, on 27 September 2016, a civil servant in the Citizenship Section of the Department received a telephone call from a Garda immigration officer informing the Department of what had been discovered that day in the course of an inspection at the premises of Mr Martins’ employer. The Department requested the provision of the relevant information in writing and received an e-mail the following day setting it out. Mr Murray exhibits a copy of both the note of that telephone call taken by the civil servant concerned and the subsequent e-mail. The information in each is consistent with the details of his employment that Mr Martins had already provided with his naturalisation application, save that the Garda immigration officer’s e-mail also records that Mr Martins was in breach of an obligation – presumably, that imposed under s. 9 of the Immigration Act 2004 – to inform the appropriate immigration registration officer that he had changed address.

21. Mr Murray avers that the Minister formed the opinion that Mr Martins was not of good character as he had been working in the State for a period of in excess of four years, whilst on a ‘stamp 3’ permission, which prohibited him from working in the State, and that she did so ‘having considered all documents on file, including the documents submitted by [Mr Martins] and the email from [the garda immigration officer].’
The law
22. Section 15(1) of the Act of 1956 sets out what s. 15(2) describes as the ‘conditions for naturalisation’ in the following terms:

‘Upon receipt of an application for a certificate of naturalisation, the Minister may, in his absolute discretion, grant the application if satisfied that the applicant-

(a) (i) is of full age, or
(ii) is a minor born in the State;

(b) is of good character;

(c) has had a period of one year’s continuous residence in the State immediately before the date of the application and, during the eight years immediately preceding that period, has had a total residence in the State amounting to four years;

(d) intends in good faith to continue to reside in the State after naturalisation; and

(e) has, before a judge of the District Court in open court, in a citizenship ceremony or in such manner as the Minister, for special reasons, allows_

(i) made a declaration in the prescribed manner, of fidelity to the nation and loyalty to the State, and

(ii) undertaken to faithfully observe the laws of the State and to respect its democratic values.’

23. Section 16 of the Act of 1956 is relevant to one of the arguments raised by Mr Martins. It states in relevant part:
‘The Minister may, in his absolute discretion, grant an application for a certificate of naturalisation in the following cases, although the conditions for naturalisation (or any of them) are not complied with:

(a) where the applicant is of Irish descent or Irish associations;

…

(2) For the purposes of this section a person is of Irish associations if-
(a) he or she is related by blood, affinity or adoption to, or is the civil partner of, a person who is an Irish citizen….’

The grounds of challenge
24. While Mr Martins enumerated eight separate grounds of challenge to the Minister’s refusal to grant him a certificate of naturalisation in the statement grounding his application for judicial review, those grounds have been prudently condensed into two broad arguments in the written submissions filed on his behalf. The first is that the Minister failed to consider relevant matters when determining Mr Martins’ application for a certificate of naturalisation, which failure was both unreasonable and a breach of Mr Martins’ entitlement to natural and constitutional justice and fair procedures. The second is that the Minister reached her decision on Mr Martins’ application in partial reliance on information that he was not given an opportunity to comment upon or address, and thus did so in breach of his entitlement to natural and constitutional justice and fair procedures.
25. The relevant matters that Mr Martins contends the Minister failed to consider in determining his application for naturalisation are essentially threefold. The first is that, at the time when he first submitted his application for naturalisation, he had disclosed through his solicitors, if not the fact of his long-standing, continuing and prospective breach of an employment prohibition condition attached to his residence permission, at least ‘the information’ from which that could be readily inferred. The second is that his employment had ceased immediately after the joint inspection of his workplace by An Garda Síochána and the WRC on 27 September 2016. The third is that his mother had recently become a naturalised Irish citizen and that he was, thus, entitled to claim Irish associations and to apply accordingly under s. 16 of the Act of 1956 for a waiver of any of the usual naturalisation conditions under s. 15 of that Act.

26. The information that Mr Martins contends he should have been given an opportunity to comment upon or address is that which was contained in the e-mail of 28 September 2016, already described, from the Garda immigration officer to the Department.

27. Before dealing directly with each of those arguments, it is necessary to make some general observations concerning: first, the nature and extent of Mr Martins’ breaches of the immigration law of the State; second, the meaning of ‘good character’ for the purposes of s. 15 of the Act of 1956; third, the scope of the Minister’s discretion to grant or withhold a certificate of naturalisation under the Act of 1956; and fourth, as the obverse of the preceding issue, the level of fair procedures that applies to an application for the grant of such a certificate.
Analysis

i. Mr Martins’ breaches of immigration law
28. In the affidavit that he swore on 8 June 2017 to ground the present application, Mr Martins accepts that on 5 May 2008 he was issued with permission to remain in the State on ‘stamp 3’ conditions, which permission was extended periodically over the course of the following eight years. Indeed, he exhibits a photocopy of two different Brazilian passports upon which appear eight separate permission to remain stamps, covering various parts – though not all – of the period between 5 May 2008 and 19 August 2016. On each of those eight stamps, permission to remain is expressly stated to be ‘on conditions that the holder does not enter employment.’

29. In the same affidavit, Mr Martins acknowledges that he has ‘at times’ engaged in employment since his arrival in the State, before going on to confirm that he was in full time employment as a mechanic with a waste disposal company between August 2012 and September 2016, thereby implying that he engaged in employment even prior to August 2012.

30. Mr Martins avers that he did not appreciate the seriousness of engaging in employment without obtaining the appropriate form of permission and adds that he was anxious to earn a living and enjoyed the sense of fulfilment that his work gave him.

31. What are the legal implications of a breach of an employment prohibition condition of a permission to remain in the State?

32. From the perspective of the criminal law, the potential implications are as follows. Under s. 2(1) of the Employment Permits Act 2003 (‘the 2003 Act’), as amended, it is an offence for a foreign national to enter the service of an employer in the State, or be in employment in the State, except under an employment permit granted by the Minister for Enterprise, Trade and Employment that is in force. The penalty on summary conviction of an offence under that sub-section is a fine of up to €3,000 or a term of imprisonment of up to 12 months, or both. Further, and while this could not be the concern of someone in Mr Martins’ position, it is an offence under s. 2(2) of the 2003 Act, as amended, for a person to employ a foreign national in the State except in accordance with an employment permit granted under s. 8 of the 2006 Act that is in force.

33. The immigration law implications are also significant. Under s. 5(1) of the Immigration Act 2004 (‘the 2004 Act’), no non-national may be in the State other than in accordance with the terms of any permission given to him or her by or on behalf of the Minister. Under s. 5(2) of that Act, a non-national who is in the State in contravention of subsection (1) is for all purposes unlawfully in the State. Section 16A(1) of the Act of 1956 provides, in material part, that a period of residence in the State in breach of s. 5(1) of the 2004 Act shall not be reckoned when calculating a period of residence for the purposes of granting a certificate of naturalisation.
ii. the meaning of ‘good character’ for the purposes of the s. 15 of the Act of 1956.
34. In Hussain v. Minister for Justice [2013] 3 I.R. 257, Hogan J explained (at 263):

‘[14] There is no settled or fixed interpretation of the words “good character”. Applying the standard principle of noscitur a sociis, these words accordingly take their meaning according to the relevant statutory context and general objects of the legislation: see, e.g., the comments of Henchy J. in Dillon v. Minister for Posts and Telegraphs (Unreported, Supreme Court, 3rd June, 1981). It is implicit from the general tenor of s. 15 that the section is designed to empower the Minister to grant naturalisation to persons who have resided here for an appreciable period of time and who intend to do so in the future. Furthermore, the fact that s. 15(e) requires the applicant to make a declaration – generally in open court before a judge of the District Court – of “fidelity to the nation and loyalty to the State” suggests that such a person must be prepared to make a public commitment that they will discharge ordinary civic duties and responsibilities, given that the these words are themselves borrowed directly from Article 9.2 of the Constitution of Ireland 1937.
[15] It is against this background that the words “good character” must be understood and measured. Viewed in this statutory context, it means that the applicant’s character and conduct must measure up to reasonable standards of civic responsibility as gauged by reference to contemporary values. The Minister cannot, for example, demand that applicants meet some exalted standard of behaviour which would not realistically be expected of their Irish counterparts. Nor can the Minister impose his or her own private standard of morality which is isolated from contemporary values.’

35. In this case, to that dictum must be added the observation that, in addition to the necessary public commitment to discharge ordinary civic duties and responsibilities, evidenced by the requirement under s. 15(e) of the 1956 Act to pledge “fidelity to the nation and loyalty to the State”, there is a further requirement under that sub-section to undertake ‘to faithfully observe the laws of the State’, strongly suggesting that a failure to do so, or certainly a persistent failure to do so over several years, is fundamentally inconsistent with the concept of ‘good character’ properly construed.
36. As Lang J observed in Hiri v Secretary of State for the Home Department [2014] EWHC 254 (Admin) (at para. 35), in a passage approved by Mac Eochaidh J in GKN v The Minister for Justice and Equality [2014] IEHC 478 (Unreported, High Court, 22nd October, 2014) (at para. 16):

‘The statutory test [of “good character” for the purposes of the British Nationality Act 1981] is not whether applicants have previous criminal convictions – it is much wider in scope than that. In principle, an applicant may be assessed as a person “of good character”, for the purposes of the 1981 Act, even if he has a criminal conviction. Equally, he may not be assessed as a person “of good character” even if he does not have a criminal conviction.’

iii. the scope of the Minister’s discretion under s. 15 of the Act of 1956 and the level of the requirements of natural and constitutional justice that the exercise of that discretion attracts
37. In the written and oral legal submissions made on his behalf, Mr Martins was anxious to emphasise the by now well-settled principle that the exercise of the Minister’s ‘absolute discretion’ is subject to the requirements of natural and constitutional justice; Mallak v Minister for Justice [2012] 3 IR 297 at 313). The Minister accepts that the exercise of that discretion cannot be arbitrary, capricious or autocratic; Mallak, just cited, and Hussain v The Minister for Justice [2013] 3 I.R. 257 at 264. Yet it is difficult not be struck by the complete failure in Mr Martins’ submissions to recognise or acknowledge the limited scope of the said requirements as they apply to the exercise of the absolute discretion to grant or withhold the privilege of naturalisation, as an executive function.
38. In A.M.A. v Minister for Justice and Equality [2016] IEHC 466, Humphreys J explained the scope of the Minister’s discretion in the following terms:

‘23. The 1956 Act describes the Minister’s discretion as “absolute” (s. 15(1)), which means not literally unconstrained but as absolute as it is possible to be in a system based on the rule of law. In practice this is a very wide discretion: see A.B. v. Minister for Justice, Equality and law Reform [2009] IEHC 449 per Cooke J. at para. 19; Tabi v. Minister for Justice, Equality and Law Reform [2010] IEHC 109 (Unreported, High Court, Cooke J., 16th April, 2010); M.A.D. v. Minister for Justice and Equality [2015] IEHC 446 (Unreported, High Court, Stewart J., 14th July, 2015).
24. It is clear that in public law decisions, the extent of natural justice varies according to context (see my decision in Z.K. v. Reception and Integration Agency [2016] IEHC 20 (Unreported, High Court, 15th January, 2016), and that of Noonan J. in Hosford v. Minister for Social Protection [2015] IEHC 59 (Unreported, High Court, 6th February, 2015)). It is not a “one size fits all” doctrine. While some decisions, such as a conviction in the criminal process, or interference in the relationship between a parent and child, require the dial to be turned up to the maximum in terms of natural justice and fair procedures, other decisions involve a lower standard and indeed some decisions, such as the adoption of legislative measures, “political questions” or the exercise of managerial authority, do not attract fair procedures in any meaningful sense at all.

25. Naturalisation is a privilege and not a right. For many centuries, such decisions were reserved to the legislature. Obviously, fair procedures do not apply to a sovereign decision to decline to enact a particular piece of legislation. Schedule 2 to the Statute Law Revision Act 2009 and Sch. 2 to the Statute Law Revision Act 2012 list several hundred such naturalisation Acts enacted between 1558 and 1896. Thereafter, the grant of naturalisation has been an executive function, with only minimal regulation by the legislature.

26. While of course reasons for an adverse executive decision on naturalisation must be provided (Mallak v. Minister for Justice, Equality and Law Reform [2012] IESC 59 (Unreported, Supreme Court, 6th December, 2012) per Fennelly J. (Denham C.J., Murray, O’Donnell and McKechnie JJ. concurring); see also O.T.A. v. Minister for Justice and Equality [2016] IEHC 173 (Unreported, High Court, Faherty J, 15th April, 2016)), that was done in this case.

27. Insofar as additional stipulations of natural justice above and beyond reasons are required in the naturalisation context, any such additional requirements must be minimal and very much at the lower end of the scale of contextual fair procedures to which I have referred: see Pok Sun Shum v. Ireland [1986] I.L.R.M. 593 per Costello J. at p. 599, Hussain v The Minister for Justice [2011] 3 I.R. 257 per Hogan J. at p. 265, para. 21, M.A.D. per Stewart J. at paras. 35 to 39. Mr. O’Dwyer stresses that the naturalisation decision is important to the applicant, which I am sure it is. But given the nature of the executive power in issue, it would be inappropriate and indeed unhistorical to apply an exacting standard of review to ministerial decisions in this regard.

28. In short, the Minister has a very wide discretion in naturalisation, as absolute as it is possible to get in a system based on the rule of law. Reasons must be provided but beyond that it would take exceptional circumstances (such as a misrepresentation of the case against the application: G.K.N. v. Minister for Justice and Equality [2014] IEHC 478 (Unreported, High Court, Mac Eochaidh J., 22nd October, 2014)) before the Minister could be said to have failed to apply the minimal level of natural justice applicable in the context of a privilege such as naturalisation.’

39. I regret to say that, in the written and oral submissions relied on by Mr Martins, no reference is made to the principles set out in the passage just quoted or to any of the relevant authorities insofar as they confirm the limited scope of the requirements of fair procedures that apply to naturalisation decisions. Those submissions refer instead to a range of authorities and to certain commentary on the scope of the requirements of fair procedures that apply to quite different situations involving the determination of rights and interests rather than the grant or refusal of a privilege such as that of naturalisation.
40. A gravely troubling aspect of the written legal submissions made on behalf of Mr Martins is the significant reliance they place on the ex tempore decision of the High Court in the case of Ezeani v. Minister for Justice [2005] IEHC 478 (Unreported, High Court (Hanna J), 11th October, 2005). That case involved the procedure under s. 8 of the Act of 1956 – now repealed – whereby, in prescribed circumstances, the spouse of an Irish citizen (otherwise than by naturalisation) could obtain Irish citizenship by way of a post-nuptial declaration accepting it. The applicants were a non-national husband and his Irish citizen wife. The husband had made the necessary post-nuptial declaration of acceptance of Irish citizenship but his application for citizenship on that basis had been refused as the Minister was not satisfied that he met the prescribed condition that he and his spouse were then living together as husband and wife, despite their adamant insistence that they were.

41. In his ex tempore judgment in that case, Hanna J found that the relevant process under s. 8 of the Act of 1956, while not equivalent to litigation inter partes or the conduct of a tribunal of inquiry, was nonetheless an inquisitorial one. Hanna J acknowledged that the Minister must have a certain degree of latitude in his conduct of the necessary inquiry, before continuing:

‘Therefore, there is necessarily and understandably a large degree of inquisitive work done behind closed doors that, as a matter of ordinary course, a person whose application for citizenship is being considered will never get to see and may have no legal or constitutional entitlement to see such documents or statement or other material relied on in a decision which may be adverse to their rights. Where, however, the inquisitorial body becomes possessed with material of whatever nature, which is significantly damaging to an applicant to the extent that it weighs heavily against the applicant and the outcome he wished to achieve, then the pendulum must swing in favour of that applicant and the procedural response formalised accordingly.’
42. Hanna J went on to conclude that the pendulum had swung so far in favour of the applicant husband in that case that a facility should have been afforded to him to cross-examine persons who had provided information adverse to his claim that his marriage was a valid and subsisting one.
43. Mr Martins attempts to use this judgment as a springboard for the argument that he too was entitled to a broad panoply of procedural rights of the type considered in Re Haughey [1971] IR 217, comparable to those rights which must be accorded to persons potentially facing adverse findings by a tribunal of inquiry, as found by Hardiman J in Murphy & Ors v Flood [2010] 3 IR 136; or to a person whose appeal against the refusal of refugee status is before a statutory tribunal, as found by Clarke J in Idiakheua v Minister for Justice & Anor [2005] IEHC 150 (Unreported, High Court, 10th May, 2005).

44. That submission is gravely troubling because it ignores the subsequent decision of the Supreme Court in the same case – Ezeani v Minister for Justice [2011] IESC 23, (Unreported, 12th July, 2011) – reversing the decision of the High Court. Giving judgment on that appeal, Fennelly J (Denham and Hardiman JJ concurring), stated (at para. 40):

‘40. The Minister, when performing his function under section 8, is not performing a judicial function. He does not act as a tribunal of inquiry. The procedures mandated in the judgment of Ó Dálaigh CJ in In Re Haughey, cited above, related to the procedures of a tribunal of inquiry being conducted in public, where the appellant had been the subject of charges made against him in public, which reflected on his character and good name. They have no application to administrative procedures of the kind at issue here.’
45. And later, (at para. 45):
‘45. The rules of natural justice require the decision maker to give reasonable notice to the affected person of the substance of any matters being raised which are adverse to his interest. It is not necessary that the entire of every detail of the case against him be notified. The test is whether he has a fair opportunity to prepare himself and to respond.’
46. Paragraph 14 of Practice Direction HC-73 of 7 December 2017 on the Asylum, immigration and citizenship list expressly draws attention to the terms of paragraph 5.19 of the Code of Conduct of the Bar of Ireland, which states:
‘In a civil case barristers must, at the appropriate time in the proceedings, inform the court of any relevant decision on a point of law and, in particular, of any binding authority or any applicable legislation of which they are aware and which the barrister believes to be on point whether it be for or against their contention.’
This is a matter to which it may be necessary to return in the context of the consideration of the appropriate ancillary orders consequent upon the present judgment.
iv. breach of the requirement to consider all relevant information as an aspect of constitutional justice?
47. Mr Martins submits that the Minister failed to consider the following matters relevant to his application for naturalisation:

(i) that Mr Martins disclosed ‘the information’ regarding his breach of the employment prohibition condition of his residence permission when his application was submitted;
(ii) that Mr Martins ceased working after the WRC/Garda immigration officer joint inspection of his workplace; and

(iii) that Mr Martins is the son of an Irish citizen.

48. Mr Martins then argues that the failure to place those matters before the Minister amounted to a denial of his entitlement to constitutional justice, which vitiates the Minister’s decision in this case, just as Mac Eochaidh J found that the failure to place certain matters before the Minister vitiated a similar decision in GKN v The Minister for Justice and Equality [2014] IEHC 478 (Unreported, High Court, 22nd October, 2014).
49. But there are several difficulties with that argument.

50. To put those difficulties in context, it is necessary first to consider the facts of, and decision in, GKN. That was another case concerning a challenge to a decision by the Minister to refuse to grant a certificate of naturalisation on the ground that the applicant had failed to establish good character, because he had been convicted in the District Court almost four years prior to his application of an offence of failing to stop at the scene of an accident, contrary to s. 106 of the Road Traffic Act 1961, as amended, for which he was fined €300, disqualified from driving for 2 months and directed to pay compensation of €700.

51. Unlike Mr Martins, the applicant had expressly acknowledged his prior criminal conduct in his application for naturalisation, which prompted the Department to write to his legal representatives seeking further information about the circumstances of his offence, in response to which those solicitors wrote back providing details of a number of mitigating circumstances – primarily, that the accident involved a glancing collision with a parked vehicle, causing only minor damage and no injury to any person.

52. However, the recommendation later prepared for the Minister merely referred to the bare details of conviction and penalty set out in an accompanying Garda report before concluding: ‘Given the serious nature of the offence, I would not recommend this application for a certificate of naturalisation.’

53. A key finding made by Mac Eochaidh J was that, although it was submitted on behalf of the Minister that regard was had to all of the relevant material, including the correspondence from the applicant’s solicitors setting out the mitigating circumstances of the offence, there were no averments in the affidavits before the court to that effect, leading to the conclusion that, on the balance of probabilities, the Minister’s decision was based solely upon two documents comprising the submission made to him by his official and the accompanying Garda report, omitting reference to those mitigating circumstances On that basis, Mac Eochaidh J held it was a denial of the applicant’s entitlement to constitutional justice not to place all of the relevant information before the Minister.

54. The principal – indeed, insuperable – difficulty that Mr Martins faces in attempting to bring his claim within the ratio decidendi of the decision in GKN is that, in this case, there is an express averment – in the affidavit sworn on behalf of the Minister by Mr Murray – that the Minister made her decision on Mr Martins’ application ‘having considered all documents on file, including the documents submitted by [Mr Martins] and the email from [the garda immigration officer].’ Thus, the Minister would have been aware of what was, and what was not, disclosed by Mr Martins in making his naturalisation application about his character, his employment, the conditions of his residence permission and his mother’s recent naturalisation as an Irish citizen. The Minister would also have been aware of the pertinent findings of the WRC/Garda Síochána joint inspection of Mr Martins’ workplace on 27 September 2016.

55. In GK v. Minister for Justice [2002] 2 IR 418 (at 426-7), the Supreme Court (per Hardiman J, Denham and Geoghegan JJ concurring) pointed out that a person claiming that a decision-making authority ignored representations made to it, contrary to its express statement that it did not, must produce some evidence, direct or inferential, of that proposition before he can be said to have even an arguable case. Here, Mr Martins has identified no such evidence.

56. A further difficulty with Mr Martins’ argument on this point is that the close analogy he seeks to draw between the information that was not placed before the Minister in GKN and that which he claims – wrongly, as I have found – was not placed before the Minister in this case is entirely unconvincing.

57. In GKN, the information concerned was obviously and directly relevant to the issue that formed the basis of the Minister’s decision; it was that of the applicant’s character as revealed by the specific conduct that led to his conviction, fine and disqualification for failure to stop at the scene of an accident, contrary to s. 106 of the Road Traffic Act 1961, as amended.

58. In this case, rather unsatisfactorily, Mr Martins does not identify the relevance of each of the three separate pieces of information that he contends the Minister wrongly failed to consider, leaving the court to infer what that relevance might be.

59. In a very careful piece of draftsmanship, Mr Martins’ legal representatives identify the first piece of relevant information that they contend the Minister wrongly failed to consider as Mr Martins’ disclosure in his application of ‘the information’ establishing that he was in breach of the conditions of his residence permission.

60. While Mr Martins’ submissions on this point are opaque, it seems to me the court is being invited to infer two things about that information. The first is that, in including it in his application for naturalisation, Mr Martins was candidly and forthrightly owning up to, rather than inadvertently disclosing, his longstanding and continuing breach of the employment prohibition condition of his permission to remain in the State. And following on from that, the second is that the Minister failed in her obligation to consider that disclosure as a frank admission by Mr Martins of his unlawful conduct, and thus a factor mitigating its seriousness, as part of her overall assessment of Mr Martins’ character.

61. Unfortunately, it is simply not possible to view matters in that way (if that is what I am being asked to do) for several reasons. First, as already noted above, the evidence before me is that the Minister did consider the documents on file, including the documents submitted by Mr Martins.

62. Second, while Mr Martins did provide information capable of establishing his unlawful conduct, he did not acknowledge or admit it in his application form, answering ‘no’ to the questions whether he had ever committed any offence against the laws of Ireland or whether he had ever engaged in any other activities that might indicate he may not be considered a person of good character, before making a statutory declaration that those particulars were true and that he conscientiously believed them to be true.

63. Third, the cover letter that accompanied Mr Martins’ naturalisation application (but which he did not disclose in mounting these proceedings) states expressly that Mr Martins was basing it on his period of residence within the State and was not seeking an ‘Irish associations’ waiver in that regard through his mother’s recent naturalisation as an Irish citizen. Yet, under s. 16A of the Act of 1956, a period of residence in the State cannot be reckoned for the purpose of a naturalisation application if it is in contravention of s. 5(1) of the Immigration Act 2004, whereby no non-national can be in the State other than in accordance with the terms of any permission given to him, and, under s. 5(2) of the 2004 Act, a non-national who is in the State in contravention of s. 5(1) is for all purposes unlawfully present in the State.

64. Thus, to accept Mr Martins’ application as including an informed admission of unlawful conduct would be to render the said statement a contradiction in terms, whereby in applying for a certificate of naturalisation based on his asserted good character and prior lawful residence in the State, Mr Martins was admitting that he was, and for several years had been, in criminal breach of the State’s immigration law and, hence, unlawfully resident here.

65. Fourth, as a mitigating factor, little or no weight could attach to an admission concerning not merely past unlawful conduct but also present – and anticipated future – unlawful conduct. Yet that is what Mr Martins’ application and the documentation accompanying it disclosed about his past, present and anticipated future employment in breach of the express terms of his residence permission. And Mr Martins now admits that, even after the submission of his application, he did indeed continue to work in breach of that permission until, almost nine months later, An Garda Síochána and the WRC conducted a joint inspection at his workplace, effectively bringing his employment there to an end.

66. Fifth, the careful language used by Mr Martins in his grounding affidavit stops short of any positive averment that the information provided in, and with, his naturalisation application was intended to be an admission of unlawful conduct.

67. For those reasons, on the preponderance of the evidence before me I am quite satisfied that Mr Martins and his legal representatives provided the information establishing that he was in breach of the conditions of his residence permission entirely unwittingly. Details of his various residence permissions were provided as evidence of his period of residence in the State and details of his employment record were provided to evidence his good character. Neither Mr Martins, his solicitor, nor the Minister appear to have grasped the significance of that combination of information for some time afterwards. It follows that, while the Minister’s initial failure to do so reflects no credit upon the naturalisation unit within the Department of Justice, Mr Martins’ unwitting disclosure of it does not entitle him to any credit either.

68. And that conclusion entirely undermines the other limb of Mr Martins argument on this point. In his statement of grounds, he points to the statement in the submission on his application prepared for the Minister on 3 October 2016 that ‘additional information was received advising that [Mr Martins] has been in breach of the immigration laws of the State since 2012.’ Mr Martins submits that, in view of the information that had already been disclosed in his naturalisation application, the information that he had been in breach of the immigration law of the State since 2012 was not ‘additional’ information in the sense of being ‘new’ information, so that the description and consideration of it as such amounted to a breach of his entitlement to constitutional justice.

69. The fact that there had been a joint inspection of Mr Martins’ workplace by An Garda Síochána and the WRC on 27 September 2016, which had separately established that Mr Martins had been working in breach of the conditions of his residence permission was certainly new information. Even if the ‘information’ concerned is more narrowly construed as being simply that Mr Martins was working in breach of his residence permission, the question of whether the term ‘additional information’ can be properly interpreted to mean ‘other information to the same effect’ or must be limited to mean ‘new or different information’ may be of interest to linguists but it is of no relevance here.

70. In bringing these proceedings, Mr Martins expressly admits that he was, and had been for some years, in breach of the employment prohibition condition of his residence permission when his application for naturalisation was submitted on 22 December 2015 and that he was still in breach of that condition more than nine months later on 27 September 2016 when an inspection was carried out at his workplace. The failure of the naturalisation unit in the Minister’s department in December 2015 to grasp what was obvious to a garda immigration officer reporting through that unit to the Minister in September 2017 did not exempt Mr Martins from the immigration law of the State. It did not confer an immunity upon him in respect of any breach of that law. It did not give rise to any estoppel against the refusal of his naturalisation application and it did not confer any right, entitlement or legitimate expectation upon him to the grant of that application.

71. The second piece of relevant information that Mr Martins contends the Minister should have considered, but didn’t, is that Mr Martins ceased working after the inspection of his workplace on 27 September 2016. In advancing that claim, Mr Martins again relies on a close grammatical analysis of the statement in the submission originally prepared for the Minister on 3 October 2016 that ‘additional information was received advising that the applicant has been in breach of the immigration law of the State since 2012.’ Mr Martins submits, in effect, that the use of the present perfect continuous verb tense, as opposed to the present perfect tense, operated to convey to the Minister that Mr Martins was still then in breach of the State’s immigration law when that submission was prepared on 3 October 2016, whereas his employment had ceased on the date of the inspection six days earlier.

72. The implication of that argument appears to be that the failure to consider giving Mr Martins, who by then had been in full time employment for over four years in continuous breach of the conditions of several successive residence permissions, appropriate credit for having ceased employment six days earlier amounted to a breach of his entitlement to constitutional justice.

73. I cannot accept that argument for several reasons. The first is that the uncontroverted evidence before the court establishes that the Minister made her decision having considered all of the documents on file, including the email from the Garda immigration officer who participated in the joint inspection of Mr Martins’ workplace. No sensible person who read that e-mail could have assumed that Mr Martins would have continued in his unlawful employment after that inspection occurred; or that his employer could or would have continued to unlawfully employ him; or that the WRC or An Garda Síochána would have permitted that to happen.

74. The second reason is the innate unlikelihood that the Minister would have rejected a common-sense interpretation of the documents overall, in favour of a strict grammatical analysis of the short submission she received from a departmental official. That submission was not drafted as legislation might have been and was hardly likely to have been construed in that way.

75. The third reason is that, even if the Minister had engaged in a strict grammatical analysis of that submission (which I do not accept) to the exclusion of a consideration in the round of all documents before her, I am satisfied that any resulting error would attract the application of the de minimis principle. The proposition that Mr Martins, who now expressly acknowledges that he had been in breach of the immigration law of the State for over four years before that unlawful course of conduct was discovered by a Garda immigration officer, might fairly have satisfied the Minister of his good character had it not been wrongly assumed (and I do not believe it was) that he remained in that unlawful employment a short period after that discovery, is not a feasible one.

76. The third matter that Mr Martins submits the Minister failed to consider is that he is the son of a naturalised Irish citizen. Once again, this submission does not get out of the blocks because the uncontroverted evidence before the court is that the Minister considered all documents on file which included a copy of the certificate of naturalisation obtained by Mr Martins’ mother.

77. But the fact that the argument was advanced on behalf of Mr Martins by his legal representatives is a matter of serious concern to the court for two reasons.

78. The first is that it runs directly counter to the express terms of the naturalisation application cover letter written by Mr Martins’ solicitors but not exhibited or otherwise disclosed on his behalf in these proceedings. The only possible relevance of the Irish citizenship of Mr Martins’ mother is that it allows him to claim Irish associations (through a blood relationship to an Irish citizen) under s. 16 of the Act of 1956. And yet, the cover letter clearly stated that Mr Martins’ application was based on his period of residence in the State and not on his Irish associations.

79. For a solicitor to expressly seek the Minster’s decision on an application on a specific basis and then to mount proceedings challenging the resulting decision for failure to consider it on another basis entirely is, to say the least, a questionable course of action. To do so without disclosing the relevant correspondence in mounting those proceedings raises an obvious issue of professional conduct. A solicitor has an overriding duty to the court to ensure the proper administration of justice is achieved and should not, knowingly or recklessly, mislead the court.

80. If that concern could be surmounted, it would next be necessary to consider whether it can be successfully argued that the Minister, having considered and refused Mr Martins’ application under s. 15 of the Act of 1956, was then obliged to go on to consider whether to accede to it under s. 16 by waiving the relevant good character requirement in exercise of the absolute discretion to do so where the applicant is of Irish associations.

81. That was one of the arguments advanced in A.B. v Minister for Justice [2009] IEHC 149 (Unreported, High Court (Cooke J), 18th June, 2009) where the unsuccessful applicant for naturalisation was a refugee who had, in the Minister’s view, failed to meet the ‘good character’ condition. Under s. 16(g) of the Act of 1956, persons with refugee status and stateless persons are eligible for the waiver of naturalisation conditions by the Minister, just as persons with Irish association are under s. 16(a).

82. Cooke J first noted that in that case, as in this one, it was not clear that the Minister had exercised the absolute discretion conferred on him under s. 15, because the Minister’s essential conclusion was that the applicant had failed to fulfil the good character requirement that is a condition precedent to doing so. Cooke J then continued (at para. 15):

‘In this case the Minister has relied on absolute discretion only to the extent that it could be said that, knowing the applicant to be a refugee, he implicitly declined to consider the possible exercise of a discretion under s. 16 to waive the “good character” condition. The Court is satisfied, however, for the reasons given by Costello J in [Pok Sun Shum v Ireland [1986] ILRM 593], the Minister cannot be compelled by court order to consider the exercise of a discretion to waive compliance with such a condition nor to provide a statement of reasons for a refusal to waive the condition.’
83. It must at once be recognised that, as the Supreme Court has made quite clear in Mallak, there is an obligation upon the Minister to provide reasons for a decision made in the exercise of his or her absolute discretion under s. 15 of the 1956 Act, but I can find nothing in the judgment of Fennelly J in that case (Denham CJ, Murray, O’Donnell and McKechnie JJ concurring) that identifies an obligation on the Minister, having made a decision that the conditions for the exercise of the s. 15 discretion have not been met and having provided reasons for that decision, to consider the waiver of the relevant condition or conditions and to provide a statement of reasons where such a waiver is refused.
84. Okornoe v. Minister for Justice [2016] IEHC 100 (Unreported, High Court (Humphreys J), 15th February, 2016) concerned an application for leave to seek judicial review of a decision to refuse naturalisation. The application for leave was based in part on the argument that the Minister had failed to consider the application under s. 16 of the Act of 1956, having refused it under s. 15 of that Act. Humphreys J addressed that argument in the following way:

“10. It is also submitted in the statement of grounds that the Minister failed to consider whether to exercise her discretion to dispense with the conditions of naturalisation. This submission involves the contention that a decision is arguably invalid because the Minister could have decided not to make it on the ground on which it was made. This would reduce a naturalisation decision to a box-ticking exercise whereby, as well as furnishing a ground for refusal, the Minister must also say something along the lines of “I have considered whether to waive this ground for refusal and have decided not to do so”, possibly complete with reasons for not having waived the original reason. The administrative decision-making process is not an echo chamber whereby any reasons for a decision must also be accompanied by a further statement as to why those reasons were not waived, and so on. The reason for the decision was that the Minister was not satisfied that the applicant was of good character. That is sufficient.”
85. The point was raised again in A.M.A. v Minister for Justice [2016] IEHC 466, (Unreported, High Court, 29th July, 2016) and was rejected once more by Humphreys J, citing the judgment of Cooke J in A.B. and, later, concluding (at para. 60):
‘Having decided to reject an application on particular grounds, a decision-maker is not then required to go on to consider separately and expressly whether to waive those grounds.’
86. In A.A. v. Minister [2017] IEHC 491 (Unreported, High Court (O’Regan J), 26th July, 2017), the unsuccessful applicant was the spouse of a successful refugee status applicant and naturalised Irish citizen, and the mother of two Irish born children. Her application failed on the basis that, for stated reasons relating to the circumstances surrounding her own unsuccessful refugee status application, the Minister was not satisfied that she was of good character. Presumably by reference to her husband’s Irish citizenship, which would have allowed her to invoke Irish associations, the applicant argued that the Minister should have gone on to consider whether to grant her a waiver under s. 16 of the ‘good character’ naturalisation condition under s. 15. O’Regan J followed the decision of Humphreys J in Okornoe in holding that the Minister was under no such obligation.
87. While I understand that the refusal of leave in Okornoe was overturned subsequently by the Court of Appeal in an ex tempore judgment, I do not know whether that decision was based on the arguability of the contention that there is an obligation on the Minister to consider a s. 16 waiver where an applicant meets one of the necessary conditions under that section but has failed to comply with one or more of the conditions under s. 15 or on the arguability of one of the other grounds raised by the applicant/appellant in that case. Even if it were the former, I have concluded – by reference to the analysis on which it is based and a consideration of the subsequent cases in which that analysis has been endorsed – that the decision of Humphreys J on that point is correct in law and that it is right to follow it.

88. In the written submissions filed on his behalf, Mr Martins disregards the decisions in A.B., A.M.A. and A.A. but invites the court to distinguish Okornoe on the basis that, in this case, the Minister’s official failed to bring the Irish citizenship of Mr Martins’ mother to the Minister’s attention in the submission prepared on the application and, hence, failed to apprise the Minister of Mr Martins’ eligibility for the application of a s. 16 waiver, whereas in Okornoe (and, indeed, the other cases already discussed) the Minister was aware of the applicant’s eligibility for a waiver but chose not to consider one.

89. That asserted distinction merely brings Mr Martins back to the other arguments he has raised and which I have already rejected because: (a) I am satisfied that the Irish citizenship of Mr Martins’ mother was brought to the Minister’s attention; (b) I am satisfied that Mr Martins requested, through his solicitors, that his application be considered under the s. 15 naturalisation conditions and not as an application for a waiver of any such condition he could not meet under s. 16; and (c) because, I find as a matter of law that, having decided to reject an application for failure to comply with one or more of the naturalisation conditions under s. 15, the Minister is not then required to go on to consider separately and expressly whether to waive the said condition(s) under s. 16.

90. In response to this limb of Mr Martins’ argument, the Minister raises the additional objection that it cannot in any event succeed because it is captured by the principle of waiver and acquiescence, since Mr Martins is fixed with the position adopted by his solicitors in the cover letter of 22 December 2015 that accompanied his application for naturalisation. While there is considerable force to that objection, I do not believe that it is necessary to rule on it, because of the other findings I have already made.
v. breach of the requirement to put adverse material as part of the entitlement to constitutional justice?
91. The second broad argument advanced by Mr Martins is that the Minister reached her decision on his application in partial reliance on information that he was not given an opportunity to comment upon or address, and thus did so in breach of his entitlement to natural and constitutional justice and fair procedures.

92. Mr Martins complains that, in the Minister’s letter to him of 27 September 2016, stating that his application was under review, the Minister failed to explain the reason for that review and did not invite him to make any submissions on it. More specifically, Mr Martins complains that he was never furnished with a copy of the Garda immigration officer’s e-mail to the Minister of 28 September 2016.

93. That e-mail, which the Minister has exhibited, principally deals with the inspection conducted at Mr Martins’ workplace on 27 September 2016. It records that the inspection disclosed that Mr Martins was listed as a full-time employee there, on the payroll since 15 August 2012, as confirmed by the company accounts manager, and that Mr Martins had renewed his residence permission with the immigration officer in a different locality five times during that period as a dependent family member prohibited from entering employment in the State. It goes on to record that Mr Martins had not informed the relevant immigration registration officer of his apparent change of address. Before concluding, it notes that Mr Martins’ employer showed the inspectors a copy of the letter of 6 September 2016 from the INIS to Mr Martins informing him the Minister then proposed to grant his application for naturalisation.

94. Mr Martins submits that he was denied the opportunity to make representations in response to the contents of that e-mail prior to the Minister’s decision to refuse his application for naturalisation and that this amounted to a breach of his entitlement to constitutional justice.

95. I can find no merit in that argument. The information that the applicant had been in full time employment with the company concerned for over four years in breach of the conditions of his residence permission was squarely within his own knowledge and he was at all material times perfectly at liberty to make any submission he may wish in that regard. As the recommendation that formed the basis of the Minister’s decision makes clear, it was Mr Martins’ disregard for the conditions attached to his permission to reside in the State and for the State’s legitimate interest in ensuring the integrity of its immigration system and laws that precluded the Minister from being satisfied that he was of good character, as one of the conditions necessary to permit the exercise of the Minister’s discretion to grant him a certificate of naturalisation. And Mr Martins’ expressly admits that the Minister’s information in that regard was entirely correct.

96. Mr Martins’ focuses his complaint about the failure to furnish him with a copy of this letter or to permit him an opportunity to make submissions on its contents on the other two matters it records. Yet there is no suggestion that the Minister’s decision was based to the smallest degree on Mr Martins evident failure to notify the relevant Garda immigration registration officer of his change of address or on his provision to his employer of a copy of the INIS letter to him of 6 September 2016, leaving aside the fact that he makes no attempt to explain how the latter proposition could ever be characterised as an adverse consideration of any kind. Further, Mr Martins has not contested the veracity of either of those statements in these proceedings.

97. Mr Martins cites no law in support of this aspect of claim. Tabi v Minister for Justice [2010] IEHC 109, (Unreported, High Court (Cooke J), 16th April, 2010), concerned a refusal to grant a certificate of naturalisation where the Minster was not satisfied of the applicant’s good character because he had four convictions for offences under the Road Traffic Acts. Although the applicant did not dispute the fact of those convictions he argued that the Minister had failed to adopt a fair procedure by failing to put them to him to enable him to comment or make representations before the Minister decided the application. Cooke J stated (at para. 9): ‘In the judgment of the Court there was no such obligation upon the Minister in the particular circumstance of an application of this nature.’

98. In Hussain v Minister for Justice [2013] 3 IR 257 at 266, Hogan J found that matters the subject of mere suspicion (i.e. that involved the applicant in that case coming to ‘Garda attention’ but without prosecution or conviction) should be put to an applicant, but expressed sympathy for the Minister’s argument that this would not be necessary where the applicant was, or ought to have been, already aware of those matters, before concluding that, in the particular circumstances of that case, the applicant could not reasonably have been aware of the need to address them. It is important to note that the applicant in that case made no admission of unlawful or criminal conduct in respect of the matters suspected, in stark contrast to the position of Mr Martins here.

99. In A.M.A., Humphreys J reviewed those two decisions in addressing the applicant’s complaint that their had been a failure to put adverse considerations to him, in breach of his entitlement to fair procedures and constitutional justice, before concluding :

’56. … In the absence of an applicant having somehow been misled as to what he or she needs to address, if a person is already aware of something (whether a Garda investigation or anything else) which it is reasonable to foresee could be taken into account, there can be no basis for suggesting that such matter needs to be put to the applicant prior to refusing an application, including a naturalisation application.
57. There is no obligation to correspond with a naturalisation applicant in relation to something of which he or she is already aware. As to whether there is such an obligation at all, insofar as there is a conflict between Tabi and Hussain, one might be inclined to prefer the Tabi approach because the degree of fair procedures required in the context of an absolute discretion in the grant of a privilege must be calibrated at a low level. A court might be reluctant other than in an exceptional case to find an obligation to correspond with a naturalisation applicant or give specific notice.’

100. The summary of relevant principles of law at the conclusion of that judgment includes the following: ‘The Minister is not obliged in the naturalisation process to give advance notice to an applicant of an adverse consideration of which the applicant is already aware.’ That principle was approved and applied by O’Regan J in AA v. Minister [2017] IEHC 491(at para. 25).
101. Applying it to the facts of this case, I am satisfied that Mr Martins has failed to establish any breach of his entitlement to constitutional justice or fair procedures.
v. Was there ever a useful purpose to be served by this litigation?
102. In a passage often quoted from an address given to law students in 1953, later included in a collection of papers entitled Jesting Pilate (Melbourne, 1965), Sir Owen Dixon, widely regarded as Australia’s greatest ever jurist, stated (at p. 131):

‘To be a good lawyer is difficult. To master the law is impossible. But I should have thought the first rule of conduct for counsel, the first and paramount ethical rule, was to do his best to acquire such knowledge of the law that he really knows what he is doing when he stands between his client and the court and advises for or against entering the temple of justice.’
103. The primary relief sought in this litigation is an order quashing the Minister’s decision of 13 March 2017 to refuse to grant Mr Martins a certificate of naturalisation. What would the grant of such an order accomplish, if Mr Martins were entitled to it (although I have found he is not)?
104. In the Minister’s letter to Mr Martins of 13 March 2017, he was informed that he could reapply for a certificate of naturalisation at any time, although he was advised that, were he to do so, he should give due regard to the Minister’s reasons for refusing his initial application.

105. In the context of the present application, Mr Martins expressly admits what the evidence before the Minister made clear; that in September 2016 he had been in continuous breach of the State’s immigration law for over four years. But Mr Martins has failed to engage with how that admission affects his eligibility for naturalisation, regardless of whether the present application should succeed or fail.

106. By way of brief recapitulation, it does so as follows. Section 16A(1) of the Act of 1956 provides that a period of residence in the State in breach of s. 5(1) of the 2004 Act cannot be reckoned towards the residence necessary to be eligible for the grant of a certificate of naturalisation. Under s. 5(1) of the 2004 Act, no non-national may be in the State other than accordance with the terms of a residence permission and, under s. 5(2) of that Act, a non-national who is in the State in contravention of subsection (1) is for all purposes unlawfully in the State.

107. Hence, the same issue of whether Mr Martins can comply with the residence requirements for naturalisation under s. 15 of the 1956 Act would arise in the event of the reconsideration of Mr Martins’ naturalisation application, were these proceedings successful, as must arise in the context of any further naturalisation application he may make.

108. Similarly, on the issue of good character (and leaving to one side for the moment the finding I have already made that the Minister was aware of these matters), if Mr Martins wishes to submit that the assessment of his character should be significantly affected to his credit by the fact that, in making his original application, he provided information from which his longstanding and continuing breach of the State’s immigration law could be readily inferred, despite making a sworn declaration in that application that he had not broken the laws of the State or engaged in any activity that might reflect adversely on his good character, it has been at all times open to him to do so. However, that could always – and still can – be done more easily and readily by making a fresh application for naturalisation, than by seeking an order from the court directing the reconsideration of Mr Martins’ original application through the more challenging and expensive medium of the present proceedings.

109. Further, if Mr Martins wishes to submit that the assessment of his character should also be significantly affected to his credit by the fact that his unlawful employment came to an end when a Garda immigration officer uncovered it during an inspection at his employer’s premises on 27 September 2016, then that too could be addressed more readily, economically and efficiently in the context of a fresh application for naturalisation.

110. Finally, these proceedings can accomplish nothing in relation to Mr Martins’ complaint that the Minister was not made aware of his mother’s Irish citizenship (leaving aside my earlier finding that the Minister was made aware of it), since the uncontroverted evidence before the court is that Mr Martins did not rely upon it in his original application. Mr Martins’ solicitors expressly wrote: ‘our client’s application is based on his residence not his Irish associations.’ Mr Martins left blank the box provided in the naturalisation application form for details of the Irish associations of a person claiming naturalisation on that basis. Even if Mr Martins could establish an entitlement to have his application reconsidered (and he has failed to do so), that entitlement could not extend beyond the terms of the application that he made.

111. For those reasons, even if I could identify a fatal procedural defect in the decision-making process in this case (and I cannot), I would exercise my discretion to refuse an order quashing the Minister’s decision because no meaningful or practical benefit would accrue to Mr Martins were I to grant one; Minister for Labour v Grace [1993] 2 IR 53. When I put that concern to Counsel for Mr Martins during argument at trial, he replied that his client was pursuing these proceedings in those circumstances because of a concern on his part that the Minister’s decision, if allowed to stand, might infect or taint the Minister’s decision on any subsequent naturalisation application he might make. However, I cannot accept the validity of that concern since, to do so, it would be necessary to disregard the presumption of regularity, encapsulated in the Latin maxim ‘omnia praesumuntur rite esse acta’, that would attach to any such decision.

112. I therefore conclude that no useful purpose was ever likely to be served by these costly and time-consuming proceedings.
vi. concerns about professional standards and conduct
113. The Court has an inherent jurisdiction to govern the conduct of proceedings before it to hold to account the behaviour of lawyers whose conduct of litigation falls below the minimum professional and ethical standards which must be demanded of all lawyers who appear before the courts; see, most recently, R (Sathivel) v Secretary of State for the Home Department [2018] EWHC 913 (Admin) (‘Sathivel’).

114. It would be dispiriting to think that we are approaching the same position in this jurisdiction as that which led to the development of the Hamid jurisdiction in the immigration and asylum courts and tribunals of England and Wales; see R(Hamid) v Secretary of State for the Home Department [2012] EWHC 3070 (Admin) (‘Hamid’).

115. In R (Akram) v Secretary of State for the Home Department [2015] EWHC 1359 (Admin) (‘Akram’), Sir Brian Leveson P stated:

‘1. It is not surprising that those who seek asylum or to regulate their immigration status in order to remain in this country will take whatever steps are open to them in order to do so. To that extent, they are vulnerable and those who practise in this area of the law must always be acutely conscious of the need for a thorough understanding of the law, fully appreciating that pursuing litigation without arguable grounds is potentially unprofessional. This Court has demonstrated its intention to take a proactive approach to such cases in order to enforce standards and to ensure that the time of the Court (not to say public and private funding of such litigation) is not wasted. That much is clear from the principles set out in the earlier decisions of this Court in Hamid [2012] EWCA 3070 (Admin) and Butt [2014] EWHC 264 (Admin). Similar statements of principle and concern have been made in the context of appeals and jurisdiction conducted before the Upper Tribunal (Immigration and Asylum Chamber) (“UTIAC”): see Okundu and Abdussalam v Secretary of State for the Home Department [2014] UKUT 377 (IAC).
2. This point, it seems, must be repeated. There is a pressing need for legal representatives acting for claimants in judicial review proceedings to do so in a professional manner both towards their clients but also towards the Court, bearing in mind that the paramount duty of all legal representatives acting in proceedings before courts is to the Court itself. The need for this warning to be taken seriously increases as the resources available to the Courts to act efficiently and fairly decreases. If the time of the Court and its resources are absorbed dealing with utterly hopeless and/or unprofessionally prepared cases, then other cases, that are properly advanced and properly prepared, risk not having devoted to them the resources that they deserve.’

116. While the seriousness of the matters of concern in each of the cases I have just mentioned was very much at the higher end of the scale, I am quite satisfied that the principles identified by Leveson P are of general application to the conduct of practitioners in the field of immigration and asylum law in this jurisdiction, as well as in England and Wales.
117. Before setting out the matters of concern to the court in this case, some further relevant principles of law must be identified. In his decision in the High Court in Adams v Director of Public Prosecutions [2001] 2 ILRM 401, Kelly J stated (at 416):

‘On any application made ex parte the utmost good faith must be observed, and the applicant is under a duty to make a full and fair disclosure of all of the relevant facts of which he knows, and where the supporting evidence contains material misstatements of fact or the applicant has failed to make sufficient or candid disclosure, the ex parte order may be set aside on that very ground.
…

The obligation extends to counsel. There is an obligation on the part of counsel to draw the judge’s attention to the relevant Rules, Acts or case law which might be germane to his consideration. That is particularly so where such material would suggest that an order of the type sought ought not to be made.’

118. As already noted, paragraph 5.19 of the Code of Conduct of the Bar of Ireland states:
‘In a civil case barristers must, at the appropriate time in the proceedings, inform the court of any relevant decision on a point of law and, in particular, of any binding authority or any applicable legislation of which they are aware and which the barrister believes to be on point whether it be for or against their contention.’
119. The Law Society of Ireland Guide for Good Professional Conduct for Solicitors, 3rd ed, provides (at para. 5.1) that:
‘A solicitor has an overriding duty to the court to ensure, in the public interest, that the proper and efficient administration of justice is achieved and should assist the court in the administration of justice, and should not deceive, or knowingly or recklessly, mislead the court.’
120. I understand that the application for leave to seek judicial review was made ex parte to O’Connor J as duty judge during the legal vacation on Friday, 9 June 2017. The concerns that I require the legal representatives for Mr Martins to address are, primarily, the following:
(i) Why was the application for leave not made promptly in term in the Asylum List, rather than during the Whit Vacation before the duty judge?
(ii) Was the duty judge informed of the jurisprudence on the limited requirements of constitutional justice applicable to naturalisation decisions? If not, why not?

(iii) Why were those principles not referred to or acknowledged in the written or oral submissions made on behalf of Mr Martins?

(iv) Was the duty judge informed of the decision of the Supreme Court in Ezeani? If not, why not?

(v) Why was reliance placed on the ex tempore judgment of the High Court in Ezeani in the written submissions made on behalf of Mr Martins without acknowledging that the judgment was subsequently reversed by the Supreme Court.

(vi) Was the duty judge given to understand that rather than the limited requirements of fair procedures attendant upon the naturalisation application process, the more extensive requirements of fair procedures applicable to tribunal hearings governed the Minister’s decision in this case? If so, why?

(vii) Was the duty judge informed of the provisions of s. 16A of the Act of 1956 and of s. 5 (1) and s. 5 (2) of the 2004 Act? If not, why not?

(viii) Why was no reference made to those provisions in the written and oral submissions made on behalf of Mr Martins?

(ix) Was the attention of the duty judge drawn to the fact that the applicant had made a sworn declaration that he had not committed any offences against the law of Ireland and had not engaged in any other activities that might indicate he might not be considered a person of good character? If not, why not?

(x) Why was the cover letter of 22 December 2015 from Mr Martins’ solicitors to the Minister not exhibited by Mr Martins in these proceedings?

(xi) Was the statement in that letter that ‘our client’s application is based on his own residency not his Irish associations’ brought to the attention of the duty judge? If not, why not?

(xii) Was the attention of the duty judge drawn to the fact that Mr Martins had left the box provided on the naturalisation application form for details of any Irish associations relied upon blank? If not, why not?

(xiii) Why was no reference made in the oral or written submissions made on behalf of Mr Martins to the established line of authority that the Minister is not obliged in the naturalisation process to give advance notice of an adverse consideration of which the applicant is already aware? Was the duty judge apprised of that line of jurisprudence? If not, why not?

121. To assist in the resolution of these question, in the exercise of the inherent jurisdiction of the court and, insofar as may be necessary, pursuant to the terms of Order 123 of the Rules of the Superior Courts, I will order the production of a transcript of the hearing of the application for leave that took place before O’Connor J on 9 June 2017 and the provision of a copy of that transcript to each of the parties and to the court.
Conclusion
122. For the reasons I have given, the application is refused. Further, I require the parties and, in particular, the legal representatives for the applicant to address the court on the extent to which these proceedings are captured by the principles identified by Cooke J. in O.J. v Refugee Applications Commissioner [2010] 3 IR 637 and, more particularly, on whether this is an appropriate case in which to make a wasted costs order under O. 99, r. 7 of the Rules of the Superior Courts. Still further, I require the legal representatives for the applicant to address the court on the issues of professional conduct identified above.

123. I will hear the parties on the appropriate directions in that regard.

 

 

A.Q. (Pakistan) v The Minister for Justice and Equality & ors

 

(Approved) [2018] IEHC 276 (19 April 2018)

Page 1 ⇓THE HIGH COURT[2018] IEHC 276JUDICIAL REVIEW[2011 No. 1052 J.R.]BETWEENA.Q. (PAKISTAN)ANDAPPLICANTTHE MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERALRESPONDENTSJUDGMENT of Mr. Justice Richard Humphreys delivered on the 19th day of April, 20181. The applicant applied for asylum in 2005. That application was rejected in February, 2006. A deportation order was made on 21stSeptember, 2011 following a refusal of a subsidiary protection application on 15th July, 2011. The applicant was deported on 24thNovember, 2011.2. I have heard helpful submissions from Mr. Ian Whelan B.L. for the applicant and Mr. Anthony Moore B.L. for the respondent.Relief sought3. The only substantive relief sought is certiorari of the subsidiary protection refusal and the deportation order. The only challenge tothe latter order is that the subsidiary protection decision was flawed. The statement of grounds involves a modest 37 separategrounds. Mr. Whelan formally moved the legalistic points which I previously rejected in N.M. v. Minister for Justice and Equality[2018] IEHC 186 [2018] 2 JIC 2710 (Unreported, High Court, 27th February, 2018) and F.M. v. Minister for Justice and Equality (Unreported,High Court, 17th April, 2018), decisions that I follow here. That leaves two fact-specific complaints which I will now address.Ground 3 – analysis of internal relocation4. Internal relocation only arises as a critical issue if there is a risk of serious harm. This is dealt with by reg. 7 of the EuropeanCommunities (Eligibility for Protection) Regulations 2006 (S.I. No. 518 of 2006) which in turn reflects art. 8 of the qualificationdirective 2004/83/EC. The thrust of the decision is that the applicant is not at risk in Pakistan and that his account is not credible.There is passing reference to him being free to relocate at p. 21 of the decision. That reference is possibly not the most pertinent. Itwould be for the best if any question of the internal protection alternative would be separately considered by explicit reference to art.8 of the directive.5. However, even assuming in favour of the applicant that the internal relocation analysis is not sustainable, that does notcontaminate the overall decision taken in the round. Mr. Whelan relies on the judgment of MacEochaidh J. in M.A. v. Minister forJustice and Equality [2015] IEHC 287 (Unreported, High Court, 6th May, 2015) at para. 27 that “In E.I. [v. Minister for Justice,Equality and Law Reform [2014] IEHC 27 (Unreported, High Court, 30th January, 2014)], I stated the view that every internalrelocation appraisal was required to be conducted in accordance with these basis (sic) rules even where the decision maker wasredundantly deciding internal relocation having found that an applicant did not have a well founded fear of persecution … or ofserious harm”. If this means that any consideration of internal relocation should comply with art. 8 of the qualification directive then Isee no major problem with that approach. If however it means that a consideration of internal relocation that is not so compliant isfatal to the validity of an otherwise appropriate decision that is based on an independent ground then respectfully one must take theview that such an interpretation does not seem to be sustainable. That interpretation of the judgment cannot be good law if it meansthat an error in an obiter aspect means that the main thrust of a decision that is otherwise valid would have to be quashed. Rather Iwould follow the approach of Cooke J. in S.B.E. v. Minister for Justice and Equality [2010] IEHC 133 (Unreported, High Court, 25thFebruary, 2010) at para. 19 that where credibility is rejected “the issue of internal relocation is irrelevant unless that primary findingis shown to be defective”. Reading the decision as a whole, it is based on other grounds. The applicant’s credibility is rejected, stateprotection is available and the applicant was found not to be at risk of harm. Any alleged infirmity in the internal relocation option isnot fatal to the decision.Ground 35 – failure to deal appropriately with the issue of past persecution6. Mr. Whelan relies on the judgment in S.N. v. Minister for Justice and Equality (Unreported, High Court, 20th March, 2018) but thatwas a case where there was a finding of past persecution or serious harm. If there is no such finding there is no obligation to go on toconsider whether past harm could give rise to risk of future harm under reg. 5(2) of the European Communities (Eligibility forProtection) Regulations 2006 (S.I. No. 518 of 2006). Here there is no such finding. The Minister says that the “applicant’s claimabove” may constitute serious harm but that there are credibility issues with that claim. That is not a finding of past serious harm,quite the reverse; it is a rejection of the applicant’s account. Therefore further consideration under reg. 5(2) of the 2006 regulationsdoes not arise.Order7. The application is dismissed.

K.R.A. & anor -v- Minister for Justice and Equality

[2016] IEHC 289 (12 May 2016)

Judgment
Title:
K.R.A. & anor -v- Minister for Justice and Equality
Neutral Citation:
[2016] IEHC 289
High Court Record Number:
2015 299JR
Date of Delivery:
12/05/2016
Court:
High Court
Judgment by:
Humphreys J.
Status:
Approved
Neutral Citation: [2016] IEHC 289

THE HIGH COURT
JUDICIAL REVIEW

[2015 No. 299 J.R.]

 

BETWEEN

K.R.A. and B.M.A. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND K.R.A.)
APPLICANTS
AND
THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 12th day of May, 2016
1. The first named applicant was born in Nigeria in 1975. She married Mr. F.A., and had three children. In early 2008, she came to Ireland while pregnant leaving her husband and those children behind in Nigeria.

2. On 10th March, 2008 the first named applicant sought asylum in the State. This was in due course rejected by the Refugee Applications Commissioner.

3. On 14th March, 2008, the second named applicant was born to the first named applicant in Ireland.

4. On 27th March, 2009, she was notified by the Minister of an intention to make deportation orders. Solicitors on her behalf applied for subsidiary protection on 29th April, 2009. That application was rejected on 9th November, 2009.

5. Deportation orders were made against both applicants on 18th November, 2009, and the first named applicant was required to present herself to the Garda National Immigration Bureau (G.N.I.B.) on 8th December, 2009. This she failed to do, and instead went into hiding from the G.N.I.B. for almost five years.

6. On 23rd October, 2014, while evading the G.N.I.B., she made a s. 3(11) application for revocation of the deportation orders. She was informed on 28th October, 2014 that this would not be considered until she presented herself. She then did so but was arrested and detained. That detention continued until her release pursuant to Article 40 of the Constitution, by Eagar J.: A. v. Governor of the Dóchas Centre [2014] IEHC 643 (Unreported, High Court, 19th December, 2014), on the grounds that the Minister was not entitled to imposed such a condition on the consideration of the s. 3(11) application. I might pause to observe that rule of law considerations might suggest that the more significant illegality in the case, that one might have thought needed to be addressed prior to favourably considering any such application, was the disregard by the first named applicant of her legal obligations, but the correctness or otherwise of the aforementioned decision does not fall to be considered in the present application.

7. On 28th April, 2015, Article 42A of the Constitution came into force.

8. Shortly, thereafter on 18th May, 2015, the Minister decided to refuse to make an order under s. 3(11).

9. On 3rd June, 2015, the applicant was granted leave to bring the present proceedings by Faherty J., who also granted an injunction restraining deportation.
Is the respondent entitled to make a delayed pleading objection having failed to do so in a timely manner?
10. I must begin by recording certain pleading objections taken at a very late stage on behalf of the respondent. This arose in the following manner. At the hearing of this matter, Anthony Moore B.L. represented the respondent. After Ms. Rosario Boyle S.C. (who appeared with Mr. Anthony Lowry B.L., for the applicant) had outlined her submission, she says that I asked Mr. Moore whether there was any pleading objection being taken with any of the points sought to be raised and I was told that there was not. I accept her account of the matter which accords with my own recollection and to reinforce that conclusion, her solicitor has a note to that effect. It turns out that the respondent’s solicitor also has a note consistent with that conclusion, albeit that it is said to record that there was no pleading objection to the Article 42A argument being made. Furthermore, Mr. Moore did not positively disagree with this account, and indicated merely that as some time had passed since the hearing he could not specifically recall. Nor did he recall making any pleading objection during the hearing (quite understandably, since none was made). After all matters had been argued, judgment was reserved. In the course of preparing judgment I identified some additional materials that had not been opened at the hearing and I listed the matter for mention, having first, through my judicial assistant, given the parties a list of materials which were under consideration as well as a list of the questions which appeared to arise. The intention was to assist the parties in giving specific notice of any such material. Whether such an approach is in fact necessary or appropriate may be a matter of opinion and at best is a matter of degree. The one thing that such an approach does not amount to is an invitation to re-argue the case. No such list of material could be exhaustive in any event because further cases may come to the court’s attention between the furnishing of such a list and the giving of judgment. One cannot be obliged to engage in an endless iterative process. Any such information to parties is given in a spirit of assistance rather than obligation.

11. When the matter was listed for mention, I was informed on behalf of the respondent that Mr. David Conlan Smyth S.C. was now leading Mr. Moore that a further two hours were requested for additional oral submissions. I did not consider that such an expenditure of time was appropriate in the circumstances and afforded a somewhat shorter period for oral submissions on 9th May, 2016. I do not think that the respondent has been in any way disadvantaged by having to comply with such time limits. I was also given supplementary written submissions by both sides. In the respondent’s submissions, objection was taken for the first time to a number of the applicant’s points on the grounds that they did not come within the order granting leave, made by Faherty J., in particular that the applicants were not entitled to rely on the failure to consider the right to free primary education and the failure to consider the child’s application separately.

12. On further discussion, Mr. Conlan Smyth accepted that the latter complaint is in fact pleaded (ground I) and withdrew that objection. The objection regarding the alleged omission to plead a failure to consider the right to free primary education was maintained.

13. There is a distinction between a party making a belated substantive submission as to the law (for example, by unearthing an important authority which it had overlooked) and a party making a belated pleading objection to a point which has already been argued in the case. The former may sometimes be acceptable, even appropriate. The latter is in a different category.

14. If a party has a pleading objection, it must make that objection in a clear and timely manner so that a clear ruling can be made and the hearing can proceed on a definite basis. No such objection was made during the original hearing. The fact that I have afforded the parties a brief opportunity to say anything further in the light of additional materials does not set everything at nought and allow a second bite of the cherry on any and all issues. It is far too late to take any pleading objection at such a late stage, even if there had been no positive representation by the respondents during the hearing. To allow such an objection at a late stage when it was never made or pressed before would be to create a potentially significant obstacle to the procedure adopted in this case, namely the opportunity given to the parties to comment on a list of cases and questions. Even in the absence of the express representation which was given to me at the hearing in this case, this is certainly a situation where silence at the hearing as to any objection amounts to acquiescence (see e.g., R. v. Szypusz [2006] EWCA Crim 1552 (20th June, 2006) as discussed in Szypusz v. U.K. (Application no. 8400/07) European Court of Human Rights, 21st September, 2010: no objection by counsel (para. 14) was equated to “consent” (para. 32)).

15. Furthermore in this particular case, the respondent had plenty of notice of the points being made by reason of their being outlined in e.g., para. 29 of the applicants’ written legal submissions (undated, but replied to by undated respondent’s submissions, also undated, but filed on 3rd February, 2016). Including a point in submissions does not mean it does not have to be pleaded, but the fact that written notice is given in submissions can only reinforce an obligation on respondents to make a pleading objection in a timely manner. Mac Eochaidh J., in O.I. v. Refugee Appeals Tribunal [2015] IEHC 408 (Unreported, High Court, 17th June, 2015) was of the view that procedural objections by respondents to judicial review applications should be brought to a head rapidly rather than simply being pressed at the hearing. But as I pointed out in B.W. v. Refugee Appeals Tribunal (No. 1) [2015] IEHC 725 (Unreported, High Court, 17th November, 2015), going somewhat further than that, even if an objection is taken in replying submissions, the very fact that the respondent is thereby on notice of the substantive point is itself capable of negativing any prejudice to a respondent that might otherwise arise.

16. The eleventh-hour objection made in this case to the applicants’ pleadings is not one I can accept for a number of reasons:-

(i) If the court during a hearing seeks to identify if there are any pleading issues, this is a step in pursuit of its obligation of case management. The reply to that question puts in place a framework for any subsequent steps, such as determining whether any objection is well founded and if so dealing with any consequential applications. For a party to reserve to itself the right to launch a pleading objection after the end of the hearing is not compatible with the court’s case management function.

(ii) No challenge was made during the hearing on behalf of the respondent to the entitlement of the applicants to advance any of their points. The hearing proceeded and concluded on that basis. Whether one characterises it as based on estoppel, waiver, or otherwise, it is simply not open to a party to launch such a challenge after the end of the hearing.

(iii) A fortiori, it is not open to a party to launch such a challenge where it has positively represented during the hearing that there is no pleading objection, as here.

(iv) The supplementary submissions launched by the respondent after the hearing were in a context where I had given the parties an opportunity to make any final comment on a list of cases and questions, shortly prior to judgment, not for the purposes of re-opening the hearing generally in order to launch radically new points or pleading objections which could have been taken earlier. A facility offered by the court should not be used for a purpose for which it was not and could not have been intended.

(v) Those supplementary submissions curiously did not acknowledge that the respondent had not made a pleading objection during the hearing.

(vi) No real explanation for the change of course was put forward by the respondent.

(vii) By failing to take a pleading objection in a timely manner, a party induces the other party and the court to take certain steps in reliance on that omission. Submissions are made and replied to, the court engages in a sometimes lengthy process of reading, research and contemplation, a draft judgment is prepared, and on occasion (as here) it becomes apparent to the court that a point or points in the case also have relevance to other cases pending before the court. In the latter event, the giving of judgment becomes part of a wider series of steps which affect other cases, and the timescale for judgment may be dictated or made more urgent accordingly. That is what happened in this case. It is one thing for a party to belatedly raise a point of substantive law, which may be excusable, permissible, or even necessary in a particular case. But for a party to belatedly raise a previously unmade pleading objection is somewhat like seeking to take back a move in chess; it is to seek, shortly before the court intends to give judgment, to revisit a basic assumption put in place during the hearing itself and thereby to put in question such arrangements and the steps taken by the court since the hearing concluded.

(viii) The fact that in the present case this objection was first made only a matter of days before the court intended to give judgment deprived the applicants of any meaningful opportunity to apply to amend the pleadings if such were necessary. I have to conclude that such an approach would be exceptionally unfair to the applicants and clearly constitutes irremediable prejudice. It is not open to a party to take a step which causes injustice to another party even if it prima facie has a legal right to do so.

(ix) I pointed out the difficulty to the respondent on 9th May, 2016, but the objection was persisted in. In what turned out to be a futile attempt to give the respondent a graceful way out, I invited the respondent to consider the matter overnight and listed it again for 10th May, 2016, when again I was told that following instructions, the objection was being maintained. I could not ascertain any clear reasons for this course being taken other than that the respondent thought the objection was a good point. I hope I am not simplifying to the point of doing an injustice to the respondent but the stance being taken is not far short of an assertion of a right to say what one likes, when one likes. There is no such right. An approach that assumes an entitlement on a party to launch pleading objections after the conclusion of the hearing is not compatible with the obligation of the court to conduct the proceedings in an ordered manner, and in particular its entitlement to clarify the scope of the issues by way of management of the hearing, and to invite the parties to comment on particular further authorities without thereby exposing the case to being re-opened de novo.

(x) Before the hearing the respondent did in fact take a pleading objection to one initial point made by the applicants which was not pursued, relating to non-publication of policies (see pp. 1 to 4 of the respondent’s submissions filed on 3rd February, 2016). That is the only matter to which a pleading objection is taken. It is not permissible to “drip-feed” objections to other elements of the case pleaded by launching them at a later stage of proceedings.

17. It is not the case that this approach is unduly unfavourable to respondents. It cuts both ways. An applicant may, it is true, think of a new point on the morning of a hearing that it has not flagged in pleadings or written submissions, but so may a respondent.

18. As regards pleading objections, those too cut both ways. A respondent may object that an applicant has not pleaded a particular submission, but an applicant may also object that a ground on which the application is resisted was not pleaded in the statement of opposition.

19. A requirement that pleading objections be made at the latest during the hearing itself (and preferably at the outset of the hearing) is neutral as between the parties.

20. It is true that the court may sometimes come to a point at a late stage, even after a hearing has concluded. In J.K. (Uganda) v. Minister for Justice and Equality [2011] IEHC 473 (13th December, 2011), Hogan J. took an important point of his own motion after having reserved judgment, and reconvened the hearing to invite further submissions on it. The court has to be given more latitude than the parties given its distinct role, and indeed given that the parties have been living with the case for some time whereas the court comes relatively new to it. The parties are not entirely shut out either, for example if a party discovers an authority that is directly in point after judgment has been reserved, it can and normally should bring that to the court’s attention. If there is a significant change in circumstances, such as an intervening legal development (D.P.P. v. Murphy [2015] IECA 300 (Court of Appeal, Birmingham J, 5th November, 2015), the party may also seek to re-open the hearing. The categories in which this can be done are not closed. But they apply to both sides, so there is no discrimination against respondents in this regard. However wide such categories are, they do not and could not include a situation where a party simply changes its mind as to whether to press a pleading objection, or even has mistakenly failed in a timely manner to press a pleading objection which it originally intended to press.

21. In any event, even if the pleading objection had been properly before me, I would have rejected it. The educational rights of the second named applicant are pleaded. Reference is made in the grounds to both Article 42 (ground V) and 42A (grounds II, III and V). These provisions necessarily encompass the right to free primary education.
Does s. 5 of the Illegal Immigrants (Trafficking) Act 2000 apply?
22. An issue immediately arises as to whether this application comes within the scope of s. 5 of the Illegal Immigrants (Trafficking) Act 2000.

23. Prior to the amendment of that section in 2014, there was no question but that a refusal to revoke an order under s. 3(11) of the Immigration Act 1999 was not covered by s. 5: Cosma v. Minister for Justice, Equality and Law Reform [2007] 2 IR 133 (McCracken J. (Kearns and Macken JJ. concurring)).

24. Section 5(1)(m) of the 2000 Act as amended by s. 34 of the Employment Permits (Amendment) Act 2014, now provides that the procedures of that section apply to proceedings challenging “an order under s. 3(11)”. This issue was first identified (so far as I am aware) by Mr. Michael Conlon S.C. late last year in another case before me but in the end did not have to be decided in that case. However, I must address it now (rather than leave it to the Court of Appeal to decide in the first instance) because I need to know whether I can or should entertain any application for leave to appeal at the suit of the losing party in the present proceedings.

25. The respondent in supplementary submissions submits (for the first time) that this issue does not arise as leave has already been granted. This unfortunately misses the point that the entertaining of an application for, and the grant or otherwise of, leave to appeal, is a matter for the High Court. This is an issue that requires a decision from this court. Mr. Conlan Smyth suggests that there might not be an appeal so the matter is as he puts it “moot”. Ms. Boyle submits, correctly, that it would essentially be unfair to the losing party not to know whether a leave requirement applies, as one could not fully evaluate the next move otherwise.

26. I accept the submission that it would be unfair to the losing party not to clarify this matter in this decision. But the respondent is in any event estopped from taking such an eleventh-hour objection on the separate ground that during the hearing Mr. Moore made an issue of the scope of s. 5, did the running on it, invited the court to decide on the issue of whether s. 5 applies in a manner favourable to the respondent, and did not press any suggestion that the matter was “moot”. Indeed he delivered a 7-page written submission on the issue of s. 5 (undated) which does not contain any suggestion that I should not decide the issue. The eleventh-hour complaint being made by Mr. Conlan Smyth that this point is “moot” is just radically inconsistent with the way the State approached this matter at the hearing.

27. In Smith & Ors. v. Minister for Justice and Equality [2013] IESC 4 (Unreported, Supreme Court, 1st February, 2013), it seems to have been assumed rather than decided that s. 5 did not apply to a challenge to a s. 3(11) refusal (see judgment of Clarke J. at para. 1.3). The principle of “a point not argued is a point not decided” applies. The point is therefore in my view res integra.

28. The appropriate approach to interpreting s. 5(1)(m) of the 2000 Act is dictated by s. 5 of the Interpretation Act 2005, which, leaving aside “penal” cases, provides that if the provision “on a literal interpretation would … fail to reflect the plain intention of … the Oireachtas”, then “the provision shall be given a construction that reflects the plain intention of the Oireachtas … where that intention can be ascertained from the Act as a whole”. That section to some extent reflected pre-2005 caselaw which also allowed a departure from a literal interpretation where the parliamentary intention would otherwise be defeated (see Luke v. Inland Revenue Commissioners [1963] AC 557; Nestor v. Murphy [1979] I.R. 326 (Henchy J. (Kenny and Parke JJ. concurring)).

29. It seems to me that the terms of s. 5 of the 2005 Act require a four stage process, in which the court must ask the following questions:

(i) What is the literal interpretation of the provision?
(ii) Can the plain intention of the Oireachtas be ascertained from the Act as a whole?

(iii) If so, does the literal interpretation fail to reflect the plain intention of the Oireachtas?

(iv) If so, can the provision be given a construction that reflects that intention?

30. I will now therefore address those questions in sequence.
What is the literal interpretation of the provision?
31. One must begin with the literal meaning of the Act, which remains the “primary rule of statutory interpretation” (National Roads Authority v. Celtic Roads Group (Dundalk) Ltd. [2011] IEHC 71 per Kelly J.) even after s. 5 of the 2005 Act, as that section itself envisages. One can only go on to consider the impact of s. 5, if any, after first establishing the literal meaning.

32. Refusal to make an order is not “an order”: see E.A.I. v. Minister for Justice, Equality and Law Reform [2009] IEHC 334 (Unreported, High Court, Cooke J., 9th July 2009). “Order” in this context is a term of art and connotes a particular type of statutory instrument, not an administrative decision (see the definition of “statutory instrument” in s. 1(1) of the Statutory Instruments Act 1947; definition of “instrument” in s. 1 of the Statute Law Revision Act 2015). In this regard, the decision of Hardiman J. (Denham, Murray, McGuinness and Fennelly JJ. concurring) in E.M.S. v. Minister for Justice, Equality and Law Reform [2004] 1 IR 536 (holding that refusal of an application for permission to make a second asylum claim was a “refusal under section 17” within the meaning of s. 5(1)(k) of the 2000 Act) lends some support to the use of a literal interpretation in the context of s. 5 of the 2000 Act, although that was a case in which the Interpretation Act 2005 did not feature.

33. On a literal interpretation, it is therefore clear that s. 5 would only apply to a challenge to the making of an order, rather than to a challenge to a refusal to revoke a deportation order. While it is tempting and indeed generally more comfortable to stop there, s. 5 of the 2005 Act requires the court to go on to consider whether that literal interpretation should be departed from.
Can the plain intention of the Oireachtas be ascertained from the Act as a whole?
34. It is important to distinguish between to senses of what is meant by “the plain intention of the Oireachtas” in this context. The wider sense is to ask what is the intention of the Oireachtas regarding s. 5 of the 2000 Act as a whole. The narrower, and for present purposes more relevant question, of what is meant by s. 5(1)(m) in particular.

35. Starting de bene esse with the parliamentary material (albeit that a perusal of such material is not in principle necessary to ascertain the parliamentary intention: Molyneaux v. Ireland [1997] 2 I.L.R.M. 241 at 244 per Costello P.), the current s. 5 was introduced by way of Dáil report stage amendment to the Employment Permits (Amendment) Bill 2014. It therefore did not feature in any manner in the Explanatory Memorandum to the Bill as initiated. When moving the amendment, the Minister in charge of that Bill did not, from an examination of the Dáil Debates, have occasion to explain the object and purpose of the provision, or indeed say anything whatever beyond formally moving it. Rightly or wrongly (but certainly unhelpfully from the point of view of ascertaining the parliamentary intention), Dáil procedure permits even major amendments to be simply formally moved without the necessity for discussion or explanation (even in written form, which could be added to the official report). Not only did the Minister not set out details of the amendment but no other members contributed to the debate on the amendment either. There is therefore at that level a complete absence of material that could assist the court.

36. More broadly, s. 5 is so riddled with what appears to me to be omission and arbitrariness that it is not possible to discern a coherent policy from the section as a whole. If one contrasts the scope of the section with, for example, the High Court Practice Direction HC56 which requires that “[a]ll proceedings by way of judicial review directed at decisions, proceedings or measures in the areas of asylum, immigration, nationality and citizenship (including European Union citizenship)” should be brought in the Asylum List, one can more readily appreciate the difficulties involved in a highly specific list as opposed to a more purposive category as set out in the practice direction.

37. Subject to hearing further argument in any given case in which an issue might arise, s. 5 does not appear to capture a host of decisions similar to those that are included such as the following:-

(i) decisions under the European Union (Dublin Systems) Regulations 2014 (S.I. No. 525 of 2014);
(ii) decisions in relation to visas;

(iii) decisions in relation to naturalisation under s. 15 of the Irish Nationality and Citizenship Act 1956;

(iv) decisions in relation to permissions under the European Communities (Free Movement of Persons) (No. 2) Regulations 2006 (S.I. No. 656 of 2006), or residence cards under reg. 7 therein;

(v) decisions in relation to restricting rights of residence under regs. 19 or 22 of the 2006 regulations;

(vi) decisions under reg. 21 of the 2006 regulations to review a decision as to an entitlement to enter or reside in the State;

(vii) decisions under the European Communities (Free Movement of Persons) Regulations 2015 (S.I. No. 548 of 2015) corresponding to those under the 2006 regulations that are not covered by s. 5;

(viii) decisions on family reunification under s. 18 of the Refugee Act 1996;

(ix) decisions on family reunification under regs. 25 and 26 of the European Union (Subsidiary Protection) Regulations 2013 (S.I. 426 of 2013);

(x) decisions on attachment of conditions to or amendment of the terms of a permission, as distinct from a refusal of permission under s. 4 of the Immigration Act 2004 (see my decision in Saleem v. Minister for Justice and Equality [2016] IEHC 99 (Unreported, High Court, 15th February, 2016 at paras. 3 and 4);

(xi) decisions in relation to notices under s. 14 of the Immigration Act 2004.

38. In addition, s. 5 is silent as to the extent to which it requires leave to appeal the following elements of a decision of the High Court, leaving those matters (for unclear reasons) to judicial determination:-
(i) orders in actions seeking to stay the effect of a decision (as opposed to challenging its validity);
(ii) interlocutory injunctions;

(iii) decisions on extension of time (which do not require leave to appeal: A.B. v. Minister for Justice, Equality and Law Reform [2002] 1 IR 296 at 303 to 304, per Keane C.J. (Denham, McGuinness, Geoghegan and Fennelly JJ. concurring);

(iv) grant or refusal of amendments;

(v) decisions on motions to dismiss proceedings pursuant to the inherent jurisdiction of the Court (which do not require leave: A. v. Minister for Justice and Equality [2013] 2 I.L.R.M. 457 (Denham C.J. (Murray and Clarke JJ. concurring)));

(vi) decisions on costs (which require leave to appeal: Browne v. Kerry County Council (Unreported, Supreme Court, ex tempore, 25th March, 2014); Rowan v. Kerry County Council [2015] IESC 99 (Unreported, Supreme Court, 18th December, 2015, Dunne J. (McKechnie, MacMenamin, Laffoy and Charleton JJ. concurring)));

(vii) other interlocutory or ancillary decisions.

39. I should emphasise that the mention of a particular category of order on this list is not an indication that compliance with s. 5 is not required. It is simply an indication that the Oireachtas has not seen fit to expressly clarify whether or not s. 5 applies.
40. It is simply not possible to discern a clear policy rationale that would make sense of the section as a whole having regard to the significant omissions in it.

41. However, that is not the end of the matter because the real question is what is the intention of the Oireachtas in relation to s. 5(1)(m) in particular. The one thing that the measures included in the section have in common is that they are all negative decisions affecting non-nationals. Many of them could also have the effect of seeking to hold up the removal of non-nationals from the State. The section falls within the well-established public policy objective that issues regarding the validity of administrative decisions should be determined promptly (Re Article 26 and the Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360 at 392 per Keane C.J., for the court). The categories of decision concerned do not generally apply to non-nationals whose applications have been granted (Illegal Immigrants (Trafficking) Bill 1999 at p. 401). The decisions covered by s. 5 are those “taken for the purpose of controlling the State’s borders” (T.D. v. Minister for Justice, Equality and Law Reform [2014] IESC 29 (Unreported, Supreme Court, 10th April, 2014) per Murray J. (Denham C.J., O’Donnell and McKechnie JJ. concurring) at para. 134).

42. Read in that light, the intention of s. 5(1)(m) is plain. It can only be intended to apply to a negative decision which would have the effect of holding up the removal of a non-national, the subject of a deportation order, from the State.
Does the literal interpretation fail to reflect the plain intention of the Oireachtas?
43. The only circumstance in which an “order” under the provision would realistically be challenged if the Minister made an order amending a deportation order, to which an applicant did not agree. This would presumably be something of a rarity. An order under s. 3(11) (that is, normally speaking, an order revoking a deportation order made under s. 3(11)), would generally be favourable to an applicant and thus unlikely to be challenged. The Supreme Court in the Illegal Immigrants (Trafficking) Bill 1999 case made the point that the section did not generally impinge on persons who were lawfully in the State (p. 401).

44. To afford para. (m) a literal interpretation would achieve no useful purpose. It would mean that the almost unheard-of situation of an amended deportation order would be the only decision under this heading which could be subject to the section. Refusal to revoke a deportation order would be subject to the usual three-month leave period with an unfettered right of appeal. Such an interpretation would deprive para. (m) of any real purpose or effect.

45. To that extent, and despite the lack of a coherent policy discernible in s. 5 as a whole, the conclusion that the wording of sub-s. (1)(m) on a literal interpretation fails to reflect the plain intention of the Oireachtas is inescapable.
Can the provision be given a construction that reflects that intention?
46. The respondent submitted that in the circumstances I should depart from the literal meaning in order to give effect to the plain intention of the Oireachtas.

47. It is important to bear in mind that there are limits to what can legitimately be done under the heading of construction or interpretation and that process cannot be pursued to breaking point. An acute discussion of how far a court can go by way of creative interpretation was presented in King v. Burwell 576 U.S. __ (2015), where Scalia J. (dissenting, with whom Thomas and Alito JJ. agreed) took the view that for the majority of the U.S. Supreme Court in that case to read the words “established by a state” as meaning “not established by a state” (slip op. at p. 1) was a step too far. However that was a case where the statute as a whole would have been severely impaired, possibly to the point of collapse, as Roberts C.J. emphasised, if a literal approach were taken. To that extent it seems to me that the interpretation favoured by the majority was broadly consistent with the approach mandated in this jurisdiction by the 2005 Act. Furthermore, it seems to me that the criticism made by Scalia J. was not altogether justified in that the majority read the words as meaning in substance “established by a state or the federal government”, which is not quite a complete negative of the original.

48. Under this heading, it is important to bear in mind the point made by Clarke J. (MacMenamin J. concurring) in Kadri v. Governor of Wheatfield Prison [2012] 2 I.L.R.M. 392 at para. 3.4 that the court can “engage in construction or interpretation rather than rewriting” and that in particular therefore that “it not only is necessary that it be obvious that there was a mistake in the sense that a literal reading of the legislation would give rise to an absurdity or would be contrary to the obvious intention of the legislation in question, but also that the true legislative intention can be ascertained. There may well be cases where it may be obvious enough that the legislature has made a mistake but it may not be at all so easy to ascertain what the legislature might have done in the event that the mistake had not occurred” (para. 3.6). The court cannot therefore “use (or perhaps abuse) a section which mandates a sensible or purposive construction to, in effect, rewrite the legislation by inserting a series of detailed measures to which the Oireachtas did not address its mind” (para. 3.10).

49. Is this such a case? I think not. The purposive interpretation which would uphold the intention of the Oireachtas is quite clear. It is to read the words “order under section 3(11)” as meaning “decision under section 3(11)”. This does not constitute a re-writing of the section in the Kadri sense although of course any departure from literal meaning can at one level be accused of being a re-writing. As Lord Reid recognised at p. 577 of Luke, any departure from the literal meaning “must do some violence to the words”. For that reason, it is not an answer to the application of s. 5 of the 2005 Act to say that it involves a “re-writing” of the legislation, because all departure from literal interpretation does that. I do not read the brief mention of re-writing in Celtic Roads as suggesting otherwise, because that was in a context where the literal meaning was held not to create an absurdity and not to engage s. 5 of the 2005 Act at all.

50. Therefore, reading s. 5(1)(m) of the 2000 Act as applicable to any “decision” under s. 3(11) rather than an order stricto sensu is the interpretation of the provision which s. 5(1) of the 2005 Act requires (rather than permits) me to adopt (“the provision shall be given a construction…”, emphasis added).

51. It is true that, the context here is the constitutional right of appeal from any decision of the High Court to the Court of Appeal under Article 34.4.1°. Any restriction of that constitutional right should be in clear terms (see People (Attorney General) v. Conmey [1975] I.R. 341 per O’Higgins C.J. at 354 and per Walsh J. at p. 360; People (D.P.P.) v. O’Shea [1982] I.R. 384 per O’Higgins C.J. at p. 403; Hanafin v. Minister for the Environment [1996] 2 IR 321 per O’Higgins C.J. at pp. 403 to 404; A.B. at p. 303. However despite that context, the mandatory terms of s. 5 of the 2005 Act apply and it seems to me that the court is required to depart from the literal meaning of s. 5(1)(b) of the 2000 Act in the circumstances. A similar conclusion underlies the Supreme Court decisions in Browne and Rowan referred to above. I therefore hold an action to challenge a refusal to make a s. 3(11) order, such as this action, is covered by s. 5 of the 2000 Act. As the applicants submit, relying on G v. An Bord Uchtála [1980] I.R. 32 per Finlay P. at 45, statutory interpretation must make the provision amenable to the Constitution. But the Constitution admits of exceptions to and regulation of the right of appeal. In my view it was clearly intended that a decision on a judicial review of a refusal to make a section 3(11) order was such an exception or subject to such regulation.

52. The application of s. 5 of the 2005 Act in any given case cannot be an occasion for celebration. A need to depart from the literal meaning is a recognition of a failure in the drafting process, notable mainly by reason of its rarity given the extremely high quality of work done by legislative drafters. Any such failure which inherently arises whenever s. 5 of the 2005 Act is brought into play should be corrected by the Oireachtas at an early opportunity in order to bring the literal and applied meanings into harmony. An omission to do so promptly can only mislead future readers of the Act who may not be aware of the caselaw on its interpretation.

53. Finally, I hope I might be forgiven for wondering, in the light of the foregoing, if it is too much to hope for that the scope of s. 5 of the 2000 Act overall might be subject to an examination in the reasonably near future with a view to introducing greater consistency, or at least clarity, in its operation, having regard to the matters discussed.
Are the applicants entitled to pursue by way of judicial review of a refusal to revoke a deportation order an issue which also arose at the deportation order stage?
54. Ms. Boyle very ably contended that the second named applicant has a fundamental natural and constitutional right to education, and that this would be interfered with by the decision to deport because of the inadequate educational system in Nigeria. She submits that in accordance with the Supreme Court decision in Meadows v. Minister for Justice, Equality and Law Reform [2010] 2 IR 701 (particularly per Murray C.J. at p. 724), such an interference requires substantial countervailing considerations, and that there is an absence of such substantial countervailing considerations in this case.

55. However, her argument under this heading is unfortunately based on a false premise, namely that it is open to her to challenge the refusal to revoke the deportation orders on a ground which was available to her as a potential basis to challenge the original deportation orders. Those orders were made in November 2009, and were not challenged. The time for doing so has long since expired. The clock cannot be artificially restarted simply by the expedient of making an application to revoke the orders on grounds which were previously available and then launching judicial review within 28 days of the decision refusing to revoke the deportation orders.

56. The whole issue of comparison of the adequacy of Irish and Nigerian education systems was available to the applicants in 2009. Of course a child would be at a different and obviously earlier stage of education when a deportation order is made as opposed to when it is sought to be revoked. But the principle of any ultimate potential educational impact of deportation arises from the outset.

57. The whole process of enforcement of deportation orders would be undermined if s. 3(11) were to be read as giving a legal basis to challenge decisions based on a re-hash of points which either were made, or could have been made, at the time of the original deportation order. Without there being an exact analogy with Henderson v. Henderson (1843) 3 Hare 100, there is nonetheless a limitation on the use of s. 3(11) in that it is confined to new circumstances, albeit that this test can be read broadly to include new legal circumstances (see Smith v. Minister for Justice and Equality [2013] IESC 4 (Unreported, Supreme Court, 1st February, 2013) per Clarke J. at paras. 5.12 and 5.17). This requirement of a “change of circumstances” (Irfan v. Minister for Justice [2010] IEHC 422 (Unreported, High Court, Cooke J., 23rd November, 2010) or a “significant feature, not present when the original deportation order was made” (Okunade v. Minister for Justice [2013] IESC 4 (Unreported, Supreme Court, 1st February, 2013) per Clarke J. at para. 5.4) is fundamental to the s. 3(11) procedure, unless all deportation orders are to be up for permanent renegotiation and the time limits in s. 5 of the 2000 Act are to be set at nought.

58. In the absence of the enactment of Article 42A making any significant difference to the legal position of the applicants (which I consider below), there is nothing new in the claim that deportation could interfere with the education of the second named applicant. This point was well within the scope of submissions or potential submissions in 2009, despite the tender years of the second named applicant at that stage and the fact she had not commenced primary education. Such commencement was perfectly foreseeable and, as an issue related to the prospective rights of the applicants, a legitimate subject both for submissions by them and for consideration and decision by the Minister as of the time of making the original deportation order. This is not a new point, and it is therefore inappropriate for the court to either quash the decision to affirm the deportation order, still less restrain the deportation, on the basis of a point which could have been litigated in 2009. To allow a deportation order to be challenged or upset by reference to such historic points would nullify the time limits enacted by the Oireachtas in s. 5 of the 2000 Act. An applicant cannot, by challenging a later decision, seek in substance to nullify an earlier decision contrary to the system of time limits set out in s. 5 of the 2000 Act: this would be “to permit the first decision to be attacked obliquely, after the time limited for a direct challenge had expired” (E.M.S. at p. 542). Likewise, in B.M.J.L. v. Minister for Justice and Equality [2012] IEHC 74 (Unreported, High Court, 14th February, 2012), Cross J. took the view (at para. 3.18) that it was not open to an applicant to attack a deportation order on grounds that “‘collaterally’ impugn the validity of the RAT decision” (the reference in that case to this being done “by way of an appeal” appears to refer not to an appeal stricto sensu but to an application to the Minister by way of representations for leave to remain).

59. Such an approach was taken to s. 3(11) applications by Peart J. in Mamyko v. Minister for Justice (Unreported, High Court, Peart J., 6th November, 2003) where nothing new had been put forward in correspondence seeking revocation and no information was available, which could not have been made known to the Minister prior to the making of the original order. Peart J. said that an applicant should not be permitted to “drip feed” grounds from time to time. This approach was referred to approvingly by MacMenamin J. (in refusing even leave to challenge a s. 3(11) decision) in C.R.A. v. Minister for Justice, Equality and Law Reform [2007] 3 IR 603; and by Birmingham J. in G.O. v. Minister for Justice, Equality and Law Reform [2010] 2 I.R. 19.

60. The planning context has a similar statutory scheme for judicial review, and in that context similar issues of form versus substance have been considered. In Goonery v. Meath County Council [1999] 7 JIC 1501 (Unreported High Court, 15th July, 1999) Kelly J., as he then was, dealt with a situation where declaratory relief was sought which had the logical effect of attacking a previous grant of permission contrary to the statutory scheme restricting such challenges. Kelly J. said that “[counsel] says that nowhere in the reliefs sought by his client did he question the validity of the planning permission granted by Meath County Council. I do not agree. Relief No. (4) seeks a Declaration that Meath County Council did not properly determine the application for planning permission for the installation … Relief No. (11) seeks a Determination that … Meath County Council could not have made a valid decision on the planning application … [These reliefs] 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 Meath County 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 [i.e., s. 19 of the Local Government (Planning and Development) Act 1992] applied and were not complied with since the application was moved … ex parte and not on notice as the section requires” (pp. 17 to 18). In Kinsella v. Dundalk Town Council [2004] IEHC 373 (Unreported, High Court, 3rd December, 2004), Kelly J. as he then was, dealt with a subsidiary decision of a council which fell outside the statutory procedures for planning judicial reviews, but which was being challenged in order to attack the substantive planning decision. Kelly J., as he then was, said in that respect: “it was quite clear that the whole thrust and ambition of these proceedings was to quash the decision of 3rd August, 2004. As the applicant was quite plainly questioning the validity of the decision to grant planning permission he could not avoid or evade meeting the necessary threshold of proof required under s. 50 of the Planning and Development Act, 2000. Indeed as I pointed out in giving my ruling on this topic, if the applicant were correct in his submission in this regard an absurd result could be achieved which would be entirely contrary to the letter and intent of s. 50”. (See also Harrington v. Environmental Protection Agency [2014] 2 I.R. 277 (Barrett J.) on these issues).

61. It is not open to an applicant to obtain relief by way of judicial review of a decision refusing to revoke a deportation order on grounds that could have been, or were unsuccessfully, advanced when the order was originally made.
Is the decision invalid by reason of a failure properly to consider the constitutional right of the child to free primary education in accordance with Article 42A and the Meadows decision?
62. Article 42A, on which the applicant relies, is not an answer to this problem. The issue of where educational best interests lie did not spring into existence with the enactment of Article 42A. Indeed the best interests requirements in Article 42A.4 does not apply to immigration decisions (Dos Santos v. Minister for Justice and Equality [2015] IECA 210, [2015] 2 I.L.R.M. 483 (30th July, 2015) per Finlay Geoghegan J. at para. 18). The obligation to protect the natural and imprescriptible rights of “all children” in Article 42A.1 applies to all decisions, and therefore to immigration decisions in particular, but the main thrust of this section appears to be to provide for a greater recognition of the extent of such rights, to be enjoyed without discrimination or exception. The reference to “all children” strongly smacks of a requirement of non-discrimination in terms of the rights of children, on grounds such as the martial status of their parents. The express recognition of the natural and imprescriptible rights of children is also strongly suggestive of an intention to broaden the range of rights so recognised, particularly in respect of matters of special relevance of children rather than persons generally, such as the right to the society of both parents.

63. Given that the right to education, or at least to primary education, was expressly recognised prior to the enactment of Article 42A, it is not clear to me that the enactment of Article 42A.1 makes any material difference in this regard to the second named applicant’s educational rights, unless it were to be suggested that she does not enjoy the constitutional right to free primary education under Articles 40.3, 41 and 42, a proposition which I would not accept. Subject to any countervailing legal considerations, a child has a natural right to have his or her welfare safeguarded pursuant to Article 40.3 (G. v. An Bord Uchtála per Walsh J. at p. 69), which includes educational welfare (see also Dowse v. An Bord Uchtála [2006] 2 IR 507 at para. 77). It would be an affront to the norms of a democratic society to exclude a child from the entitlement to free primary education, and allow him or her to go uneducated, simply because of a lack of Irish nationality or even legal status. International human rights law would provide little support by way of persuasive authority for such a proposition. The right to education (not limited to primary education) is guaranteed by art. 2 of Protocol No. 1 to the ECHR, and therefore is subject to the non-discrimination guarantee of art. 14. In addition, the right to education (primary (which is to be free), secondary and higher, with certain qualifications) is also protected by art. 28 of the International Convention of the Rights of the Child and art. 13 of the International Covenant on Economic, Social and Cultural Rights, a right to be enjoyed without discrimination as to race, national origin or birth (art. 2(2) of the ICESCR) albeit that nationality and legal status are not specified as prohibited grounds of discrimination.

64. The respondent makes the trite point that the Covenant is not part of Irish law, but that is completely irrelevant. International human rights instruments do not have to be part of Irish law in order for them to be of persuasive authority in interpreting the scope of natural rights, any more than English decisions after 1922 have to be part of Irish law for them to be of interest and, from time to time, of value. The submission made is characteristic of a wider reflex response that borders on phobia towards, if not repulsion from, international human rights material, or even international material more generally. Oddly one rarely hears English material dismissed on the basis of amounting to a “Cook’s tour”. Perhaps 94 years on from independence, and making due allowances for the precept of nolumus mutari, it is time to take a more accepting approach to the persuasive relevance of international material, even if it comes from unfamiliar territory beyond the borders of the U.K. as that entity stood in 1801.

65. In my view, the right to an education, including in the case of a child of primary school age, to free primary education, is one of the natural and imprescriptible rights of the child, whether citizen or not, and therefore to be enjoyed by every child pursuant to Articles 40.3, 41, 42 and 42A of the Constitution without discrimination as to nationality or even legal status while in the country, or as to other grounds such as marital status of the child’s parents.

66. In saying that, I of course seek to implement the approach laid down in N.H.V. v. Minister for Justice and Equality [2016] IECA 86 (Unreported, Court of Appeal, 14th March, 2016) (under appeal at time of writing (see N.H.V. v. Minister for Justice and Equality [2016] IESCDET 51) which clearly establishes that all constitutional rights are not to be viewed as in general and automatically to be applied to non-citizens, but rather that “certain non-citizens may be entitled to certain constitutionally protected fundamental or personal rights” (per Finlay Geoghegan J. at para. 19).

67. International human rights instruments generally apply to all persons under the jurisdiction of contracting parties, rather than merely those parties’ citizens (see e.g., art. 1 of the ECHR which is a commitment by the parties to secure the rights of “everyone within their jurisdiction”). That principle is of some relevance to cases where an approach of extending constitutional rights was taken, such as Northampton County Council v. A.B.F. [1982] I.L.R.M. 164 (Hamilton J., 2nd November, 1981); Oxfordshire County Council v. J.H. (Unreported, High Court, Costello J., 19th May, 1988); Oguekwe v. Minister for Justice, Equality and Law Reform [2008] 3 IR 795 per Denham J. (as she then was, Murray C.J., Fennelly, Kearns and Finnegan JJ. concurring) at p. 881; K.I. (a minor) v. Minister for Justice and Equality [2014] IEHC 83 (Unreported, High Court, McDermott J., 21st February, 2014); Omar v. Governor of Cloverhill Prison [2013] 4 I.R. 186 (Hogan J.).

68. To that position there are two important qualifications, consistent with the N.H.V. decision.

69. Firstly, constitutional rights are not generally absolute; the point that seems to underlie the Supreme Court decision in Saunders v. Mid-Western Health Board (Unreported, Supreme Court, Finlay C.J., 11th May 1987). In the context of a right to education, it is possible to envisage circumstances where the provision of this right, or its provision to the fullest extent, is not practicable or possible. Even a child with severe or profound intellectual disability retains a right to education (Sinnott v. Minister for Education [2001] 2 IR 545) but one could not rule out on an a priori basis that there could be a condition such that meaningful or full education is not a practical possibility, or perhaps even where the cost of providing full bespoke education to a particular child in particular circumstances imposes an extraordinary financial or operational burden on the State, well above that involved in the Sinnott case. To acknowledge the theoretical possibility of exceptions is not in any way to suggest that every effort should not be made to ensure that every child receives appropriate education.

70. Secondly, as Denham J. points out in Oguekwe, and as O’Donnell J. (Denham C.J. and Macken and Fennelly JJ concurring) noted in Nottinghamshire County Council v. K.B. [2011] 4 I.R. 662 (while otherwise leaving the extent of non-nationals’ rights open), certain rights are reserved to citizens alone. That latter point is important because it must not be assumed that non-nationals are to enjoy any and all rights that are available to citizens. This is clearly not the case. The right to work is an example, as N.H.V. illustrates, as is the right to vote (other than, by statute, in local elections).

71. On this latter point, Stewart J. said in Mathews v. Diaz, 426 U. S. 67, at 79-80 (1976) that “[i]n the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens… The fact that an Act of Congress treats aliens differently from citizens does not, in itself, imply that such disparate treatment is “invidious.” In particular, the fact that Congress has provided some welfare benefits for citizens does not require it to provide like benefits for all alien. Neither the overnight visitor, the unfriendly agent of a hostile foreign power, the resident diplomat, nor the illegal entrant, can advance even a colorable constitutional claim to a share in the bounty that a conscientious sovereign makes available to its own citizens and some of its guests. The decision to share that bounty with our guests may take into account the character of the relationship between the alien and this country: Congress may decide that, as the alien’s tie grows stronger, so does the strength of his claim to an equal share of that munificence.” (See also Demore v. Kim 538 US 510 (2003) per Rehnquist C.J. at p. 521).

72. Each right must be considered on a case-by-case basis, and if necessary on a category-of-applicant by category-of-applicant basis. In my view however, the right of the individual to education (and in particular, that of a child to free primary education) is of such a nature as to clearly belong properly to all children irrespective of their legal status (even independently of Article 42A). It would be contrary to our conception of a democratic society to fail to secure for a child a right to an education, while the child is present in the State.

73. However the entitlement to a right to education while for the time being present in the State does not thereby create an entitlement not to be removed from the State if unlawfully here, even if such removal is to a country with an inferior educational or social system. As the Minister correctly noted in the decision under review, “aliens subject to expulsion cannot claim any entitlement to remain in the territory of a contracting state in order to continue to benefit from medical, social and other forms of assistance provided by the expelling state” (N. v. Secretary of State for the Home Department [2005] UKHL 31 per Lord Nicholls of Birkenhead at para. 15, summarising ECHR caselaw in the context of art. 3 of that instrument, a proposition which is relevant by analogy).

74. In that regard, Ms. Boyle relies strongly on the judgment of Eagar J. in C.O.O. (Nigeria) v. Minister for Justice (No. 1) [2015] IEHC 139 (Unreported, High Court, 4th March, 2015), in which he states (obiter) that under Article 42A, the analysis of rights of a child in the deportation context “would change remarkably” and the Minister “will have to give far greater consideration to the welfare of an applicant child” than applied under R. (Razgar) v. Home Secretary [2004] 2 AC 368, which itself was an attempt to set out the test under art. 8 of the ECHR (para. 35 of C.O.O.).

75. It is clear from para. 38 of C.O.O. that Eagar J. was relying on the best interest test in Article 42A.4.1º of the Constitution in this regard. C.O.O. was decided on 4th March, 2015, after the High Court decision in Dos Santos but before the judgment of Finlay Geoghegan J. on appeal to which I have referred. In the light of the latter judgment, it is clear beyond argument that, as the wording of Article 42A.4 expressly states, the best interest test applies to certain types of decision in which immigration matters are not included. It follows that the obiter comments of Eagar J. in C.O.O. should be re-appraised, having regard to the subsequent decision by the Court of Appeal in Dos Santos. Article 42A.4.1º simply does not apply to immigration decisions.

76. Insofar as it might be argued alternatively that the obligations of the Minister to conduct a balancing test would change by virtue of Article 42A.1 (rather than, as Eagar J. suggested, Article 42A.4.1º), as compared with her obligations under art. 8 ECHR as construed in Razgar, I see no basis for that view, given that the right to free primary education was already provided for within the Constitution at the time of the adoption of Article 42A. Furthermore, Article 42A.1 is primarily addressed to extending the recognition and enjoyment of rights and to the upholding of such rights on a non-discriminatory basis, rather than to require in a prescriptive manner that immigration decisions must be conducted on the basis of a different weight to be attached to rights already recognised.

77. While it was Eagar J.’s view that it “[was] clear that” the Minister “will have to give far greater consideration to the welfare of … children” (para. 37), no reasons are discernible from these remarks as to why this is the case, or indeed why it is “clear” that this is the case, and in the absence of such reasons and having regard to the matters above, I do not consider that Article 42A.1 has the effect of requiring far greater (or any greater) consideration for the rights of the child in the deportation context than would obtain under art. 8 ECHR, as suggested. It is hard to see why Article 42A would have been intended to have a radically different effect to established norms of international human rights law in any event. The right of a non-national child to be or remain in the State is not a natural and imprescriptible right and therefore does not fall within the scope of Article 42A.1.

78. The applicants also rely on Sivsivadse v. Minister for Justice and Equality [2015] 2 I.L.R.M. 73 per Murray J. (Hardiman, Clarke, O’Donnell and MacMenamin JJ. concurring) at para. 31, where the court declined to dismiss an appeal as an abuse of process having regard to the objective interests of children that were involved, in the context of Article 42A.1. The reliance on Article 42A.1 here was in the context of the exercise of the court’s discretion to dismiss an appeal as an abuse of process. It was not a substantive application of the Article as a mechanism to enhance the rights of children in the deportation context.

79. Indeed if Article 42A.1 is to be interpreted as creating a significant (or any) threshold or obstacle to be overcome before a child can be deported to a country with a lesser educational system or perhaps any lesser system of social protection, then a rational immigration policy will become impossible. While Ms. Boyle sought to suggest that the (alleged) weaknesses of the Nigerian educational system were only relevant to this particular applicant and would only arise in future on a case-by-case basis, this does not strike me as a particularly credible way in which I could find for the applicant without also finding for every other child applicant from an economically disadvantaged country. Indeed, the notion I could quash the affirmation of the deportation orders on the basis that the decision did not show sufficiently substantial grounds to override the entitlement of the second named applicant not to be sent back to an allegedly significantly inferior educational system, while at the same time asserting that there are no major implications in such a finding because any other applicant must be judged on “a case-by-case basis”, only has to be stated for its implausibility to be apparent.

80. This is the fallacy behind the applicants’ argument that the decision is invalid because the Minister did not expressly consider the educational rights of the child, whether under Articles 40.3, 41, 42 or 42A (para. 27 of second supplemental submissions). It is one thing to say that the second named applicant must be afforded educational rights while in the State. It is quite another to say that those rights are a barrier to deportation. They are not. Therefore the decision could not be invalid because of any failure by the Minister to accept that such constitutional rights were a militating factor against removal of an illegal immigrant, or a child born to such an illegal immigrant, from the State.

81. In terms of its effect on the educational or social rights of children (leaving aside family rights in this context), Article 42A makes no, or no significant, difference to the entitlement of the State to deport children who are unlawfully in the State, and is not a basis to obtain relief by way of judicial review of the refusal to revoke a deportation order, or to surmount the difficulty that any claim as to social or educational rights or interests of a child could have been the subject of representations and challenge at the time of the original deportation order.

82. It is not a fatal objection to the Minister’s decision that it does not tease out the position in terms of the wording of Article 42A of the Constitution. The issue is whether an applicant’s rights have been considered in substance (see B.I.S. v. Minister for Justice, Equality and Law Reform [2007] IEHC 398 (Unreported, High Court, Dunne J., 30th November, 2007). The educational position of the second named applicant clearly was considered. But it does not confer on her a right not to be deported.

83. I should finally note under this heading that despite Mr. Moore fully dealing with this matter at the hearing, Mr. Conlan Smyth sought at the eleventh hour to argue that the applicants had not properly relied on the right to free primary education in the application to the Minister and so were disentitled from making the point now. I would reject this objection. Firstly it comes too late in the day. The objection is much closer to a pleading-type objection than a new point of substantive law. In any event, the applicants’ submissions do raise educational considerations and best interests. Even if not phrased as fully in terms of legal analysis as has been done in argument, those essential issues were before the Minister and were replied to and addressed.
Was the Minister’s decision irrational?
84. The Minister took the view in the considerations for the decision that there was a functioning educational system to which the child could have access. Ms. Boyle criticises this as irrational given the material which the Minister had before her. Unfortunately I cannot agree with this submission as it appears to me that such a conclusion is within the spectrum of decisions that were reasonably open to her on the material she had.
Is the decision invalid by reason of a failure to consider the child’s application separately?
85. The applicant relies, under this heading, on the decision of Eagar J. in C.O.O. (No. 1) at para. 33 that “[i]t is in my view not sufficient for the first named Respondent to make a determination to consider the situation of a child born in Ireland (although not an Irish citizen) in conjunction with that of his mother”. To quash a decision because the child’s situation was considered “in conjunction with” the mother’s situation appears to involve an assertion of a legal obligation on the Minister to make a distinct adjudication as to the application on behalf of the child, separate from that of the mother. But what exactly does “in conjunction with” mean? This is not altogether made clear in C.O.O.

86. The general rule is of course that a court should follow previous decisions at the same level. To that general rule there are a number of exceptions, and I discussed the circumstances in which a court could depart from a previous decision in my judgment in R.A. v. Refugee Appeals Tribunal (No. 1) [2015] IEHC 686 (Unreported, High Court, 4th November, 2015) at paras. 60 and 61, which set out five broad situations where such departure may be justified. I can attempt to summarise those grounds as follows:

(i) Where the decision was not a formally binding authority in the first instance, for example, because it is distinguishable on the facts or because the decision was persuasive only, such as where particular comments of the court in the previous case are properly to be regarded as obiter;
(ii) Where the previous decision overlooked an important legal provision which could have been determinative, such as a statutory provision or a crucial decided case that was not brought to the court’s attention; in other words, that the previous decision was arrived at per incuriam;

(iii) Where the relevance or authority of the previous decision has been undermined by a change in the law since it was delivered, either by way of a change of positive statutory or constitutional law or a development in national (or possibly, where indirectly incorporated into Irish law, international) jurisprudence, or where the relevance of the decision has been undermined by some change in factual circumstances which were assumed or found to exist in the original case, such as for example, where a statutory provision is upheld on the basis of a particular social need, but at a later date, the court’s assessment is that society has clearly and significantly changed in the meantime. A decision may potentially be departed from under the “change of circumstances” heading where it rests on a finding or assumption as to certain facts, but where a later court receives new and better evidence as to those facts which might cast the legal issues in a clearly different light;

(iv) Where there is a contradiction identified by the court between two or more previous decisions on a particular issue by courts of equal jurisdiction;

(v) Where the later court is of the view that the earlier decision was clearly wrong. While In re Worldport Ireland Ltd. [2005] IEHC 189 (Unreported, High Court, 16th June, 2005, Clarke J.) refers to the need to normally follow the decision of another judge of the same court unless there are “substantial reasons” for believing that the initial judgment was incorrect, he identifies as one of those substantial reasons, a case where “there is a clear error in the judgment”, which I am taking as equivalent to the principle established in Irish Trust Bank Limited v. Central Bank of Ireland [1976-77] I.L.R.M. 50 per Parke J. that one ground from departing from a decision of a court of equal jurisdiction is that the judgment in question departed in some way from the proper standard to be adopted in judicial determination. Unlike the first four headings (which could potentially, although hopefully not too regularly, arise in relation to a decision of a higher court than that asked to review the previous decision), any departure from a previous decision under this fifth heading is, of course, confined to a previous decision of a court of equal jurisdiction.

87. With the greatest possible respect to the learned judge, there are a number of features of the C.O.O. decision that would militate against it being regarded as a decision that should be followed. I will endeavour to summarise these as follows:-
(i) There is a certain opacity in the decision itself insofar as the asserted unlawfulness of deciding a child’s case “in conjunction with” the mother’s case does not relate to any specifically defined steps taken or omitted by the Minister;
(ii) No reasons are given in the judgment for the assertion contained in the quoted passage. In the absence of reasons, a decision does not have precedential status because a ratio decidendi is by definition absent;

(iii) Article 42A could not have been of relevance, even potentially, as it was not in force at the time;

(iv) The attention of the learned judge does not seem to have been drawn to J.O. v. Minister for Justice, Equality and Law Reform [2009] IEHC 478 (Unreported, High Court, 28th October, 2009) where, at para. 8, Cooke J. accepted that the requirement for individual assessment did not necessitate a distinct inquiry into the child’s personal circumstances where the child’s claim was based on that of the parents. While that decision was arrived at in the asylum context, it would have to be persuasive as regards the analysis of a child’s case in the immigration context. That decision was followed by Clark J. in P.I. v. Minister for Justice, Equality and Law Reform [2010] IEHC 368, another case that does not appear to have been drawn to the court’s attention in C.O.O.;

(v) There is no logical reason why a child’s case must be given separate consideration as long as it is considered in substance, for the purposes of s. 3(6) of the Immigration Act 1999;

(vi) The statement of grounds in C.O.O., which has been produced to me, does not allege that the decision was invalid because the child’s case was considered in conjunction with the parent’s. It alleges (ground 3) that “The Respondent fails and omits (sic) to consider the Applicants (sic) Constitutional rights; in breach of the law as found in Oguekwe v. Minister for Justice, Equality and Law Reform [2008] IESC 25”. This appears (although I may be misconstruing it) to be a complaint that the applicants’ rights were not considered at all; or possibly that they were not lawfully considered; it does not naturally read as a complaint that the child’s case was considered in conjunction with the parent’s;

(vii) The applicant’s written submissions in C.O.O., which have also been produced to me, contend that “In the case of the child born in Ireland .. there is no examination of his interests undertaken at all; his case being subsumed completely into his mothers (sic)”. Again, and making allowances for the possibility that I may be misconstruing it, this seems to be an allegation of a failure to consider the child’s case at all, rather than of having given it consideration, but in conjunction with that of a parent;

(viii) The point on which the case was decided was not addressed in the written submissions of the respondents in C.O.O., which have also been furnished to me by the State as part of their submission that I should not follow this decision;

(ix) The respondents state that not only was this point not raised by the parties but it was not raised at the hearing at all. Mr. Daniel Donnelly B.L. appeared for the State in C.O.O., and while of course not involved in the present proceedings, was present in court when this point arose in the present case. It is the duty of any counsel whether briefed in a particular case or not to assist the court and Mr. Donnelly has very properly volunteered his recollection of the hearing. He stated that the hearing took in the region of 35 minutes with Senior Counsel for the applicant addressing the court in a very summary manner for about 2 minutes (not raising this point) and with the remaining time being given to the respondent to reply. He says there was no further reply on behalf of the applicant;

(x) Mr. Donnelly says that it is the State’s position that the first appearance of the point in the case was when it emerged in the judgment as the decisive point on which the relief was granted against the respondents. Mr. Donnelly says that this came as a “complete surprise” to the State;

(xi) In the written submissions seeking leave to appeal (which have also been furnished to me), the respondents specifically made the point that the issue regarding the need for separate consideration of parent and child “was not, indeed, argued in the present case, and that they did no therefore, have the opportunity of answering it before this Honourable Court delivered its judgment”.

(xii) The submissions on leave to appeal also sought leave on the basis that “the judgment of this Honourable Court has created uncertainty as to the manner in which representations on behalf of parents with young children should be made and the manner in which the First Named Respondent must consider such representations… If correct, the decision of this Honourable Court will have serious consequences for the First Named Respondent… the decision of this Honourable Court will have adverse implications for the Respondents in a large number of pending cases”;

(xiii) The element of the application for leave to appeal relating to the submission that the point had not been argued in the case itself is curiously not recorded in the decision on the application for leave to appeal, C.O.O. v. Minister for Justice and Equality (No. 2) [2015] IEHC 329 (Unreported, High Court, Eagar J., 21st May, 2015).

(xiv) In that decision, Eagar J. refused such leave to appeal on this point by reference to what appears to be an assumption that Article 42A would copperfasten his approach and remove any doubt in the matter (paras. 6 and 7);

(xv) As noted above, that analysis of Article 42A (which appears to underlie the refusal of leave to appeal the point which the State says was never argued) is inconsistent with the subsequent decision of the Court of Appeal in Dos Santos.

88. As mentioned above, in Irish Trust Bank v. Central Bank of Ireland [1976-77] I.L.R.M. 50 it was held by Parke J. that an earlier decision at the same level as that of a later court may be regarded as not binding if it “departed in some way from the proper standard to be adopted in judicial determination” (at p. 50). In context, that is an assessment that cannot be confined to appellate fora and must be made by the High Court in assessing whether to follow another High Court decision. For the reasons I have set out, or any number of them, I unfortunately have to conclude, again with the greatest possible respect to the learned judge, that the decisions in C.O.O. (No. 1) and C.O.O. (No. 2) are decisions that must be regarded as meeting that test and therefore as decisions not to be followed. In any event they are inconsistent with the subsequent decision of the Court of Appeal in Dos Santos. It is lawful for the Minister to consider a child’s situation in conjunction with a consideration of that of a parent.
Consequence of the foregoing for the injunction
89. As noted above, an injunction restraining deportation was granted at the leave stage. Having found that the applicants’ claim lacks substance and must be dismissed, the basis for that injunction is removed. In the interests of orderly management of the proceedings however I will continue the injunction until the date to be fixed for any consequential applications in order to enable the parties to consider the position in the light of this judgment.
Summary of principles involved
90. I will conclude by attempting to summarise the principles discussed in this judgment as follows:

(i) a party that fails to take a pleading objection in a timely manner, and a fortiori a party that fails to take such an objection at the hearing, is precluded from doing so at a later stage;
(ii) s. 5 of the Illegal Immigrants (Trafficking) Act 2000 applies to a decision refusing to revoke a deportation order under s. 3(11) of the Immigration Act 1999;

(iii) an applicant is not entitled to relief by way of judicial review challenging a decision refusing to revoke a deportation order on a ground which could have been available to him or her at the time the original order was made, in the absence of a change of circumstances or of refoulement arising;

(iv) the right to education including to free primary education is a natural and imprescriptible right of the child to be enjoyed without discrimination on grounds such as nationality, legal status or marital status of parents by any child within the jurisdiction;

(v) such a right only applies while the child is present in the State and does not confer any right not to be removed, even to a country with an inferior social or educational system;

(vi) the right of a non-national child to be or remain in the State is not a natural and imprescriptible right and therefore does not fall within the scope of Article 42A.1;

(vii) insofar as it relates to social or educational rights (leaving aside family rights), Article 42A does not represent an obstacle to deportation of a child and does not require express consideration by the Minister for Justice and Equality, and insofar as it suggests otherwise, or implies a position which amounts to requiring more detailed consideration of the deportation of a child on such grounds, the C.O.O. decision is in my view incorrect;

(viii) it is rationally open to the Minister to conclude that Nigeria has a functioning educational system;

(ix) there is no obligation on the Minister to consider the deportation of a child (or revocation of a deportation order) separately from that of a parent: the C.O.O. decision in this regard is in my view incorrect.

Order
91. For the foregoing reasons I will order:
(i) that the application for certiorari be dismissed;
(ii) that, having regard to the finding that leave to appeal to the Court of Appeal is required, the matter be adjourned to a date to be fixed in order to facilitate any application in that regard, and that if the applicants intend to so apply, advance written notice be given of the text of the proposed questions of law grounding such application accompanied by written submissions in support of that application; and

(iii) that the injunction granted in these proceedings will continue until the date fixed for any leave to appeal application, and will then stand discharged unless continued by further order.

S.F.A. -v- Minister for Justice & ors

 

[2016] IEHC 222 (25 April 2016)

Judgment
Title:
S.F.A. -v- Minister for Justice & ors
Neutral Citation:
[2016] IEHC 222
High Court Record Number:
2011 729JR
Date of Delivery:
25/04/2016
Court:
High Court
Judgment by:
Mac Eochaidh J.
Status:
Approved
Neutral Citation: [2016] IEHC 222

THE HIGH COURT
JUDICIAL REVIEW

[2011 No. 729 J.R.]

 

BETWEEN

S. F. A. (AN INFANT SUING BY HIS MOTHER AND NEXT FRIEND A. A.) & A. A.
APPLICANTS
AND
MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE REFUGEE APPLICATIONS COMMISSIONER, IRELAND AND THE ATTRONEY GENERAL

RESPONDENTS

JUDGMENT of Mr. Justice Colm Mac Eochaidh delivered on the 25th day of April , 2016.
Introduction:
1. The court delivered judgment in S.F.A. (an infant suing by his mother and next friend A.A.) & A.A. v. Minister for Justice and Equality [2015] IEHC 364, dated the 16th June, 2015, and declined the application made for judicial review. The background facts and the legal principles may be found in the text of the judgment itself.

2. The applicants now seek a certificate to appeal pursuant to s. 5 of the Illegal Immigrants (Trafficking) Act, 2000. The applicants say a preliminary reference to the Court of Justice of the European Union (C.J.E.U.), pursuant to Art. 267 of the Treaty on the Functioning of the European Union (T.F.E.U.), is required if the court is minded to refuse a certificate of appeal. It is accepted that a court about to refuse such a certificate is a court within the meaning of Art. 267(3) and must in certain circumstances refer questions to the C.J.E.U.. A question of E.U. law could only be referred to Luxembourg in that context if an answer to the question was required to determine whether to grant a certificate of appeal.

Certificate of appeal:

3. The applicants submit that the court should grant a certificate to appeal on the following points of law:-

1. Whether an error as to jurisdiction (assuming no reliance on error on the face of the record) must be identified before certiorari is available in respect of a challenge to the validity of a decision of the Refugee Applications Commissioner.
2. Whether the minimum standards mandated by European law were breached as a result of the manner in which the application was dealt with by the second respondent.

3. Whether the infant applicant has a right to be heard in respect of his mother’s claim, when the decision in his mother’s case is utilised against his interests.

4. Whether the mis-description of the second applicant’s evidence should have entitled the applicants to certiorari.

5. Whether the obligation to examine up to date and relevant country of origin information relating, inter alia, to “laws and regulations of the country of origin and the manner in which they are applied” is a mandatory requirement under European law (art. 4(3)(a) Qualification Directive) and has application in the applicants’ claims.

6. Whether the findings in relation to internal relocation were in error. Whether the obligation to identify a place of relocation was complied with to the extent required by the minimum standards.

7. Whether the “B.N.N.” restrictions on access to judicial review in respect of decisions of O.R.A.C. infringe E.U. law.

Relevant Law:
4. Section 5(3) of the Illegal Immigrants (Trafficking) Act, 2000, is in the following terms:-
“(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 in so far as it involves a question as to the validity of any law having regard to the provisions of the Constitution.”

5. Article 267 T.F.E.U. is set out as follows:-
“The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning:
(a) the interpretation of the Treaties;

(b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union;

Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.

Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.

If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay.”

6. In Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250 MacMenamin J. set out the following principles as applicable in relation to the meaning of a test of exceptional public importance:-
“1. The requirement goes substantially further than that a point of law
emerges in or from the case. It must be one of exceptional importance being a clear and significant additional requirement.

2. The jurisdiction to certify such a case must be exercised sparingly.

3. The law in question stands in a state of uncertainty. It is for the common good that such law be clarified so as to enable the courts to administer that law not only in the instant, but in future such cases.

4. Where leave is refused in an application for judicial review i.e. in circumstances where substantial grounds have not been established a question may arise as to whether, logically, the same material can constitute a point of law of exceptional public importance such as to justify certification for an appeal to the Supreme Court (Kenny).

5. The point of law must arise out of the decision of the High Court and not from discussion or consideration of a point of law during the hearing.

6. The requirements regarding ‘exceptional public importance’ and ‘desirable in the public interest’ are cumulative requirements which although they may overlap, to some extent require separate consideration by the court (Raiu).

7. The appropriate test is not simply whether the point of law transcends the individual facts of the case since such an interpretation would not take into account the use of the word ‘exceptional.’

8. Normal statutory rules of construction apply which mean inter alia that ‘exceptional’ must be given its normal meaning.

9. ‘Uncertainty’ cannot be ‘imputed’ to the law by an applicant simply by raising a question as to the point of law. Rather the authorities appear to indicate that the uncertainty must arise over and above this, for example in the daily operation of the law in question.

10. Some affirmative public benefit from an appeal must be identified. This would suggest a requirement that a point to be certified be such that it is likely to resolve other cases.” (emphasis in original)

Article 267 T.F.E.U. reference:
7. The applicants submit that a preliminary reference under Art. 267 T.F.E.U should be made in the following terms:-
“1. Must limitations on the right of access to the High Court to challenge the legality of decisions of the Refugee Applications Commissioner refusing asylum have a legislative basis in order to comply with Article 52 (1) of the Charter of Fundamental Rights of the European Union?
If the answer to question 1 is “No” then must there be such a statutory basis where, already, some restrictions on such access have been imposed by statute?

2. Does European law preclude there being in place a national law whereby, except in ‘rare and exceptional circumstances’ an applicant for international protection may never have an opportunity to challenge the legality (as opposed to the merits) of a negative first instance decision on an asylum application?

3. To what extent, if any, is a decision maker entitled to refrain from examining ‘laws and regulations of the country of origin and the manner in which they are applied’ as mandated by Article 4(3) of the Qualification Directive?

4. Does the right to be heard in European law entitle an applicant such as the infant applicant herein to sight of a decision made by the examining authority upon which it intends to place weight prior to a decision being taken in circumstances where the particular decision relied on is one previously made in respect of (though not communicated to) the mother?

5. What consequences should flow from a failure to examine all relevant facts as they relate to the country of origin at the time of taking the decision on the application; including ‘laws and regulations of the country of origin and the manner in which they are applied’ in accordance with Article 4. 3 (a) of the Qualification Directive in circumstances where consideration was given to state protection and internal relocation?

6. Is the onus of proof on the decision maker when considering applying the internal relocation alternative?

7. Where an internal relocation finding is made, notwithstanding a rejection of credibility, is that internal relocation assessment to be tested for compliance with the provisions of Article 8 of the Qualification Directive?”

8. As indicated above, the applicant has attempted to identify seven issues which constitute points of law of exceptional public importance in respect of which it is desirable in the public interest that an appeal should be taken to the Court of Appeal arising from my decision in the underlying proceedings.

9. The first question sought asks:-

“Whether an error as to jurisdiction must be identified before certiorari is available in respect of a challenge to the validity of a decision of the Refugee Applications Commissioner”
10. At para. 4 of my decision in the substantive proceedings I ruled as follows:-
“Having regard to the decision of this court in P.D. and the line of authority on which it is based, an applicant seeking to review a decision of the R.A.C. must identify an error as to jurisdiction (assuming no reliance on error on the face of the record) though this alone will not suffice to attract certiorari.”
11. Inherent in the question sought to be posed to the Court of Appeal is the suggestion that certiorari should be given in respect of some decisions, even though there is no error as to jurisdiction (or error on the face of the record). The applicants have not specified what non-jurisdictional error should attract certiorari and, in particular, they have not specified what non-jurisdictional errors in this case should attract the remedy. In that sense, the proposed question is of theoretical interest only.
12. At this stage of the development of public law in Ireland, it is beyond debate that certiorari is only available to persons who establish an error in relation to jurisdiction or an error on the face of the record. (See the discussion in ‘Administrative Law in Ireland’, Hogan and Morgan, 5th Edition, at 16.20 et seq. where the authors say: “Certiorari lies to quash a decision of a public body which has been arrived at in excess of jurisdiction.”) No authority from Ireland or from any common law country, or any other basis was cited by the applicants in favour of the proposition that this statement of law is, or might be, in error. The decision given by this court in the underlying proceedings involves a wide ranging discussion of what constitutes error as to jurisdiction. It is clear from the text of the judgment that there is no attempt by the court to foreclose or predict the type of error which might constitute an error as to jurisdiction.

13. In my view, there can be no scope for debate on an application for a certificate of appeal that the law is unclear or in a state of uncertainty as to whether error as to jurisdiction (or an error of law in modern terms) is required to attract certiorari. I am satisfied that the state of the law on this topic is clear, and the desire of the applicants to alter it is not sufficient reason to grant a certificate of appeal.

14. The second question sought to be certified was:-

“Whether the minimum standards mandated by European law were breached as a result of the manner in which the application was dealt with by the second respondent.”
Self evidently this question merely seeks to re-argue the case urged on the court on the application rejected by me in my judgment of the 16th June, 2015. I found that the minimum standards alluded to in the question had not been breached. An applicant for a certificate of appeal, pursuant to. 5 of the Act, must do much more than simply re-argue a lost point.
15. The third question sought to be certified for appeal is:-

“Whether the infant applicant has a right to be heard in respect of his mother’s claim, when the decision in his mother’s case is utilised against his interests.”
16. It is correct to say that in the underlying proceedings I held that:-
“The child has a right to be heard in respect of his own claim and this has been fully vindicated. He does not have a right to be heard in respect of his mother’s claim.”
17. The applicant now seeks to argue again that the child has a right to be heard about the negative result of his mother’s asylum claim, and that this is a point of law of exceptional public importance, and that it is in the public interest that this point be decided. In effect, it was argued that the child should have been shown a copy of the mother’s decision before he presented his own claim. The point is not dissimilar to the argument made and rejected in the reference to the C.J.E.U. in M.M. v. Minister for Justice (C-277/11). The applicants in that case had argued that they should know in advance the basis of a negative decision so that they could deal with the issues, and this was rejected by the C.J.E.U.. The question posed to the C.J.E.U. was:-
“In a case where an applicant seeks subsidiary protection status following a refusal to grant refugee status and it is proposed that such an application should be refused, does the requirement to cooperate with an applicant imposed on a Member State in Article 4(1) of … Directive 2004/83 … require the administrative authorities of the Member State in question to supply such applicant with the results of such an assessment before a decision is finally made so as to enable him or her to address those aspects of the proposed decision which suggest a negative result?”
The answer given was:-
“Accordingly, the conclusion on this point must be that the requirement that the Member State concerned cooperate with an applicant for asylum, as stated in the second sentence of Article 4(1) of Directive 2004/83, cannot be interpreted as meaning that, where a foreign national requests subsidiary protection status after he has been refused refugee status and the competent national authority is minded to reject that second application as well, the authority is on that basis obliged – before adopting its decision – to inform the applicant that it proposes to reject his application and notify him of the arguments on which it intends to base its rejection, so as to enable him to make known his views in that regard.” (see para. 74 of the judgment of the E.C.J.).
18. That decision, it must be recalled, related to a decision making procedure from which there was no administrative appeal, unlike the matter under review in this case. It is difficult to see how an applicant who does not have a right to view a proposed negative outcome of his own claim would be entitled to see the result of another person’s claim.

19. In A. N. v. The Minister for Justice, Equality and Law Reform [2008] 2 IR 48 the Supreme Court indicated that a dependant minor applicant requires to “invoke reasons on their own account” in order to make a successful claim distinct from that of their parent. As a matter of fact, and this was not contested by the applicant, the infant’s claim was indistinguishable from the mother’s claim. Thus, on the facts of this case, even if it were correct to say that an infant has a right to be heard in respect of its mother’s asylum claim, in a case such as this, the infant could add nothing to the claim because its case is indistinguishable from that of its parent.

20. In effect, what the applicants seeks to submit to the Court of Appeal is that the infant should have been entitled to argue that the mother’s claim was wrongly decided. The applicants do not need a decision of the Court of Appeal to facilitate this objective. The law permits this to happen, but it happens in the course of an appeal to the R.A.T.. As indicated in the underlying proceedings, the mother is fully entitled to argue on appeal to the Refugee Appeals Tribunal that her case has been wrongly decided. Separately, the child, in appealing his decision, is entitled to argue that insofar as the decision in his own case is based upon the decision on the mother’s case, that the decision in the mother’s case was wrong.

21. As was pointed out in the underlying judgment, the mother accepted that her son’s claim for asylum was the same as her own, and she presented her son’s claim on his behalf. She did not attempt to make new points about her asylum claim when presenting her son’s dependant claim. The applicants have never attempted to say to this court what they might have said to the O.R.A.C. in relation to the result of the mother’s claim, had they been given the chance. In the absence of any legal or factual basis being advanced as to why the son should be heard about the result of his mother’s claim, in the course of his own claim, I cannot find that a point of law, much less a point of law of exceptional public importance, has been advanced in support of this question, and certainly no element of the public interest would be served by running such an appeal.

22. The fourth question sought to be appealed is:-

“Whether the mis-description of the second applicant’s evidence should have entitled the applicants to certiorari.”
23. The applicants, by posing this question, seek to re-run a point upon which they were unsuccessful in the underlying proceedings. No argument has been addressed to the court which would convince me that my decision that the mis-description of the applicant’s evidence was not an error as to jurisdiction constitutes a point of law of exceptional public importance. In any event, I also ruled that even if it were an error as to jurisdiction, it was not of sufficient weight to attract certiorari, and that, in any event, the error in the evaluation of the evidence was amenable to appeal to the R.A.T..
24. No basis has been advanced as to why any of this decision making on my part should attract a certificate of appeal within the parameters described in s. 5 of the Act. There is no scope for a debate about the legal consequences flowing from an adjudicator misapprehending the evidence where the resource of an administrative appeal, capable of deciding any issue of fact or law, has been provided by the State.

25. The fifth question posed by the applicant is:-

“Whether the obligation to examine up-to-date and relevant county of origin information … is a mandatory requirement under European law and has application in the applicants’ claims.”
26. In order for a certificate of appeal to be granted, the question of law sought to be litigated must be one which is involved in my decision. At no stage did I suggest that the requirement to examine up to date and relevant country of origin information was not mandatory. My decision in the underlying proceedings declined relief because the applicant could not demonstrate what country of origin information, relevant to the applicants’ claim, had not been examined nor was there any submission as to what law or regulation of the country ought to have been examined which might somehow have been connected to her claim for asylum.

27. The findings made by this court were related to the facts of the case. The obligation referred to in the proposed question is indeed mandatory and the assistance of the Court of Appeal is not necessary to establish that. In those circumstances, I cannot see that the criteria for the grant of a certificate in s. 5 are met on this particular point.

28. The sixth question posed asked:-

“Whether the findings in relation to internal relocation were in error. Whether the obligation to identify a place of relocation was complied with to the extent required by the minimum standards.”
29. In effect, the applicant again seeks to re-litigate matters decided against them in the underlying decision. This court made findings of fact that relocation was sufficiently identified, and that no legal error had occurred in the manner in which the rules in respect of internal relocation were decided. It is impossible to see how the criteria for the grant of a certificate of appeal are met by this particular proposed question.
30. The last question posed is whether:-

“Whether the ‘B.N.N.’ restrictions on access to judicial review in respect of decisions of O.R.A.C. infringe EU law.”
31. This court ruled in the underlying decision that any restrictions on access to judicial review of first instance decisions were more than made up for by generous access to the R.A.T., and thus the so called “B.N.N.” restrictions on access to judicial review were not an infringement of the E.U. right of access to an effective remedy. On this application the applicants say this is mistaken because:-
“The Tribunal has no jurisdiction to deal with errors of law that arise in a decision under appeal to it” (para. 7 of the applicant’s written submissions of July 2015).”
In addition, they complain that no matter what points they raise on appeal to the R.A.T., the only remedy they can achieve in respect of an error at first instance is that they be declared to be entitled to refugee status.
32. If the error had the effect of denying them the status to which they are entitled as a matter of law, then the remedy which the R.A.T. provides is an effective remedy. If the error did not have the effect of denying them the status, the fact that the R.A.T. cannot undo that error does not mean that there is an absence of adequate remedy. The R.A.T. can of course agree with a submission by an applicant that an error has been an error at first instance but, nonetheless, find that the applicant is not a refugee. No injustice is thereby caused and such a result does not offend the rule that an adequate remedy be provided for errors which cause an applicant to be deprived of refugee status. Legally irrelevant errors or harmless errors do not require remedies.

33. As stated by the C.J.E.U. in Diouf v Ministre du Travail (C – 69/10):-

“… the decisions against which an applicant for asylum must have a remedy under Article 39(1) of Directive 2005/85 are those which entail rejection of the application for asylum for substantive reasons….”
If an error of law caused the first instance decision maker to reject an asylum claim, that matter can be appealed to the R.A.T. which has the power to reverse the unlawful decision by recommending that the appellant be declared a refugee.
34. The applicants failed to establish any basis for the contention that the R.A.T is not permitted to deal with errors of law. The opposite is the case. Errors of law may form the basis of an appeal to the R.A.T.. This has been confirmed by the Supreme Court in M.A.R.A. v Minister for Justice and Equality [2014] IESC 71. Although this authority was referred to in the underlying decision, it has not been suggested on this application that M.A.R.A. has been wrongly decided.

35. A certificate of appeal is sought based on a significant misconception as to the jurisdiction enjoyed by the R.A.T.. No purpose would be served by permitting the applicants to pursue this question to the Court of Appeal.
Article 267 T.F.E.U. reference:
36. A national court may only refer a question to the Court of Justice of the European Union in respect of a matter pending before that court. The only question pending in these proceedings at this stage is whether the decision given by this court in the underlying proceedings involves a point of law of exceptional public importance, and whether it is desirable in the public interest that an appeal should be taken to the Court of Appeal.

37. It is of course possible at this stage of the proceedings that a question of interpretation of European law would arise on which the court might need assistance or must seek assistance (in view of Art. 267(3)) before deciding the s. 5 issue as to whether to grant a certificate of appeal or not. (See H.I.D. v M.J.E. [2013] IEHC 146). I am not persuaded that any question of European law arises in my decision or in respect of an application for certificate of appeal.

38. The first question in respect of which a reference to the C.J.E.U. is sought is as follows:-

“Must limitations on the right of access to the High Court to challenge the legality of decisions of the Refugee Applications Commissioner refusing asylum have a legislative basis in order to comply with Article 52(1) of the Charter of Fundamental Rights of the European Union?”
39. The only circumstance in which this court would be required or entitled to refer that question to the C.J.E.U. at this stage would be if my decision in the underlying proceedings related to or was based upon such a question. The question is not discussed in the underlying proceedings. No such question is sought to be the basis of a certificate to the Court of Appeal and it is difficult to see how a certificate of appeal could be granted on an issue not arising from the underlying decision of the court. There is no trace of the question in the pleadings or in the various sets of written submissions connected with the underlying proceedings. I cannot see any circumstances in which an answer to that question would assist this court with deciding whether or not to grant a certificate of appeal.
40. The second question suggested for reference to the C.J.E.U. is as follows:-

“Does European law preclude there being in place a national law whereby, except in ‘rare and exceptional circumstances’ an applicant for international protection may never have an opportunity to challenge the legality (as opposed to the merits) of a negative first instance decision on an asylum application?”
41. This question is based on a false assumption. A disappointed asylum seeker has a comprehensive opportunity to challenge the legality and the merits of a negative first instance decision on her asylum application by bringing an appeal to the Refugee Appeals Tribunal. Any alleged error of law and/or any alleged error of fact in the decision of the O.R.A.C. may be raised by way of appeal to the R.A.T.. No answer to this second question would assist the court in determining whether or not to grant a certificate of appeal.
42. The third question proposed to be sent to the C.J.E.U. is:-

“To what extent, if any, is a decision maker entitled to refrain from examining ‘laws and regulations of the country of origin and the manner in which they are applied’ as mandated by Article 4(3) of the Qualification Directive?
43. This court does not require an answer to this question, not least because the answer thereto is within the realms of “acte clair.” A decision maker must refer to the laws and regulations of the country of origin provided that those laws and regulations are relevant to the asylum claim presented by an applicant. Article 4(3)(a) of the Qualification Directive refers to a requirement that the assessment for international protection be carried out on an individual basis that takes into account “all relevant facts” as they relate to the country of origin, including laws and regulations of the country of origin. It is a preposterous idea that on every application for asylum all of the laws and regulations of the country of origin of the asylum seeker must be examined, regardless of the claim of asylum presented by the applicant. This appears to be the settled view of the applicants’ lawyers in this case. It is abundantly clear that it is only relevant facts in relation to the country of origin and relevant laws in relation to the country of origin that must be examined on any asylum application. No assistance could be obtained from the Court of Justice of the European Union in respect of this matter. This question does not require resolution in order for me to decide whether to grant a certificate of appeal in this case.
44. The fourth question sought to be referred is:-

“Does the right to be heard in European law entitle an applicant have sight of a decision made by the examining authority upon which it intends to place weight prior to a decision being taken in circumstances where the particular decision relied on is one previously made in respect of (though not communicated to) the mother?
45. As indicated by me above, this court ruled that the child did not have a right to be heard in respect of his mother’s case during the first instance hearing of his case on the unpublished result of his mother’s case. Both mother and child have extensive rights of appeal to the R.A.T. in case they are dissatisfied with either of their decisions in their own cases. The child’s case was at all times presented as being the same as, and indistinguishable from, the mother’s case. I cannot imagine any circumstance in which the Court of Justice could give any assistance to this court on these questions, and no basis has been laid by the applicants to support the proposition it advances that a child whose case is indistinguishable from that of its parent has a right to be shown the unpublished result of the parent’s separate case, during the course of his own first instance application for asylum. I am fortified in this view by the decision of the C.J.E.U.in M.M., as described at para. 18 above.
46. The fifth question sought to be referred asks:-

“What consequences should flow from a failure to examine all relevant facts as they relate to the country of origin at the time of taking the decision on the application; including ‘laws and regulations of the country of origin and the manner in which they are applied’ in accordance with Article 4.3(a) of the Qualification Directive in circumstances where consideration was given to state protection and internal relocation?”
47. It seems to me that this is not an appropriate question to refer to the Court of Justice. It is a matter for the national court to determine the consequences which follow a breach of the rule or proposition laid out in question five. The C.J.E.U. is certainly competent to advise national courts on what the content of European law is and what it means. It never advises a national court on what consequences should flow from a breach of Union law nor would it direct a national court as to what to do once a breach of Union law is established. In any event, the question posed falls well within the doctrine of acte clair and, therefore, could not be referred.
48. The answer to the question posed is that a decision based on the error identified in the question should be quashed, unless there was a good reason not to by reference to the principles of public law. In addition, it should be noted that the proposed question is based on a premise which the applicants failed to establish. The applicants failed to establish that there had been a failure by the O.R.A.C. to examine all relevant facts relating to the country of origin, including laws and regulations of that country. No assistance is needed from the C.J.E.U. in relation to the question posed. This is not an appropriate question to refer, and in any event, an answer to the question could not offer any assistance to this court as to the actual issue pending before it, and that is whether or not to grant a certificate of appeal in this case.

49. The sixth question sought to be referred is:-

“Is the onus of proof on the decision maker when considering applying the internal relocation alternative?”
50. No conceivable answer to this question would be of any assistance to this court in the matter pending before it because this court found as a matter of fact that the decision maker had lawfully identified a place of internal relocation and that no breach of the rules had occurred in the manner in which this decision was taken. This issue is irrelevant on this application.
The final question sought to be referred to the C.J.E.U. is as follows:-

“Where an internal relocation finding is made, notwithstanding a rejection of credibility, is that internal relocation assessment to be tested for compliance with the provisions of Article 8 of the Qualification Directive?”
51. This question does not arise in any way in the decision taken by this court in the underlying proceedings nor was it ever part of the case urged upon the court by the applicant at that stage. No related question of appeal has been urged upon the court in relation to the application for certificate of appeal. In those circumstances, whatever answer might be given to this question, it could not be of any assistance in determining a matter pending before this court, which is whether or not to grant a certificate of appeal in respect of identified points of law. The question posed is of theoretical interest only and not related to the facts or the legal arguments of these proceedings.
52. In all those circumstances, I shall not refer any question to the Court of Justice of the European Union. I refuse to grant a certificate of appeal to the Court of Appeal pursuant to s. 5 of the Illegal Immigrants (Trafficking) Act 2000.

 

A.A. (Pakistan) v The International Protection Appeals Tribunal & ors No.2 (Approved)

[2019] IEHC 72 (11 February 2019)

Page 1 ⇓THE HIGH COURT[2019] IEHC 72JUDICIAL REVIEW[2018 No. 198 J.R.]BETWEENA.A. (PAKISTAN)ANDAPPLICANTTHE INTERNATIONAL PROTECTION APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THEATTORNEY GENERAL(No. 2)JUDGMENT of Mr. Justice Richard Humphreys delivered on the 11th day of February, 2019RESPONDENTS1. In A.A. (Pakistan) v. International Protection Appeals Tribunal (No. 1) [2018] IEHC 769 I rejected an application for a certiorari ofan IPAT decision. The applicant now seeks leave to appeal.2. I have considered the caselaw on leave to appeal as set out in Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250 (Unreported,MacMenamin J., 13th November, 2006) and Arklow Holidays v. An Bord Pleanála [2008] IEHC 2, per Clarke J. (as he then was). I havealso discussed these criteria in a number of cases, including S.A. v. Minister for Justice and Equality (No. 2) [2016] IEHC 646[2016] 11 JIC 1404 (Unreported, High Court, 14th November, 2016) (para. 2), and Y.Y. v. Minister for Justice and Equality (No. 2)[2017] IEHC 185 [2017] 3 JIC 2405 (Unreported, High Court, 24th March, 2017) (para. 72). I have received helpful submissions from Mr.Eamonn Dornan B.L. for the applicant and from Mr. Nick Reilly B.L. for the respondents.Applicant’s first question3. The first question of proposed exceptional public importance is “in finding that an applicant’s failure to apply for InternationalProtection in the U.K. undermines his/her claim for protection, is there any significance to be attached to concerns in relation to theU.K.’s former “fast-track procedure” which was found to be “unlawful”.4. That question is totally fact-specific. It is a matter for the tribunal to consider and weigh any explanations by the applicant. Thequestion does not raise a matter of any, still less exceptional, public importance. That is reinforced by the word “former” in thequestion, emphasising that the fast-track procedure no longer applies.5. More fundamentally, I did not find that there was no significance to be attached to the former fast-track procedure. That is amatter for the IPAT to weigh and consider in deciding any individual case.6. Furthermore, the applicant’s evidence in any event was that he travelled to the UK to study and had legal advice there. It is not acase that really turns on this issue anyway because this was not a situation where the applicant has established to the satisfactionof the tribunal that he was all set to make an asylum claim on arrival in the UK but was deterred from doing so because of areasonably held view that the fast-track system there was illegal. The notion of an asylum claim rather only seems to have enteredthe applicant’s mind after his UK visa was cancelled.7. For each of those independent but mutually reinforcing reasons this point cannot be the basis for grant of leave to appeal. I mightfinally observe under this heading that insofar as the applicant makes the point that it cannot have been intended in the No. 1judgment that Ireland should conform its approach with illegality conducted by the UK (para. 38 of applicant’s written submissions)one can safely assume that that wasn’t the point being made – rather the general point was that divergences in immigrationapproaches with the neighbouring jurisdiction may create distortions undermining immigration control. That was not intended to be aparticularly prescriptive comment.Applicant’s second question8. The second proposed question of exceptional public importance is “what are the ‘special circumstances’ as set out by the Court ofAppeal in A.O. v. Refugee Appeals Tribunal [[2017] IECA 51] which would compel an international protection decision-maker toengage in an investigation into the authenticity of a document relied on by an applicant for international protection”. I dealt with thisin M.S.R. v. International Protection Appeals Tribunal (No. 2) (Unreported, High Court, 4th February, 2019) and insofar as relevant thereasons there apply here as to why this point fundamentally misunderstands European Convention law.Applicant’s third question9. The applicant’s third proposed question of exceptional public importance is “in the assessment of the weight of the material in aninternational protection application is a decision-maker required to apply the benefit of the doubt to a material fact, or to anapplicant’s account in general”.10. It is hard to see how this point gets off the ground. It is well established that the benefit of the doubt only applies where theapplicant’s general credibility has been established. Thus it can only apply to a specific element of the account within an overallcontext where such general credibility has been established. That is clear from both art. 4(5)(e) of the qualification directive2004/83/EC and s. 28(7)(e) of the International Protection Act 2015. The applicant doesn’t need to appeal in order to find out thatthese provisions say what they say.11. In any event, the principle of the benefit of the doubt is not referred to in the judgment so it can hardly be a point for leave toappeal in this case. Furthermore it is only referred to in the applicant’s written submissions at the substantive hearing in the contextof reciting the decision under challenge, not as the basis for any submission as to the invalidity of that decision.12. The suggestion was made in submissions that in not extending the benefit of the doubt to all aspects of the applicant’s story, thetribunal was not taking into account all matters referred to in s. 28 of the 2015 Act, but that is a misunderstanding. The tribunalconsidered all material matters but did not extend the benefit of the doubt to matters that the applicant had not substantiatedbecause the applicant’s general credibility had not been established. That is what both the Act and EU law requires.Page 2 ⇓13. The question was reformulated in the body of the applicant’s submissions as follows “the question of exceptional importance,then, is whether an international protection decision-maker may dismiss any particular material fact based on adverse credibilityfindings made on other material facts, or whether each material fact is entitled to be determined on a stand-alone basis coupledwith the benefit of the doubt”.14. However, this misunderstands the process involved. It is up to the applicant to establish the elements of the claim subject to theprovisions of the Act and the qualification directive, including the shared duty where appropriate. If the applicant fails to substantiatea particular element, the element may still be upheld if the benefit of the doubt applies. Conversely an applicant may lack credibilityon certain matters but may still be in a position to substantiate a particular material fact. An applicant cannot complain if, as here, hefails to substantiate a material fact and does not get the benefit of the doubt in relation to that fact because he is lacking in generalcredibility. That is simply the effect of the legal provisions referred to above. Mr. Dornan stressed that the applicant’s account wasconsistent in certain respects but that does not amount to an establishment of an applicant’s general credibility or entitle him to thebenefit of the doubt. Otherwise, as referred to in the No. 1 judgment, one would be handing out international protection simply forkeeping one’s story straight.Public interest in an appeal15. In the No. 1 judgment at para. 7, I noted that at para. 4.9 of the decision under challenge, the tribunal listed ten pages offactors militating against the applicant’s credibility, as part of an unusually detailed, 50 page consideration of his claim. A largeaccumulation of such adverse factors means that even if, counterfactually, the applicant had a point of exceptional public importanceunder any of the foregoing headings, this is not an appropriate case in which to explore any such issue because any one such item ishardly decisive in a context of a lengthy catalogue of matters undermining the applicant’s credibility. It is therefore neither decisive ofthe case nor in the public interest for such an appeal to be allowed.Order16. The application is dismissed.