Qualification for Protection

 

Cases

R.A. -v- Refugee Appeals Tribunal & Ors

[2017] IECA 297 (15 November 2017)

Judgment
Title:
R.A. -v- Refugee Appeals Tribunal & Ors
Neutral Citation:
[2017] IECA 297
Court of Appeal Record Number:
2016 288
High Court Record Number:
2011 1186 JR
Date of Delivery:
15/11/2017
Court:
Court of Appeal
Composition of Court:
Finlay Geoghegan J., Irvine J., Hogan J.
Judgment by:
Hogan J.
Status:
Approved
Result:
Allow

THE COURT OF APPEAL
Neural Citation Number: [2017] IECA 297
No. 2016 288

Finlay Geoghegan J.
Irvine J.
Hogan J.

BETWEEN/
R.A.
APPLICANT/
APPELLANT

AND
REFUGEE APPEALS TRIBUNAL, MINISTER FOR JUSTICE AND

EQUALITY, ATTORNEY GENERAL AND IRELAND

RESPONDENTS/
RESPONDENTS

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 15th day of November 2017

1. This is an appeal taken by the applicant from a decision of the High Court (Humphreys J.) delivered on 4th November 2015 which rejected the applicant’s application for judicial review of a decision of the Refugee Appeal Tribunal dated 25th November 2011: see RA v. Refugee Appeals Tribunal (No.1) [2015] IEHC 686. In a subsequent judgment delivered on 21st December 2015, Humphreys J. granted the applicant the requisite certificate for leave to appeal to this Court pursuant to s. 5(6)(a) of the Illegal Immigrants (Trafficking) Act 2000 (as substituted by s. 34 of the Employment Permit (Amendment) Act 2014): see RA v. Refugee Appeals Tribunal (No.2) [2015] IEHC 830.

2. The certified point of law was in the following terms:

“Whether an asylum decision maker is obliged to engage in a narrative discussion of country of origin information in a case where such information is not being positively rejected (in the sense that the decision is positively inconsistent with such information, as opposed to simply that the information is not considered to be relevant, necessary for the decision or sufficiently supportive of the claim made) including where the credibility of the applicant is being rejected generally.”
3. Before considering any of these legal issues, it is first necessary to examine the factual background to these proceedings.
4. On the 12th May 2011 the applicant, Mr. A., arrived in Ireland and immediately claimed asylum. His case was that he had previously been the leader of the youth section in his own local area of the Ivorian Popular Front in the Ivory Coast (“Front Populaire Ivoirien”)(“FPI”) and that he had been forced to flee the country in May 2011 after the outbreak of extensive civil conflict.

5. The first and second rounds of the Ivoirian Presidential election were held in October and November 2010. According to the country of origin (“COI”) information supplied by the UNHCR and exhibited by the applicant (Ref World, “Gbagbo Supporters Tortured, Killed in Abidijan” dated 2nd June 2011), the outcome of these elections was disputed. Eventually, the previous incumbent, President Laurent Gbagbo (the leader of the FPI), was ousted from power and replaced by President Alassane Ouattara in April 2011. Following the arrest of Gbagbo and his indictment before the International Criminal Court, the FPI announced a boycott of the parliamentary elections which were scheduled for the following November.

6. According to the COI reports, Gbagbo supporters had been targeted by Ouattra supporters after the latter had come to power. Killings (including many summary executions), torture and the torching of buildings were all reported by human rights observers in the weeks that followed President Gbagbo’s arrest on 11th April 2011. This is also borne out by the COI information utilised by ORAC in considering the present application. Thus, for example, a report in The Daily Telegraph of 19 April 2011 (“Ivory Coast: Laurent Gbagbo general betrayed by lover”) reported that “pro-Gbagbo fighters are said to fear that they will be tortured or murdered if they surrender.” An Amnesty International Report dated May 2011 provided a contemporary account of wanton killings by both forces, the indiscriminate use of live ammunition and mortar shelling to suppress street protests, extra-judicial killings and summary executions.

7. Mr. A.’s case is that on that day (i.e., 11th April 2011) he went to work on that morning in Abobo (a northern suburb of the capital, Abidjan), but he was informed by his neighbours that his house had been burnt down. He then said that he was first arrested as an FPI supporter, but that he was later released as Ouattra supporters feared that army units loyal to Gbabgo might return. Mr. A. then says he went into hiding, staying at the house of an uncle. His uncle then paid for him to take a flight out from Abidjan and that Mr. A. arrived here on 12th May 2011, having travelled first by plane to Germany.

8. Mr. A.’s case was first considered by the Office of the Refugee Appeals Commissioner (“ORAC”). While in a decision dated 1st July 2011 the ORAC found as a fact that Mr. A. was from Abobo, it also found against the applicant’s principal claims due to credibility issues. The ORAC found that he could not, for example, name prominent members of the FPI nor any of the militias that were active during this period. He likewise gave accounts of the fighting during the conflict which were inconsistent with established COI reports. When asked, for example, what had happened at a particular marketplace in Abobo on 17th March 2011, he maintained that traders had been slaughtered by Ouattra supporters, whereas the COI information available to the ORAC (from the Amnesty Report) was to the effect that the killings had been caused by shelling of the area by army units loyal to President Gbagbo. These and other inconsistencies in his narrative accordingly led the ORAC in a very careful ruling to make adverse credibility findings against Mr. A.
The decision of the Refugee Appeal Tribunal
9. In its decision of 25th November 2011 the Tribunal concluded that the applicant’s account contained such inconsistencies that his general credibility was undermined. Some examples can now be given.

10. First, the applicant had been asked in the course of his s. 11 interview to name the “leader of the FPI in your area” to which he had replied: “Kuadio Fibel, he was the president of FPI in my area.” By contrast at the hearing before the Tribunal the applicant had given the name “Bamba Youssouff” as the leader of the FPI in Abobo. When this inconsistency was put to the applicant, he said that at the s. 11 interview he had been asked to identify the name of the local secretary and that is why he gave Mr. Fibel’s name.

11. Second, he had been asked at the s. 11 interview to identify the name of his local member of Parliament, to which he had replied: “He was an ex-soldier, General Bruno: he was also my uncle.” Before the Tribunal Mr. A. said that Mr. Youssouff was the local member.

12. Third, he was asked to identify the names of the security forces and the youth militias loyal to President Gbagbo. Apart from the generic title of “Gendarmerie” and the name of “Con Commando”, he could not identify the particular names of any of these units by reference to the COI information. (I would observe, however, that the Amnesty Report does refer to the activities of an anti-Gbagbo militia known as the “Invisible Commando” and it also stated that these organisations had a myriad of names.)

13. Finally, in his original application Mr. A. had stated that he believed that his wife and children had fled to Ghana, yet in evidence before the Tribunal he stated that he did not know where they were. When this inconsistency was put to him, he said that the interpreter had possibly made a mistake. He also explained that he had been told by some Church members that others had fled to neighbouring countries such as Ghana or Togo. He maintained that he had never said that he had actually located them in Ghana.

14. The Tribunal next noted that some of the documents submitted by the applicant contained a number of errors. His electoral card (“Carte d’Électeur”) misspells his first name by omitting the word “h”. There is a further error in that the entry for date of birth reads as follows: “Date de naissance: 20 Mais 1978”, so that the French word for “May” is misspelt.

15. The Tribunal member concluded:

“Whilst I have had full regard to the documentation submitted by the applicant purporting to confirm the applicant’s activities with the FPI party and the difficulties he claims to have experienced arising from same, in light of the issues arising in the applicant’s own evidence, I cannot accept that these documents represent a truthful account of circumstances.
I have considered all of the documentation, medical evidence, photographs, country of origin information, grounds of appeal, submissions and case law relied on in support of this applicant’s claim. This information does not assist the applicant in circumstances where his credibility is found wanting to such a degree that the very basis of his claim is not believed. I do not believe the applicant. I found him to be vague and evasive in his manner of answering questions raised by the Tribunal and I cannot accept that his manner of answering such questions was anything other than a deliberate attempt by him to confuse the evidence.”

16. The Tribunal accordingly found against the applicant.
The decision of the High Court
17. The applicant then sought judicial review of a decision of the Refugee Appeal Tribunal, which application was rejected by Humphreys J. in a detailed reserved judgment. A key part of that judgment addressed the issue of the extent to which the decision-maker was obliged to consider COI information.

18. In this regard the applicant placed particular reliance on the terms of Article 5(1) of the European Communities (Eligibility for Protection) Regulations 2006 (S.I. No. 518 of 2006)(“the 2006 Regulations”) which provides:

“The following matters shall be taken into account by a protection decision-maker for the purposes of making a protection decision:

(a) all relevant facts as they relate to country of origin at the time of taking a decision on the application for protection, including laws and regulations of the country of origin and the manner in which they are applied;
(b) the relevant statements and documentation presented by the protection applicant, including information on whether he or she has been or may be subject to persecution or serious harm….” (emphasis supplied)

19. A key submission in the High Court was that Article 5(1) of the 2006 Regulations (and particularly the highlighted words) had altered pre-existing law and had obliged the Tribunal to consider the COI in all cases. Prior to the commencement of the 2006 Regulations in October 2006, the leading authority on the extent of the obligation to consider COI material had probably been the judgment of Peart J. in Imafu v. Minister for Justice, Equality and Law Reform [2005] IEHC 416.
20. In that case the applicant, a Nigerian national, had claimed that she had been trafficked to Italy for the purposes of prostitution and that she faced persecution if she were to be returned to Nigeria. Peart J. observed that there was no need to have resort to COI which stated the obvious, “namely, that women are trafficked from Nigeria to Italy and that on their return to Nigeria they may become the object of attention by the authorities in relation to a possible offence.” As Peart J. stated in that judgment, the position was otherwise where the matter is an unusual one “which would have to be checked out before one could assert with any reliability that the applicant was not being truthful.”

21. As it happens, the specific argument advanced in the present case regarding the effect of the 2006 Regulations had been expressly rejected by Clark J. in VO v. Minister for Justice, Equality and Law Reform [2009] IEHC 21. She noted that prior to 2006:

“…the best practice in the assessment of the credibility of asylum claims was to consult country of origin information to establish whether the applicant’s story, as outline, could be true in the context of the situation prevailing in his country of origin, this was not a hard or invariable rule. There are always circumstances where a decision on credibility can be arrived at without consulting country information.”
22. She added that on the particular facts of that case any consultation of COI would have been of little value, as it could not “assist in making the applicant’s story of persecution more credible to the Commissioner.” Subject to one possible exception which I will next consider, this general approach has been consistently followed by the High Court in the multitude of asylum credibility cases which have followed in the years that followed.
23. There are, of course, many cases where the necessity to consult the COI is manifest. An example here is the decision of Eagar J. in MMS (Sri Lanka) v. Minister for Justice and Equality [2015] IEHC 659. In that case, the Tribunal member rejected the applicant’s claim that he had been persecuted on grounds of his Tamil ethnicity on credibility grounds. The applicant had claimed to this end that he been held incommunicado at a particular prison, but that his brother in law had arranged for him to escape. The Tribunal member rejected this claim on credibility grounds but he had made no reference to the COI which had documented 35 instances of detainees escaping from that prison by paying a bribe to the prison guards. Eagar J. did, however, say that in view of the 2006 Regulations “the qualification suggested by Peart J. [in Imafu] can no longer be relied on”, albeit without reference to the post-2006 Regulations case law such as VO. It was this latter holding which troubled Humphreys J. in the present case.
24. On this point the judge said:

“The applicant’s argument essentially is that the approach I have been discussing only held good up to 2006. The adoption of the European Communities (Eligibility for Protection) Regulations 2006, the applicant says, fundamentally changed that situation, because regulation 5(1) of the Regulations requires the tribunal member to have regard to all documentation submitted to it. It is suggested that the obligation to consider all documentation now supersedes the previous approach and requires the tribunal member to analyse country of origin information in a narrative form, addressing the extent of which it supports the applicant, in every case, even where the tribunal member is otherwise inclined to reject the credibility of the applicant.”
25. Humphreys J. then continued:
“There are a number of reasons why this submission is unsustainable. As a matter of first principles, as I have said, it is irrational and pointless to require a decision maker to consider something in a narrative form if such consideration does not affect the ultimate decision. Secondly the 2006 Regulations only require “relevant” documentation to be considered, and documents which become irrelevant because of the applicant’s overall lack of credibility are not relevant in this sense. A third fundamental logical difficulty with this approach is that the tribunal member’s obligation to consider the documentation is not something that was created out of whole cloth in 2006. That obligation was in any event a basic obligation under the Refugee Act 1996, so in this respect, as Clark J. put it in V.O., “nothing has changed in relation to the method of assessment of credibility of refugee applicants” (at para. 23).
26. The judge continued further by saying:
“Section 16 of the Refugee Act 1996 (as amended by the Immigration Act 1999) has identified a number of matters that the tribunal must consider, including the report of the Commissioner, “the evidence adduced and any representations made at an oral hearing, if any” and include any documents, representations in writing or other information furnished to the Commissioner pursuant to section 11”. Pursuant to s. 16(5) the Commissioner is obliged to furnish the tribunal with copies of any such reports, documents or representations in writing submitted under s.11 and an indication in writing of the nature and source of “any other information relating to the application which has come to the notice of the Commissioner in the course of an investigation by him or her”. Clearly this provision has no purpose if the tribunal is not obliged to consider information so furnished.
In short the Tribunal has always been under an obligation to consider relevant documentation, and at the level of principle, in this respect, regulation 5(1) of the 2006 Regulations does not alter that, or usher in any kind of new regime.”

27. Humphreys J. then went on to discuss the (then recent) judgment of Eagar J. in MMS on which the applicant had relied:
“It seems to me abundantly clear that Eagar J. was only in a position to arrive at the conclusion that the Imafu decision was not applicable because a great deal of the previous case law had not been opened to him, particularly the analysis of Clark J. in V.O. ….I feel confident in saying that Eagar J. could not have arrived at the conclusion he came to in M.M.S. if he had had opened to him the full range of authorities which I have had the benefit of in the present case.”
28. In such circumstances Humphreys J. felt that he was not obliged to follow MMS in view of the established principles enunciated by Parke J. in Irish Trust Bank Ltd. v. Central Bank of Ireland [1976-1977] I.L.R.M. 50, as that decision had been given per incuriam as relevant earlier authority which was directly on point had not been opened to the Court
29. Humphreys J. then went on to consider whether there was an obligation on the Tribunal to assess the COI in a narrative fashion. He concluded that in view of the Tribunal’s rejection of the applicant’s credibility, there was no such obligation, at least so far as the present case was concerned:

“However, given the rejection of the applicant’s credibility there was no obligation to consider the country of origin information further. It was a matter for the Tribunal as to how to consider the country of origin information, and the Tribunal did not “dismiss” or “reject” that information in the sense I have described namely, by making a finding inconsistent with it. The Tribunal states that it has considered the country of origin information, and in the absence of evidence to the contrary the applicant has not discharged the burden of showing that it has not. Its decision is consistent with the perfectly legitimate approach of considering that there may have been unrest in 2011 but the applicant’s version of his role in it is not to be accepted.”
30. Humphreys J. then proceeded to uphold the conclusion of the Tribunal and he rejected the applicant’s claim. It is clear, nevertheless, from the certified point of law that this appeal now raises more generally the question of the extent to which the decision maker is obliged to have regard to COI. It is to that issue to which I now propose to turn.
The extent to which the decision maker is obliged to have regard to country of origin information
31. It is clear that the obligation on the part of the decision maker contained in Article 5(1) of the 2006 Regulations is to consider only the relevant COI. There is no need for the decision maker to consult such COI in a ritualised or mechanistic fashion in every single case, regardless of the personal circumstances of the applicant or the nature of the claim made by the applicant.

32. In that respect, therefore, I consider that the 2006 Regulations largely reflect pre-existing law and practice as explained by Peart J. in Imafu and in countless other cases of a similar nature. I further agree with what Clark J. said in VO (and, indeed, what many other judges have said in a host of subsequent decisions) to the effect that Article 5 of the 2006 Regulations did not alter that practice or that it required that COI be consulted in all cases, regardless of the circumstances. Thus, for example, in Imafu Peart J. accepted as a given that Nigerian women were being trafficked for prostitution to Italy, so that it was not necessary in that instance for the Tribunal member to refer to COI to buttress her knowledge of largely undisputed facts. To that extent, therefore, I consider that the dictum of Eagar J. to the contrary in MMS is, with respect, out of line with the authorities and cannot be supported. It follows in turn that in the present case Humphreys J. was entitled not to follow that authority having regard to the Irish Trust Bank principles.

33. Although the assessment of credibility is, perhaps, often the most important task facing the decision maker in claims for international protection, it is also undeniably one of the most difficult. This is why beyond endorsing the general approach articulated by Peart J. in Imafu and by Clark J. in VO, the articulation of prescriptive, a priori rules regarding the assessment of COI represents a difficult task, as much will naturally depend on the circumstances of any given case.

34. These difficulties were eloquently expressed by Cooke J. in IR v. Minister for Justice [2009] IEHC 353, [2015] 4 I.R. 144, 148:“In most forms of adversarial dispute the assessment of the credibility of oral testimony is one of the most difficult challenges faced by the decision-maker. The difficulty is particularly acute in asylum cases because, almost by definition, a genuine refugee will be someone who has fled home in circumstances of stress, urgency and even terror and will have arrived in a place which is wholly strange to them; whose language they do not speak and whose culture may be incomprehensible. Inevitably, many will have fled without belongings or documentation from areas in a state of anarchy or from the regimes responsible for their persecution so that obtaining any administrative evidence of their status and even identity may be impractical, if not impossible. In such cases the decision-makers at first instance have the unenviable task of deciding if an applicant can be believed by recourse to little more than an appraisal of the account given, the way in which it was given and the reaction of the applicant to sceptical questions, to the highlighting of possible discrepancies or to contradictory evidence from other sources. Recourse will also be had in appropriate cases to what is called “country of origin information”, but in most cases this will be of use only in ascertaining whether the social, political and other conditions in the country of origin are such that the events recounted or the mistreatment claimed to have been suffered, may or may not have taken place.”

35. This was precisely the type of problem which the confronted the Tribunal in the present case. The applicant claimed to have fled the Ivory Coast in fear of his life at a time of what amounted to civil war. There is no doubt at all but that he would have been entitled to international protection if that story was true or perhaps even substantially true. As the details of these events and the fighting between the two factions are not necessarily well known, the first thing, therefore, which the Tribunal had to consider was whether the applicant’s account might be true by reference to the available COI: see, e.g., the comments to this effect of Kelly J. in Camara v. Refugee Appeals Tribunal, High Court, 26th July 2000 and those of Finlay Geoghegan J. in AMT v. Refugee Appeals Tribunal [2004] IEHC 606, [2004] 2 IR 607. In Camara Kelly J. said:

“… it is clear that an applicant’s credibility is always a relevant issue which falls to be assessed by the examiner. Goodwin- Gill, The Refugee and International Law (Clarendon Paperbacks, Oxford) at page 349, puts the matter this way: ‘Simply considered, there are just two issues. First, could the applicant’s story have happened, or could his/her apprehension come to pass, on their own terms, given what we know from available country of origin information? Secondly, is the applicant personally believable? If the story is consistent with what is known about the country of origin, then the basis for the right inferences has been laid. Inconsistencies must be assessed as material or immaterial. Material inconsistencies go to the heart of the claim, and concern, for example, the key experiences that are the cause of flight and fear. Being crucial to acceptance of the story, applicants ought in principle to be invited to explain contradictions and clarify confusions.’ These quotations appear to me to accurately represent the questions which must be addressed by an examiner and the approach which ought to be adopted by the examiner and the Authority.”
36. In AMT Finlay Geoghegan J. approved these principles. She quoted from the decision of Judge Pearl in Milan Horvath v Secretary of State for the Home Department (United Nations High Commissioner for Refugees Intervening) [1999] I.N.L.R. 7, 17 where he had stated:
“(21) . . . It is our view that credibility findings can only really be made on the basis of a complete understanding of the entire picture. It is our view that one cannot assess a claim without placing that claim into the context of the background information of the country of origin. In other words, the probative value of the evidence must be evaluated in the light of what is known about the conditions in the claimant’s country of origin.”
37. Finlay Geoghegan J. then went to add ([2004] 2 IR 607, 617):
“In accordance with the above principles, I have concluded that the Tribunal Member in this case was obliged to assess the applicant’s story that, as an illiterate person, he was employed as a driver to Secretaries of top government officials in the context of what is known of the conditions in the Ivory Coast. Further, that by reason of the central importance this part of the story to the assessment of the credibility of the applicant her failure to do so renders the decision invalid.”
38. The starting point, therefore, was to examine whether the applicant was an Ivorian national and whether he had come from the Ivory Coast at the time in question. In its ruling the ORAC had concluded – based on an examination of his knowledge of the local geography of the region – that Mr. A. had indeed come from Abobo and there is no doubt at all but that his arrival in Ireland on 12th May 2011 coincided with intense civil conflict in the Ivory Coast.
39. This is borne out by the COI information which was available to the RAT. Thus, for example, the Ref World article for 2nd June 2011 to which I have already made reference stated:

“Armed forces loyal to President Alassne Ouattara have killed at least 149 real or perceived supporters of the former President Laurent Gbago since taking control of the commercial capital in mid-April 2011, Human Rights Watch said today. Pro-Gbago militiamen killed at least 220 men in the days immediately preceding and following Gbago’s arrest on April 11th, when the nearly four month conflict came to a close.”
40. The Tribunal did not, however, refer to the COI at all in considering whether the applicant’s account might be true. The applicant’s claim, after all, was that he had discovered that his own house had been burnt down by Ouattra militiamen on 11th April 2011 and that he had gone into hiding on that day. The veracity of that claim was central to the entire credibility assessment, yet it could not be dismissed without at least some reference to the COI, As Peart J. put it in Imafu, this was precisely the kind of “unusual matter which would have to be checked out before one could assert with any reliability that the applicant was not being truthful.”
41. Although there is no finding as to the origin of the applicant in the decision of the Tribunal, it seems at least generally implicit in that decision that the ORAC’s finding to the effect that he was an Ivorian national who came from Adobo was accepted. In view, however, of the approach taken in cases such as Camara and AMT and the specific requirements of the Article 5(1)(a) of the 2006 Regulations, the failure of the Tribunal to consider the credibility of his claim in the context of relevant COI in itself rendered the decision invalid.

42. Given, however, that this matter will now be remitted to the newly established International Protection Tribunal, it is, I think, important that the other matters raised by the applicant – and, specifically, the handling of documentary material relied on by him – are also addressed.
The approach of the courts in judicial review proceedings
43. The general approach of the courts in judicial review applications of this kind where a request for asylum has been rejected on credibility grounds is well established and was summed up by Cooke J. in IR in the following terms ([2015] 4 I.R. 144, 149):

“It is because in such cases the judgment of the primary decision-maker must frequently depend on the personal appraisal of an applicant, that it is not the function of the High Court in judicial review to reassess credibility and to substitute its own view for that of the decision-maker. Its role is confined when a finding of lack of credibility is attacked, to ensuring that the process by which that conclusion has been reached is legally sound and not vitiated by any material error of law.”
44. To that comprehensive statement I would add only the following: as this Court pointed out in NM (DRC) v. Minister for Justice and Equality [2016] IECA 217, [2016] 2 I.L.R.M. 369, 395, the effective remedy requirement of Article 39 of the Procedures Directive (Council Directive 2005/85/EC) as interpreted by the Court of Justice in Case C-69/10 Diouf EU:C:2011: 524:
“….imposes only one – albeit, critical – requirement, namely, that the remedy in question must remain an effective one. As Diouf itself makes clear, this means that the supervisory jurisdiction of the High Court must be ample enough to ensure that “the reasons which led the competent authority to reject the application for asylum as unfounded… may be the subject of a thorough review by the national court.”
45. Given the importance of the analysis of this difficult issue which is contained in IR, together with the clarity of thought and expression found in that judgment, it is, I think, helpful to examine Cooke J.’s approach in a little detail. Returning, therefore, to the judgment in IR, Cooke J. next stated that ([2015] 4 I.R. 144, 149):
“…. the starting point for the decision-makers is, of course, the statutory provisions and guidelines relating to the process which they are required to follow in assessing claims to refugee status and to subsidiary protection. Both the Commissioner and the Tribunal in this jurisdiction are required by s. 11B of the Refugee Act 1996 to have regard to the thirteen particular matters listed at paras. (a) to (m) of that section when assessing credibility. For the most part these are factors or indicators which any experienced adjudicator will have in mind as a matter of common sense such as the truth of the explanation given as to how an applicant travelled to the State; why asylum was not sought in safe countries traversed en route and the use of forged documents for the making of false representations.
That mandatory check list is supplemented by the more pedagogic requirements of regulation 5 of the European Communities (Eligibility for Protection) Regulations 2006 which both prescribe matters to be taken into account in assessing facts and circumstances and, in subs. (2) and (3) give guidance as to the evaluation of persecution or serious harm already suffered and as to the circumstances in which aspects of statements unsupported by documentary or other evidence will not require confirmation. Furthermore, authoritative guidance as to the approach to be taken in evaluating claims, in handling the burden of proof and according the benefit of doubt to an applicant is given in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (Geneva, 1992) (see in particular the section “Establishing the Facts” at paras. 195-205).”

46. Cooke J. then observed that ([2015] 4 I.R. 144, 150):
“The present case is one in which the decision of the Refugee Appeals Tribunal of 17th April 2007 now sought to be quashed, turns entirely upon the credibility of the applicant’s account of his personal history and raises a number of the broad issues which are frequently encountered:

(i) how is this decision-maker to strike a correct balance when required to weigh evidence in different forms and of different quality:
(ii) if the decision-maker doubts the plausibility of an account given in personal testimony what duty, if any, is there to consider and assess the probative value and effect of documentary evidence or other secondary information which appears to be supportive of the doubted testimony: and

(iii) where the decision-maker rejects as incredible the personal testimony of an applicant what is the extent of the obligation, if any, to state the reasons for the rejection or discounting of other inconsistent documentary evidence or secondary information?”

47. Having reviewed much of the pre-existing case-law on this topic, Cooke J. then set out the following principles which have been consistently followed ever since ([2015] 4 I.R. 144, 151-152):
“So far as relevant to the issues dealt with in this judgment it seems to the Court that the following principles might be said to emerge from that case law as a guide to the manner in which evidence going to credibility ought to be treated and the review of conclusions on credibility to be carried out:-

“(1) The determination as to whether a claim to a well founded fear of persecution is credible falls to be made under the Refugee Act 1996 by the administrative decision-maker and not by the Court. The High Court on judicial review must not succumb to the temptation or fall into the trap of substituting its own view for that of the primary decision-makers.
(2) On judicial review the function and jurisdiction of the High Court is confined to ensuring that the process by which the determination is made is legally sound and is not vitiated by any material error of law, infringement of any applicable statutory provision or of any principle of natural or constitutional justice.

(3) There are two facets to the issue of credibility, one subjective and the other objective. An applicant must first show that he or she has a genuine fear of persecution for a Convention reason. The second element involves assessing whether that subjective fear is objectively justified or reasonable and thus well founded.

(4) The assessment of credibility must be made by reference to the full picture that emerges from the available evidence and information taken as a whole, when rationally analysed and fairly weighed. It must not be based on a perceived, correct instinct or gut feeling as to whether the truth is or is not being told.

(5) A finding of lack of credibility must be based on correct facts, untainted by conjecture or speculation and the reasons drawn from such facts must be cogent and bear a legitimate connection to the adverse finding.

(6) The reasons must relate to the substantive basis of the claim made and not to minor matters or to facts which are merely incidental in the account given.

(7) A mistake as to one or even more facts will not necessarily vitiate a conclusion as to lack of credibility provided the conclusion is tenably sustained by other correct facts. Nevertheless, an adverse finding based on a single fact will not necessarily justify a denial of credibility generally to the claim.

(8) When subjected to judicial review, a decision on credibility must be read as a whole and the Court should be wary of attempts to deconstruct an overall conclusion by subjecting its individual parts to isolated examination in disregard of the cumulative impression made upon the decision-maker especially where the conclusion takes particular account of the demeanour and reaction of an applicant when testifying in person.

(9) Where an adverse finding involves discounting or rejecting documentary evidence or information relied upon in support of a claim and which is prima facie relevant to a fact or event pertinent to a material aspect of the credibility issue, the reasons for that rejection should be stated.

(10) Nevertheless, there is no general obligation in all cases to refer in a decision on credibility to every item of evidence and to every argument advanced, provided the reasons stated enable the applicant as addressee, and the Court in exercise of its judicial review function, to understand the substantive basis for the conclusion on credibility and the process of analysis or evaluation by which it has been reached.”

48. Although, as I have already observed, it is not easy to prescribe a priori rules governing the assessment of credibility issues, it would nonetheless be difficult to improve upon the statements of principle (and summary of existing case-law and practice) found in this judgment.
The application of the IR principles to the facts of that case
49. It may be useful next to consider the manner in which these principles were actually applied by Cooke J. in IR, since the facts of that case bear some passing resemblance to the present one. In that case the applicant was a Belarusian who had claimed that he had beaten up and imprisoned for taking part in protest marches organised by an opposition party of which he had been a member. He also said that following his release from prison he had taken part with his girlfriend in another protest rally at Minsk. He maintained that his girlfriend then wrote a newspaper article concerning the protest which was published the following day, for which he said he took the photographs. As a result, her family house was raided and searched by police a few days later.

50. At first instance the ORAC recommended that the applicant be not declared a refugee essentially upon credibility grounds. That assessment was made on the basis of the applicant’s apparent lack of knowledge when questioned about the opposition party (“BPF”) and its leadership. The report referred to the documents produced by the applicant but said “the authenticity of the documents submitted cannot be verified or refuted”.

51. These issues were then raised on appeal before the Tribunal. The Tribunal member observed that had the applicant been a member of the BPF and been imprisoned on this account, then “One would assume that this applicant should have a basic knowledge of the Belarus Popular Front”. The Tribunal member found that the applicant lacked a basic knowledge of the BPF and gave a number of examples of discrepancies in this regard which were said to arise from his answers at interview.

52. First, the Tribunal member cited country of origin information describing the role and political history of one Zianon Pazniak, a prominent Belarusian politician and founder of the BPF party who is described as having fled from Belarus in 1996 to avoid being killed by Alexander Lukashenko, the President of Belarus. The Tribunal member found that when questioned about Mr. Pazniak, the applicant gave wrong or inaccurate answers. Second, the applicant was also questioned about elections in Belarus between 2001 and 2006, but in his replies omitted any reference to parliamentary elections held on 17th October 2004. Third, he was questioned about what the Tribunal member said there was a “well publicised split” in the BPF which took place in 1999. The applicant said it took place in 1994.

53. Cooke J. then referred to these matters and then observed ([2015] 4 I.R. 144, 155-156):

“Thus, it is on the Tribunal member’s appraisal of the applicant’s lack of basic knowledge of the history, leadership, and activities of the party in which he claims to have been a member and for which he went to jail, that the negative finding on credibility is reached.
If, as in other cases, the applicant’s claim turned entirely on his personal testimony, it would be difficult to persuade the Court to interfere with that assessment. The applicant has been interviewed by the Commissioner and had an oral hearing before the Tribunal member. Both decision-makers have seen and heard him and concluded that he lacks credibility. The observations made by the Tribunal member are based on questions put to him which arise directly and logically out of the applicant’s own account. On that basis, it could not be said that it was perverse or irrational for the Tribunal member to consider that a better knowledge of the BPF could be expected from someone with the applicant’s level of education who claims to have had the involvement in that party which he described.”

54. Cooke J. then noted, however, that the applicant’s case also rested on documentary evidence, including a police report, a court decision and verdict, a handwritten letter said to be from the applicant’s cell mate in the Belarus prison, the newspaper article said to have been written by the applicant’s girlfriend with his photographs and a sample of a “wanted” poster or leaflet said to have been issued by the Belarus authorities naming the applicant and one other individual. Cooke J. then said ([2015] 4 I.R. 144, 157):
“The court considers that what is crucial about this material so far as concerns the legality of the process by which the conclusion on credibility in the contested decision was reached, is that none of it is referred to anywhere in that decision except insofar as it might be said to have been included in the phrase “The Tribunal has considered all the relevant documentation…” which appears in the conclusion at section 7….. It is true, of course, ….that the mere existence and submission of such documents does not necessarily render untenable a judgment as to the lack of credibility of the oral testimony of the applicant. Indeed, counsel pointed out that even on a cursory examination of the translations of the court documents there were discrepancies which might put their authenticity in question. Different amounts appear to be given for the same fine and the Bereza court verdict of 15th May, 2004 refers to the applicant having no previous convictions and yet a few lines later it refers to a previous conviction as an aggravating factor in the sentence.”
55. The judge added ([2015] 4 I.R. 144, 157-158):
“Indeed, it might well be that on closer scrutiny, some or all of these documents might be shown to be false and even to have been fabricated for the very purpose of the asylum application. However, the girlfriend’s article, for example, looks superficially to be in an original newspaper surrounded by other typical items, advertisements and so on, but it could conceivably be shown perhaps that the names of the author and the photographer in the byline are names the girlfriend and the applicant have adopted in order to claim asylum. Thus, it may all be shown to be an elaborate contrivance and fraud.
Nevertheless, unless and until such issues are addressed by the appropriate decision-maker, from the point of view of the validity of the contested decision as it now exists, the fundamental point is that this was, at least on its face, original, contemporaneous documentary evidence of potentially significant probative weight in corroborating key facts and events. If it is authentic, it may prove that the applicant has suffered persecution for his political activities. If that is so, then the judgmental assessment that is made of the quality of his answers to the questions about the BPF may possibly assume an entirely different weight when all of the evidence, both testimony and documentary, is objectively weighed in the balance.”

56. All of this led Cooke J. to the following conclusions ([2015] 4 I.R. 144, 158-159):
“The court accepts that there may well be cases in which an applicant relies partly on oral assertions, partly on documents, and partly on country of origin information and in which the decision-maker has sound reason to conclude that the oral testimony is so fundamentally incredible that it is unnecessary to consider whether the documents are authentic and whether the conditions in the country of origin are such that the claim could be plausible. The decision-maker in such a case is finding that what the applicant asserts simply did not happen to him. In the present case, however, the situation is materially different because the adverse finding of credibility is effectively based on the Tribunal member’s premise as to the level of knowledge to be expected and the apparent lack of that knowledge, while the documents have the potential to establish that specific events did happen and happened to the applicant. It is this which gives rise to the need for the whole of the evidence to be evaluated and the analysis to be explained.
In the Court’s judgment, the process employed by the Tribunal member in reaching the negative credibility conclusion as disclosed in the contested decision was, therefore, fundamentally flawed because the documentary evidence which had been expressly relied upon before the Commissioner and in the notice of appeal and which was on its face relevant to the events on which credibility depended, was ignored, not considered, and not mentioned in the contested decision. It is correct, as counsel for the respondents submitted and as is confirmed by the case law summarised at the beginning of this judgment, that a decision-maker is not obliged to mention every argument or deal with every piece of evidence in an appeal decision at least so long as the basis upon which the lack of credibility has been found can be ascertained from the reasons given. However, in the view of the Court, that proposition is valid only when the other arguments and additional evidence are ancillary to the matters upon which the substantive finding is based and could not by themselves have rendered the conclusion unsound or untenable if shown to be correct or proven.

That cannot be said to be the case here. When the Tribunal member says in the decision, “He claims to have spent six months in prison on account of his political activities,” and then finds that the applicant lacks the political knowledge one would expect from someone with that commitment, the Tribunal member is clearly indicating that he believes the applicant was never in prison or, at least, never imprisoned for the political offences he claimed. But if the documents are authentic and are correctly translated, the applicant was indeed in prison and the premise on which the conclusion has been made is therefore no longer tenable. The process is, therefore, flawed and the analysis incomplete.

Accordingly, the Court finds that the contested decision in this case is sufficiently flawed to warrant its being quashed. The Tribunal member has erred in law in failing to consider all of the relevant evidence on credibility and adequately and objectively to weigh it in the balance in reaching a conclusion on that issue. Where, as here, documentary evidence of manifest relevance and of potential probative force is adduced and relied upon, the Tribunal member is under a duty in law to consider it and if it is discounted or rejected as unauthentic or unreliable or otherwise lacking probative value, there is a duty to state the reason for that finding.”

The application of the IR principles to the present case
57. As I have already indicated, the present case bears some resemblance to the facts of IR. Although both applicants claimed to have suffered (in admittedly different ways) by reason of their participation with political parties in their respective countries of origin, their oral testimony was found in both instances to be unsatisfactory by reason of unexplained inconsistencies. It may be said of both the applicant in IR and in this case that adverse credibility findings were each made against them on the basis that if their respective accounts regarding political involvement were correct, they both would surely have been more knowledgeable about political events and personalities in Belarus and the Ivory Coast respectively than was disclosed in their respective interviews during the asylum process.
58. Just as in IR, the applicant’s case is not, however, based solely on oral testimony, but it also involves reliance on a number of documents. I have already discussed the issues which surround the electoral identity card. The applicant also produced, however, an Ivorian identity card and an FPI membership card. While the ORAC stated that it could neither prove or disprove the authenticity of either document, both appear – it is impossible to put the matter any further – to be genuine, although it may be that – again, to echo the language of Cooke J. in IR – upon closer inspection and scrutiny the documents will prove to be inauthentic and the product of an elaborate contrivance and fraud.

59. The applicant also produced a notification (“convocation”) from the Chief of Police dated 20th June 2011 which stated that he had been reported by the “special forces of the President of the Republic” and that he was liable to be arrested for incitement to hatred and civil disobedience, matters which “will be severely punished in our Republic.” He also sought to rely on a letter dated 21st June 2011 from a (named) Bishop attached to the Church of the Latter Day Saints of Jesus Christ in Abidjan where he stated that he had been “severely threatened by the rebels having learnt the rumour that he was housing the family of [RA].” Again, while the ORAC was unable to offer any views on the authenticity of these two documents, the Tribunal member made no specific finding in relation to any of these four documents (namely, the identity card, the RPI membership card, the notice from the Police Commissioner and the letter from the Bishop) because he concluded that, as I have already stated, this information “does not assist the applicant in circumstances where his credibility is found wanting to such a degree that the very basis of his claim is not believed.”

60. It seems to me that in this respect the Tribunal member fell into essentially the same error as did the Tribunal member in IR, namely, to conclude that because the oral testimony of the applicant was so unsatisfactory from a credibility perspective there was no need in the circumstances to consider the documentary evidence which had also been proffered by him. Yet just as the Belarusian documents relation to conviction and imprisonment, the newspaper article concerning the rally etc., would, if shown to be authentic, have demonstrated that the Tribunal member’s premise in IR that the applicant could not have been imprisoned or otherwise persecuted for his political beliefs was fundamentally flawed because of his general lack of knowledge of the leadership structures in the main opposition party in Belarus, the same can just as readily be said in the present case.

61. The Tribunal member concluded that the applicant in the present case could not have been at risk because of his basic lack of knowledge of certain details concerning the political state of affairs in the Ivory Coast in the first five months or so of 2011 and the nature of the conflict between the Gbagbo and Ouattara factions. The premise of the adverse credibility findings was that anyone who had in fact participated in these political activities would have had a far greater knowledge of the relevant detail than this applicant appeared to have had. Yet if, indeed, the applicant was a member of the FPI or he had been summoned by the Chief of Police for his political activities or a Bishop of the Church of the Latter Day Saints was threatened in a menacing fashion by militants because it was rumoured that he had given the family of Mr. A. shelter as these documents all appear to show – assuming, again, that they were shown to be authentic – then the position would be very different.

62. This case presents yet another example of where the fourth principle identified by Cooke J. in IR assumes such importance: the assessment of credibility must be made “by reference to the full picture that emerges from the available evidence and information taken as a whole, when rationally analysed and fairly weighed.” Given that it is not disputed that Mr. A. is an Ivorian national who arrived in Ireland at a time of intense civil conflict – in effect, what amounted to a civil war – in the Ivory Coast, the fundamental question was whether his account of involvement with the FPI and the consequent risks to his life and limb was credible. But given the alleged provenance of the documents and their obvious relevance to his claim, if true, it was incumbent in these circumstances on the Tribunal member to assess such documentary evidence – if necessary, by making findings as their authenticity and probative value – so that that very credibility could be assessed by reference to all the relevant available evidence. The potentially serious consequences for Mr. A. if an otherwise meritorious claim were to be rejected – assuming again, of course, that his account was a valid one – demanded no less.

63. It is, in any event, clear since the coming into force of the Qualification Directive (Directive 2004/83/EC) that the grant of asylum is fundamentally governed by EU law: see Case C-57/09 and C-101/09 B and D EU:C: 2010: 661. As this Court has already made clear in NM (DRC), the requirement of Article 39 of the Procedures Directive means that the supervisory jurisdiction of the High Court in judicial review proceedings must nonetheless ensure that “the reasons which led the competent authority to reject the application for asylum as unfounded… may be the subject of a thorough review by the national court.” This further underscored the necessity in the present case for the Tribunal member to have examined the documentary evidence advanced by the applicant, precisely because without an assessment of that evidence there could not have been a full assessment of credibility.

64. One may put all of this another way by saying that in the circumstances of the present case the Tribunal member was required to have regard to the documentary material supplied by the applicant in support of his case, because, just as in IR, that material – if it were to be accepted as authentic – would tend to bear out a claim (namely, that he escaped to avoid a real risk to his life and person during the course of an intense civil conflict) which is also generally consistent with the available COI. Accordingly, this is an instance of where the Tribunal erred in failing to have regard to “relevant statements and documentation presented by the protection applicant” (Article 5(1)(b)), specifically, by failing to examine whether they were or might be authentic.

65. In these circumstances, just as in IR, the decision of the Tribunal cannot be allowed to stand and I consider that the High Court fell into error in not quashing the decision on this ground. This conclusion is further underscored by the considerations identified by the Court of Justice in Diouf and by this Court in NM (DRC), namely, the obligation to ensure that the reasons which led the Tribunal to reject the asylum application as unfounded must be “the subject of a thorough review” in the course of any judicial review proceedings contesting the legality of that decision. It would be clear from any such review that the Tribunal’s decision rested only on a partial assessment of all the relevant evidence bearing on the applicant’s credibility.
Conclusions
66. It remains only to summarise my conclusions.

67. First, I agree with the conclusion of the High Court that Article 5(1)(a) of the 2006 Regulations does not impose an obligation to consult COI in every case, regardless of the circumstances. The decision-maker is obliged to do so only where such information is relevant in the circumstances of the particular case.

68. Second, the general question posed in the certified question does not readily lend itself to fixed, a priori rules, since the extent to which (if at all) the decision maker should consult COI and refer to such material in the decision must depend on all the relevant circumstances. The principles articulated by Cooke J. in IR nonetheless provide very useful guidance in any assessment of credibility issues in cases of this kind.

69. Third, the Tribunal member was, however, obliged in this instance to consider the COI relevant to any credibility assessment of the applicant’s claims, given that these claims involved particular and specific details in relation to events which allegedly took place in April and May 2011 and which were not generally known to those who did not live in the Ivory Coast. His failure to do so in this instance amounted to a breach of the requirements of Article 5(1)(a) of the 2006 Regulations and rendered the decision invalid and the High Court fell into error in failing to quash the decision on this ground.

70. Fourth, while the Tribunal member was in principle entitled to draw adverse credibility findings from the inconsistencies contained in the applicant’s own testimony (and, specifically, his apparent lack of knowledge of key political and military events in the Ivory Coast in the months leading up to his departure in May 2011), he nonetheless fell into error in failing to consider key documents relied on by the applicant. If these documents (such as an RPI identity card or the notification from the Police Commissioner) were indeed authentic, they would place the applicant’s claims regarding his political involvement in an entirely new light. The Tribunal member’s obligation was to make an overall assessment of credibility based upon an evaluation of all potentially relevant information and not just some of that material.

71. To that extent, therefore, the Tribunal member failed to comply with the obligation in Article 5(1)(b) of the 2006 Regulations to examine all relevant documents supplied by the applicant. It further follows that the High Court also fell into error in failing to quash the Tribunal’s decision on this ground.

72. For all of these reasons I would accordingly allow the appeal and grant an order of certiorari quashing the decision of the Tribunal.

 

 

 

 

BW -v- Refugee Appeals Tribunal & Ors

 

[2017] IECA 296 (15 November 2017)

THE COURT OF APPEAL
Neutral Citation: [2017] IECA 296
Record Nos. 2016/289 and 2016/453

Finlay Geoghegan J.
Peart J.
Hogan J.
Between:
BW (Nigeria)
APPLICANT/APPELLANT
– AND-
REFUGEE APPEALS TRIBUNAL, MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, ATTORNEY GENERAL AND IRELAND

RESPONDENTS/RESPONDENTS

JUDGMENT OF MR. JUSTICE MICHAEL PEART DELIVERED ON THE 15TH DAY OF NOVEMBER 2017
1. There are two appeals for determination. Firstly, there is BW’s appeal against the that part of the order of the High Court (Humphreys J.) dated 27th November 2015 which refused her application for reliefs by way of judicial review of the decision of the Refugee Appeals Tribunal that she is not entitled to a declaration of refugee status (Appeal No. 2016/289). Secondly, there is the respondents’ appeal against an order made by the High Court (Humphreys J.) dated 6th November 2015 permitting the applicant to amend her statement of grounds during the course of the hearing itself by the inclusion of an additional ground as set forth in the said order (Appeal No. 2016/453). Before addressing these appeals I will provide some factual background.
Some factual background
2. The applicant came to this country on the 17th March 2007 but did not apply for asylum until 27th September 2011 following her arrest by An Garda Siochana for failure to produce identification documentation when requested to do so. This four and a half year delay explains why her appeal to the RAT against the recommendation of the RAC that her application for refugee status be refused was a papers-only appeal, and not by way of oral hearing (see s.13(6)(c) of the Refugee Act, 1996, as amended). She accepted that her application was late and that she had no entitlement to an oral hearing. She submits nevertheless that the RAT was obliged to take particular care where the appellant has no opportunity to respond to concerns in the mind of the Tribunal, particularly where some of those concerns had not been raised at her ORAC interview, and have resulted in adverse credibility findings by the Tribunal. I will return to that question.

3. Her claim for asylum was based on a fear of persecution arising from the shooting dead of her husband in Nigeria on the 2nd October 2006. It appears that he was the leader of a political group in the Niger Delta region named ‘the Asatoro Group’ which was opposed to the government, and that he was killed by supporters of the government. She claimed that each group blamed the other for her husband’s death. She claimed that members of the Asatoro group visited her house after the shooting looking for money and documents which they claimed her husband had stolen from them, and told her that she would be killed also if she did not hand over the money and documents. She was forced to flee her home, and was also in fear of her husband’s family who blamed her for her husband’s death. She fears for her life if she were to return to Nigeria.

4. At her ORAC interview it was put to the applicant that research carried out by ORAC had not disclosed any group operating in Nigeria under the name ‘Asatoro’, and that the absence of such information “casts doubt on the existence of this group”. She was asked if there was anything she would like to say in response. She replied that this was very surprising, and added: “there are things that happen that aren’t on the internet. You can’t even get the internet to work in that area”.

5. The s. 13 Report prepared by ORAC indicates that certain documents were submitted by the applicant, which included a photocopy of a Medical Certificate of Cause of Death of the applicant’s husband, two pages of information relating to the Niger Delta People’s Volunteer Force, one page of information relating to the Asatoro Group to which was attached a copy judgment purporting to be from the Supreme Court of Nigeria referred to in that single page document. The author of the Report comments “ORAC is unable to verify the authenticity of these documents”.

6. ORAC considered that the applicant’s claim may constitute a severe violation of basic human rights, and therefore may be considered persecutory in nature, and could, subject to the well-foundedness of the claim, satisfy the persecution element of the refugee definition. In the s. 13 Report ORAC examined whether a well-founded fear had been established, and concluded that it was not. It concluded also that it was difficult to accept that there was no mention of the Asatoro group in any of the available country of origin information, and that “this serves to undermine the credibility of her claim”.

7. ORAC also considered the documentation submitted by the applicant, and concluded that the lack of reference to the Asatoro group in the Supreme Court judgment submitted (which related to a bail application by a man named Asari who with others was facing charges of treasonable felony arising from incidents in 2004 and 2005) undermined the applicant’s credibility. Other groups are mentioned in the report of the judgment but not the Asatoro group. At interview the applicant had stated that her husband had also been arrested for a period of one week in 2005, and on other occasions. However, ORAC concluded that it was difficult to accept that he would have been released if he was wanted for crimes serious enough to be considered a treasonable felony. ORAC stated that this served to undermine the credibility of the information provided by the applicant in relation to the Asatoro group which in turn served to undermine the credibility of the applicant’s claim.

8. At interview the applicant was asked about her fears of what might happen to her if returned to Nigeria. She stated that the government in Nigeria believes that she is also a member of the Asatoro group since her husband was a member. It was put to her that it was difficult to accept that if this was the case, why she had not been arrested. She stated that she was questioned by the police at the time about her husband’s involvement with the Asatoro group. But ORAC stated in the report that it appeared that she had been treated fairly by the police and had not been detained. The applicant was asked why, if she had been treated fairly then, she would not be treated fairly again in the future if returned. She replied that the police would not treat her fairly when the documents they were looking for had not been provided to them.

9. ORAC concluded that the applicant had not provided sufficient evidence to indicate that she was at risk from the Nigerian authorities. Its overall conclusion in relation to a well-founded fear is expressed in the final sub-paragraph of paragraph 3.3 of the report (page 5 of 7) as follows:

“With regard to significant aspects of the applicant’s claim, as laid out above, the applicant’s statements have been found to be lacking in coherence and plausibility, and her general credibility has not been established. As such, it is not considered that the applicant has credibly established her claim within the meaning of Regulation 5(3) of the European Communities (Eligibility for Protection) Regulations 2006. Having regard to the above analysis of the application, as well as the finding in paragraphs 3.3.2 below [that relocation was not available to the applicant], it is considered that the applicant has not demonstrated a well-founded fear of persecution in Nigeria.”
10. An appeal was lodged with the RAT on 29th November 2011. The grounds were simply stated, being that the RAC erred in fact and in law, but without specifying in what way this occurred. In addition it was stated that further information and supporting evidence was on its way from Nigeria and would be provided within two weeks. In due course this was provided by the applicant’s solicitor by letter dated 8th December 2011. It comprised a copy of the “Independent Monitor” newspaper of the 9th October 2006 which carried a report on page 6 of the shooting dead of the applicant’s husband on the 2nd October 2006, describing him as “the leader of the “Asatoru Group one of the plethora of autonomous smaller militias operating in the Niger Delta … ”. It stated also that his widow [naming the applicant] “is hunted by the police and the family of her late husband in connection with circumstances surrounding her husband’s death”. The solicitor stated also that he held the original of the newspaper should any further validation of same be required.
11. It would appear that by letter dated 17th January 2012 the RAT asked for the original newspaper and this was duly provided by letter dated 30th January 2012. That letter refers also to some concern raised by the RAT regarding the cause of death of the applicant’s husband. It would appear that while the RAT accepted that the Certificate as to Cause of Death referred to him having died from a haemorrhage and subsequent heart failure, they had a concern that it did not indicate the cause of the haemorrhage, and did not therefore corroborate the applicant’s statement that he had been shot as she was claiming. The solicitor’s letter stated:

“You have raised a concern regarding the cause of death of [applicant’s husband]. It is indicated on the death certificate that he suffered from a haemorrhage and subsequently from heart failure. It is asserted by [the applicant] that these events stemmed from the shooting of her husband and that the death certificate indicated the actual concluding medical definitions for the cause of death and not the reasons why these conditions occurred.
[The applicant] also states that there are other reasons as to why the death certificate may not have elaborated on the cause of death, including the fact that the political circumstances surrounding [her husband’s] death are complex and that many individuals, even in the medical profession, are not above the influence of duress or threat. It would seem clear that there is violent unrest in [the applicant’s] home province and that she feels central to a lot of the difficulties that have emerged leading up to, and since, the death of husband.”

12. It is certainly curious, to say the least, that until the hearing of this appeal neither the applicant, the ORAC, the RAT, nor any of the legal personnel in the case on either side, appear to have noticed that the Certificate as to Cause of Death under the heading “Primary cause [of death]” which was exhibited and is before this Court actually states “Haemorrhage/Gun Shot” and not simply “Haemorrhage” as the cause of death. The reference to “Gun Shot” is clearly relevant to the credibility of the applicant’s case as it is corroborative of her claim that her husband was shot, giving rise to her own well-founded fear of Convention persecution should she be returned. However, it was not referred to in the decision of the RAT, nor in the High Court, including in the second judgment delivered by the trial judge on the 27th November 2015 on the substantive issues in these proceedings. Neither is it referred to in the notice of appeal and therefore ought not to be had regard to on this appeal.
13. The RAT considered this appeal. As stated, it was a papers-only appeal. The appeal was refused. The recommendation of ORAC that the applicant should not be declared a refugee was affirmed for reasons appearing in the RAT’s decision dated 15th March 2012 which was notified to the applicant by letter dated 22nd March 2012.

14. Much reliance is placed by the applicant in this appeal on the fact that the Tribunal member has stated towards the end of his Decision:

“Cumulatively, the Applicant has not put forward a coherent and consistent subjectively and objectively well founded fear of persecution for a Convention reason.”[Emphasis added]
15. Within the decision there are a number of reasons identified for the finding that the applicant’s account lacked coherence, plausibility and credibility. The applicant argued in the High Court that some of those reasons were bad reasons. Indeed on this appeal, Mark de Blacam SC, counsel for the applicant, in a meticulous analysis of the Tribunal’s decision, submitted that there appeared to be some fourteen reasons underpinning the RAT’s decision, nine of which were submitted to be bad reasons. It was submitted that since the decision itself stated that it was on a cumulative basis that it was considered that the applicant had not made out a well-founded fear of persecution both subjectively and objectively, the decision had to be quashed if this Court agreed that one or some of the reasons are bad, since the Tribunal member did not say what weight was being attached to any particular reason.
16. The statement of grounds filed at the commencement of these proceedings contained the following ground:

“The Tribunal erred in law and in fact in determining the appeal of the Applicant on the basis of adverse credibility findings, and in particular in casting doubt on the authenticity of documents supportive of the Applicant’s claim. Such documents included a death certificate for the husband of the Applicant and a newspaper report which contained, inter alia, a photograph of the Applicant.”
17. Given the brevity with which this ground is stated it was perhaps not surprising that in the light of the more expansive grounds relied upon by the applicant in oral submissions made to the trial judge, the respondents argued that the applicant had strayed beyond the ground relied upon in her statement of grounds.
18. In view of the objection taken by the respondents in this respect an application was made to the trial judge, albeit at that very late stage of the hearing, to amend the statement of grounds by the addition of the following ground:

“The decision should be quashed because (a) it contains findings which were arrived at unfairly and/or were erroneous and/or irrational including in particular finding that the applicant had failed to produce supporting newspaper evidence and the finding regarding the date of the applicant’s husband’s death certificate and (b) those findings cannot be severed because the decision was cumulative and the tribunal failed to specify the weight to be attached to the elements of that decision.”
19. The trial judge allowed the amendment, and indicated that he would give his reasons at a later date. He provided those reasons in his first judgment delivered on the 17th November 2015 [2015 IEHC 725] (“the first judgment”). As stated in para. 1 above, the respondents’ appeal against that judgment and order is before this Court for determination, together with the applicant’s appeal against the trial judge’s substantive determination refusing the reliefs sought by her on foot of the amended statement of grounds. I will return to the respondents’ appeal in due course.
20. The trial judge delivered his judgment on the substantive claims on the 27th November 2015 [2015] IEHC 759 (“the second judgment”).

21. He rejected the complaint by the applicant that the decision was fundamentally flawed on account of what was stated at p. 16 of the decision, namely that “the applicant had put forward no objective country of origin information, viz. newspaper reports or police or medical reports to corroborate or substantiate her claims linking her deceased husband to well-known Niger Delta resistance groups”, given that there was no doubt that the applicant’s solicitor had provided the original newspaper of the 9th October 2006 already referred to in which a report was contained which referenced the killing of the applicant’s husband and described him as the leader of the Asatoru group, and described that group in turn as “one of a plethora of autonomous smaller militias operating in the Niger Delta … “. He noted that this very newspaper article was referred to earlier in the Tribunal’s decision at p. 13 thereof.

22. The applicant had complained also that in several instances the Tribunal had made adverse credibility findings where reliance was placed on matters which had not arisen before ORAC, and therefore were matters where no opportunity had been provided to her to respond to the RAT’s concerns. For example, in relation to the Certificate as to Cause of Death of her husband, the Tribunal stated:

“In addition [to the concern expressed that the cause of death disclosed, namely haemorrhage and heart failure, was inconsistent with her claim that he was shot] the Tribunal is of the view that the issuance of a death certificate from hospital on the day of death of the deceased must be seen as unusual and must call into question the authenticity of the document.”
23. In relation to this matter, the trial judge stated that he was satisfied that this was something that the applicant was entitled to have specifically put to her if the tribunal intended to rely upon it, so that she would have an opportunity to comment upon it or provide an explanation, and that this had not been done. At para. 21 of his judgment, he stated:
“……… while I find that there was no substance to the vast majority of the complaints made by the applicant under the heading of breach of fair procedures, the Tribunal should have, and failed to, put its concerns regarding the veracity of the death certificate to the applicant specifically, because the certificate was not inherently implausible on its face, so the applicant could not reasonably have foreseen that the Tribunal would have had an issue with its validity. I will deal with the effect of this failure later in this judgment.”
24. The trial judge returned to the issue of the death certificate at paragraph 25 of his judgment, stating:
“As regards the finding that it was unusual, tending to incredible, that a death certificate would be issued on the same day as a death, I do not think that such a finding could be arrived at without some knowledge of the practices of hospitals in Nigeria. No such knowledge appears on the face of the decision. I therefore find that this aspect of the decision is irrational in the legal sense, as well as having been arrived at by an unfair process as I have held.”
25. The trial judge then went on to consider whether a decision which is based on a number of reasons cumulatively must be found to be invalid if one of those reasons is found to be flawed, and where no indication is given by the decision-maker as to the weight attributed to the flawed reason, or the extent to which it was relied upon for the overall decision. He referred to what he described as “two divergent strands of approach to the question of how to approach in multi-element decision in these circumstances”. He referred first of all to the approach adopted by Cooke J. in I.R. v. Minister for Justice, Equality and Law Reform [2009] IEHC 353 [2015] 4 I.R. 144, and to a number of judgments which followed the I.R. approach, and then went on to refer to the alternative approach which he described as the ‘Keagnene approach’, referencing the judgment of Herbert J. in Keagnene v. Minister for Justice, Equality and Law Reform [2007] IEHC 17. I will return to these decisions and the trial judge’s consideration of them in due course. For the moment I will simply state that the trial judge concluded that the I.R. approach was the correct approach, and that, applying that approach, he was “of the view that the unsustainable finding regarding the date of the applicant’s husband’s death certificate is minor in the overall context and that the decision can be tenably sustained on the basis of the remaining credibility findings and upon reading the decision in the round”.
26. While the applicant on this appeal lays particular emphasis upon the trial judge’s conclusions in relation to her complaints in relation to the statement in the decision that no country of origin information such as newspaper reports had been provided by the applicant, and also on the fact that she was given no opportunity to address the Tribunal’s concerns about the date of the Certificate of Cause of Death being the same date as that of her husband’s death itself, further issues were raised by the applicant in relation to several other reasons within the Tribunal’s decision.

27. For example, the Tribunal stated that in her interview with ORAC the applicant had stated that within one or two weeks of her husband’s death members of the Asatoro group came looking for money and documents (Q.39), whereas the newspaper report dated 9th October 2006 which her solicitor submitted to the RAT (and which therefore had not been before the ORAC, hence she was not asked about it) stated that “the men who killed her husband called her on the phone immediately after the attack demanding money and documents in the possession of her husband”. The Tribunal stated that “the inconsistency between the Applicant’s account to the Commissioner and the newspaper account is stark and in the view of the Tribunal strikes at the integrity of the account put forward by the Applicant”. The applicant submits that if this inconsistency was of such significance to the integrity of the applicant’s account, requirements of fairness mandated that the Tribunal provide the applicant with an opportunity to address the concern, particularly where this was a papers-only appeal, and particularly where the newspaper article had not been before the ORAC when the applicant was interviewed. This is submitted to be a bad reason underpinning the Tribunal’s adverse credibility finding, and since the Tribunal stated that cumulatively the applicant had failed to put forward a coherent and consistent well-founded fear of persecution, and since it cannot be discerned from the decision how much weight should be attributed to this particular reason, the decision as a whole is flawed and should be set aside.

28. Having referred at para 19 of his judgment to the high level of care required on a papers-only appeal to ensure that no unfairness was caused to an applicant, the trial judge stated:

“It seems to me that the need for fairness requires that if a point on which the applicant has not previously had a fair opportunity to comment (including an opportunity inherent in the duty to explain a glaringly obvious matter actually known to the applicant) it should be specifically put to the applicant …”.
29. He went on at the commencement of para. 20 to state:
“This does not, however, mean that every new point must be put to the applicant, or that the tribunal cannot make any additional credibility findings and is confined to those made by the Commissioner unless the applicant is specifically notified of the point. It seems to me that whether the applicant needs to be notified of the issue will very much depend on the nature of the new point and the category into which it falls”.
30. The trial judge then referred to a number of such categories including at (ii) under a heading “Contradiction or confusion on the face of the papers”. That category was addressed in the context of the issue referred to at para. 28 above (i.e. the alleged inconsistency between the applicant’s account and the newspaper report in relation to contact from the Asatoro group after the killing of her husband). In that regard he stated:
“(ii) Where a decision-maker identifies contradiction or confusion on the face of the material submitted to it, it seems to me that it is not, in general, required to go back to the applicant to give the applicant a further opportunity to address that matter. There must be an onus on the applicant to read all documents and materials before the decision-maker and to address, of his or her own motion, any contradictions, inconsistencies or ambiguities in that material (see comments of MacEochaidh J. in M.A. v. Refugee Appeals Tribunal [2015] IEHC 528, para 22). A decision-maker is not required to go back to an applicant in this regard. I would regard a number of the applicant’s complaints in this case as falling under this heading, such as whether those seeking to pressurise the applicant called her on the phone or called to her, and whether her account tended to contradiction and confusion as found by the tribunal.”
31. The applicant on this appeal submits that while this statement may be correct in relation to a case where such inconsistency has been identified at the earlier stage of examination by ORAC and has been put to the applicant, it is not correct where ORAC did not for example have the newspaper article in question, and the question of inconsistency had therefore not been identified.
32. In the same vein is a complaint by the applicant in relation to another reason given by the Tribunal for concluding that her credibility was undermined. It relates to what she said at her ORAC interview concerning threats and physical attacks upon her by members of her husband’s family who, she says, were blaming her for her husband’s death. In this regard, the Tribunal stated:

“The Applicant additionally claims to have been threatened by her husband’s family who believed the Applicant was responsible for her husband’s death. The Applicant’s interview evidence in this respect is somewhat confused. She states she was physically attacked by her husband’s family who believed she should not have married her husband and had brought bad luck on him. “The minute my husband got shot they said I was an instrument in their brother dying … They did not want my brother to marry him and now I have killed him”. (Interview. Q. 41) The Applicant claims to have been flogged by a member of husband’s family. The Applicant is specific that these events occurred on the day they heard her husband was killed.
The Applicant left her husband’s house on the day her husband was killed and moved to Ahoada to her family’s house on the same day that her husband was killed. She sustained a mark on her leg from a motorcycle when making the move. When asked if husband’s family molested her in Ahoada she stated “they didn’t even want to see me. They were happy I was out of that family”. (Q.51)

The narrative, in so far as it relates to the threats and alleged attacks from her husband’s family, tends to contradiction and confusion. In this respect the Applicant’s credibility is undermined.”

33. The complaint made by the applicant in relation to the above conclusion is that this was not a point of confusion or lack of credibility that was identified by ORAC in its s. 13 report, and in those circumstances, where the Tribunal was reaching this conclusion for the first time, procedural fairness required that its concerns be drawn to the attention of the applicant so that she had an opportunity to comment upon them, notwithstanding that this was a papers-only appeal. It is submitted that this is an additional reason within the Tribunal’s overall decision on credibility which is flawed, and again, it is submitted that since the overall decision on credibility was made cumulatively, and it is not possible to know the weight or significance was given to this particular reason, the decision as a whole must fall.
34. A further issue raised by the applicant was that in its decision the Tribunal stated that she had produced a document purporting to be a death certificate for her husband, but that she had not lodged any marriage certificate proving her marriage to him. Again, the submission is that at interview by the RAC no issue was raised about her marriage and that she had not provided a marriage certificate in order to prove her marriage to her husband, and that insofar as the failure to produce a marriage certificate may have fed into the adverse credibility finding, it was procedurally unfair not to have raised that matter so as to provide her with an opportunity of furnishing a marriage certificate which had not previously been requested.

35. The trial judge dealt with the marriage certificate issue at para. 20(vi) of his judgment under the heading “Where the finding is one of an absence of evidence”. In this regard he stated:

“The onus is on the applicant to submit whatever appropriate and available evidence he or she has. If there is a clear omission in the materials furnished by the applicant, a decision-maker is not necessarily obliged to go back to the applicant to point out this omission unless it is one which does not inherently call for an explanation from the applicant. In the present case, the Tribunal made a comment that the applicant had not proved her marriage to her deceased husband by producing any certificate in that regard. This is simply a legitimate and probably a reasonably predictable comment arising from the state of the material presented on behalf of the applicant and did not need to be put to the applicant. In any event, reading it in context, it appears to be a comment rather than a specific finding against the applicant. Had the Tribunal latched onto a less obvious omission there might have been an onus to draw that specifically to the applicant’s attention.”
36. The trial judge concluded, on the basis of the I.R. principles referred to, that while the issue of the date of the death certificate ought to have been put to the applicant as a matter of fairness, it was a minor issue in the overall context and that the decision could be tenably sustained on the basis of the remaining credibility findings and upon reading the decision “in the round”.
37. Having considered carefully and in considerable detail the judgment of Cooke J. in I.R, and other decisions that followed it, as well as the competing principles stated by Herbert J. in Keagnene, as to the correct approach where a decision is multi-factorial or cumulatively based, the trial judge concluded that I.R represented the correct approach, and summarised his conclusions as follows:

“65. Having regard to the foregoing I conclude in summary that:

(i) the approach to be followed as a correct statement of the law is reflected in I.R. and its progeny, and amounts to a test that it is for the court to assess whether the decision can be tenably sustained in the absence of the invalid reasons, having regard to the importance, in the view of the court, of the valid reasons, based on reason and common sense and the court’s reading of the decision as a whole, regardless of whether the issue impacted in some sense on the core claim, or whether the decision-maker expressed the decision as cumulative or failed expressly to attach weight to individual reasons;
(ii) Insofar as Keagnene and its progeny, identified above, suggest that the court cannot be aware of the weight attached to individual factors by reason either of an absence of express weight being attached to such factor by the tribunal, or by reason of the decision being, or being expressed to be, cumulative, or by reason of the matters impacting on the core claim, that is not an approach I would propose to follow as I consider that it does not represent an approach consistent with the I.R. approach, as set out above;

(iii) I would also decline to adopt, for similar reasons, an approach which is based on attempting to divine (in the absence of material to that effect) what precise weight the tribunal would have assigned to the valid factors in the absence of the invalid ones (other than in so far as this is indirectly done on the I.R. approach by reading the decision in the round), on the grounds that such a test is unworkable, subjective and [is] not in practice a justiciable test at all. [Italics in original]

(iv) The appropriate test does not involve the court in forming its own view as to whether or not it would have made the underlying decision. This would be impermissibly to step into the shoes of the decision-maker. What it involves is the court deciding, as a matter of reason and common sense, and on reading the tribunal’s decision in the round, whether the invalid reasons are major and go to the core of the decision (as opposed simply to impacting upon, in the sense of being relevant or potentially relevant to, the core claim), or alternatively phrased, whether the decision can be tenably sustained on the basis of the valid decisions. This conclusion can only be arrived at by an examination of the decision overall and the extent to which the court considers in that context and as a matter of reason and common sense that invalid reasons are major or minor, when read in the context of that overall decision. The mind of the decision-maker is not to be assessed by some form of complex speculation as to the weight he or she would have attached to the precise individual invalid factors (what Cooke J. referred to in the above-quoted passage as “attempts to deconstruct an overall conclusion by subjecting its individual parts to isolated examination”), but simply reflected in the exercise of reading the decision in the round. The upholding of the conclusion in a partly invalid decision can be carried out even if the decision is cumulative, and it does not depend on any express assignment of weight by the decision-maker to the individual factors.

(v) Applying the I.R. approach to the present case, I am of the view that the unsustainable finding regarding the date of the applicant’s husband’s death certificate is minor in the overall context and that the decision can be tenably sustained on the basis of the remaining credibility findings and upon reading the decision in the round.” [Emphasis added]

38. Following the delivery of his second judgment, an application for leave to appeal was made by the applicant. Following a hearing in that regard, the trial judge acceded to that application for reasons explained in his third judgment delivered on the 21st December 2015, and he certified the following for appeal as a question of exceptional importance:
“Whether, in the case of a decision that is supported by a number of reasons, one or more of which are unsustainable, the overall conclusion can be upheld if the court considers, as a matter of reason and common sense, and on reading the decision in the round, that the invalid reasons are not major and do not go to the core of the decision, even if: (a) despite not being major and not going to the core claim, they could be said to impact upon, in the sense of being relevant or potentially relevant to, the core claim; (b) the decision is cumulative; or (c) there is no express assignment of weight by the decision-maker to individual factors.”

Fair procedures on a papers-only appeal
39. While the ORAC included in its report a finding that the applicant had delayed in making her application for a declaration of refugee status for the purposes of s. 13(6)(c) of the Refugee Act, 1996, as amended, resulting in the applicant having no entitlement to an appeal by way of an oral hearing – indeed a conclusion which the applicant has not contested – she nevertheless remains entitled to an effective appeal remedy in accordance with the purpose and objective of Directive 2005/85/EC (“the Procedures Directive”). She was also entitled to be afforded fair procedures under Article 40.3 of the Constitution. Her rights in these respects are not diluted or reduced by the fact that she could not require an oral hearing. This is of particular importance where adverse credibility findings have been made against an applicant which have been found to undermine the credibility of her account of events upon which her alleged fear of persecution are based, and which have led to her application being refused.
40. In some cases on a papers-only appeal, the matters which have led to an adverse credibility finding have been made by ORAC, and will already have been put to the applicant at interview by ORAC, and are included in the s. 13 report, and she will therefore have had an opportunity of addressing these concerns during the ORAC process, and perhaps afterwards in correspondence and/or by providing further information. In such cases, where there is a papers-only appeal, the Tribunal will have before it all the material provided to ORAC, including the application form, the notes of interview, any documents and material provided by the applicant in support of her account, including relevant country of origin information. Even in such cases, the Tribunal must still take particular care to ensure that fair procedures have been applied to the consideration of the appeal. As was stated by Clark J. in V.M. (Kenya) v. Refugee Appeals Tribunal & ors [2013] IEHC 24, the Court, on an application for judicial review in relation to a papers-only appeal “… therefore looks with heightened vigilance at the process of the documentary appeal in circumstances where an appellant has no opportunity to appear and explain or expand on any perceived inconsistencies or deficits in his/her claim”.

41. A particular difficulty arises for the tribunal dealing with a papers-only appeal where the tribunal member considers that the appellant’s credibility may be called into question by certain matters appearing from the papers before the Tribunal, but which have not formed the basis for any adverse credibility comment or finding by the ORAC in its s. 13 report and are matters which were not put to the appellant during the procedures before the Commissioner. Do the requirements of an effective appeal remedy and/or fair procedures to which the appellant is entitled require that the appellant be provided with some opportunity to address such new concerns which she has not previously had an opportunity to address since they were not previously raised at the ORAC stage of the process? If so, what form does that opportunity take? Should she be asked to address the concerns by correspondence? Should the matters of concern be put to her at some form of oral hearing? Does every new matter of concern need to be put to her in some manner, no matter how trivial or tangential, or should such an opportunity be confined to concerns which are important to the overall conclusion as to credibility and therefore the success or failure of the appeal?

42. These are questions the answers to which are to some extent fact-dependent, and each case will need to be considered on its own facts. But it can be stated as a general principle that where an issue of concern emerges for the first time on a papers-only appeal in relation to a matter which the appellant has not already had a fair opportunity to address, either because it was not put to her at interview, or because perhaps it may have arisen for whatever reason only after the ORAC process had ended, and that concern is in relation to something which is material to the basis on which asylum is being sought, and therefore to the decision whether or not she be granted a declaration of refugee status, she is as a matter of fair procedures entitled to an opportunity to address it. Whether that opportunity requires some form of oral hearing in relation to the concern, or whether it can be dealt with fairly and adequately in writing will depend on the particular facts. It will be a matter to be considered by the Tribunal member in any individual case. But the principle is the same. If the concern is a material concern – one that has the capacity to affect the outcome of the appeal – then the appellant is entitled to a fair opportunity to address the concern where that opportunity has not already been provided.

43. In this regard generally I would refer to the judgment of Cooke J. in S.U.N. v. Refugee Applications Commissioner [2012] 2 I.R. 555 in which he addresses in a number of differing contexts the entitlement to an effective appeal with particular reference to cases where personal credibility is a central issue, and whether that requires an oral hearing, or whether there may be cases where a papers-only appeal will suffice for the purpose of complying with the State’s obligations in accordance with the Procedures Directive and fair procedures generally. It is a lengthy, detailed and comprehensive judgment, albeit with reference to a somewhat different factual background.

44. In S.U.N. Cooke J. having stated that an oral hearing is not always an essential ingredient of a fair appeal, then referred to his own judgment in X.L.C. v. The Minister for Justice, Equality and Law Reform [2010] IEHC 148 where he stated that the Procedures Directive:

“29. … does not require that an appeal or an effective remedy against a decision taken on an asylum application involve any fresh interview or any oral hearing (see art. 39). Indeed, it is to be noted that the Procedures Directive does not require that an applicant be allowed to remain in the Member State concerned pending the outcome of any appeal.”
45. However, Cooke J. went on to state at para. 37 of the same judgment:
“37. The exclusion of an oral hearing does not preclude the applicant giving evidence. He is entitled to require the Tribunal to consider such testimony as he wishes to have taken into account by way of written statement. The absence of an oral hearing is only a disadvantage where the contested issues of fact depend upon an appreciation of the personal truthfulness of an applicant”.
46. In addition, he referred to the judgment of Clarke J. in Moyosola v. Refugee Applications Commissioner [2005] IEHC 218 in which, inter alia, he considered whether the statutory scheme failed to comply with the principles of constitutional justice having regard to the events in that particular case. He referred to a passage at pp. 15-16 of the judgment of Clarke J. as follows:
“Where a report of the R.A.C. contains a finding in relation to one of the matters specified in s. 13(6) so as to deprive the applicant concerned of an oral appeal in circumstances where that finding is at least in material part influenced by a finding of lack of credibility on the part of the applicant concerned, it is necessary, in accordance with the principles of constitutional justice, that prior to the making of any such recommendation including any such finding the R.A.C. will have afforded the applicant concerned the opportunity to deal with any matter which might influence such adverse credibility finding.”
47. Having referred to this passage, Cooke J. went on to state:
“He thus held that the scheme of the Act was not incapable of being operated in a manner consistent with the principles of constitutional justice provided that, where it is contemplated that a s. 13(6) finding will be made on the basis of lack of credibility, there is an obligation to reconvene the s. 11 interview so that the applicant has an opportunity of rebutting the basis upon which the lack of credibility finding is to be made. The s. 13 reports in that case were quashed upon that basis, namely on the basis of a failure to comply with the principle audi alteram partem at first instance, and not the ineffectiveness of the appeal remedy or the unfairness of the appeal procedure.”
48. In the present case, clearly the applicant had an opportunity before the RAC to address certain issues that were raised relevant to her credibility. In such instances it is unnecessary to provide a second opportunity, by way of oral appeal or otherwise, to explain or otherwise address those issues of concern. However, there are other matters by reference to which the Tribunal called into question the applicant’s personal credibility when dealing with the appeal. Some of these matters were matters drawn attention to for the first time in the tribunal’s decision itself. To that extent, those particular findings can be considered to be first instance findings, since they were not the subject of comment or conclusion in the s. 13 report and recommendation. It is in that context that what is stated by Cooke J. at para. 40 of his judgment in S.U.N. is relevant. He stated:
“Where, as in the present case, a claim for asylum has been rejected in a s. 13 report upon the basis that the applicant has been found not to be telling the truth, the issue of personal credibility is clearly fundamental to the appeal and, accordingly, to the character of the appeal procedure as providing a remedy which is effective to rectify the basis upon which the claim has been rejected. Where, as here, the events and facts described by an applicant are of a kind that could have taken place (as opposed to matters which are demonstrated to be impossible or contradicted by independent evidence), but have been rejected purely because the applicant has been disbelieved when recounting them, it is, in the judgment of the court, clear that the effectiveness of the appeal remedy as a matter of law is dependent upon the availability to the applicant of an opportunity of persuading the deciding authority on an appeal that he or she is personally credible in the matter.”
49. These passages underscore the importance, as a matter of fair procedures, attaching to the requirement that where some matter is giving rise to a concern as to credibility on the part of the decision-maker, the applicant must be given a fair opportunity of addressing that concern before any adverse finding of credibility is made against her. That obligation is fulfilled where the particular issue(s) is raised at first instance during the ORAC process. In that case, it is unnecessary that she be provided with another opportunity during a papers-only appeal process to again address the same issue of concern as to credibility, though the applicant is surely to be permitted should she wish to do so, to submit any further material relevant to the concern.
50. But different considerations arise where for the first time on the papers-only appeal the tribunal considers that some matter of significance, not previously raised or addressed during the ORAC process, speaks to the question of the applicant’s personal credibility. In such a case the Tribunal is considering a significant matter for the first time in the entire process. Fair procedures demand, in my view, that some opportunity be provided to the applicant to address such a concern before it is relied upon for an adverse credibility finding. Where this does not occur the finding in question may have to be set aside, particularly where that finding is objectively material to the basis for a conclusion that the applicant lacks credibility, and the decision on appeal is to uphold the recommendation of the RAC to refuse a declaration.

51. The appellant on appeal to this Court, as she did in the High Court, has identified a number of matters within the Tribunal’s decision which were relied upon for its conclusion that she lacked credibility, and which are matters never raised with her either by the Commissioner at first instance, or during the appeal process by the tribunal. Accordingly, since she was given no opportunity to address those concerns in advance of an adverse credibility finding being arrived at, in breach of her entitlement to fair procedures, she submits that each such finding should be found to be unlawful and set aside. I have identified those matters earlier in this judgment. With the exception of the issue as to the date of the death certificate, the trial judge did not consider that the matters identified were of sufficient importance that the appellant should have had an opportunity to address them as a matter of fair procedures. I am afraid I must disagree.

52. It will be recalled (see para. 28 above) the Tribunal stated that in its decision (p.13 thereof) “the inconsistency between the Applicant’s account to the Commissioner and the newspaper account is stark and in the view of the Tribunal strikes at the integrity of the account put forward by the Applicant”. The newspaper had not been before the ORAC, and was only later submitted to the Tribunal by the applicant’s solicitor. ORAC had never suggested to the applicant that her story was confused in relation to her husband’s killing. This asserted inconsistency appeared for the first time in the decision itself. The applicant had no opportunity of addressing the concerns which it gave rise to in the mind of the tribunal. It is clearly something which assumed an importance for the tribunal since it states that it “strikes at the integrity of the account put forward by the Applicant”. The question of whether or not her husband was killed as she described is at the heart of the applicant’s claim to be a refugee. Without her being found credible in relation to that central question there was little hope of success. Any perceived inconsistency between what she said to the RAC at interview and what is contained in the newspaper report had to be put to her in some fashion in order to provide her with a fair opportunity to be heard in relation to it. It did not necessarily have to be provided by way of oral hearing. But the least it required was that the concern be brought to her attention and that she be invited to comment upon the concern and address it. I have little doubt that if the newspaper had been available to the RAC prior to the interview, and the applicant’s account at interview was inconsistent with what was stated in the newspaper, the applicant would have been challenged in that regard and thereby provided with an opportunity to respond.

53. Another matter not mentioned by the ORAC at interview or even in its s. 13 report, and which was raised by the Tribunal for the first time in its decision was the fact that at no stage had the applicant provided a certificate of her marriage to her late husband. Given that the centrality of her husband having been killed to her claim for asylum, the statement in the Tribunal’s decision immediately following a statement that she had lodged “a document purporting to be a death certificate for her husband” that “she has lodged no certificate, verifying or proving her marriage to [her husband] represents an expression of concern which touches upon the question of her credibility”. In my view, the trial judge was incorrect to describe it as merely a comment, as if it was to be attributed no significance whatever. He also erred, in my view, when he dismissed the applicant’s argument on the basis also that the onus was on her to produce a marriage certificate. Perhaps she ought to have, but she should not in my view be taken as knowing that if she did not do so, and was not asked for it, a negative view would be taken as to her credibility. After all, it does not appear that it had ever been disputed that she was married to the deceased at the time of his death

54. In my view, there was no need for the Tribunal to mention the absence of a verifying marriage certificate if it was something of little or no significance. As it must be taken to have been something of some significance at least in relation to credibility, the absence of a marriage certificate is something which should have been put to the applicant as a matter of fair procedures, where it was being relied upon by the tribunal. In so far as the absence of a marriage certificate was put into the basket of concerns which led to an adverse credibility finding on a cumulative basis, I would remove it from the basket so to speak, as it could not be relied upon in the absence of fair procedures being accorded to the applicant.

55. In relation to the death certificate, I agree with the trial judge that the question of its authenticity arising from the concern on the part of the tribunal that its date was the same date as the date of the death itself was something that ought to have been put to the applicant before it was relied upon for an adverse credibility finding. It had not been raised during the ORAC process. Again this finding must be set aside and cannot be considered on any cumulative basis for the adverse credibility findings against the applicant. I leave aside completely any consideration of the significance of the word “gunshot” which appears beside the word “haemorrhage”, as this was overlooked by everybody it would seem, and was adverted to only in submissions on this appeal.

56. I would lastly refer to submissions made in relation to that part of the Tribunal’s decision where the member states “… the applicant has put forward no objective country of origin information, viz. newspaper reports or police or medical reports to corroborate or substantiate her claims linking her deceased husband to well known Niger Delta resistance groups”. It is submitted that this finding is irrational given the undisputed fact that the applicant’s solicitor sent the original of a newspaper containing a report of the death of her husband which, it is submitted, did link her husband to the Niger Delta Peoples Volunteer Force. The trial judge dealt with this submission by making reference to the paragraph which followed that finding, and to an earlier part of the tribunal’s decision in which the member is dealing with inconsistencies between the account of his death given by the applicant and that which is contained in the newspaper report. His conclusion on this ground was expressed as follows:

“15. The applicant’s complaint is essentially that because the applicant did put forward a newspaper report which the tribunal had regard to in an earlier part of its decision, the tribunal fell into fundamental error by stating at this later point that the applicant had failed to put forward newspaper reports linking her deceased husband to ‘well-known Niger Delta resistance groups’.
16. However, the meaning of this latter phrase appears to be explained by the following paragraph of the decision, in which the tribunal states that country of origin information does not mention the ‘Asatoro’ organisation.

17. I therefore can only read the statement about the failure to produce newspaper reports as meaning that in the view of the tribunal, the applicant had failed to put forward reports linking her husband to a ‘well-known’ resistance group as opposed to any resistance group. The tribunal was clearly aware of the linkage to the ‘Niger Delta People’s Volunteer Force’ as that is referred to … in the very next paragraph of the tribunal decision.”

57. I consider that the trial judge fell into error is rejecting the ground of complaint put forward by the applicant in the way he did. I do not consider that it is correct to say that what is stated in paragraph 16 of the judgment disposes of the issue raised. The country of origin information referred to by the trial judge in para. 16 relates to country of origin information “submitted by the Commissioner” and not by the applicant. It must refer to information gained as a result of ORAC’s own researches which it told the applicant at interview had not revealed any organisation known as Asatoro. The paragraph in question states:
“Country of origin information submitted by the Commissioner does not mention the Asatoro organisation. Researchers carried out by the tribunal consulting reputable sources United States State Department report, Amnesty International, Accord, Freedom House, failed to reveal any mention of the Asatoro organisation.”
58. Since the trial judge’s conclusion at para. 17 rests upon what he stated at para.16 by his use of the word “therefore”, his conclusion on this issue cannot stand.
59. In my view the Tribunal erred when it concluded that the applicant had put forward no objective country of origin information “viz. newspaper reports …”. She did in fact produce a newspaper report which does state that “the leader of ASATORU Group one of the plethora of autonomous smaller militias operating in the Niger Delta Region of Nigeria under the control of Niger Delta People’s Volunteer Force leader… has been shot dead by unknown gunmen on 02/10/2006” and then proceeds to name the applicant’s husband as a person who was financing the activities of the Niger Delta People’s Volunteer Force. In addition, her husband is named in the heading of the article which states that he was shot dead by unknown gunmen. So the article itself clearly reports that the applicant’s husband was the person shot dead and links to that particular organisation. The newspaper article may be regarded as objective country of origin information linking her deceased husband to that particular group. It is erroneous to conclude otherwise, and the Tribunal’s conclusion in this regard cannot stand. In so far as this conclusion by the Tribunal in all likelihood fed into the cumulative finding that the applicant’s account of her husband’s killing lacked corroboration, consistency and credibility, it also must be removed from the basket of findings upon which the tribunal’s cumulative adverse credibility finding depends.
Decisions reached on a cumulative basis
60. It remains to determine what effect the removal of these findings from the basket of findings relied upon cumulatively by the tribunal has on the overall adverse credibility finding. Can that adverse credibility finding survive the removal of these particular elements in circumstances where the Court cannot put itself into the shoes of the decision-maker and form its own view as to the weight that may or may not have been given to any particular finding?

61. These are issues that have been considered by the courts previously. The trial judge, as I referred to earlier, addressed them by reference to the two somewhat divergent judgments, namely that of Cooke J. in I.R. and that of Herbert J. in Keagnene, and concluded that he preferred the approach of Cooke J. in I.R. As part of his conclusions at para. 65 of his judgment (already set forth in full at para. 38 above) he referred to the Court’s task in the following way:

“(iv) The appropriate test does not involve the court in forming its own view as to whether or not it would have made the underlying decision. This would be impermissibly to step into the shoes of the decision-maker. What it involves is the court deciding, as a matter of reason and common sense, and on reading the tribunal’s decision in the round, whether the invalid reasons are major and go to the core of the decision (as opposed simply to impacting upon, in the sense of being relevant or potentially relevant to, the core claim), or alternatively phrased, whether the decision can be tenably sustained on the basis of the valid decisions.”
62. I respectfully disagree with the trial judge’s statement that the court must look at the decision in the round in order to see if the invalid reason as are “major and go to the core of the decision”. I think such an approach leads to the very thing that the trial judge stated earlier in (iv) above, namely to the judge stepping into the shoes of the decision-maker. His use of the word “major” may have resulted from the use by Cooke J. of that word’s antonym in Cooke J’s statement in I.R. that “the reasons [for a lack of credibility finding] must relate to the substantive basis of the claim made and not to minor matters or to facts which are merely incidental in the account given”. In my view it is incorrect for the trial judge to equate the idea of reasons being “major” with them relating to “the substantive basis of the claim made”. For a reason to relate to the substantive basis of the claim, it must in my view simply be “material” to the basis of the claim. To so describe it avoids the danger of giving it weight as such, as does the attribution of “major”. It is true that Cooke J. used the word “minor” but it is clear from what follows his use of that word that it is used in the sense that the matter which is “minor” is something that is not material to the applicant’s account and therefore not something that should speak to the credibility of the account or her credibility generally.
63. In relation to the present case therefore, where a negative credibility finding was arrived at on a cumulative basis, taking into account a number of different reasons for doubting credibility, the Court must satisfy itself that the reasons behind the decision which have been found to be unlawful reasons or “bad reasons” as so described by Mr de Blacam, were objectively material to the substance or core of the applicant’s account, or whether they relate to matters incidental to the substance or core of the claim. If the impugned reasons are material, they must be put in some way to the applicant before they can be relied upon to support the decision, even cumulatively. If they are not so put, they cannot be counted in the basket of reasons which have formed the cumulative basis for the decision. They must be removed.

64. At the heart of the applicant’s application is her assertion that her husband was shot and killed. It is a critical matter. If she is not believed in relation to that, her application is doomed to failure. It follows that anything which could corroborate that assertion is material to her application, and her credibility. The newspaper article was clearly material to the important issue of whether or not her account that her husband was shot and killed is credible.. It is also material to the question of her husband’s alleged links to the Asatoru group. That newspaper article was not before the RAC when the applicant was interviewed. If the Tribunal member felt that the account of events in the newspaper rendered the applicant’s own account to be confused or lacking clarity, to the extent that it called into question her credibility, fair procedures required that she be given an opportunity to address those concerns should she wish to do so.

65. The Tribunal stated that the applicant had provided no country of origin of information in the form of newspapers etc. That was not correct. She had provided a newspaper report of the incident that forms the basis for her claim. In my view that reason was material to the decision, and must therefore be removed from the basket of reasons forming the overall cumulative decision as to the applicant’s credibility.

66. In its decision the Tribunal remarked upon the fact that the applicant had not provided a marriage certificate. Given that the applicant’s case relies upon Mr W being the applicant’s husband, the question of whether or not she was in fact his wife is clearly material to her application and her own credibility. If the absence of a marriage certificate was something upon which some reliance was being placed for the overall decision, and I consider that it must have been since it was mentioned, it was something material, and a matter that ought to have been raised in some way with the applicant before any adverse credibility decision was made.

67. The trial judge considered that the single reason which he found to be flawed, namely that relating to the date of the death certificate which had not been put to the applicant, was a minor matter only, and therefore not such as to invalidate the decision which when read “in the round” could be tenably sustained by the remaining reasons.

68. As I have said, I consider that the trial judge somewhat mischaracterised the judgment of Cooke J. in I.R. by stating the test in terms of “whether the invalid reasons are major and go to the core of the decision (as opposed simply to impacting upon, in the sense of being relevant or potentially relevant to, the core claim)”. It is more correct to say that they must relate to something ‘material’.

69. However, even where there is a single fact, which is incorrect, within a decision as to credibility reached on a cumulative basis, or where the decision maker has failed to take into account some material fact, or where no opportunity was provided to the applicant to comment upon some matter of material concern to the decision maker upon which in part the adverse credibility finding was based that may not of itself be sufficient to justify setting aside the overall decision as to credibility. It may be that the flawed fact is simply overwhelmed by the other correct facts such that the decision remains tenably sustained when read in the round, and therefore ought not to be quashed. It is worth noting in this regard what was stated by Cooke J. in I.R. at para. 11, sub-paras. (4) to (8) of his judgment ([2015] 4 I.R. 144,152) as follows:

“(4) The assessment of credibility must be made by reference to the full picture that emerges from the available evidence and information taken as a whole, when rationally analysed and fairly weighted. It must not be based on a perceived, correct instinct or gut feeling as to whether the truth is or is not being told.
(5) A finding of lack of credibility must be based on correct facts, untainted by conjecture or speculation and the reasons drawn from such facts must be cogent and bare a legitimate connection to the adverse finding.

(6) The reasons must relate t the substantive basis of the claim made and not to minor matters or to facts which are merely incidental in the account given.

(7) A mistake as to one or even more facts will not necessarily vitiate a conclusion as to lack of credibility provided the conclusion is tenably sustained by other correct facts. Nevertheless, an adverse finding based on a single fact will not necessarily justify a denial of credibility generally to the claim.

(8) When subjected to judicial review, a decision on credibility must be read as a whole and the Court should be wary of attempts to deconstruct an overall conclusion by subjecting its individual parts to isolated examination in this regard of the cumulative impression made upon the decision-maker especially where the conclusion takes particular account of the demeanour and reaction of an applicant when testifying in person.”

70. Every case must be considered on its own facts when assessing the materiality of any particular error. In the present case there are a number of reasons within the overall adverse credibility finding which I have considered to be flawed since they are based upon matters of concern to the decision maker, which the applicant was provided with no opportunity to address or otherwise comment upon, and which are material to the applicant’s case and to her credibility. The greater the number of such reasons that are found to be flawed, the more likely it is that the foundations of the overall decision reached on a cumulative basis are undermined to the extent that it must be set aside. The applicant’s case was that she had been married to the deceased, and that he had been murdered. As it had never been suggested that the applicant had not been so married, the Tribunal member could not in such circumstances fairly draw adverse credibility inferences from the absence of a marriage certificate. The failure to consider the newspaper article was also unsatisfactory. After all, if the newspaper article was indeed authentic, it would provide powerful evidence that the applicant’s account was indeed correct.
71. I consider therefore that the appeal should be allowed and the decision of the RAT must be quashed for the reasons stated since fair procedures were not afforded to the applicant.
The respondents’ appeal against the order permitting an amendment to the applicant’s statement of grounds
72. It is important to recall that the application for judicial review came before the trial judge by way of a so-called ‘telescoped’ hearing where leave had not already been granted. In other words the leave application was combined with the hearing itself. The applicant submits therefore that normally prior to being granted leave an applicant may at any time add to the grounds in respect of which leave is being sought. There can be no doubt about that. In such circumstances it is submitted that the applicant was entitled to seek to have her ground amended since leave had not already been given, and albeit that the need to amend them only arose from objections made by counsel for the respondents in response to the submissions of counsel for the applicant.

73. There is no doubt that in a case where leave is granted in advance of a substantive hearing for judicial review, the applicant is confined to arguing such grounds as have been permitted by that leave order, unless the Court permits an amendment. It is clear also that where such an applicant seeks to amend the statement of grounds he is subject to the same time limits under O. 84 RSC. If the application to amend the statement of grounds is made after those time limits have expired, good reason will have to be shown as to why the new grounds were not included in the application for leave at the outset of the proceedings.

74. In the present case there was no such first application for leave. The substantive hearing took place on foot of the statement of grounds as filed at the commencement of the proceedings. Submissions were prepared by each side in advance of the hearing. There is no suggestion by the respondents that they were disadvantaged or taken short in any way by the late amendment application. The applicants’ submissions were made and responded to, the latter’s including one which asserted that the applicant’s legal submissions strayed beyond the grounds contained in the statement of grounds.

75. The trial judge heard the application to amend the statement of grounds so as to cover the submissions actually made. He decided to grant the application, indicating that he would give his reasons in writing at a later date. This he did in a written judgment (“the second judgment”) on the 17th November 2015.

76. The trial judge relied heavily upon the judgments of the Supreme Court (Fennelly J.) in Keegan v. Garda Siochana Ombudsman [2012] 2 IR 570, and of the Supreme Court (O’Donnell J.) in O’Neill v. Appelbe [2014] IESC 31 for his conclusion that the amendment should be permitted in the interests of justice between the parties, especially where no prejudice was relied upon, and so that the Court could be in a position to adjudicate upon the real issues between the parties. He considered that the grounds sought to be included by way of amendment were arguable. Indeed they had been argued before him by this stage of the proceedings. He considered that as far as the need to explain the failure to have already included the new grounds was concerned, “a very light threshold” applied particularly where the need arise from a failure on the part of the applicant’s legal team to include the new grounds. He stated that in accordance with Keegan “good reasons need to exist for a party to be deprived of the opportunity to raise an important point”.

77. The trial judge was satisfied that despite the lateness of the application to amend, there was no prejudice existing which outweighed the desirability that the applicant’s case should be argued to the fullest extent possible as it had been in the oral submissions which by that time had already been made.

78. In my view the trial judge was correct to permit the statement of grounds to be amended. It is of course a matter of discretion. The trial judge had heard the case almost to a conclusion by the time the respondents made their objection. He was in a good position to appreciate by that point the significance of the issues in the case and the arguments made, and therefore whether the justice of the case pointed to permitting the amendment. He considered the relevant authorities. He appropriately considered and applied the relevant test for the proper exercise of that discretion by reference to the three limbs of the Keegan test: arguability, explanation and the absence of irremediable prejudice.

79. I would refuse the respondents’ cross-appeal against the order permitting the statement of grounds to be amended.

K.H.B. & anor -v- The Refugee Appeals Tribunal & anor

[2015] IEHC 294 (14 May 2015)
Judgment

Title:
K.H.B. & anor -v- The Refugee Appeals Tribunal & anor
Neutral Citation:
[2015] IEHC 294
High Court Record Number:
2010 634 JR
Date of Delivery:
14/05/2015
Court:
High Court
Judgment by:
Barr J.
Status:
Approved
___________________________________________________________________________

 

Neutral Citation [2015] IEHC 294

THE HIGHT COURT
JUDICIAL REVIEW

[2010 No. 634 JR]

 

BETWEEN/

K. H. B. AND H. M. B. [Pakistan]
APPLICANTS
AND
THE REFUGEE APPEALS TRIBUNAL AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

JUDGMENT of Mr. Justice Barr delivered on the 14th day of May, 2015
1. This is an application for leave to seek an order of certiorari by way of judicial review to quash the decision of the Refuge Appeals Tribunal (“the RAT”) dated 25th February, 2010, to affirm the recommendations of the Office of the Refugee Applications Commissioner (“ORAC”) that the applicants be refused refugee status.
Extension of time
2. The notice of motion challenging the joint decision of the RAT dated 25th February, 2010, was issued on 18th May, 2010. This was outside the statutory time limit laid down by s. 5(2)(a) of the Illegal Immigrants Trafficking Act 2000, which provided that an application for leave to apply for judicial would have to be made within the period of 14 days commencing on the date on which the person was notified of the decision, unless the High Court considered that there was good and sufficient reason for extending the period within which the application could be made. The respondents are not opposing the applicants’ application for an extension of time.

3. In their statement of grounds, at para. 12, it is stated as follows on behalf of the applicants:-

“The applicants sought advice from the Refugee Legal Service in relation to the prospects of judicially reviewing the decision of the respondents upon receipt of the decision, and instructed that an application be made for a certificate to bring proceedings. Due to lack of resources and pressure of work, legal advice was delayed and on due consideration of the file, the applicants were advised that there were difficulties with the decision but to engage informally with the respondents before pursuing proceedings. The attempt at informal resolution proved unsuccessful and the Legal Aid Board authorised a certificate for counsel’s opinion on the 20th April, 2010. Thereafter, a decision to issue a certificate was made on the 13th May, 2010, and proceedings were drafted forthwith. The applicants are not responsible for the delay in the institution of the within proceedings.”
4. Having considered the explanation proffered by the applicants for the short delay in this case, I am satisfied that there is good and sufficient reason for extending the period of time in which to initiate proceedings up to and including 18th May, 2010, which was the date on which the notice of motion issued herein.
Background
5. The applicants in this case are a nephew and uncle from Pakistan. They claim to have a well-founded fear of persecution on account of their involvement with Muslim League N Group (hereinafter referred to as “the N party”) in Pakistan. The first named applicant’s father (brother to the second named applicant) is reported missing, and it is believed that this was due to his similar political activities.
The Evidence of the First Named Applicant (the nephew)
6. The first named applicant is a single man and was born on 15th December, 1983. He is a Pakistani national, and received twelve years’ education, having attended school in Pakistan from 1988 to 2000. The applicant claimed asylum in Ireland on the basis that he had a well-founded fear of persecution on account of his political views and support for the N party in Pakistan. The applicant stated that he fears being killed if returned to Pakistan.

7. The RAT noted that he submitted a birth certificate and a medical report from the Services Institute of Medical Services, Lahore in support of his claim. A SPIRASI report was also submitted.

8. The first named applicant claimed that he and his uncle received threatening phone calls in which they were told to leave the N party and to join the Pakistan Muslim League Q (“the Q League”). The applicants refused to do so. As a result of this, they claim to have been kidnapped and taken to an unknown location, where they were detained for three days and tortured. Following this, the applicants were released and they claim to have spent seven days in hospital being treated for their injuries. The applicant explained that he and his uncle were kept in separate rooms in the dark. He said they were tied and held upside down and beaten. They claimed to have been told that this was happening to them as a result of their failure to leave the N party.

9. The first named applicant stated that his toenails on his left foot were pulled out and that he was beaten with a hot rod. The RAT decision notes that an issue arose as to whether it was the left or right foot; the questionnaire records that it was the right foot. The first named applicant stated that the people who had tortured them had inflicted these injuries. He said that he and his uncle were of the view that these people were either from the Secret Service or the Q League. He stated that when he and his uncle, the second named applicant, were in hospital, his father and another uncle went to the police and reported what had happened. The uncle made the report to the police rather than the first named applicant’s father because, the applicant stated, his father was also a member of the N Party and feared that the same would happen to him. In this regard, reference was made to a letter from the first named applicant’s uncle to the inspector general of police in Lahore.

10. The first named applicant also stated that he was given medicine and injections while in hospital, and that he was bandaged. He stated that he and his uncle returned to the N party, but not to the same extent as before.

11. The first named applicant claimed that his father was kidnapped in July 2007. He said that he and his uncle were fearful because of what they had been through and stated that they continued to receive threats. They were more fearful following the kidnapping of the first named applicant’s father.

12. The first named applicant was asked to explain the circumstances of his father’s kidnapping. He stated that his father went to the shop but did not return by evening. The family became suspicions and went to the police. He stated that his uncle reported the father as missing but that the police did not take much notice of this.

13. The applicant stated that on 28th February, 2007, armed men came to his house at between half past one and two in the morning. He said they did not know who these men were, that it was dark, and that he did not see their faces. He said that there was a truck outside. These men knocked on the door of the applicants’ house. The applicants were afraid; they looked from the roof and saw that the men had weapons, and since his father had been kidnapped, the first named applicant and his uncle decided to flee. They jumped over to the neighbouring house and exited through the neighbour’s door. The applicant was asked why the men, who he and his uncle believed had come to kidnap them, would simply knock on the door. He said that they must not have wanted to wake the neighbours.

14. The first named applicant stated that he and his uncle went to the bus station in a rickshaw. From there they went to Faisalabad where they stayed for a month with his maternal uncle. However, his maternal uncle feared that he was jeopardising the safety of himself and his children by harbouring the applicants. He therefore arranged for the applicants to leave the country with the help of an agent. The agent, with whom the applicants met a couple of times, arranged their travel. On 28th March 2007, the agent told the applicants to go to Lahore Airport early in the morning.

15. The agent provided them with fake passports, which were red in colour, and had photographs of the applicants in them. The first named applicant stated that he and his uncle travelled by Gulf Airlines from Lahore to Bahrain. They remained in Bahrain for a number of hours before travelling by air to Dublin, where they arrived on 30th March, 2007.

16. The first named applicant stated that when they came to an immigration desk the agent would give them the passports to show. The agent told them to copy what he was doing.

17. The applicant was asked about the origin of the newspaper reports on file. He stated that his brother had sent them from Pakistan. The first named applicant said that he had no idea where his father was. The applicant was asked about what contact he had with his family in Lahore. He said that he speaks to his brother and sister and to his uncle’s wife on the phone. He stated that they have a number of homes in Pakistan and that they moved around to different uncles’ houses because they were afraid.

18. The applicant was asked why he did not stay in Pakistan and move around like other members of his family do. He said that his brothers and sister are N party members but that they are afraid. He said that he and his uncle were very lucky to have returned home after the kidnapping. He said that a lot of people in Lahore had gone missing.

19. The Presenting Officer asked the applicant about the misspelling of the word surgical as “sorgical” on the hospital report from the Services Institute of Medical Sciences in Pakistan, which the applicant had furnished to the RAT, and which the applicants claimed related to the treatment they received for the injuries suffered at the hands of their kidnappers. The applicant replied that the report was given to him by the hospital which, he said, was a government hospital.

20. The applicant was asked about the geography of Lahore. He said that Lahore was not far from India, but he was unsure how many kilometres it was. He was asked to name the first city one would pass through when travelling from Lahore to India. The applicant replied that he did not know as he had never been there. The applicant was asked whether Faisalabad was north, south, east or west of Lahore. He replied that he does not drive so he did not know; he said he just knew that if he were to sit on a bus it would take him to Faisalabad.

21. The applicant said that he had lived all his life in Lahore. He said that he would travel between Lahore and Faisalabad once or twice a year to meet his paternal uncle. The applicant was asked whether there was anything he could tell the RAT which would lead the Tribunal to conclude that he was from Lahore. The applicant replied that he was not given much freedom; that he had not been allowed to leave the house much; and that he literally went from home to school and back again.

22. He stated, however, that he was given a little more freedom when he reached his 10th class at school. The Presenting Officer questioned the applicant’s lack of knowledge of local geography, and suggested that it would be natural to expect that the applicant would be aware that Amritsar is across the border, and that he would be able to say in which direction Faisalabad was in relation to Lahore. In this regard the Presenting Officer stated to the applicant that Amritsar was closer to Lahore than Faisalabad and that in those circumstances it seemed extraordinary that the applicant would not know of its existence. The applicant replied that he had never been to Amritsar and could only tell a little about Lahore.

23. The applicant was asked to provide some specific information about Lahore. He replied that the Ravi Bull river is near to the Minar-e-Pakistan and that all the traffic crosses this river to travel to other cities. The applicant was asked whether he would go over this river to go to Faisalabad. He replied that the buses go over and that there was a toll there.

24. The RAT noted that the applicant submitted a birth certificate as his sole identity document.

25. The applicant stated that he and his uncle had completed their questionnaires together as their cases were linked. In his questionnaire, the applicant stated that it was his right foot that was injured. He was asked to comment on this and replied that the damage was to his left foot as a result of the torture. The applicant said that he had written down his right foot but that this was a mistake and that he should have written down left. The Presenting Officer suggested to the applicant that this was a serious mistake to make in circumstances where it was the basis of his claim. The applicant, in reply, explained that he is not very educated, though he did receive twelve years of education in Pakistan.

26. It was put to the applicant that he and his uncle had not been harmed since April 2006. The applicant agreed that this was correct. The Presenting Officer suggested to the applicant that he and his uncle had plenty of time in which to report what had happened to them, but that they did not do so. The applicant replied that when they were threatened on the last occasion, they were told not to be part of the N party anymore but that they continued nevertheless and that they were told they would have something done to them if they would not leave the N party. The applicant was asked why, after the kidnapping and torture, they decided to stay with the N party and continue to hold meetings. The applicant stated that they supported the party because it was a good party with good policies and that they wanted peace in the country.

27. It was suggested to the applicant that he and his uncle were safe in Faisalabad, where they had stayed for a month without incident. He replied that they were not safe there; that there were forty government agencies there; and that if they had felt safe in Faisalabad they would have stayed there. But, he said, anyone could have recognised them there. When it was put to the applicant that nothing had happened to them during the month they had stayed in Faisalabad following the unsuccessful alleged kidnapping in February 2007, the applicant replied that this was because they did not leave the house much, but that if they had left the house their location would have been discovered.

28. The Presenting Officer suggested that if the government agencies wanted to find the applicants in the first named applicant’s maternal uncle’s house, that it would have been easy for them to have done so. The applicant replied that it would take the government agents some time to find out where his maternal uncle’s house was.
The Evidence of the Second Named Applicant (the uncle)
29. The second named applicant was born in Pakistan on 10th July, 1962. He received twelve years’ education in Pakistan, having attended school there from 1966 to 1978. He is married and has two children, who were born in 1988 and 1992 respectively. His wife and children still live in Pakistan.

30. The applicant sought asylum in Ireland on the basis that he had a well-founded fear of persecution on account of his political activities and involvement with the N party. The applicant stated that he joined the N party in 2005 and that he considered their policies to be in the best interests of the country.

31. The applicant gave the following account of the events of 14th April, 2006, to the RAT. He said that at two o’clock in the afternoon four to five men came to the applicants’ home; they had weapons and a truck. It was a military truck and had no number plate but it had a design or monogram on it. He was asked whether these men, who he said were in Pakistani dress, were attached to a government agency. The applicant said that maybe it was the FBI. The Presenting Officer asked: “So are you saying that there is an organisation called the FBI or did you just make it up?” The applicant said that it just slipped out of his mouth. The applicant was asked why he had said the FBI. The applicant appeared to have found this amusing and was laughing when giving this evidence.

32. The applicant, when questioned further, said that it was the FIA. He said this stood for Federal Investigation or something. The Presenting Officer put it to the applicant that the FIA was an agency that dealt with the investigation of crime, particularly terrorist crime. The applicant replied that this organisation was known to frame people and to put pressure on them in order to make them get into line and follow the present government.

33. The applicant stated that when he and his nephew were abducted, they were driven for an hour and a half to two hours. He said their heads were covered and that they could see nothing. He stated that they were beaten at this time.

34. The applicant stated that they were detained for three days. He stated that they were put in cells, where their blindfolds were removed. He described the cell as a small, dark room. He said he was hung upside down and beaten. He stated that his captors also cut his hand and arm, as a result of which he had four stitches on his arm. He said that one could see these burn marks on the arm and that these were mentioned in the medical report.

35. The applicant said he also had four teeth knocked out. The SPIRASI report noted that the applicant seemed to have had a left molar tooth surgically extracted. The report further noted that the second named applicant had some teeth missing and some marks on his wrist which could be consistent with his history.

36. The applicant stated that he has not been able to sleep properly since being hung upside down and that he is taking medication, including pain killers, a difene spray, and sleeping tablets.

37. During the period of their detention, the applicant said that his captors kept repeating that he and his nephew should leave the N party. After three days they were released. Family members brought them to the hospital for medical treatment which, in the second named applicant’s case, included stitches in both arms. He stated that his brother reported the matter to the police.

38. The applicant said that after two or three months he and his nephew recommenced their political activates, which included attending political meetings. He explained that you struggle for your cause if you believe in something. He stated that they started receiving threatening phone calls once or twice a week and that his brother then wrote to the inspector general of police in Punjab requesting protection for the applicants. This letter is on the RAT file.

39. The applicant stated that on 11th February, 2007, his brother (the first named applicant’s father) was kidnapped and is still missing. He said his brother was going to the bazar and some unidentified men pulled him into a car and took him away. He stated that people who witnessed this happening had related the details to him. The applicant stated that his brother has good relations with the police and so he went to them to report the kidnapping.

40. He was asked about the circumstances of the attempted kidnapping of himself and his nephew on 28th February, 2007. He said that around one or two o’clock in the morning there was a knock on the door, which was not a normal time to visit in Pakistan. He said that he and his family were scared. He took his family downstairs and his wife said that it looked like secret agents. He stated that they could not see the agents’ faces from upstairs but that they could see that they had weapons, that there was a truck, and that they had sticks. He said that they jumped to the next house and fled on a rickshaw to the bus station and from there to a town near Faisalabad, called Samundri, in order to save their lives.

41. The applicant was asked how they knew their lives were in danger. He replied that first they had been tortured and that, secondly, his brother had been kidnapped and was still missing. He stated that obviously the men had come again to kidnap them. He said that they stayed in Faisalabad for a month but that the maternal uncle was concerned for his own safety and for the safety of his family so he arranged for an agent to take them out of the country. This account is essentially the same as that of the first named applicant.

42. The applicant was asked similar questions about the geography of Lahore as had been put to the first named applicant. He had no idea about the direction from Lahore to Faisalabad. He was aware, however, that the sun rose in the east. He was asked whether India was on the east or west of Pakistan. He replied that from Sindh all the way to Kashmir is the border.

43. The applicant was asked about the political situation in Pakistan. He was aware of the change of government in February 2008. He confirmed that the Q League had been responsible for harassing him in Lahore and was asked whether he considered the Q League to still be a threat even though they were no longer in government. The applicant stated that Zardari was brought into government by way of an agreement with Parvez Musharraf and that therefore they were in the same party. He was asked whether he was saying that Zardari and Musharraf worked together. The applicant replied that Musharraf was the person who brought Zardari to power. The Presenting Officer put it to the applicant that Musharraf had to be impeached for Zardari to get into power. The applicant replied that “these are just the things which are for the public.”

44. As regards his travel to Ireland, the applicant stated that he only had his passport in his hand at immigration and that the passport was in the agent’s possession at all other times. He said that the agent took the passports back from them after they arrived in Dublin on 30th March, 2007.
The Present Proceedings
45. The applicants arrived in Ireland on 30th March, 2007, and attended at ORAC on the same day. They both applied for asylum in the ordinary way. They were interviewed by ORAC, which subsequently recommended that the first named applicant not be declared a refugee in its decision dated 14th November, 2007. ORAC recommended that the second named applicant not be declared a refugee in its decision dated 14th August, 2007.

46. Both applicants appealed ORAC’s recommendations to the RAT and their oral hearings were heard sequentially on 17th February, 2010. By decision dated 25th February, 2010, the RAT affirmed ORAC’s recommendations that the applicants not be declared refugees. The RAT issued a single decision in respect of both applicants.
The RAT decision
47. The decision of the RAT in this case runs to some forty-five pages. The analysis of the first named applicant’s claim is nine pages in length, while the analysis of the second named applicant’s claim runs to some eleven pages. Before turning to consider the submissions, it is necessary to provide a brief overview of the decision of the Tribunal in respect of each applicant.
The First Named Applicant
48. The RAT found as follows in respect of the first named applicant’s claim:

(i) The Tribunal member found that he could not rely on the report from the Services Institute of Medical Services, “Sorgical Unit”, because the word surgical was misspelt.
(ii) The Tribunal member found that the applicant’s lack of knowledge of Lahore and the surrounding areas, coupled with his demeanour when answering questions about this, undermined his credibility. The RAT was of the view that he should have been able to provide plausible answers to these questions.

(iii) The applicant only provided a birth certificate in order to establish his identity. His failure to provide additional identity documents, or provide an explanation for his failure to do so, undermined his credibility.

(iv) The applicant stated in his questionnaire that his right foot was injured; it was in fact his left foot that was injured. The Tribunal member found that he could “draw no conclusion from this error.”

(v) In considering the SPIRASI report, the Tribunal member cited the decision of Storey J. in RT (medical reports, causation of scarring) Sri Lanka [2008] UKAIT 00009 (07 February 2008) in which he held that where a SPIRASI doctor describes the scarring or injury as “highly consistent” with the applicant’s claimed history, but omits to address the “few other possible causes”, then the SPIRASI report will be of less value than if it had done so. Storey J. concluded that this “may properly lead an immigration judge to find that a finding of “highly consistent” has very limited value.” In this regard, the RAT noted that the SPIRASI doctor in this case had failed to address the relative likelihood of other possible causes. The RAT concluded that nothing in the SPIRASI report linked the applicant’s injuries to his allegations.

(vi) The RAT found that if the applicant was from Faisalabad or Lahore he could safely internally relocate in Faisalabad in circumstances where he claimed to have resided there for a month with his family without incident. Having reviewed relevant case law and other authorities on internal relocation, and having had regard to the general circumstances prevailing in Pakistan as well as the personal circumstances of the applicant, the RAT concluded that the applicant could reasonably have been expected to relocate to another part of Pakistan. The RAT found that the applicant did not give any reason as to why internal relocation would not have provided a reasonable alternative.

(vii) The RAT held that the applicant had failed to discharge the burden of establishing that state protection was not available to him in Pakistan.

The Second Named Applicant
49. In respect of the second named applicant’s claim for asylum, the RAT found:
(i) The applicant’s suggestion that the men who came to kidnap the applicants were from the FBI, coupled with the fact that the applicant was laughing when giving this evidence, was not, in the Tribunal member’s view, indicative of a person who had been in a life-threatening situation.
(ii) The applicant had no knowledge of the organisation, the FIA, that he claimed came to kidnap him. The RAT found that this lack of awareness of the FIA’s role, his suggestion that the FIA frames people, which was unsupported by COI, as well as his demeanour when giving this evidence, suggested that his evidence was neither plausible nor credible. The RAT was of the view that had there been COI which supported the applicant’s claims about the FIA, it would have been put before the Tribunal. The RAT found that if the applicant had had dealings with the FIA, and if he feared that organisation, he would at least have known its name. The Tribunal found that the applicant’s evidence in this regard was not plausible and undermined his credibility.

(iii) The RAT found that the applicant contradicted himself when he stated that his nephew was present with him when they were told that the second named applicant’s brother (the first named applicant’s father) had been kidnapped. The RAT found that the applicant largely ignored this conflict in the evidence and that he subsequently tried to say that it was possible that his nephew was not present. The RAT found that this conflict had not been resolved and that it undermined the applicant’s credibility. The Tribunal further concluded that taking the evidence of both applicants as a whole, and with reference to each other, their evidence was not credible.

(iv) The RAT noted that it appeared that the applicant had fled from his home and abandoned his family. In this regard, the RAT stated that he had been asked why it would be unsafe for him to return to Pakistan. The RAT noted that his reply was to the effect that he would be unsafe because he had not given written confirmation that he would leave the N party. The Tribunal found that this evidence was of a general nature and lacked the type of detail one would expect from a person who had been involved in such a traumatic incident.

(v) The RAT found that the applicant did not have specific knowledge of the geography of Lahore, where he claimed to have lived. The RAT noted that the applicant knew that the sun rose in the east, and that since he claimed to have lived in Lahore all his life, one would expect he would be able to say in what direction Islamabad was, it being a major city. The applicant was also unable to say whether India was to the east or to the west of Pakistan. The Tribunal member found, having heard this testimony and observed the applicant’s demeanour, that his evidence was not plausible and that this undermined the applicant’s credibility.

(vi) The RAT noted that the presenting officer had put it to the applicant that the Q League was no longer in power and that they would, therefore, no longer pose a threat to him and that the applicant would, in light of this, be able to return to Pakistan and live there in safety. The applicant doubted that this would be possible. The RAT found that “the applicant’s own evidence contradicts his position in that he accepts that the Q League are no longer the major force that it was and if (and I don’t accept the evidence as being plausible or credible) he was being harassed the people carrying out the harassment by his own evidence are no longer in a position of influence.” The RAT found that this undermined his credibility.

(vii) The Tribunal found that the second named applicant contradicted the evidence of the first named applicant in that they gave what the Tribunal described as “entirely different” stories about the kidnap of the second named applicant’s brother (the father of the first named applicant). The RAT noted that no plausible explanation was provided for this discrepancy. The Tribunal concluded: “I am of the view that this conflict in the evidence is so stark that was there a plausible explanation for the conflict in the evidence, Mr. K.H.B. [the first named applicant] would have been recalled to clarify.” The Tribunal member continued: “This did not happen and I am of the view that taking the evidence of both applicants into account, neither applicants’ evidence is plausible nor credible and I find it undermines their credibility…”

(viii) The RAT noted that the SPIRASI report stated that the applicant had marks on his wrists which were consistent with the history that he gave; and that it further stated that the mental examination revealed signs and symptoms which may be consistent with someone who had been under stress in the past. Having referred to the judgment of Storey J. in R.B. (supra) the RAT found that nothing in the report indicated that cause could be attributed to the incidents complained of by the applicant. The RAT concluded that the SPIRASI report “does not in any way link the applicant’s claims to the injuries discovered” and that, insofar as it said the injuries were consistent with the history given, there were many other possible causes.

(ix) The RAT found, having regard to the relevant authorities, that it was reasonable to have expected the applicant to have internally relocated in Pakistan. The RAT noted that the proposed site of relocation, Faisalabad, did not present a distinct risk of even generalised serious harm, and that the applicant had not identified any risk attached to relocation to Faisalabad where, on his own evidence, he had stayed for a month without incident.

(x) The applicant had not discharged the burden of establishing that state protection was unavailable to him in Pakistan.

The Threshold for Leave
50. Before turning to consider the individual grounds raised by the applicants, it is necessary to set out the threshold for leave as laid down by section 5 of the Illegal Immigrants (Trafficking) Act 2000, which provides:
“leave shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the decision, determination, recommendation, refusal or order is invalid or ought to be quashed.”
51. In McNamara v. An Bord Pleanála (No. 1) [1995] 2 ILRM 125, Carroll J. stated that: “In order for a ground to be substantial it must be reasonable, it must be arguable, it must be weighty. It must not be trivial or tenuous.” She also held that “[a] ground that does not stand any chance of being sustained (for example, where the point has already been decided in another case) could not be said to be substantial.”
52. This was approved by the Supreme Court in Re Article 26 and the Illegal Immigrants (Trafficking) Bill 1999, where it was stated that:

“As regards the requirement that an applicant for leave to issue judicial review proceedings establish “substantial grounds” that an administrative decision is invalid or ought to be quashed, this is not an unduly onerous requirement since the High Court must decline leave only where it is satisfied that the application could not succeed or where the grounds relied on are not reasonable or are “trivial or tenuous”.
53. In his judgment in R. A. v. Minister for Justice, Equality and Law Reform and anor. (Ex tempore, High Court, Mac Eochaidh J., 21st December, 2012) Mac Eochaidh J. stated that this means that the High Court “should only grant leave on a ground which has a decent chance of success at a full hearing.”
54. I now turn to consider the grounds upon which leave was sought.
Grounds 1 and 2 – Failure to consider relevant evidence
55. Grounds 1 and 2 make a general complaint about the alleged failure of the respondents to exercise their functions in accordance with the requirements of constitutional justice by failing to consider relevant evidence. The material that the applicants state the RAT failed to consider is then particularised and dealt with in more detail in the subsequent grounds. I do not therefore propose to grant leave in respect of grounds 1 and 2.
Ground 3 – Failure to properly weigh or assess medical reports
56. The applicants submitted that the Tribunal member failed to weigh or assess the SPIRASI reports in each case, and that the Tribunal member also failed to explain why the reports did not support or provide corroborative evidence regarding the applicants’ claims of past persecution. The applicants submitted that in doing so the RAT acted contrary to its duty to consider the evidence in accordance with the requirements of constitutional justice.

57. The SPIRASI report in respect of the first named applicant noted that the physical examination showed that:-

“Mr B. had an area of hyperpigmentation with an irregular edge at the insertion of his Achilles at his left ankle which is typical of a burn injury. He also had a disfigured nail on his left little toe which is consistent with his history of his toenail being forcefully removed. There is no evidence of falanga and he had normal heal contours.”
58. The SPIRASI doctor reached the following conclusions:-
“In my opinion Mr B. has areas of hyperpigmentation on his left Achilles area which is typical of his history of being burnt with a metal rod. He also had a disfigured little toe nail which is typical of re-growth following trauma to the area.
In my opinion Mr B. is suffering from post traumatic stress disorder as he meets International Classification of Disease criteria for post traumatic stress disorder.

In my opinion Mr B. is also suffering with an anxiety disorder of moderate severity under the International Classification of Disease by virtue of the fact that he has been experiencing panic attacks. These symptoms are exacerbated and maintained by his current stressors of social and cultural alienation.

I have referred Mr B. for counselling here at SPIRASI to help him deal with experiences of alleged abuse, cultural displacement, post traumatic stress disorder and moderate anxiety.”

59. In its consideration of the SPIRASI report in respect of the first named applicant, the RAT made no specific reference to its contents. Instead, the Tribunal having mentioned the SPIRASI report, proceeded to quote from the decision of Storey J. in R.B. (supra), and held as follows at p.30:-
“In examining the above decision it is clear that the medical report and medical records does not address the relative likelihood or the causes in examining it by way of the Istanbul Protocol. Nothing in the report indicates that cause can be attributed to the incidents complained of by the applicant.
Having considered the medical report and medical records nothing in the medical report or medical records alters my view as set out above.

Nothing in the SPIRASI report links the applicant’s injuries to his allegations. I reached this conclusion on the basis of the application of the Istanbul Protocol.”

60. The SPIRASI report in respect of the second named applicant records that the following abnormalities were observed during the course of a physical examination of Mr B:
“(i) He was missing his left molar teeth, which appeared to have been surgically extracted;
(ii) He had linear cut marks on both wrists;

(iii) He had a deviated nasal septum, which was not related to trauma.”

61. On foot of the above evidence, the SPIRASI doctor reached the following conclusions:
“On physical examination, Mr B had teeth missing and some linear cut marks on his wrists which could be consistent with the history he gave of the trauma he experienced when he was detained in his own country. Mental state examination revealed signs and symptoms which may be consistent with somebody who has been under stress in the past.”
62. Having considered the SPIRASI report in respect of the second named applicant, the RAT noted its contents in the following terms:
“The examination of the applicant in the SPIRASI report indicated that there are marks on his wrists and that they are consistent with the history he gave. It further indicates that the mental state on examination reveals signs and symptoms which may be consistent with someone who has been under stress in the past.”
63. The RAT then quoted from the decision of Storey J. in R.T. (supra) and held as follows:
“In examining the above decision, it is clear that the medical report and medical records do not address the relative likelihood or the causes in examining it by way of the Istanbul Protocol. Nothing in the report indicates that cause can be attributed to the incidents complained of by the applicant.
Having considered the medical report and medical records nothing in the medical records alters my view as set out above.

The SPIRASI report does not in any way link the applicant’s claims to the injuries discovered and insofar as it says consistent with, there are many other possible causes.”

64. The applicants submitted that these are not sustainable findings. They submitted that it is not open to the decision maker to decide to attach no weight to the SPIRASI reports, as he purported to do. In this regard, the applicants relied on the decision of McGovern J. in M.N. v. Minister for Justice, Equality and Law Reform [2008] IEHC 130, where the applicant’s appeal to the RAT was similarly rejected on the credibility grounds in a case involving medical evidence. At para. 10 of his judgment, McGovern J. held:
“10. […] The Tribunal member is entitled to weigh up the account of the applicant and his credibility in deciding whether to accept medical reports. But where the medical reports appear to support the applicant’s claim, I think that it is incumbent on the Tribunal member to specifically deal with the medical reports and state why he does not accept them.
11. It is no doubt true that the applicant’s anxiety or Post Traumatic Stress Disorder which was found by the doctors, could be due to reasons other than torture. But it seems to me that where the medical evidence is significantly supportive of the applicant’s claim, that cogent reasons for rejecting it should be furnished and, in my view, the Tribunal member has failed to do this.”

65. In granting an order of certiorari in similar circumstances in E(P) [Rwanda] v. Refugee Appeals Tribunal & Anor. [2013] IESC 253, Clark J. stated at para 29:-
“29. It appears to the Court that the Tribunal Member disregarded the corroborative potential of the medical evidence too readily simply because he had made credibility findings based mainly on discrepancies in the applicant’s evidence rather than putting the medical reports, especially the SPIRASI report, into the totality of the evidence to be assessed. The medical reports had not been before the Commissioner and were capable of making a difference to the Tribunal assessment of credibility and of causing a fair minded assessor to pause and ask how else a young Hutu girl from Rwanda with her accepted history could have such a wide distribution of marks and scars, if not from the type of maltreatment described. The inconsistencies in her evidence were minor and some findings were made in error and must surely have been counterbalanced by the medical reports on the applicant’s emotional state and multiple scars on her body. For this reason alone the decision cannot stand.”
66. The applicants submitted that while it was accepted that the medical reports in this case did not prove the persecutory treatment alleged, they were consistent with it and required to be considered as part of the evidence in the case. The applicants submitted that here the Tribunal Member wrongly decided to attach no weight to the SPIRASI reports at all.
67. The applicants further submitted that the separate finding that the SPIRASI report had no evidential value, apparently because it used the words “consistent with” rather than “highly consistent”, is unsustainable. They stated that the report had evidential weight and that the approach adopted by the Tribunal member was illogical and flew in the face of common sense.

68. In reply, the respondents submitted that while it is true that the SPIRASI reports were not considered to be corroborative evidence by the Tribunal member, they were considered and it was made clear that that was very much in the context of applicants found to be otherwise lacking in credibility. The respondents stated that the Tribunal devoted two pages to the SPIRASI reports but found that where the applicants lack credibility and the reports state that the injuries are typical of and consistent with the claim, they are not corroborative.

69. In relation to the RAT’s finding that nothing in the SPIRASI report linked the applicant’s injuries to his allegations, the respondent submitted that that statement was consistent with the decision of Cooke J. in K. v. Refugee Appeals Tribunal [2011] IEHC 125, where the learned judge stated at para. 19:-

“The report of Dr. O’Sullivan dated 22nd November 2005, having listed the various scars and marks presented by the applicant, expresses its only opinion in the following sentence: “The scars and the marks have the random appearance of repeated physical abuse which could be consistent with the story that he gives”. Clearly, this is an opinion at the lowest end of the consistency scale. In the absence of any expression of view to the effect that the scars and marks could only have been inflicted by another person as an act of violence, the corroborative value of the medical report in these circumstances was negligible in so far as the claim was based upon the mistreatment described in the military camp. The Tribunal member did not reject the medical evidence as being unreliable as such, but because, having disbelieved the applicant’s claim to have been detained and mistreated as he described, the medical evidence as it stood did not weigh in the balance to make the account credible.”
70. Similarly, Clark J. stated in R.M.K. (DRC) v. The Refugee Appeals Tribunal [2010] IEHC 367 at para. 19:
“While such medical findings might and indeed should cause a Tribunal Member to hesitate before rejecting such a claim, he is nevertheless entitled to do so. There would be little practical advantage in assessing the probative value of medical evidence that an applicant has injuries highly consistent with torture before carrying out a basic credibility assessment in relation to the asserted fear of persecution for a Convention reason.”
71. In this case, the SPIRASI report in respect of the first named applicant found that the applicant had areas of hyperpigmentation on his left Achilles area which was “typical of his history of being burnt with a metal rod.” The report further noted that he had a disfigured little toe nail which, it opined, was “typical of re-growth following trauma to the area”, and was “consistent with his history of his toenail being forcefully removed.”
72. As regards the second named applicant, the SPIRASI doctor found that he had “some linear cut marks on his wrists which could be consistent with the history he gave of the trauma he experienced when he was detained in his own country.” The report further noted that the mental state examination “revealed signs and symptoms which may be consistent with somebody who has been under stress in the past.”

73. In considering these reports, the RAT found that nothing in the SPIRASI reports linked the applicants’ injuries to their allegations. This was despite the fact that the SPIRASI report had found the first named applicant’s injuries to be “typical of” the trauma that he claimed to have suffered; and the second named applicant’s injuries were described as being “consistent with” the history he had given.

74. In these circumstances, while the SPIRASI reports are not of course determinative, particularly since the applicants have been found to be lacking in credibility for the reasons stated in the RAT decision, I am nevertheless satisfied that the applicants have made out substantial grounds for arguing that the RAT failed to weigh or assess the SPIRASI reports properly in each case, and that the RAT failed to provide an adequate explanation as to why, in its view, the reports did not support or provide corroborative evidence regarding the applicants’ claims of past persecution. I therefore propose to grant leave on ground 3 of the applicants’ statement of grounds.
Ground 4 – Failure to address evidence that applicants were from Lahore
75. The applicants submitted that the Tribunal member failed to address the evidence adduced by them which showed that they were from Lahore. In this regard, they submitted that the RAT adopted a selective approach to the available evidence and that in doing so, the Tribunal member failed to determine the question in accordance with the requirement of fair procedures.

76. The RAT decision on this issue, in respect of the first named applicant, is in the following terms:

“The applicant said he was born in Lahore. He was unaware how far it was to Faisalabad nor was he aware what city he will reach if crossed the Indian border. He would reach Amritsar which is an internationally known religious centre. He was unable to indicate whether he would go north, south, east or west if he were to leave Faisalabad. His reply to his lack of knowledge on this question was that he would sit in a bus and it would take him to Faisalabad. On being asked if there was any information he could give that would lead to the conclusion that he was from Lahore, his reply was that he was not allowed to leave the house much. He was unable to say whether the airport was north, south, east or west of Lahore. He proffered the information that in order to go to Faisalabad you have to cross a bridge and a river and that the buses go on a toll road.
Having heard this evidence and observed the demeanour of the applicant while he gave his evidence and having considered it, I reached the conclusion that if the applicant were from Lahore I am of the view that the applicant would have been able to provide plausible and credible answers to questions. He did not do so nor has he provided any plausible or credible explanation for not doing so I find this undermines his credibility.”

77. In his grounding affidavit, the first named applicant addressed this finding by the RAT in the following terms at para. 16:-
“The Tribunal member also expresses doubts about me being from Lahore because he considered that I was unable to answer questions which he would expect I should be able to answer concerning the location and distance of the airport and the city of Faisalabad. He expresses these doubts without weighing the fact that I was in a position to answer other questions about Lahore showing that I was indeed from Lahore. For example, I submitted country of origin information in relation to bus routes and toll roads in relation to the journey from Lahore to Faisalabad which corroborated the evidence which I had been in a position to give but appeared not to impress the Tribunal member. I correctly told the Refugee Applications Commissioner’s Ms. Noreen O’Connor that Faisalabad was about 125 km from Lahore and I told her that I made this journey by bus (see page 20 of Section 11 interview Notes dated 27th September, 2007). The Tribunal member did not seem to consider the fact that I had submitted my mother’s death certificate, two Pakistani police reports, my PML Q membership card, my uncle’s Pakistani marriage certificate and my own original birth certificate – all of which corroborate that I am indeed from Lahore.”
78. The RAT decision in respect of the second named applicant found as follows:
“When the applicant was asked specific information in respect of Lahore and how he would get to Islamabad, his reply to this was that he would go by bus or rail. He was unable to say whether Islamabad was north, south, east or west. He confirmed that he was aware that the sun rose in the east. Taking this evidence given by the applicant, I reached the conclusion that his evidence was neither plausible nor credible. I am of the view that if a person who had lived in Lahore for the period of time the applicant contends he had, he would be able to offer some explanation as to the direction of Islamabad being a major city. I reached the conclusion that his evidence was neither plausible nor credible and I find that it undermines his credibility.
He was asked is India in the east or the west of Pakistan. He was unable to answer this question this is all the more lacking in credibility in circumstances where Lahore is so close to the Indian border on the east of Pakistan. Having heard the evidence and observed the demeanour of the applicant while he gave his evidence and taking into account that the applicant had attended school for 12 years, I found it to be neither plausible nor credible that he would not be able to give basic information if he were from the area. I find this undermines the applicant’s credibility.”

79. In his grounding affidavit, the second named applicant addressed this finding at para. 15:-
“The Tribunal member expresses doubts about me being from Lahore because he considered that I was unable to answer questions which he would expect I should be able to answer concerning the location and distance of the city of Islamabad and the direction of India. He expresses these doubts without weighing the evidence I was in a position to give demonstrating that I was from Lahore, not least documentation including two Pakistani police reports, my marriage certificate, and my birth certificate, all of which corroborate that I am indeed from Lahore.”
80. The applicants submitted that in reaching credibility findings based on the inability of both applicants to answer questions about Lahore, the RAT failed to address the evidence actually adduced by them that tended to demonstrate that they were from Lahore. In this way, the applicants stated that the Tribunal member appeared to attach very significant weight to the fact that the first named applicant was unaware of how far or in which direction he travelled to Faisalabad but did so without considering to a sufficient degree that he knew that one had to cross a bridge and a river; that he knew the name of the river; and that the busses go onto the toll road. The applicants submitted that the Tribunal member did not allude to the fact that the subsequent country of origin information furnished corroborated these statements. The applicants contended that in these circumstances, the strength of the negative credibility findings made in this respect is questionable, where other details of Lahore and the neighbourhood were furnished. The applicants stated that the credibility finding does not draw from the full information related to local knowledge, which was supplied to the Tribunal member.
81. The applicants submitted that, by reason of having adopted a selective approach to the evidence available, the Tribunal member has not had regard to relevant material before him and, in overlooking material submitted to him, has failed to determine the question of whether the applicants meet the test of entitlement to refugee status in accordance with the requirements of fair procedures.

82. In her judgment in Traore v. Refugee Appeals Tribunal [2004] 2 IR 607, Finlay Geoghegan J. found that the credibility assessment must be carried out in accordance with the principles of constitutional justice. She elaborated on this to the effect that constitutional justice requires consideration of the relevant evidence given in making the decision. She put the test in the following terms:-

“Simply applying the same well established principles relating to the obligation to exercise the power of adjudication conferred by statute in accordance with the principles of constitutional justice which includes an obligation to consider relevant evidence, it appears to me that the decision must be considered invalid. The evidence not considered is potentially relevant to the conclusion reached on the credibility of this part of the applicant’s story. The conclusion on this issue is an integral part of the overall conclusion on credibility.”
83. The applicants submitted that the requirements of fair procedures are such that the Tribunal member must consider all relevant material submitted to him. In overlooking material submitted to him in this case, the Tribunal member has failed to determine the question in accordance with the requirements of fair procedures.
84. The respondents, in reply, submitted that the applicants were questioned closely by the Tribunal and presenting officer and could not explain why they could not answer what direction Faisalabad is from Lahore. They claimed to have lived in Lahore and to have moved to Faisalabad.

85. The respondent stated that, similarly, the applicants were asked whether Lahore or Faisalabad was closer to Amritsar, but they could not answer. The first named applicant said simply that he had never been there. He said: “I wasn’t given much freedom – I literally went from home to school – I was give [sic] a little bit more freedom – can draw a map of my locality.” However, the respondent submitted that his claim was that he worked in a shop, that he was politically active, and that meetings were held in their shop; he further claimed that he had travelled to Faisalabad and stayed there for a month, and had paid 1.3 million rupees (approximately €9,600) to leave Pakistan. The reference therefore to documents was not persuasive in circumstances where he himself was unable to answer basic questions. The same was true of the second named applicant who was noted to have had an education and twenty-six years of business experience. He too had no idea whether India was closer to Lahore or Faisalabad, or whether Faisalabad was north, south, east or west of Lahore. He confirmed that the sun rose in the east thereby confirming that he knew east from west.

86. The respondents submitted that while the applicants claimed that the RAT used a selective approach to the evidence when undermining the applicants’ claim to be from Lahore, this was in fact a very clear finding made by the Tribunal based on the exchange as evidenced by the attendance note of the hearing which the respondent suggested, on any reading, is extremely damaging for the applicants. The respondent submitted that whereas the applicants had documents which purported to prove a connection to Lahore, their personal testimony fell far short of demonstrating that they were familiar with Lahore or indeed Pakistan and its neighbours. The respondent stated that it is a central part of their claim and, if untrue, it undermines the full claim.

87. I am satisfied that the respondents’ submissions on this issue are correct. It seems to me that the conclusions of the RAT in this regard flow from the evidence given by the applicants at hearing and are not unreasonable or irrational. The RAT’s conclusions in this regard were reasonably open to it on the basis of the evidence before the Tribunal. Accordingly, I am satisfied that the applicants have not made out substantial grounds for arguing that the RAT erred in its assessment of whether the applicants were from Lahore as claimed. I will not, therefore, grant leave on this ground.
Ground 5 – Treatment of internal relocation
88. The applicants sought leave to argue that the Tribunal member failed to address the evidence offered by the applicants as to why they could not internally relocate.

89. In addressing the question of internal relocation in respect of the first named applicant, the Tribunal member held:

“The appellant could have moved away from the area in which the difficulties were and from the place the source of the applicant’s alleged difficulties. The proposed site of internal relocation, i.e. Faisalabad, does not present a distinct risk of even generalised serious harm, and the appellant did not identify any risk attached to relocation to Faisalabad… I find that it would be reasonable to require the applicant to relocate to Faisalabad. The applicant in this case did not give any reason why he would not provide a reasonable alternative to leaving his country of origin”
90. The RAT’s consideration of internal relocation in the decision on the second named applicant’s case is in similar terms.
91. In his grounding affidavit, the second named applicant dealt with this issue as follows:

“I also do not understand the conclusion that I could have relocated within Pakistan in light of the fact that members of the government were behind my abduction and torture and my evidence that even since I have left Pakistan, my wife and family have continued to experience harassment.”
92. The applicants submitted that in his treatment of the question of internal relocation the Tribunal member failed to address the evidence offered by the applicants as to why it was not possible in this case. The Tribunal failed to give any or any adequate consideration to the fact that the applicants claimed that members of the government were behind their abduction and torture. The applicants stated that in this regard, the Tribunal failed to weigh the evidence of threatening phone calls and letters and the evidence that since the second named applicant left Pakistan his wife and children had been subjected to harassment by State agents and were forced to flee to the house of the second named applicant’s parents-in-law. The applicants submitted that the Tribunal member also failed to distinguish or even refer to the earlier decision of the Tribunal, relied upon in submissions on behalf of the applicants, in relation to another applicant for refugee status on grounds of his membership of the PML-N party, to the effect “it is not clear that the applicant’s problems would not follow him to another province given his political leanings.”
93. In reply, the respondent submitted that Pakistan has a population of some 162 million and the applicants were unharmed from April 2006 until the time of their departure from Pakistan in March 2007. The respondent submitted that given that the Tribunal member did not believe that the applicants had a fear of persecution, he did not need to go on to make any assessment of either state protection and/or internal relocation. The respondent submitted that it was therefore unnecessary to examine that aspect of the decision and, if found to be flawed, the respondent would urge the court to sever that aspect of the RAT decision.

94. In G.O. v. Refugee Appeals Tribunal & Ors. [2013] IEHC 89, Mac Eochaidh J. stated as follows in relation to the Tribunal’s obligation to consider internal relocation and state protection where it has made a finding that the applicants’ claim of persecution is not credible:

“It is well established by case law that where the RAT fundamentally disbelieves an applicant’s account, there is no legal requirement to examine further matters such as the question of internal relocation, the availability of State protection, etc. But there is no prohibition on the RAT from carrying out such an exercise following negative credibility findings as happened in this case.”
95. I am satisfied that in this case the applicants’ submissions in relation to the finding as to the availability of internal relocation are reasonable and weighty. In its decision, the Tribunal dealt in general terms with the issue of internal relocation. It set out the general legal principles involved in the consideration of this issue. But the Tribunal member did not deal with the specific points raised by the applicants that they were fleeing from acts of persecution at the hands of government agents. Nor did it deal with the evidence of the applicants in relation to threatening phone calls and letters. The decision did not address the evidence that since the second named applicant left Pakistan, his wife and children have been subjected to harassment by State agents and were forced to flee to a relative’s house.
96. The applicants also complained that the Tribunal did not refer to the other RAT decision on which they had relied in their submissions. In fact, in the portion of its decision dealing with the first named applicant, the Tribunal made the following reference to the earlier decision:

“Subsequent to the hearing, further documentation was supplied which does not alter my view as set out above. Having considered the previous decision, I am of the view that that particular decision turned on its own peculiar facts.”
97. I am satisfied that the applicants have made out substantial grounds for contending that in reaching its decision that internal relocation was open to the applicants, the Tribunal did not give due consideration to the points raised by the applicants on this issue. Furthermore, the Tribunal did not deal in explicit terms with the previous decision of the RAT other than to say that it turned on its own peculiar facts. In these circumstances, I am satisfied that the applicants have made out substantial grounds for challenging that part of the Tribunal’s decision which deals with internal relocation and, accordingly, I will grant leave in respect of ground 5 in the applicants’ statement of grounds.
Ground 6 – Error in the assessment of the availability of state protection
98. The applicants seek leave to argue that the RAT addressed the question of the availability of state protection at a level of generality without engaging with the facts of this case when finding that there was a failure on the part of the applicants to demonstrate that state protection was not available. The applicant submitted that the Tribunal member should also have explained why, despite the evidence, he was not satisfied that attempts to procure state protection had not been exhausted.

99. In his grounding affidavit, the second named applicant dealt with this issue in the following terms:-

“I do not understand how the respondents could form the view that I could have reasonably availed of protection in Pakistan given the evidence submitted included the letter from my brother, M.H.B., to the Inspector General of Police, Lahore in relation to the provision of protection and requesting that action be taken to progress the investigation of my abduction. I explained in my evidence throughout the asylum process that the police, despite numerous requests, would not provide me with protection.”
100. The applicants submitted that the fact that they sought State protection was clear on the evidence. The applicants submitted that the RAT should have properly addressed the evidence offered in this regard in relation to attempts to get State protection (several reports to the police) and explained why, notwithstanding this evidence and in the face of compelling COI in relation to the absence of State protection, he was not satisfied that attempts to procure state protection were exhausted. The applicants submitted that it was notable that no adequate consideration was given to the letter from the second named applicant’s brother to the Inspector General of Police, Lahore, in relation to the provision of protection and requesting that action be taken to progress the investigation of the abduction of the applicants nor of the consistent evidence that the police, despite numerous requests, would not provide him with protection.
101. The applicants submitted that, furthermore, no consideration was given to the compelling country of origin information submitted to the Tribunal including evidence that forced disappearances are “a tragic ‘routine’ in Pakistan”, that the handling of cases on forced disappearances by the Pakistani justice branch was suspended in November 2007, and the fact that “the use of torture, known and regularly denounced, is in no way opposed by the government.” The applicants stated that this information was submitted to the Tribunal in support of the applicants’ cases but the RAT reached a decision inconsistent with this information without explaining, by reference to this material, why he was doing so.

102. The applicants submitted that given the weight of the evidence before the RAT regarding the absence of State protection in Pakistan for persons in the applicants’ position, as clearly documented in all the international literature before the Tribunal (because he does not appear to expressly so find) the conclusion that State protection is available is unsustainable.

103. The respondents submitted that since that the Tribunal member did not believe the applicants’ claims to have a fear of persecution, he did not in those circumstances need to go on to make any assessment of state protection.

104. In its decision, the Tribunal set out a comprehensive statement of the law and practice on state protection. However, the Tribunal did not go on to deal with the specific points raised by the applicants. They had provided evidence of attempts made by them to secure protection from the police. They had also submitted extensive COI on the absence of state protection. The Tribunal mentioned but did not deal with the letter from the second named applicant’s brother to the police. In these circumstances, it is arguable that the Tribunal failed to gave sufficient consideration to the issue of state protection. Accordingly, I am satisfied that the applicants have made out substantial grounds for contending that the RAT erred in finding that there was adequate state protection available to the applicants, and I will therefore grant leave in respect of this ground.
Ground 7 – Error in assessing identity documents
105. The applicants submitted that the finding of the RAT that the first named applicant did not make reasonable efforts to establish his identity is unreasonable since he had submitted to the Tribunal his original birth certificate, which is an identity document within the meaning of s. 20(1) of the Refugee Act 1996.

106. The applicants submitted that the RAT stated that there had been a failure to establish identity but without explaining why the documentation submitted in support of establishing identity (birth certificates, marriage certificate, death certificate, police reports, newspaper reports, party membership documentation, etc.) were not considered sufficient and without identifying what additional documentation would have been required. The applicants stated that the only document which the Tribunal member specifically suggests is unreliable in terms of its authenticity is the medical report from the Services Institute of Medical Services where a stamp with a misspelling “sorgical” instead of “surgical” is used; and the applicants stated that while it is understood why the RAT decided that it could not rely on this document, no similar explanation was given for discounting the other documentation submitted.

107. The finding that the first named applicant had failed to established his identity is made without reference to the fact that he had submitted an original birth certificate, the validity of which has not been impugned. This is an identity document within the meaning of section 20(1) of the Refugee Act, 1996, and, in the circumstances, the finding that the first named applicant did not make reasonable efforts to establish his identity is unreasonable absent some attempt to explain why the material actually submitted was not considered adequate. Additional material was also submitted including police reports, party membership details, and hospital records.

108. The respondent submitted that the Tribunal noted that birth certificates were submitted, but found that the applicants did not make reasonable efforts to establish their identities. The respondent stated that there is no dispute about the birth certificate having been submitted. It is on the Tribunal file and at p. 7 of the RAT decision it is noted that the first named applicant said that he had a birth certificate. The respondent submitted that this means that the RAT did not accept that the document established his identity. At p. 28 of the decision, the Tribunal member again noted that the applicant had a birth certificate. He did not doubt its existence but was in essence saying that it was insufficient to establish the applicant’s identity. The Tribunal states at p. 28 that the first named applicant did not provide “any reasonable explanation for the absence of identity documents.” At the hearing, the RAT asked about “any other ID docs” (p. 7 attendance note). Although he acknowledged that the applicant has a birth certificate, he was quite reasonably attempting to find out what other documents the applicants might have in circumstances, which they say have been sent to them from Pakistan. There is no breach of constitutional justice simply because the Tribunal tests the applicants on their evidence.

109. I am satisfied that the applicants have made out substantial grounds for arguing that the RAT failed to have sufficient regard to the documentary evidence submitted to the RAT, and failed in its obligation to provide cogent reasons as to why the documentary evidence was being rejected. I therefore propose to grant leave on this ground.
Ground 8 – failure to consider relevant evidence
110. This again is a general ground of complaint centred on the RAT’s alleged failure to adequately consider the relevant evidence before it. This complaint was more adequately particularised in the grounds considered above, and leave on this ground is therefore refused.
Ground 9 – Failure to assess the substantive claim advanced
111. The applicants submitted that the decision of the RAT is ultra vires by reason of a failure to assess the substantive claim advanced in accordance with s. 2 of the Refugee Act 1996, as amended, as the Tribunal member did not address whether the applicants have a well founded fear of persecution, and the evidence of past persecution, and whether a convention reason is given is never determined by the Tribunal.

112. It is clear from the decision that the RAT gave detailed consideration to the evidence given by the applicants at the oral hearing in which they gave details of the persecution that they claimed to have suffered. The RAT held that the account given by the applicants was not credible and cogent reasons were given for this finding. Accordingly, I will not grant leave on this ground.
Grounds 10, 11, and 12
113. Ground 10 of the applicants’ statement of grounds is to the effect that there is an error of law in the decision which breaches Regulation 5(2) of SI 518 of 2006, insofar as the Tribunal failed to have regard to the fact that past persecution alone, without regard to future persecution, can warrant a determination that an applicant is eligible for protection. The said error goes to the jurisdiction of the respondents who have failed to determine the applications in accordance with law.

114. In this case, the applicants’ claims as to past persecution were not believed for the reasons set out in some detail in the RAT decision. Since the applicants were found to lack credibility, and since their claims of past persecution were not believed and cogent reasons were provided for that finding, this ground is in my view unsustainable and leave must therefore be refused.

115. The applicants did not pursue ground 11 in their statement of grounds.

116. Ground 12 concerned the application for an extension of time, which the court dealt with earlier in this judgment.
The Respondents’ Preliminary Objection
117. The respondents raised a preliminary objection to the proceedings on the grounds that the claim is moot arising out of the political changes in Pakistan. The prime minister of Pakistan, Mr Nawaz Sharif, is the leader of the Pakistan Muslim League – Nawaz Party (PML-N or N Party). In those circumstances, the respondents submitted that no useful purpose could be served by hearing the within application. The respondents submitted that the applicants have made a claim for asylum based only on their membership of the N Party and the risk to them of its previous minority status. If the applicants were successful before this court, the matter would be remitted to the Tribunal, and, based on the claim as formulated, there could be no benefit accruing to the applicants as the alleged threat to them no longer exists.

118. In this regard, Ms. Eileen Credon from the Chief State Solicitor’s Office wrote to the applicants by letter dated 29th May, 2014, which was the day before the hearing of this case, in the following terms:

“It appears to the respondent that the proceedings can serve no purpose at this point in time due to the fundamental changes which have occurred in the political landscape in Pakistan. Indeed, as the applicants are no doubt aware, the party of which they have claimed to be members is the ruling party in Pakistan. The leader of that party, Mr. Nawaz Sharif, is Prime Minister of Pakistan.
It is noted, however, that the applicants’ legal submissions filed yesterday made no reference to this fact and indeed unwittingly convey the impression that the N Party is a minority party and/or forced to conduct its activities in secret. As your clients purport to be politically active asylum seekers, one would reasonably have expected them to have been alert to this change in government. One would have presumed that it would have been viewed by the applicants as a very positive change from their perspective and one which would have permitted their safe return to Pakistan (even if their alleged fear had been well founded). With respect, it is not credible that your clients were not aware of this material change in political circumstances and one would therefore question the continued accuracy, presuming it was ever accurate, of the averments at paragraph 22 and 23 respectively of the applicants’ grounding affidavits. The applicants cannot legitimately maintain that they are “in no doubt but my life would be in danger if I am returned to Pakistan.”

As your clients’ claim is based exclusively on political activity, namely membership of the N Party, which is now in government, it is the Respondent’s contention that the within proceedings are moot, save as to costs. Indeed, it is apparent that the proceedings were moot when a hearing date was assigned on 10 March 2014. Even if your client succeeded in the within application, no legitimate purpose could be served by sending the claim back to the Refugee Appeals Tribunal as the asylum claim made by the applicants could not succeed. Indeed, the continued prosecution of the proceedings since the N Party and Mr. Sharif assumed power is questionable.

At this juncture, without any admission of liability, your clients are invited to withdraw the within proceedings. If necessary, this letter will be brought to the attention of the court, including in relation to costs.”

119. In reply, the applicants submitted country of origin information by way of affidavit which describes the volatile nature of politics in Pakistan and the general unrest in the country. The applicants submitted that because of this instability the government could change at any time and that they would then be in danger; and that they would, in any case, be in danger because of the unstable nature of Pakistani politics and society.
120. In his affidavit sworn on 24th October, 2014, and submitted to the court on 2nd December, 2014, the first named applicant stated as follows:

“2. I make this Affidavit in circumstances where both my uncle and I have been made aware of a letter dated 29th of May, 2014 from the Chief State Solicitor’s Office to my solicitors in relation to the within proceedings in which it is contended that the proceedings can serve no purpose at this point in time due to changes in the political landscape in Pakistan since the within proceedings commenced and the fact that the N Party, of which my uncle and I were members, is now in government. As a result of this, the Chief State Solicitor’s Office have invited us to treat these proceedings as moot on the basis of their belief that it is safe for us to return to Pakistan. I can confirm that the letter from the Chief State Solicitor’s Office has been read over to my uncle and me in the presence of our solicitor in the presence of an URDU interpreter.
3. Unfortunately, I cannot agree with the contention that it would now be safe for my uncle and me to return to Pakistan. I understand why the Chief State Solicitor’s Office might form this view given that the party of which we are members is now in power but I believe that it is a view premised on a partial or superficial understanding of the political situation in Pakistan where political control is neither stable nor effective.

4. As this Court is already aware from the Country of Origin Information relied upon in these proceedings, government in Pakistan is very unstable and there are a myriad of break-away groups and agencies involved in the widely reported disappearances of persons endemic in Pakistan. It remains the case that despite the fact that the N Party is now in government in Pakistan, my father is still missing and my family have had no information about his whereabouts. It is very clear to my family that being a member of a party in power in Pakistan unfortunately affords no protection from persecution and that is our experience of life in Pakistan.

5. This is not just my family’s view and it is widely known that the State is severely dysfunctional. It is not so easy to effect systemic change in a country such as Pakistan and it is not realistic to suppose that because a new political party comes into power that the old anti-democratic and subversive ways are ended or that the influence of the army and its agencies are held in check.

6. The reality is that it does not matter what party is in power in Pakistan. The real political authority is the military and the various agencies under their control. The N Party does not control the army or their agencies. Those responsible for our abduction and torture are not controlled by the N Party and the change in government has not resulted in a change in this regard. I confirm on oath my conviction, shared by my uncle, that once you are known to these agencies you will be immediately arrested and tortured on return to Pakistan. The police are unable to offer protection due to the influence of the army and their agencies. Power is not centralised in political parties in Pakistan and the army continues to be an uncontrolled force.

7. I believe that it is documented that the political situation, particularly in the Punjab region, remains unstable and volatile. There is no guarantee that the existing Government will survive following the protest movements led mainly by Imran Kahn over the summer and membership of the N Party is not a guarantee of safety but a risk factor even when they are the majority. Thus, it remains the position for both my uncle and me that we believe our lives would be in danger if we were returned to Pakistan.

[…]

10. We are very concerned that the purpose of the correspondence from the Chief State Solicitor’s Office is to persuade the Court that even if the Court is satisfied that the original decision making process in our cases was flawed that it should not intervene to ensure that our cases are properly considered. We are advised that the effect of what the Chief State Solicitor’s Office is asking this court to do is to bypass the specialist role of the Tribunal and enter, itself, into the arena of assessing and deciding on applications for refugee status. I am advised that normally the position adopted by the Chief State Solicitor’s Office in defending these types of proceedings is precisely contrary to this in that it is established that it is no function of the Court in judicial review proceedings to put itself in the position of the decision maker whose decision is challenged.
11. My uncle and I are very anxious that our applications for refugee status would be determined in a fair and proper manner and by a body with specialist knowledge and training in relation to the position in Pakistan. International Media reports evidence ongoing political unrest in Pakistan as the situation there continues to evolve. In this regard, I beg to refer to a report downloaded from the internet entitled “Pakistan Political Unrest: In Brief” published by the United States Congressional Research Service and authored by K. Alan Kronstadt and Samir Kumar dating to September this year (September, 2014).”

121. The country of origin information submitted by the applicants in the “Pakistan Political Unrest: In Brief” report, which was prepared by the US Congressional Research Service, notes, inter alia, that as of August 2014 the effort to establish democracy in Pakistan is facing serious difficulties as a result of ongoing protests in the capital which, the report suggests, may trigger a new round of direct military intervention in the country’s governance.
122. In The State (Polymark (Ireland) Ltd) v. The Labour Court and The Irish Transport and General Workers’ Union [1987] ILRM 357 it was held that the court will refuse to grant certiorari in circumstances where it would be futile to do so. In the course of his judgment, at p. 362 of the report, Blayney J. quoted with approval the following passage from the judgment of O’Higgins CJ in The State (Abenglen) v. Dublin Corporation [1984] IR 381 at p. 393:-

“In the vast majority of cases, however, a person whose legal rights have been infringed may be awarded certiorari ex debito justiciae if he can establish any of the recognised grounds for quashing; but the court retains a discretion to refuse his application if his conduct has been such as to disentitle him to relief or, I may add, if the relief is not necessary for the protection of those rights. For the court to act otherwise, almost as of course, once an irregularity or defect is established in the impugned proceedings, would be to debase this great remedy.”
123. Blayney J. then held at pp. 362-363:
This passage reaffirms that certiorari is a discretionary remedy, and the conclusion I have come to is that even if there was a breach of principles of natural justice, the circumstances of the case are such that in exercise of my discretion I should refuse to make the conditional order absolute.
My principal reason is that the granting of an order of certiorari is not necessary for the protection of the prosecutor’s legal rights in the sense that it could not in any way protect them. If the determination of the Labour Court is quashed, this will have no effect on the equal pay officer’s recommendation which I have found to have been validly made. Her recommendation will remain binding on the prosecutor. In these circumstances the quashing of the Labour Court’s determination would be pointless. It would in no way alter the position which has resulted from my finding in regard to the first ground, namely, that there was a valid recommendation made by the equal pay officer which is binding on the prosecutor.

As well as being pointless, an absolute order would, for the reason I have already given, be of no benefit to the prosecutor, and this is a relevant consideration to be taken into account in exercising my discretion. This was the ground upon which Walsh J. based his refusal to make an order of certiorari in the Abenglen case. He said in his judgment:

“If I am correct in this, then an order of certiorari quashing the decision made by the respondents would be of no benefit to Abenglen. While the Court could make such an order in the present case, the Court in its discretion could refuse to do so where that would not confer any benefit upon Abenglen. (at p. 397).”
124. I am of the view that the COI submitted by the applicants, and referred to above, suggests that the political situation in Pakistan remains volatile and unstable, and that although the claimed fear of persecution on the part of the applicants stemmed from their membership of the N party, which party is now in power, that situation could, it seems, change at any time. I am, moreover, of the view that the assessment of COI, and the assessment of whether the basis of the applicants’ claimed fear of persecution no longer exists, is properly a matter for the consideration of the RAT, rather than the High Court in an application for leave to seek judicial review. Accordingly, the court rejects the respondent’s contention that the applicants’ case herein is moot and ought to be dismissed.
Conclusion
125. For the reasons set out above, the court will grant leave to challenge the decision of the RAT on ground 3 (failure to properly assess and weigh the SPIRASI reports); ground 5 (treatment of internal relocation); ground 6 (assessment of the availability of state protection); and ground 7 (error in assessing identity documents), as set out in the applicants’ statement of grounds.

T.I (a minor) -v- The Minister for Justice, Equality & Law Reform & ors

[2015] IEHC 341 (19 May 2015)

 

Judgment

Title:

T.I (a minor) -v- The Minister for Justice, Equality & Law Reform & ors
Neutral Citation:
[2015] IEHC 341
High Court Record Number:
2010 757 JR
Date of Delivery:
19/05/2015
Court:
High Court
Judgment by:
Faherty J.
Status:
Approved
___________________________________________________________________________

 

Neutral Citation [2015] IEHC 341

THE HIGH COURT
[2010 No. 757 JR]

 

BETWEEN

T. I. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND P. I.)
APPLICANT
AND
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM,

THE REFUGEE APPEALS TRIBUNAL,

IRELAND AND

THE ATTORNEY GENERAL

RESPONDENTS

JUDGMENT of Ms. Justice Faherty delivered on the 19thday of May 2015
1. This is a telescoped application where the applicant seeks an order of certiorari quashing the decision of the second named respondent affirming the recommendation of the Refugee Applications Commissioner that she not be declared a refugee.
Background
2. The infant applicant is of Nigerian origin. Her mother was born in Anambra State, Nigeria. According to the applicant’s mother, the applicant’s father hailed from Imo State. He was a Christian whose father was a pagan chief priest of a named shrine in Akokwa, Imo State. The applicant’s father’s eldest brother, who was due to succeed their father as chief priest, was killed in a car accident. The applicant’s mother claimed that pressure was then put on the applicant’s father to marry his sister in-law but he refused, choosing instead to marry the applicant’s mother on the 28th February 2004. Additionally, he refused to take over his role as successor to the chief priest of the shrine. At the time of their marriage, the applicant’s mother had completed her law degree after five years of university education. The applicant’s mother became pregnant with the applicant in 2004. On the 1st December 2004, the applicant’s paternal grandfather died suddenly. The applicant’s mother claimed that his family had consulted “the oracle” who decreed that the applicant’s father’s refusal to take on the role of chief priest was the reason for his father’s death. Accordingly, “the oracle” had demanded that the applicant’s mother’s unborn child be sacrificed to the land “to appease the curse and give the chief priest a successful death”. On hearing of this decree the applicant’s mother had run away “to save the life of [her] child”. She left Akokwa and travelled to Enugu where she stayed for one month and from there moved to Lagos where she remained for three months. From there she travelled to Ireland in March 2005. At the time of her departure, the applicant’s father remained living in Lagos.

3. The applicant’s mother’s asylum process commenced in 2005. The section 13 report which issued in respect of her claim recorded that her fear of persecution was based on the demand by “the oracle” that her unborn child was to be sacrificed to appease the death of her father- in-law. The Commissioner found the applicant’s mother’s account “not credible”, stating, inter alia:-

“Her husband as a Christian was not involved in his father’s pagan ways. He refused to do his father’s bidding in the case of his brother’s wife, he had married the applicant in spite of his father’s objections and as the applicant herself stated he was unlikely to allow his child to be sacrificed. He did not have any problems over his refusals in the past and has not had any problems since the applicant left Nigeria in March 2005. It is not unreasonable to suggest that the applicant could have continued to live in Nigeria in Enugu where she went to college, in Onitsha with her parents or in Lagos with her husband. In the three months from her father in-law’s death until she left for Ireland he did not encounter any problems in Nigeria.”
4. The infant applicant was born in this State on the 23rd March 2005. Her asylum process commenced on the 15th October 2007. A section 8 interview was conducted with the applicant’s mother on her behalf on the same date. It recorded the following:-
“Applicant’s mother claims that her daughter cannot return to Nigeria because the applicant’s grandfather is a native doctor who died.
Applicant’s mother claims that the child was to be sacrificed to appease the grandfather’s ghost as the reason for his death was seen to be his dislike for the child’s mother.

Applicant’s mother claims that female mutilation through circumcision is also popular in the community back in Nigeria and she fears that her daughter would be circumcised if she returns to Nigeria.”

The claims set out in the s.8 interview were replicated in the questionnaire completed on the 22nd October 2007, which also recorded fears that the applicant would be subject to ritual killings and trafficking. The claimed fear of persecution was stated to be on grounds of religion and membership of a particular social group.
In the course of the section 11 interview, the applicant’s mother stated:-

“I fear that my in-laws will sacrifice my daughter to the shrine and that she will die. I also fear that they may perform FGM on her because it is a tradition there. My own brother went missing and he was kidnapped. I fear my daughter may be kidnapped and trafficked.”
5. The RAC rejected the applicant’s claim and the section 13 report stated, inter alia :-
“The applicant’s mother fears that her daughter will be sacrificed by her husband’s family following the death of her father-in-law…[She] claims that FGM is another tradition in her in-laws community and her daughter would be subjected to FGM if she went to live in Nigeria …The applicant fears that she would be located in Nigeria because of the Oracle. The applicant was asked to explain this Oracle and she replied ‘They have a piece of wood that they carved into the shape of a human. They worship this.’ The applicant claims that she could be located anywhere in Nigeria because of the Oracle. When asked how she has not been effected (sic) by the oracle since leaving Nigeria, she replied ‘If I was in Nigeria it could locate me. Because I am not in Nigeria the Oracle cannot locate me’. The applicant’s fears in this regard are subjective and are not supported by any objective element. The applicant’s fears of being located by an Oracle are not accepted..”
6. Under the heading “State Protection”, the following was stated:-
“It is considered that the applicant and her mother could return to Nigeria and locate away from Akokwa, Imo State where she would not be in danger from her in-laws. Her claims that she could be located anywhere in Nigeria are not accepted….Country of origin information indicated that there are various NGOs who would be willing to offer the applicant and her mother assistance if they were to return to Nigeria….Given her mother’s age and level of education it is not considered unduly harsh for the applicant and her mother to return to Nigeria. As Nigeria is a country with a population of over 140 million…it is not accepted that the applicant and her mother could be located by her in-laws as she claims.”
7. The Tribunal’s decision issued to the applicant on the 17th May 2010. As the section 6 analysis is short, it is quoted herein in its entirety:-
“The claim of this Applicant…is identical in virtually all aspects to that of her mother. As the claim of [her mother] has been dismissed, then so also is the claim of this applicant. However, there is the issue of female genital mutilation which does not constitute a part of [her mother’s] claim.
There is a growing number of women NGOs in Nigeria.

The report of the joint Danish-UK Fact Finding Mission to Nigeria has a section concentrating on internal relocation for women. The purpose of the document is to indicate the facilities and means available to women who wish to internally relocate within Nigeria to escape FGM and other gender problems. What is immediately apparent is the proliferation of women’s NGOs in Nigeria.

The US State Department Human Rights Report 2007 states that the National Democratic and Health Survey estimated that about 19% of the female population had been subjected to FGM although the incidence has declined steadily in recent years. The NHDS 2003 data has indicated a high level of support for the abandonment of the practice. 66% of women aged between 15 and 49 who have heard of FGM-C believe the practice should be discontinued. However, better educated women are more likely to oppose the practice than rural and less educated women.

Finally, the UK Danish Report states that the Nigeria Human Rights Commission has expressed surprise if somebody actually had to leave Nigeria in order to avoid FGM instead of taking up residence elsewhere within the country. The NHRC held that it might de difficult for a woman residing in the southern part of Nigeria who wishes to avoid FGM to take up residence in the northern part of the country whereas all Nigerians have the possibility of taking up residence in Lagos due to the ethnic diversity and size of the city.

There are two other matters. Firstly, the applicant’s mother is a highly educated young woman. She passed her law exams during her four years of study and it is implausible for her to suggest that she would not know to whom to turn should she wish to keep her daughter safe from those who might insist on FGM. Finally, as Ms Caden has pointed out, how can [the applicant’s mother] fear FGM if the real fear is to avoid a ritual human sacrifice. The Handbook on Procedures and Criteria for Determining Refugee Status states at Paragraph 201 that the benefit of the doubt should only be given when the Tribunal is satisfied as to the Applicant’s general credibility. The Applicant’s statements must be coherent and plausible and must not run counter to generally known facts. The Tribunal is satisfied that [the applicant’s mother’s] statements are neither coherent nor plausible and they do run counter to generally known facts.

Conclusion

The Tribunal is satisfied that this applicant does not have a well-founded fear of persecution for a Convention reason. She is not a refugee. The appeal is dismissed and the recommendation of the Commissioner is affirmed.”

8. The grounds of challenge to the decision were distilled in the applicant’s written submissions as follows:-
“The Tribunal Member did not:
1. Lawfully assess the issue of credibility.

2. Afford the claim individual or objective assessment.

3. Properly apply the applicable test in respect of internal relocation.

4. Give reasons for the decision or consider medical evidence.”

The applicant’s submissions
9. Counsel for the applicant noted that unusually the Tribunal Member commenced his analysis with the issue of internal relocation. It was argued that the Tribunal Member did not lawfully consider this issue in the manner required by Regulation 7 of the European Communities (Eligibility for Protection) Regulations 2006 which provide that the Tribunal Member, as the proposer for internal relocation as a solution to persecution, should verify by reference to appropriate country of origin information that the general circumstances prevailing in the proposed site of relocation removed the specific risk of persecution and, further, that the personal circumstances of the applicant are not such that relocation is not in fact practical. In the present case the Tribunal Member did not engage in any way in the process of assessing whether internal relocation to another area of Nigeria would in fact be possible for the applicant. Lagos was identified as a relocation option without the Tribunal Member having given consideration to the issue of security from harm, as required by Regulation 7(1) and principle 4 of the test set out by Clark J. in the case of K.D. (Nigeria) v. Refugee Appeals Tribunal & Ors [2013] IEHC 481. Nor was the issue of relocation addressed from the point of view of the reasonableness of the decision, as mandated by Regulation 7 (2) and principles 5 and 7 of K.D. (Nigeria).In the context of the applicant’s personal circumstances, issues of primary importance were not addressed. Firstly, the infant applicant had never been to Nigeria. Secondly, she presented with significant medical problems and had fairly significant special needs, as evidenced by the numerous medical reports which were before the Tribunal. Moreover, the applicant’s medical difficulties had been specifically adverted to in the course of the oral submissions on her behalf to the Tribunal Member. Thus, on any reading of the principles set out in K.D. (Nigeria), as adopted in E.I. v. Minister for Justice & Ors [2014] IEHC 27, the applicant’s medical needs should have been considered in the context of internal relocation. As authority that the medical reports should have been considered, counsel cited the judgment of McDermott J. in A.M.N. v. Refugee Appeals Tribunal [2012] IEHC 393. While in that case the protection decision was deemed unlawful because of the failure of the decision-maker to deal with a SPIRASI report in the context of assessing credibility, counsel submitted the principle underlying that decision was applicable to the present case: the Tribunal Member was obliged to state why, in light of the medical reports, internal relocation was still a reasonable option for the applicant. Counsel rejected any suggestion that the applicant’s legal representative had not addressed the medical issues in the context of internal relocation. Irrespective of how the issue of the applicant’s disability arose in the course of the Tribunal hearing, the Tribunal Member was alerted to the applicant’s medical difficulties and thus himself obliged to consider same pursuant to the mandatory requirements of Regulation 7(2).
10. Insofar as it might be argued by the respondents the Tribunal Member’s finding was not a relocation finding but rather fell within the realm of credibility, counsel relied on the approach adopted by MacEochaidh J. in E.I, who, while adopting Clark J.’s principles as set out in K.D. (Nigeria), took issue with principle 3 thereof.

11. Counsel contended that insofar as the penultimate paragraph of the decision purported to deal with the applicant’s mother’s credibility, it remained unclear whether the implausibility finding regarding her statement that “she would not know to whom to turn should she wish to keep her daughter safe from those who might insist on FGM” pertained to the applicant’s mother’s credibility or to the issue of her objection to internal relocation within Nigeria.

12. As to the statement in the decision “how can [the applicant’s mother] fear FGM if the real fear is to avoid ritual human sacrifice”, counsel contended that it was not clear how this conclusion was arrived at in circumstances where the applicant’s mother expressly stated that she was fearful that the applicant would be circumcised. Counsel argued that even if the Tribunal Member was correct in rejecting as incredible the applicant’s mother’s fear of ritual human sacrifice, it remained the position that she advanced a fear of FGM on the applicant’s behalf, which was not assessed by the Tribunal Member. Nowhere in the section 6 analysis had the Tribunal Member stated that he deemed it a relevant factor that the applicant’s mother had not undergone FGM. Counsel emphasized that the claim made on behalf of the applicant was that her father’s family would subject her to FGM. The claim advanced on behalf of the applicant therefore merited independent evaluation.

13. Insofar as the Tribunal Member found the applicant’s mother’s statements “neither coherent nor plausible” and that they ran “counter to generally known facts”, counsel submitted that no discernible reasons were given for such findings. Counsel queried as to how, in view of the Tribunal Member’s apparent acceptance that the applicant was Nigerian and that 19% of females in Nigeria had been subjected to FGM, it could be stated that the applicant’s mother’s fear of FGM ran counter to generally known facts. The Tribunal Member’s assessment of credibility failed to adhere to the standards contained in the judgment of Cooke J. in I.R. v. Minister for Justice & Ors [2009] IEHC 353 and to the standards expressed in the judgment of MacEochaidh J. in R.O. v. Minister for Justice & Ors [2012] IEHC 573. Thus, insofar as it might be suggested that the entire decision was a decision on credibility, it could not be allowed to stand because of the referred -to defects.

14. Counsel contended that it was not clear from looking at the decision what was the actual finding made by the Tribunal Member. Was it that nothing that the applicant’s mother stated was believed and that she could go back to Nigeria and continue as she was before, or was it that she was believed but even if what she said was true, she could relocate within Nigeria? It could only be one or the other. Whichever it was, it cannot, counsel submitted, be sustained: the credibility findings were not reasoned and the internal relocation finding was not made in accordance with the required minimum standards.
The respondents’ submissions
15. At the outset, counsel acknowledged that the Tribunal decision was “succinct” and not very detailed, but argued that the decision affirmed a bifurcated process in which the applicant’s mother participated on behalf of the applicant. While the section 6 analysis was “sparse” and “not elegant” that did not necessarily render it unlawful.

16. It was well settled law that Tribunal decisions must be assessed in the round. Counsel submitted that it was lawful for the Tribunal Member not to find credible the applicant’s mother’s claims regarding voodoo and witchcraft given her level of education as a law graduate. The applicant’s mother, when making the asylum claim on behalf of the applicant, knew that her credibility regarding the issues of the oracle and human sacrifice/witchcraft had been found wanting. As those fears were repeated in the applicant’s claim for asylum, it followed that a significant part of that claim immediately lacked credibility. That credibility factor, counsel argued, spilled over into the FGM claim advanced on behalf of the applicant. The applicant’s mother did not herself undergo FGM.

17. Relocation was considered in the context of credibility. It had been teased out with the applicant’s mother why Lagos was an option for her and the fact she remained unaccosted while living in Enugu and Lagos had been canvassed with her. Her explanation (the oracle and witchcraft) as the basis of her objection to relocation was not regarded as credible. It was she who rejected internal relocation on the basis that she could be located by the oracle anywhere in Nigeria. When asked if she could be so located in Ireland, she had stated that the oracle did not work in Ireland. It was put to the applicant’s mother both during the section 11 interview and at oral hearing that her fears regarding the oracle were lacking in credibility. Given her acknowledgment that she had moved within Nigeria unharmed and unthreatened, the consideration of internal relocation in the decision was not an alternative to the applicant having been at serious risk but rather as an issue which went to her mother’s credibility. These credibility factors therefore put the matter within the parameters of principle 3 as enunciated by Clark J in K.D. (Nigeria). It was thus not incumbent on the Tribunal Member to embark on an internal relocation consideration.

18. Counsel refuted any suggestion that the case had been made before the Tribunal Member that relocation was not an option because of the applicant’s medical difficulties. While there was a reference to the applicant’s disability in the course of the hearing, no such claim was made in the context of internally relocating. Insofar as such a claim was now being advanced, counsel submitted that it was an argument more appropriate in an application for leave to remain on humanitarian grounds to be advanced before the Minister.

19. Without prejudice to the respondents’ contention that the applicant’s claim was rejected on credibility grounds with the consequence that the question of internal relocation did not fall to be considered in the manner contended for by the applicant’s counsel, the applicant’s argument on internal relocation was without merit. Even if one were to apply the approach adopted by MacEochaidh J. in E.I. , i.e. that there remained an onus on the Tribunal Member to embark on an internal relocation consideration where the claim was not unequivocally rejected for credibility reasons, the issue of internal relocation insofar as it was looked at was sufficiently explored. Lagos was identified as a place of relocation and the reasons why it would be appropriate were identified. At no stage during the hearing had the applicant’s mother stated that she would be hindered by relocating.

20. The applicant’s counsel’s reliance on the judgment of McDermott J. in A.M.N was misguided and, the respondents submitted, inapplicable to the present case. That judgment concerned a person whose very claim to asylum was supported by medical evidence. While McDermott J. had upheld the Tribunal’s dismissal of the claim due to correct credibility findings, he went on to say that the medical report should have been looked as it related to the very basis of the asylum claim and accordingly quashed the decision. That was not the case here, counsel argued. Having failed to make an argument before the Tribunal Member that internal relocation was not reasonable because of the applicant’s medical difficulties, it was not now permissible to make such arguments a central part of the applicant’s claim before this court as this deprived the Tribunal of giving consideration to such argument. Without prejudice to the respondent’s contention that the applicant’s medical difficulties were more appropriate to an application for humanitarian leave to remain, counsel submitted that the reports did not disclose developmental delays or disabilities at such level that it would impede the applicant’s relocation within Nigeria. Furthermore, the duration of the applicant’s stay in Ireland was not relevant to the Tribunal’s determination on refugee status and, again, that factor was relevant only in the context of an application for leave to remain to be made to the Minister.

21. Counsel argued that the dictum of MacEochaidh J. in P.D. v. Minister for Justice (20th February 2015) (relied on by the applicant) had no applicability in the present case. The ratio in P.D. concerned an applicant’s entitlement to know why his or her claim was rejected. In the present case, the applicant’s mother, whose own asylum claim had been rejected and who repeated that claim in the applicant’s asylum application with the additional FGM claim, had been expressly challenged during the course of the Tribunal hearing as to why she was referring to FGM if in fact the applicant was going to be killed by the village elders. Counsel submitted that that exchange sustained the Tribunal Member’s overall conclusions. The contradictory nature of her claimed fears was also addressed with the applicant’s mother in the section 11 interview, as follows:-

“Q46. Why would your in-laws threaten to perform FGM on your daughter if they have already threatened to sacrifice her?
[A]It’s another tradition in that community.

Q.47 But my question is if they plan to sacrifice her, why would they perform FGM on her?

[A]I just want to say it is another tradition in that community that every female should be circumcised.”

That exchange, counsel argued went to the credibility of the expressed fear of FGM. Counsel submitted that the inconsistency in the applicant’s mother’s claim for the applicant was apparent: either the applicant was required for sacrifice at the shrine or alternatively the villagers were not going to kill the applicant but rather perform FGM. Moreover, it was not permissible for the applicant’s mother to make a different case on behalf of her daughter based on fears of voodoo and witchcraft which had already been rejected in her own asylum application and in circumstances where her objections to relocation within Nigeria were deemed not credible. While it may well be the case that the applicant’s mother had such subjective fears, these fears were not objectively well-founded.
There was no lack of clarity in the decision. The applicant’s mother’s evidence had been twice rejected, firstly in the context of her own application for asylum and laterally in the context of the applicant’s application. Therefore, there was no situation in which it could credibly be said that the applicant’s mother did not understand why the applicant’s claim was rejected by the Tribunal.

22. Counsel argued, in reliance on the principles enunciated by Cooke J. in I.R. that the Tribunal Member’s decision should not be parsed or analysed and that it must be read as a whole and that not every mistake will vitiate a decision.

23. With regard to the applicant’s counsel’s argument that the context of the applicant’s claim was not looked at, that was not the case. The applicant did not dispute the facts as recorded in the decision. While FGM is seen as a serious issue in Nigeria, in relation to this particular applicant, she did not come within the group of people identified, for example, by Hogan J. in O.A.Y.A v. RAT [2012] IEHC 373 (a case relied on by the applicant) by reason of her mother’s level of education and because there was no-one targeting the applicant. The applicant’s mother had advanced fears in relation to the oracle, FGM, ritual killings, trafficking and kidnapping – effectively all the fears that anyone could raise – in relation to the applicant; the question that had to be answered was whether they were credibly raised. The Tribunal decision had answered this in the negative and correctly so, counsel submitted.
Consideration
24. It seems to me that the essential question to be determined in this case is what was the approach adopted by the Tribunal Member to the fear of FGM advanced on the applicant’s behalf by her mother. Counsel in the case advanced polar opposite arguments: the respondent’s primary position was that the Tribunal Member disposed of the claim on credibility grounds, whereas the applicant’s counsel contended that the decision lacked clarity and, at best, insofar as the rationale could be gleaned, it related to the adequacy of internal relocation, with an addendum relating to credibility issues.

What then was the primary rationale for rejecting the claim? The law is clear; the rationale should be patent or capable of being inferred. In Meadows v. Minister for Justice, Equality and Law Reform [2010] 2 IR 701, Murray J. said as follows:-

“An administrative decision affecting the rights and obligations of persons should at least disclose the essential rationale on foot of which the decision is taken. That rationale should be patent from the terms of the decision or capable of being inferred from its terms and its context. Unless that is so then the constitutional right of access to the Courts to have the legality of an administrative decision judicially reviewed could be rendered pointless or so circumscribed as to be unacceptably ineffective. In my view the decision of the Minister in the terms couched is so vague and indeed opaque that its underlying rationale cannot be properly or reasonably deduced.”
25. The necessity for clearly expressed and reasoned decisions was reinforced in the judgment of MacEochaidh J. in P.D. v. Refugee Applications Commissioner [2015] IEHC 111 (High Court, 20th February 2015) in the following terms:-
“It is an over simplification …to say that a decision maker must decide on the truth of each element of a claim for asylum. The common thread in the judgments is the need for clearly expressed decisions in relation to the core claim. The extent to which the elements of a claim are required to be formally decided depends on the circumstances of each case. As asylum claims require the establishment of a number of elements, for example: membership of a social group or race or religion or nationality and a well founded fear of persecution – it may be possible to dispose of the application where proof of one of the necessary elements fails. Where, for example, an applicant claims to be a Nigerian who suffered religious persecution and it emerged that persons of that faith suffer no persecution in Nigeria, the decision maker could lawfully decide that the applicant did not have a well founded fear of persecution without the necessity of deciding whether or not she was a member of the particular religious faith claimed. In my view, no illegality would attach to such decision. Ideally it should be clearly stated that no decision is needed on this aspect of the claim and that, in my view, would comply with the Meadows inspired comments quoted above as to the need for clarity in administrative decisions. The difficulty which frequently arises is that it is unclear to applicants what is believed and what is not believed or whether any decision has been taken in respect of an important part of a claim and this may be of some consequence for the purposes of an administrative appeal.”
26. The Tribunal Member’s decision, to my mind, falls short of the standard set out in the above quoted jurisprudence, as it is open to question whether it is a credibility decision pure and simple or a decision on internal relocation or a mixture of both. This alone is sufficient to vitiate the decision. My conclusion in this regard was assisted by the dictum of Birmingham J. in V.F.A.A. v. The Minister for Justice [2010] IEHC 117:-
“Counsel for the respondent authorities has made the point that it is necessary to view the decision in the round and he warns against any approach that would involve deconstructing the decision as a whole, and submitting individual parts to an isolated examination referring to the decision of Cooke J. in I.R. v. The Minister for Justice, Equality and Law Reform [2009] IEHC 353. With that observation I find myself in complete agreement and indeed in a number of cases I have cautioned against the tendency to over dissect decisions. Indeed, I am conscious that at a post leave hearing stage that the risk is heightened, as there will be a tendency for attention to focus exclusively on the areas where leave has been granted, and which are to that extent areas of controversy to the exclusion of ones where the view was taken that there was no substantial ground for challenging the decision or where there was never any element of controversy in the first place. That causes me to ask, with what impression is one left, if one stands back and looks at the decision in the round?”
Standing back and looking at this decision in the round, one could be left with the impression that the Tribunal Member commences his analysis on the premise that the alleged fear of being subjected to FGM advanced on behalf of the infant applicant was well founded but that the availability of an internal relocation option meant that there was no basis to declare the applicant a refugee. To me that is an interpretation capable of being extracted from the decision, from the commencement of the s.6 analysis up to and including the point where the Tribunal Member opines: “Firstly, the Applicant’s mother is a highly educated young woman. She passed her law exams during her 4 years of study and it is implausible for her to suggest that she would not know to whom to turn should she wish to keep her daughter safe from those who might insist on FGM.” However, the Tribunal Member then states: “Finally, as Ms Cadden has pointed out, how can [the applicant’s mother] fear FGM if the real fear is to avoid a ritual human sacrifice”. Is one then to take it that this statement is sufficient to translate what went before into an assessment of the credibility of the FGM fear advanced on behalf of the applicant?
The respondents’ counsel put great emphasis on the Tribunal Member’s above quoted latter statement as encompassing the inconsistency of the applicant’s mother’s fears for her child (raised with her in the course of the s.11 interview and the hearing) and counsel contended that this was evidence that the decision was a credibility decision first and foremost. It seems to me however that the flaw in that argument is that the Tribunal Member in the very first paragraph of his s.6 analysis referred to “the issue of female genital mutilation” as part of the applicant’s claim and proceeded to have a discourse on the incidence of FGM in Nigeria and the how it could be avoided by relocating and the assistance available for those in threat of FGM, having regard to country of origin information.

27. Furthermore, even if the decision purported to be first and foremost a credibility decision, I am not convinced that the referred to inconsistency in the applicant’s mother’s claims (FGM versus ritual human sacrifice) was a sufficient basis to dismiss the fear of FGM expressed on behalf of the infant applicant. FGM was a fact of life for 19% of the female population of Nigeria at the time of the Tribunal Member’s consideration of the claim. This stark statistic alone behoved him to give due consideration to the claim. It could not be readily dismissed solely on the basis that the applicant’s mother claimed more than one fear for the child, particularly when she asserted that FGM was a tradition in her husband’s family. Whether this was or was not the case was for the Tribunal Member to assess and weigh accordingly but there is no indication, if this decision is to be read as a pure credibility decision, that this was done.

28. The applicant’s counsel referred the court to the dictum of Hogan J. in O.O.Y.A. v. Refugee Appeals Tribunal [2011] IEHC 373. Counsel for the respondent argued that the applicant’s circumstances were distinguishable on the facts in O.A.Y.A given the level of education of the applicant’s mother and the fact that no threat of circumcision for the applicant had emanated from her in-laws.

While I agree that the factual matrix in O.O.Y.A. was different to the applicant’s circumstances, I nevertheless adopt the following paragraphs in the judgment of Hogan J. as encompassing the spirit in which the fear that the applicant might be subjected to FGM should have been considered:

“14. The issue here is the gravity of the threat that this young girl might be subjected to FGM if she were to be returned to Nigeria. Even if the allegations made by Ms. A. in relation to the Imam are entirely discounted as implausible, the stark and uncomfortable fact remains that this young applicant is from the Yoruba tribe. While she is no longer in her very early infancy, she would nonetheless be still distinctly vulnerable – all other matters being equal – to the risk of FGM given that, as we have already noted, the country of origin information shows that the risk posed to young Yoruba females is, in practice, extremely high, even if it is acknowledged that the fact that her mother is opposed to the practice would mitigate the risk somewhat.
15. The applicant is plainly entitled to be protected against a serious threat to her constitutional rights which would undoubtedly occur were she to be subjected to FGM following deportation to Nigeria: see, e.g., by analogy the comments of McCarthy J. in Finucane v. McMahon [1990] 1 I.R. 165, 226 and those of Gilligan J. in OO. v. Minister for Justice, Equality and Law Reform [2004] 4 I.R. 426, 432. The subjection of any female to FGM is an open assault on her person, the very right which by Article 40.3.2 of the Constitution the State expressly undertakes to defend and vindicate in so far as it is practicable to do so. By the same token FGM can be regarded as a form of torture and inhuman and degrading treatment, contrary to Article 3 ECHR.

16. Given the nature of these risks and the potential grave impact on the constitutional rights (and, for that matter, the Convention rights) which the subjection of the applicant to FGM would entail, it behoves any decision-maker clearly to identify and assess the nature of such risks and to weigh them fairly and properly. As Murray C.J. observed in Meadows [2010] 2 IR 701, 724:-

“It is inherent in the principle of proportionality that where there are grave or serious limitations on the rights and, in particular, the fundamental rights of individuals as a consequence of an administrative decision the more substantial must be the countervailing considerations that justify it.”

17. While these comments were made in the context of a challenge to the validity of an administrative decision which impinges on constitutional rights, they are certainly applicable by analogy to the present case.

18. Can it therefore be said that the Tribunal member has sufficiently identified the risk to this young female in view of her vulnerable age and tribal membership? With great respect, I do not think that one can. The country of origin information clearly shows that young Yoruba females constitute a very high risk group. Nor can it realistically be said that such young girls enjoy any effective police protection in this regard given that, as the British-Danish report clearly found, the Nigerian federal police rarely intervene in these types of cases.

19. It likewise cannot be said that the Tribunal member acknowledged the existence of the risk that the applicant would be subjected to FGM independently of the threats allegedly posed by the Imam. The very fact that the applicant is a young vulnerable girl from the Yoruba tribe in itself poses a very serious risk which the Tribunal member is clearly obliged to assess and consider.”

If one proceeds on the assumption that the decision in the present case purported to be one on credibility solely, I am in agreement with the argument advanced by the applicant’s counsel that the Tribunal Member’s finding, in so far as it related to the FGM claim, that the applicant’s mother’s statements ran “counter to generally known facts” does not meet the tests of rationality or cogency set out in IR v. Min. for Justice and RO v. Min. for Justice, given that FGM was, regrettably, a fact of life for a significant percentage of the female population in Nigeria when this finding was made. This was something which was known to the Tribunal Member since he quoted it in the decision.
In view of the findings I have made as set out above, there is thus a sufficient basis upon which to grant the relief sought by the applicant in these proceedings.

However, the issue of internal relocation as discussed in the decision also merits comment. Even allowing for the possibility that the Tribunal Member’s mindset was focused on dismissing the claim on credibility grounds, I find that there is a sufficient basis in the decision, namely a degree of equivocation in the s.6 analysis with its emphasis at the outset on the assistance available for those “who wish to internally relocate within Nigeria to escape FGM” rather than on the applicant’s mother’s credibility (which is only adverted to latterly), to adopt the approach set out by MacEochaidh J. in E.I.v. Min. for Justice.

At paragraph 9 of his judgment, he states::- “I am not convinced that any assessment of internal relocation should escape full blooded scrutiny in judicial review, nor am I convinced that the provisions of Regulation 7 should apply to some but not all internal relocation assessments. In any event, in my experience, most internal relocation assessments which follow negative credibility findings rarely follow clearly expressed comprehensive rejections of credibility. They are usually credibility findings such as those which appear in this case. In other words, they are equivocal. The Tribunal Member has doubts as to the credibility of the applicant but does not appear to be in a position to reject fully the applicant’s narrative because of weaknesses observed. In those circumstances, the decision maker, quite naturally, feels compelled to examine the question of internal relocation, if the facts and circumstances justify such a consideration.”

To my mind, the sequence in which the applicant’s claim was dealt with by the Tribunal Member puts this case into the category discussed by the learned judge in EI. I should add that my adoption of the above passage does not preclude the possibility that there will be situations where a decision maker’s reference to internal relocation in a protection decision may be no more than a facet of the assessment of credibility but whether that is the situation or not falls to be determined on a case by case basis.

The seminal judgment of Clark J. in KD Nigeria sets out how the provisions of reg.7 of the 2006 Regulations should be applied. The approach followed in the present case, in my view, fell short of the necessary “careful” enquiry which Clark J. stated was mandated by the provisions of reg. 7, particularly with regard to the applicant’s developmental difficulties. The applicant’s personal circumstances merited detailed consideration before a decision was made on internal relocation, particularly in light of the medical reports that were before the Tribunal. I do not accept the respondents’ arguments that the applicant’s medical difficulties were not effectively pursued at the hearing in the context of internal relocation: the decision records as follows: “The issue of [the applicant’s] health was then discussed. The tribunal was told that [she] had a speech disability and her hearing has not developed properly. [The applicant’s mother] said that in Nigeria, a disabled child is discriminated against. Her daughter needs more care than is the case with a normal child….” This evidence, together with the medical reports, was sufficient to put the Tribunal Member on enquiry as to the applicant’s particular circumstances. Principle 7 of the test set out in KD Nigeria, provides:- “It is not enough for the protection decision maker to determine that the risk of persecution is absent from the proposed area of relocation. He or she must go on to consider whether it would be reasonable to expect the applicant to stay in that place, having regard to his/her personal circumstances and the general conditions prevailing on the ground, in accordance with Regulation 7(2) of the Protection Regulations. The reasonableness test is not concerned with assertions such as ‘I won’t know anyone’, but rather with matters of substance such as whether the applicant is old , infirm ,ill, has many small children or is without family support and other real issues.”

A “real issue” in the present case was the applicant’s developmental difficulties and the alleged difficulties she would face in Nigeria: it was thus incumbent on the Tribunal Member, once Lagos was proposed as the area of relocation, to analyse and consider whether the medical reports disclosed developmental delays or disabilities at such level that it would impede the applicant’s relocation within Nigeria. That exercise was required to be carried out and the evidence weighed in accordance with the benchmark set out in the 2006 Regulations. The failure of the Tribunal Member to do so renders the manner in which internal relocation was considered unlawful.

For the reasons set out in this Judgment, leave is granted and since these are telescoped proceedings I will make an order quashing the decision and remitting the matter to the second named respondent for a de novo hearing before a different member of the Tribunal.

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

(Approved) [2018] IEHC 550 (25 September 2018)

Page 1 ⇓THE HIGH COURT[2018] IEHC 550JUDICIAL REVIEW[2018 No. 430 J.R.]BETWEENA.W.K. (PAKISTAN)ANDAPPLICANTTHE MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERALRESPONDENTSJUDGMENT of Mr. Justice Richard Humphreys delivered on the 25th day of September, 20181. The applicant claims he was born in Pakistan in 1991. He says that he went to Lahore in March, 2010 and to the United Kingdom on28th January, 2011, where he studied accountancy and then subsequently apparently changed studies to the security industry. Heapplied for leave to remain. That application was rejected. He appealed in April, 2015 and, with his student permission about to expireas of December, 2015, he came to Ireland, arriving on 25th August, 2015. He then applied for asylum on 26th August, 2015,apparently never having sought protection during his years in the U.K. That application was rejected by the Refugee ApplicationsCommissioner on 29th August, 2016. He appealed to the Refugee Appeals Tribunal against that rejection. Following thecommencement of the International Protection Act 2015 on 31st December, 2016, he applied for subsidiary protection on 13thFebruary, 2017, an application that was then remitted to the International Protection Office and refused on 10th July, 2017. Anappeal to the International Protection Appeals Tribunal was dismissed on 13th October, 2017. On 26th July, 2017, he was informedthat the Minister had refused permission to remain in the State under s. 49(4)(b) of the 2015 Act. On 15th and 24th November, 2017he made representations out of time to review that decision under s. 49(7) and (9). On 15th March, 2018 the IPO rejected the reviewunder s. 49(9) and the applicant was so notified on 23rd April, 2018. On 3rd May, 2018 he sought a further review. On 8th May, 2018a deportation order was made. On 10th May, 2018 the IPO informed the applicant that the review had been completed and no furtherreview arose. The present proceedings were filed on 31st May, 2018 and moved ex parte on 12th June, 2018.2. I have received helpful submissions from Mr. Eamonn Dornan B.L. for the applicant and from Mr. David Conlan Smyth S.C. (with Ms.Sarah-Jane Hillery B.L.) for the respondents.Relief sought3. The primary relief sought falls essentially into two categories: (i) certiorari of the s. 49(9) decision of 15th March, 2018 andconsequential certiorari of the deportation order and (ii) mandamus to compel the Minister to consider the further purportedapplication under s. 49(9), made on 3rd May, 2018.Is the case covered by s. 5 of the Illegal Immigrants (Trafficking) Act 2000?4. Mr. Conlan Smyth submits that what is at issue is merely a review rather than a decision, but that is something of amischaracterisation. The rejection of the review application is itself a form of decision and therefore, as Mr. Dornan puts it, “a targetfor judicial review”. That does not, however, determine the issue as to whether or not it should be regarded as covered by s. 49(4)(b). Section 79 of the International Protection Act 2015 adds to the list of decisions covered by s. 5 of the Illegal Immigrants(Trafficking) Act 2000 a number of further decisions including a new para. (oi), which is “a decision of the Minister under s. 49(4)(b)”and a new para. (oj), which is “a deportation order under s. 51”. The question then is whether a decision on a review under s. 49(7)is a decision under s. 49(4)(b) of the 2015 Act for the purposes of s. 5 of the 2000 Act, as so amended.5. Section 49(8) provides that “Subsections (2) to (5) shall apply to a review under subsection (7)” subject to a qualification notrelevant here. Therefore, on a literal interpretation, subs. (4) applies and a refusal of a review under subs. (7) should be deemed tobe a decision under s. 49(4)(b).6. If I am in any way wrong about that, a purposive interpretation favours the application of s. 5 here. The logic of paras. 41 and 42of my decision in K.R.A. v. Minister for Justice and Equality [2016] IEHC 289 [2016] 5 JIC 1214 (Unreported, High Court, 12th May,2016) applies, namely that the rejection of a review is an adverse immigration decision which is relevant to the presence or removal ofan illegally present non-national. Therefore s. 5(1)(oi) of the 2000 Act should be construed in a manner that gives effect to thatpurpose. Furthermore, looking at that purpose in the very specific context of the sequence of deportation decisions, it would betotally illogical if a refusal of permission under s. 49(4) were to be subject to s. 5, the consequential deportation order were to be sosubject and a decision refusing to revoke the deportation order under s. 3(11) of the Immigration Act 1999 were to be so subject(see K.R.A. v. Minister for Justice and Equality [2016] IEHC 289 and K.R.A. v. Minister for Justice and Equality [2017] IECA 284(Unreported, Court of Appeal, 27th October, 2017)) but a review in between would not be so subject, and instead would be coveredby the relatively leisurely three-month time limit pursuant to O. 84. That would make no sense whatsoever on any level.7. Even if s. 5 of the Interpretation Act 2005 does not apply, and for the avoidance of doubt I consider that that does not need to beaddressed because there is not ambiguity in the provisions of para. (oi) and s. 49, a purposive interpretation applies to any legal text.The point was made by Hart and Sacks that “Law is a doing of something, a purposive activity, a continuous striving to solve thebasic problems of social living… Legal arrangements (laws) are provisions for the future in aid of this effort. Sane people do notmake provisions for the future which are purposeless” (Henry Hart and Albert Sacks, The Legal Process (Cambridge, C.U.P., 1958) atp. 148). I should add that similar views were expressed by Judge Aharon Barak, whose work “presents purposive interpretation as ageneral system of interpretation to be used for all legal texts” (Purposive Interpretation in Law (Princeton, 2005) p. xi): “Law has apurpose. It is a social device. The goal of interpretation is to achieve the social goal of law. That is the theoretical basis for thecentrality of purpose in purposive interpretation” (p. xv). On such an analysis, even independently of s. 5 which excludes penal orother sanctions, the rule on purposive interpretation applies to any form of legal instrument, legislative or otherwise.8. In any event, if there is any ambiguity s. 5 of the 2005 Act does apply because a deportation order is neither penal nor a sanction;rather it is a civil consequence of an applicant’s illegal presence in the State. Mr. Dornan characterises it as an interference withliberty but that is an over-dramatization. A deportation order is the formalisation of the status of a person who is present in the Statewithout the permission of the Minister and whose presence is therefore unlawful for all purposes under the Immigration Act 2004. SuchPage 2 ⇓a person has at all times the option of voluntarily leaving the State and it is only if he or she has failed to do so that the deportationorder is made; and indeed in practical terms it is only if they fail to do so following the making of that order that the order will beenforced by arrest. Indeed I might add that all civil law obligations are ultimately enforceable by arrest if non-compliance turns intocontempt of court, but that does not turn all law into penal law.9. Reliance was placed on Sessions v. Dimaya, 584 U.S. ___ (2018), but that is not a hugely convincing decision and strikes one, veryrespectfully, as a questionable approach which if applied here would certainly amount to a wrong turning in the law, specifically thedescription of deportation as a sanction and the view that the criteria for deportation can be reviewed as void for vagueness.Certainly as far as Irish law is concerned, deportation cannot be viewed as a sanction. In any event, the U.S. caselaw relied on inDimaya refers to deportation by reason of the applicant having committed a crime. Here, however, deportation arises not because theapplicant has committed a crime but because he is unlawfully present. But even if it were based on criminal offending it would be acivil consequence of the offending behaviour rather than a criminal punishment. As regards the vagueness doctrine, the dissentingjudgment of Thomas J., particularly at slip op. pp. 19-20, that the core of the deportation statute is not vague, is considerably moreattractive. The majority opinion relies heavily on Johnson v. United States, 576 U.S. ___ (2015) but again, if I may very respectfullysay so, the characteristically elegantly written dissent of Alito J. is considerably more powerful, particularly where he refers at slip op.p. 1 to “the well-established rule that a statute is void for vagueness only if it is vague in all its applications” (see also slip op. p. 14citing Village of Hoffman Estates v. The Flipside, Hoffman Estates Inc. 455 U.S. 489 (1982) at 494-495 and Chapman v. UnitedStates 500 U.S. 453 (1991) at 467).Inadequate consideration of submissions10. Two important contextual matters regarding the complaint that the Minister inadequately considered the applicant’s submissionsneed to be noted. First of all, this was an applicant who had already been refused permission and was now seeking a review of thatdecision. Secondly, this was also an applicant who had no permission to be in the State other than the temporary and expiredpermission as a failed protection seeker. The decision under challenge states that all submissions were considered and the onus is onthe applicant to demonstrate that that is not the case: see the judgment of Hardiman J. in G.K. v. Minister for Justice, Equality andLaw Reform [2002] 2 I.R. 418 [2002] 1 ILRM 401, which the applicant has failed to do here. While it is true that s. 49(3) of the2015 Act requires the Minister to consider family rights, that does not detract from the well-established Strasbourg caselaw thatdeportation of an unsettled migrant will only breach art. 8 of the ECHR in exceptional circumstances (as applied here under theEuropean Convention on Human Rights Act 2003, see for example Costello-Roberts v. the United Kingdom [1993] 19 EHRR 112(Application no. 13134/87, European Court of Human Rights, 25th March, 1993) and Rodrigues de Silva and Hoogkamer v. TheNetherlands (Application No. 50435/99, European Court of Human Rights, 31st January, 2006, para. 39).11. The decision in any event provides quite a degree of express reference to the detail of the applicant’s submission under theheading of his private life rights. At p. 1 it refers to correspondence submitted on behalf of the applicant and his network of friends inthe country. At p. 2 it refers to his photography diploma, his involvement in various groups, his education and training, his characterreferences, including from the providers of accommodation, and his various certificates and qualifications. At p. 3 reference is made tohis job offer, his voluntary work, his involvement in a theatre group and a dance group, a letter from his accommodation centre andcharacter references. So while there is no obligation on the IPO to engage in narrative discussion of all the various points in favour ofthe applicant, that was very much done here.12. The allegation is made by Mr. Dornan that the IPO “disregarded” the material submitted but that is most certainly not the caseand involves the classic error of confusing failure to engage in lengthy or any narrative discussion with failure to consider material orsubmissions made. Indeed, the oral submission made that the respondents “did not consider the job offer, qualifications andcharacter references” is manifestly unsustainable – indeed unstateable – having regard to the terms of the decision. Insofar as theview was taken that the majority of the issues arising in relation to the applicant’s private life predated his presence in the Statethere seems to be quite a degree of factual support for that.13. Reliance was placed on the judgment of Clark J. in Igiba v. Minister for Justice, Equality and Law Reform [2009] IEHC 593(Unreported, High Court, 2nd December, 2009) where at para. 20 she said that certain UK caselaw regarding art. 8 had “no impact onthe Irish situation as no “exceptionality” test has ever applied here”. It is by no means clear what that statement was intended tomean but if it means that exceptional circumstances are not required to show a breach of art. 8 for an unsettled migrant then Irespectfully must conclude that such a view would be clearly incorrect, because well-established Strasbourg caselaw repeatedlyemphasises the contrary. Whatever that sentence means in any event, it is superseded by the judgments of the Court of Appeal inC.I. v. Minister for Justice and Equality [2015] IECA 192 [2015] 3 I.R. 385 and the Supreme Court in P.O. v. Minister for Justice andEquality [2015] 3 I.R. 164 [2015] IESC 64 and by the extensive body of Strasbourg caselaw to the effect that deportation ofunsettled migrants breaches art. 8 only in exceptional circumstances14. It is true that in Luximon v. Minister for Justice and Equality [2018] IESC 24 [2018] 2 I.L.R.M. 153, the Supreme Court took theview that it was going too far to say that the art. 8 rights of unsettled migrants were minimal to non-existent, but that certainly doesnot change the fundamental point that deportation of such an unsettled migrant only breaches art. 8 in exceptional circumstances.Therefore, there was no illegality in the Minister having regard to the lack of any such exceptional circumstances here.Refusal to consider further request for review15. Section 49(9) of the 2015 Act provides that the applicant may make a submission seeking a review “within such period followingreceipt by him or her under s. 46(6) of the decision of the Tribunal as may be prescribed”.16. The International Protection Act 2015 (Permission to Remain) Regulations 2016 (S.I. No. 664 of 2016) prescribes a period of fivedays following receipt of the decision of the tribunal for this purpose. The interpretative rule in s. 18(a) of the Interpretation Act 2005that the singular includes the plural is subject to the context otherwise requiring: see s. 4(1) of the 2005 Act. By definition, thewording of s. 49(9) is such that there can only be one such review because an applicant only gets the tribunal decision once. Theapplicant’s further attempt to invoke s. 49(9) is therefore totally misconceived and legally baseless.17. Furthermore, the applicant in these proceedings seems to have sought the incorrect relief in the sense that no certiorari of therefusal to consider the further or later view is sought. If the point had any substance it might have been possible to consider howthat procedural difficulty could be circumvented, but as the point is manifestly unsustainable that issue does not arise. In any event,the applicant is not without a remedy because if there is any fundamental change of circumstances after the s. 49(9) review, s.3(11) of the 1999 Act applies: see s. 51(4) of the 2015 Act.Time18. The application is out of time because s. 5 of the 2000 Act applies, but I do not need to base my order on that issue because Iam rejecting the proceedings on their merits.Page 3 ⇓Order19. Accordingly, the order will be:(i). that the application be dismissed; and(ii). that the respondents be released from their undertaking not to enforce the deportation order.

B.D.(Bhutan and Nepal) v The Minister for Justice and Equality & ors

(Approved) [2018] IEHC 461 (17 July 2018)

Page 1 ⇓[2018] IEHC 461THE HIGH COURTJUDICIAL REVIEW[2010 No. 1188 J.R.]BETWEENB.D. (BHUTAN AND NEPAL)ANDAPPLICANTTHE MINISTER FOR JUSTICE AND EQUALITY, THE REFUGEE APPEALS TRIBUNAL AND THE ATTORNEY GENERALRESPONDENTSANDTHE UNITED NATIONS HIGH COMMISSIONER FOR REFUGEESAMICUS CURIAEJUDGMENT of Mr. Justice Richard Humphreys delivered on the 17th day of July, 20181. The applicant was born in Bhutan in 1975, of Nepali ethnicity. He appears to have been a citizen of Bhutan, by birth. He says thatthe Bhutan regime began expelling as many Nepalese as possible. He says he was involved in 1990 in a protest against the Bhutanesegovernment. He claims his father was involved, and claims that the father was later killed and his mother disappeared. The applicantthen fled to Nepal. It is clear from the papers that there is evidence of a practice whereby Bhutan revoked the citizenship of manymembers of the Nepalese minority, including those who left the country.2. He left a refugee camp after about a month and was living in Nepal without legal status for a period of about 20 years up to 2010.He then went to India and ultimately came to Ireland. En route he changed ships three times, although he never identified the ports inhis asylum questionnaire. In due course he claimed and was refused asylum and an appeal was dismissed by the Refugee AppealsTribunal on 6th July, 2010.3. While the applicant had submitted at para. 1.3 of his written submissions to the tribunal that he was not stateless and wasBhutanese he also submitted country information which referred to endeavours by the Bhutanese state “to deprive the Nepalesespeaking population of their citizenship” : before para 1.7. The decision of the tribunal quoted country information which makes clearthat “more than 100,000 ethnically Nepali Bhutanese are in Nepal as stateless refugees”. It concluded that “the legal and de factosituation in relation to citizenship in Bhutan would appear to suggest that the appellant would not be granted citizenship were he toreturn to Bhutan nor would he be considered to be a citizen of that state. His own evidence is along the same lines. Accordingly, theTribunal is of the view that the appellant is a stateless person”. Thus the tribunal held that the applicant had no nationality and thathis claim for refugee status was to be assessed by reference to Nepal.4. Following the tribunal decision he instituted the present proceedings seeking certiorari of that decision. A related issue was raisedin another case, D.T. v. Refugee Appeals Tribunal [2011 No. 295 J.R.], in which leave to appeal to the Supreme Court was granted on21st December, 2012 (see D.T. v. Refugee Appeals Tribunal (No. 2) [2012] IEHC 562 (Unreported, O’Keeffe J., 21st December, 2012)).That appeal was dismissed by the Supreme Court some four and a half years later on 14th June, 2017 (see D.T. v. Refugee AppealsTribunal [2017] IESC 45 (Unreported, Supreme Court, 14th June, 2017)). That development explains a considerable amount of thelapse of time in progressing the present proceedings.5. I have received helpful submissions from Mr. Michael Lynn S.C. (with Ms. Patricia Brazil B.L.) for the applicant, from Ms. SiobhánStack S.C. (with Ms. Kilda Mooney B.L.) for the respondents and from Mr. Colin Smith B.L. for the UNHCR who were added by consentas amicus curiae.Ground 1: effective remedy6. As pleaded, this was an opaque ground and it is hard to ascertain what exactly was being alleged but Mr. Lynn has clarified thatthis is not being pursued.Ground 2: where statelessness derives from a persecutory deprivation of nationality, should that deprivation bedisregarded7. I will deal with this issue separately later in this judgment.Ground 3: allegation that the tribunal erred in determining that Nepal was a country of former habitual residence8. The applicant was in Nepal for 20 years. There is no basis whatsoever to disturb the finding by the tribunal in this regard. Ground 3as pleaded accepts that there is no evidence of likely refoulement from Nepal to Bhutan. It asserts that no allowance was made forthe possibility that the applicant would not be readmitted to Nepal but that seems duplicative of ground 4 and is best dealt withunder the following heading.Ground 4: failure to consider whether the applicant could be returned to Nepal9. This was not argued in the applicant’s written submissions to the tribunal. Mr. Lynn says he does not believe it was argued orallyeither. An applicant cannot challenge a decision on a point that was not argued. Furthermore, the evidential basis for this submissionwas not laid. There has to be an explicit averment that some factual submission was made that was not dealt with, or that someevidential basis that the point was put before the decision-maker and was not dealt with. Separately there was some discussion atthe hearing as to whether a legal right to return to the country in question has to be demonstrated. That was rejected in B.D.R. v.Refugee Appeals Tribunal [2016] IEHC 274 (Unreported, Faherty J., 25th May, 2016). But the submission about the tribunal notidentifying whether there was a legal right to return is not pleaded.10. Paragraph 4 of the statement of grounds pleads failure to consider whether the applicant could “realistically” be returned havingregard to his legal status. That is not a plea that the tribunal failed to consider whether there was a legal right to be readmitted. Inany event the point as now pleaded was not actually put to the tribunal and to argue it in judicial review proceedings is purePage 2 ⇓gaslighting of the decision-maker. Indeed, it represents a tiresomely repetitive feature of the asylum and immigration list, and seemsto be accepted almost as par for the course, that applicants can load a statement of grounds with points that they did not bother tosubmit to the decision-maker. Such a misconceived practice has to be stamped out if the court processes are to have any credibility.Ground 5: failure to address the applicant’s case of persecution in Bhutan.11. If the tribunal correctly applied the refugee definition to the facts of this particular case, then the applicant’s status as a refugeewas to be determined by reference to Nepal rather than Bhutan. Thus this question is essentially a reformulation of the critical pointin the case, namely whether the refugee definition was correctly applied. Mr. Lynn also submits that ground 5 covers the allegationthat the tribunal should have considered the applicant to be habitually resident in Bhutan. However, it does not. Ground 5 as draftedrelates to persecution, not that the applicant was unable to return to a country of former habitual residence. In any event, on thefacts of this particular case Bhutan was not a country of habitual residence of the applicant at the time that he was stateless.Therefore, the assessment of whether the applicant is a refugee as a stateless person falls to be assessed by reference to Nepalrather than Bhutan, assuming that the refugee definition was applied correctly by the tribunal. Thus, the submission now sought to bemade is simply not pleaded in ground 5, but in any event it is without substance.Ground 6: allegation that “the above averments raise direct and important issues of European Union as well as domesticlaw”.12. Pleas in a statement of grounds are not averments. That they raise issues of EU law is not as such a ground for relief. Ground 6does not add much to the arguments, acknowledging of course that the definition of a refugee also falls to be considered under theGeneva Convention and the qualification directive 2004/83/EC.The definition of a refugee13. The most relevant provisions of the Refugee Convention for present purposes are arts. 1A(2) and 1E. Article 1A(2) provides inpertinent part that a refugee is a person who “owing to a well-founded fear of being persecuted for reasons of race, religion,nationality, membership of a particular social group or political opinion is outside the country of his nationality and is unable or,owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outsidethe country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.In the case of a person who has more than one nationality the term ‘the country of his nationality’ shall mean each of the countriesof which he is a national and the person shall not be deemed to be lacking the protection of the country of his nationality if withoutany valid reason based on well-founded fear he has not availed himself of the protection of one of the countries of which he is anational”.14. Article 1E provides that “This Convention shall not apply to a person who is recognized by the competent authorities of thecountry in which he has taken residence as having the rights and obligations which are attached to the possession of the nationalityof that country.”15. Nationality for these purposes should be construed in a harmonious manner with the related Convention on Statelessness of 1954,art. 1 (1) of which provides that “for the purpose of this Convention the term ‘stateless person’ means a person who is notconsidered as a national by any state under the operation of its law”.Does the determination of nationality have to be arrived at by reference to the law of the country as applied by it or byreference to international law?16. Professors Zimmerman and Mahler in their chapter on art. 1A(2) of the Convention in Zimmerman ed., The 1951 ConventionRelating to the Status of Refugees and its 1967 Protocol: A Commentary (OUP Oxford, 2011) observed that “the ‘not having anationality’ clause applies only to de jure stateless persons”, that is persons who are not considered nationals by the laws of thecountry in question. Mr. Lynn submits that a deprivation of citizenship should not be recognised as de jure where that deprivation ismanifestly in breach of international law. That submission essentially conflates two separate questions: firstly, whether the lawrecognises someone as a citizen or not, and secondly, whether that law would stand up to international human rights scrutiny.Hathaway and Foster, The Law of Refugee Status, 2nd ed. at p. 50 comment that “citizenship is a universally recognised basis forjurisdiction over individuals”. It would, to an extent, throw that universal recognition into question if other states can disregard thelaw of the country at issue for asylum purposes. The UNHCR Handbook on Protection of Stateless Persons (Geneva, 2014) at p. 23says that “Bestowal, refusal, or withdrawal of nationality in contravention of international obligations must not be condoned. Theillegality on the international level, however, is generally irrelevant for the purposes of Article 1(1)” of the statelessness convention.17. Such an interpretation is most certainly not to condone arbitrary deprivation of nationality. The Hague Convention on CertainQuestions Relating to the Conflict of Nationality Laws, 1930 at art. 1 provides that “It is for each State to determine under its ownlaw who are its nationals. This law shall be recognised by other States in so far as it is consistent with international conventions,international custom, and the principles of law generally recognised with regard to nationality.” This principle was applied inLiechtenstein v. Guatemala [1955] I.C.J. 1 (the Nottebohm case) (6th April, 1955) but that is in a different context where theconferral of nationality on the person was being relied on as against another state. It seems to me not to have any real relevance toa situation where no interests of the “receiving” state are in issue. Hathaway and Foster at p. 54 note 217 state that if “the putativestate of citizenship denies that the applicant is its national” this is “ordinarily a fatal finding” and that the onus is on the applicant toestablish such citizenship.18. The applicant also faces the hurdle of a certain amount of existing adverse authority. In S.B. v. Refugee Appeals Tribunal[2009] IEHC 270 (Unreported, High Court, 18th June, 2009), Feeney J. dealt with a similar question, although he did not specifically addressthe precise point here as to whether the citizenship law of a particular country should be disregarded if contrary to international law.Rather, he seems to have proceeded on the assumption that the law of the country in question was to be accepted: see para. 17. InT.D.K. v. Refugee Appeals Tribunal [2010] IEHC 438 (Unreported, High Court, 3rd December, 2012) Cooke J. at para. 21 states that“However questionable the policy of the Bhutanese authorities might be in international law, there is no doubt that the intention andpractical effect was to deprive the applicant and his family of citizenship of that country”.19. The decision of O’Keeffe J. in R.B.V. v. Refugee Appeals Tribunal (Unreported, High Court, 7th February, 2012) is consistent withsuch an approach. In D.T. v. Refugee Appeals Tribunal (No. 1) (Unreported, O’Keeffe J., 18th July, 2012), a finding along the linesthat the law of the country in question should essentially be taken at face value was upheld on the basis that there was “nothingirrational” in such a finding: see para. 34, although the key point now being made was not expressly dealt with in that judgment. InD.T. v. Refugee Appeals Tribunal (No. 2) [2012] IEHC 562 (Unreported, High Court, 21st December, 2012) O’Keeffe J. granted leave toappeal on the issue of whether citizenship deprivation should be disregarded if in breach of international law. However, that nevercame to fruition as the appeal was struck out on other grounds (D.T. v. Refugee Appeals Tribunal [2017] IESC 45 (Unreported,Supreme Court, 14th June, 2017)). For what it is worth, the certified question in that case is not recorded as having being raised inthat form in the original judgment. Ms. Stack, who appeared in the case, said she contended that leave to appeal should not havePage 3 ⇓been granted for that reason and while that is certainly a point that is perhaps not entirely without merit, because a losing sidecannot dream up new points as a basis to seek leave to appeal having received and cogitated upon a judgment, it is procedurallywater under the bridge as far as that case is concerned.20. The argument was made on behalf of Mr. Lynn that deprivation of citizenship could in itself amount to persecution and that mayvery well be the case if we are concerned with the position, and in particular only with the position, in the country that deprives theperson of citizenship. That was the case in E.B. (Ethiopia) v. Secretary of State for the Home Department [2007] EWCA Civ 809[2009] QB 1. However, the argument becomes circular in a context such as the present where the deprivation of citizenship meansthat the asylum claim is to be determined by reference to a country other than the country of former citizenship: see O’Keeffe J.’sview in D.T. (No. 1) at para. 31.21. An argument as to an exceptional possible qualification to the general rule that the discriminatory and persecutory nature of adeprivation of citizenship should be disregarded emerges from fn. 40 at p. 23 of the UNHCR Handbook on Protection of StatelessPersons (Geneva, 2014), which says that “the exception to the general approach may be situations where the breach ofinternational law amounts to a violation of a peremptory norm of international law … The exact scope of this obligation undercustomary international law remains a matter of debate.” Mr. Smith says that the purpose of this footnote is “acknowledging generalacademic and political debate” but says that para. 56 of the handbook is the primary source for understanding the issue. Essentially,the contention is that possible theoretical exceptions do not detract from the general position as set out by the UNHCR.22. In Eric Fripp, Nationality and Statelessness in the International Law of Refugee Status (Hart, Oxford and Portland, Oregon, 2016)p. 208, the question is posed: “is an unlawful and arbitrary deprivation of nationality, based on discrimination on the basis of race orsome other Convention reason, and effective under domestic law, to be recognised so that the denationalising State ceases to bethe country of reference for the purposes of Article 1A(2)”. Mr. Fripp goes on to say that in many cases this “does not make adifference, because the country which has denationalised the claimant is in any event the country of former habitual residence”. Anexample of this is E.B. (Ethiopia) v. Secretary of State for the Home Department [2007] EWCA Civ 809 [2009] QB 1. That howeveris also the situation in the primary case relied on behalf of the applicant, the decision of the Federal Administrative Court 10 C 50.07(BVerwG 26th February, 2009) where the court acted on the basis that a persecutory deprivation of citizenship could be relevant orat least should not be disregarded in the context of determining whether the deprivation could amount to persecution by thedenationalising state. That case dealt with complainants who are born in Azerbaijan and Russia, who were ethnic Armenians and whoapplied for asylum in Germany. The judgment notes that the complainants lived in Azerbaijan (and Russia) before coming to Germany.The first complainant lost her Azerbaijani citizenship under the law of that state and the second complainant never acquired suchcitizenship. Thus it was a case where the applicants were claiming persecutory or discriminatory nationality law in respect ofAzerbaijan. In that situation the German court said that the deprivation of nationality could itself be persecution. It specifically citedE.B. (Ethiopia) in this regard (at para. 19), which only goes to underline the difference with the present case. The one aspect of thedecision which is particularly opaque is that of whether, and if so why, the question of persecution was to be judged by reference toAzerbaijan rather than elsewhere (see para. 25 onwards) but it can at least be pointed out that the court did not expressly generalisefrom the denationalisation-is-persecution theory to say that arbitrary deprivation of nationality should be disregarded in determiningwhether an applicant was still a national of a country other than that of his or her habitual residence.23. There are three possible ways of approaching the question at issue here. Firstly, that nationality deprivation should be taken atface value in accordance with the internal law and practice of the state concerned, disregarding, for this purpose only the question ofwhether it amounts to discrimination or persecution. That is essentially the submission made by the UNHCR. Option two is thatnationality deprivation should be disregarded if contrary to international human rights law. This is what was argued by the applicantbefore the tribunal. The third option is that nationality deprivation should be disregarded unless it amounts to a breach of aperemptory norm of international law going well beyond mere discrimination or even persecution. That specific argument was not madeto the tribunal. No argument was addressed to the tribunal that the nationality deprivation here violated a peremptory norm ofinternational law. The case was not made that the discriminatory or persecutory nature of a deprivation of nationality should beregarded as irrelevant excepting only the case of a breach of such a peremptory norm. Nor was any evidence adduced bringing thedetail of the Bhutanese law within that category. Thus the point cannot be raised now. An applicant must be confined in the pointshe or she actually made to the decision-maker. It may be an interesting point, probably something of an academic one, and certainlythe UNHCR does no more than note it as an academic possibility. Neither in its handbook nor in legal submissions was this possibleexception endorsed; but however interesting the point may theoretically be, it has to be one for another case. Thus option threedoes not arise because it was not argued before the tribunal. However, even if it did arise, no definite conflict in the jurisprudencehas been demonstrated because the German court was dealing with a different aspect of the matter for the reasons I have set out.Had it arisen I would have accepted the UNHCR submission that “any alternative interpretation would mean that an individual whohas been deprived of his or her nationality in a manner inconsistent with international law would nevertheless be considered anational without the related rights and obligations attained with that status. Such a situation would be at variance with the objectand purpose of both the 1954 Convention and the 1951 Convention and would run counter to the raison d’être of the protectionframework for stateless persons and refugees” (para. 24 of written submissions).24. The UNHCR submissions were to the effect that not only is an interpretation that a discriminatory or persecutory nationality lawmust be disregarded contrary to the Geneva convention on a correct interpretation but it is also not consistent with the protectivepurpose of the convention and has the effect of, as put in submissions, “fixing someone with the nationality of a country whoseprotections they don’t actually enjoy”. The UNHCR makes clear that it is not in any way endorsing discrimination or persecutorydeprivation of nationality and neither quite obviously is the court but their submissions are simply making the point that thediscrimination or persecutory nature of such deprivation should be disregarded for the purposes of art. 1(1) of the StatelessnessConvention and likewise for related purposes of the Refugee Convention. That is, however, just as relevant and valid a point as itapplies to egregious denationalisations contrary to a peremptory norm of international law as it is to the merely discriminatory or eventhe persecutory. Mr. Lynn descends into hyperbole by submitting that if the court upheld the UNHCR submission then the court wouldbe “absolving states from their international law obligations”. That is fundamentally misconceived. International human rights lawstands in its entirety. The only question is whether the discriminatory and persecutory nature of a law depriving persons of nationalityis relevant to the determination of citizenship for the purposes of refugee status or statelessness. It is not.Steps required in applying the refugee definition25. Thus the appropriate questions to be asked by the decision-maker in this regard are as follows:(i). Does the applicant have one or more nationalities assessed in terms of the law of the countries concerned as that lawis applied by such country (as opposed to the question of whether such law meets international human rights standards).(ii). If so, is the applicant unable or unwilling to avail himself of the protection of all of these countries due to a well-founded fear of persecution for a convention reason.Page 4 ⇓(iii). If the applicant has no nationality does he or she have one or more countries of former habitual residence.(iv). If so is the applicant unable or unwilling to return to any of those countries due to a well-founded fear of persecutionfor a convention reason.(v). If the answer to questions 2 or 4 is yes, is he or she recognised by the competent authorities of any country inwhich he or she has taken residence as having the rights and obligations attaching to the possession of nationality ofthat country (the UNHCR guidance note on this issue accepts that those rights should be those of citizenship “possiblywith limited exceptions” (para. 2 of guidance note)).Application of those principles to the present case.26. Applying those tests here I conclude as follows:(i). Question 1. The applicant was deprived of Bhutanese nationality by Bhutanese law, and even assuming arguendo thatsuch law is contrary to international human rights standards, the applicant must be regarded as stateless, as found bythe tribunal.(ii). Question 2. This therefore does not arise.(iii). Question 3. The applicant’s country of former habitual residence as a stateless person and the only such country isNepal as found by the tribunal. To clarify, Bhutan is not a country where the applicant was formerly habitually resident asa stateless person.(iv). Question 4. The applicant is not unable or unwilling to return to Nepal due to a well-founded fear of persecution for aconvention reason as found by the tribunal. That finding does not seem to have been effectively challenged, but in anyevent no basis for upsetting that finding has been made out.(v). Question 5. Does not arise having regard to the foregoing.Order27. The contribution of the UNHCR was particularly helpful in clarifying the position and would have been appropriate for that reason,but also having regard to the fact that at one stage the question of a reference to the CJEU was up for discussion. Following receiptof helpful submissions from all parties, it seems to me that the European law point does not in fact arise for the reasons set out, buteven if it did, no conflict in jurisprudence or other lack of clarity has been identified because the German decision and E.B (Ethiopia)deal with a different point. Thus those decisions do not in fact contradict or undermine the conclusions I have reached heresupportive of the UNHCR submission. Thus the question of a reference to the CJEU does not arise.28. For the reasons set out in this judgment, the application is dismissed.

M & ors -v- Minister for Justice and Equality & ors

[2018] IESC 14 (07 March 2018)

Judgment
Title:
M & ors -v- Minister for Justice and Equality & ors
Neutral Citation:
[2018] IESC 14
Supreme Court Record Number:
61/17
High Court Record Number:
2015 436 JR
Date of Delivery:
07/03/2018
Court:
Supreme Court
Composition of Court:
Clarke C.J., O’Donnell Donal J., McKechnie J., MacMenamin J., Dunne J., O’Malley Iseult J., Finlay Geoghegan J.
Judgment by:
Clarke C.J.
Status:
Unapproved
Result:
Appeal dismissed
Judgments by
Link to Judgment
Concurring
Clarke C.J.
Link
O’Donnell Donal J., McKechnie J., MacMenamin J., Dunne J., O’Malley Iseult J., Finlay Geoghegan J.

07.03.18 Statement re M & ors v. Min for Justice.docx

THE SUPREME COURT

Record No. 2017 No. 61

Clarke C. J.
O’Donnell J.
McKechnie J.
MacMenamin J.
Dunne J.
O’Malley J.
Finlay Geoghegan J.
Between/

I.R.M, S.J.R. and S.O.M. (A minor suing by her Mother and Next Friend S.J.R.)
Applicants/Respondents
and
The Minister for Justice and Equality, Ireland and the Attorney General

Respondents/Appellants

Judgment of the Court delivered by the Chief Justice on the 7th March, 2018
1. Introduction

1.1 The issues with which this judgment is concerned have evolved very significantly since this case started. The legal context in which these proceedings were commenced arose from a deportation order made against the first named applicant/respondent (“Mr. M.”) in 2008. In 2015, an application was made to the first named respondent/appellant (“the Minister”) seeking to revoke that deportation order. The basis on which it was asserted that there was a sufficient change in circumstances to warrant the Minister taking a different view on deportation stemmed from the relationship between Mr. M. and the second named applicant/respondent (“Ms. R.”) and in particular the fact that she and Mr. M. were due to have a child. The child concerned has since been born and is the third named applicant/respondent (“the third respondent”). The applicants/respondents will for convenience collectively be referred to as the respondents.

1.2 The Minister in fact made no decision regarding the application to revoke. In the absence of an undertaking on the part of the Minister not to deport Mr. M. pending the outcome of the revocation application, Mr. M. sought an injunction preventing his deportation, which injunction was granted by the High Court (Mac Eochaidh J.) (I.R.M. and anor v. Minister for Justice and Equality and ors (No. 1) [2015] IEHC 873). A contemporaneous application for leave to apply for judicial review was adjourned to be considered at a later date. It is the subsequent decision of the High Court and the declarations made after a so-called “ telescoped” hearing which is the subject of this appeal. The case is, therefore, an immigration case. However, having regard to the approach of the trial judge, wider issues concerning the constitutional status of the unborn have come into particular focus. The High Court (Humphreys J.) (I.R.M. and ors v. Minister for Justice and Equality and ors (No. 2) [2016] IEHC 478) importantly made a declaration that the Minister was obliged to consider, as part of the application to revoke, the prospective position of the third respondent. An appeal was brought to the Court of Appeal raising a number of grounds. However, placing reliance on s. 9 of the Court of Appeal Act 2014, (“the 2014 Act”), the Minister and the other respondents/appellants (collectively “the State”) sought leave to bring a leapfrog appeal to this Court in respect of some of the broader issues which had been the subject of the judgment of Humphreys J. in the High Court. It was said that those issues were of particular importance and urgency. Leave was granted on a basis which will shortly be described which involved some but not all of the grounds of appeal which were put before the Court of Appeal.

1.3 However, in the course of case management of this appeal, it was indicated on behalf of the State that it was not intended to pursue any grounds of appeal other than those in respect of which leave to appeal had been granted. Thus the issues which fall for determination by this Court are confined to the issues in respect of which this Court granted leave. In that context it is appropriate to set out a very brief account of the proceedings and the important questions which they raise.
2. The Proceedings
2.1 The facts and the procedural history together with the judgment of the High Court will be set out and analysed in more detail later in this judgment. However in simple terms this case involves a contention on the part of Mr. M. concerning the factors or considerations which the Minister was required to take into account in deciding on the application which he had made seeking the revocation of the deportation order which had previously been made against him.
2.2 In the course of the proceedings before the High Court, a wide range of issues relating to the constitutional status of the third named respondent came into sharp focus. She was unborn at the time of the application which Mr. M. made to revoke the relevant deportation order and at the time of the commencement of the proceedings. She was later joined as a party when born. The trial judge made a range of significant findings as to the constitutional status of the unborn child.
2.3 It will be necessary to address in greater detail the issues which have thereby arisen for determination by this Court on this appeal. However in summary form they are the following:-
(i) Whether the Minister was required, as a matter of law, to have regard to the position of the third respondent while unborn as a factor to be taken into account in the deportation revocation application under consideration;
(ii) whether, in addition, the undoubted constitutional rights which the third respondent would enjoy as an Irish born citizen child when born were also matters which required to be taken into account;
(iii) whether, as the trial judge in effect determined, the unborn enjoy a wide range of constitutional and other rights independent of the right to life guaranteed by Article 40.3.3 of the Constitution as inserted by the Eighth Amendment;
(iv) whether, as again the trial judge determined, the term “any children” to be found in Article 42A of the Constitution includes the unborn; and
(v) whether it is necessary, as found by the trial judge, to reassess the constitutional rights of families not based on marriage.

2.4 While many of these matters were dealt with in a relatively brief way in the judgment of the trial judge, they do undoubtedly raise issues of very particular importance which have the potential to affect rights and obligations going well beyond the scope of these proceedings and, indeed, having potential impact well beyond the scope of immigration law. It is for that reason necessary to consider the findings of the High Court in a careful, detailed but robust manner. This is both for the purposes of examining whether it is necessary for this Court to reach its own conclusions on some or all of those issues in order to determine these proceedings but also, where it is so necessary, to determine the proper interpretation of the constitutional and other rights relied on and their implications for the proper resolution of this case.
2.5 This judgment is a judgment of the Court. Each of the members of the Court who sat on this appeal have contributed to the content of this judgment.
2.6 It is next necessary to turn to the determination by reference to which leave to appeal to this Court was granted.

3. The Leave to Appeal
3.1 As noted above the State applied to this Court for leapfrog leave. In its determination (I.R.M. and S.J.R. and S.O.M. v. Minister for Justice and Equality & anor [2017] IESCDET 147), this Court noted the unusual procedural history of this case. Not least, the Court noted that the case was in fact moot even when it was before the High Court. The respondents sought to resist the application for leave to appeal on grounds of mootness. However, this Court stated in that regard that:-
“… it is plain that the case does involve matters of general public importance, and therefore meets the general threshold for appeal to this Court. Furthermore, the issue of law is one which is unlikely to appear significantly different after a determination of the Court of Appeal. There is also clear advantage in seeking to address those issues sooner rather than later, given the systemic importance of the matters debated, not just in the field of immigration law, but more widely. While there was clear mootness in the case at the level of the High Court, the fact that the case proceeded, now means that the law is as stated in the High Court, and it appears inappropriate to now consider refusing leave to appeal to this Court on grounds of mootness, which was explicitly addressed in the High Court, and where the case proceeded effectively by agreement.”

3.2 The grounds on which the State sought leave to appeal to this Court might be divided into, first, broad substantive issues, and second, those grounds relating to alleged errors on the part of the trial judge in relation to matters of procedure.
3.3 The Court concluded that the procedural grounds raised did not meet the constitutional threshold for leave to appeal, and that, while in other circumstances it might be deemed necessary to grant leave in relation to such matters in the interests of justice, in the context of this unusual application the Court did not want to risk the possibility that the consideration of such matters could lead to the issues of general public importance not being addressed. Therefore, the Court concluded that leave to appeal should be granted in relation only to the following grounds:-
“(a) The learned Trial Judge erred in law and in fact in his determination of the matters that the Appellant Minister is obliged to take into account when considering representations involving an unborn made under s. 3 (11) of the Immigration Act 1999 (as amended) seeking to revoke a deportation order in force against a non-national prospective father of a potential Irish citizen child unborn at the date of such consideration.
(b) Without prejudice to the forgoing paragraph, the learned Trial Judge erred in finding that when the Appellant Minister is presented with an application based on the prospective parentage of an Irish child who is unborn at the date of the making of the application, the Appellant Minister must address the application on the basis that appropriate consideration should be given to rights, or interests, if same are raised in the application, which that child will acquire on birth and will probably enjoy into the future in the event of being born, insofar as such prospective rights are relevant to the deportation issue.
(c) The learned Trial Judge erred in law and in fact in failing to take into account and/or erroneously considering/applying the express time period under consideration by the Court, being 21 May 2015 to 21 August 2015. The Second Named Applicant’s baby, subsequently joined to the proceedings as the Third Named Applicant, was born on 22 August 2015. It was expressly agreed for the purposes of further amendment of the Statement of Grounds that the period under consideration by the Court ceased on the day before the Third Named Applicant was born.
(d) The learned Trial Judge erred in law and in fact in his consideration of the justiciable rights of the unborn under the Constitution of Ireland and in finding that an unborn enjoys significant statutory, common law and constitutional rights which are effective, rather than prospective and/or that such rights are justiciable before birth and/or that such rights extend beyond rights deriving under Art 40.3.3.
(e) The Learned Trial Judge erred in law in his application and interpretation of Article 42A of the Constitution and in particular, without prejudice to the generality of the foregoing, its application to the unborn.
(f) Without prejudice to the forgoing paragraph, the Learned Judge erred in law in finding that the unborn is a child for the purposes of Art 42A of the Constitution, and in finding that the meaning of “all children” in that Article extends the protection of the Article to children before and after birth.
(g) The Learned Trial Judge erred in law in finding that Art 40.3.3 of the Constitution does not state the legal position of the unborn on an exclusive basis and in finding that the expression “unborn” found in that Article, must be interpreted as meaning and read as a reference to a child so that for the purposes of Art 40.3.3 an unborn equates to a child.
(h) The learned Trial Judge erred in law and in fact in holding that the 28th, 31st and 34th amendment to the constitution together with societal changes, warrant recognition that members of non-marital unions and non marital parents of both sexes enjoy inherent constitutional rights in relation to their children, and to each other, on a wider basis than previously recognised under the constitution.”

3.4 As already noted all of the other grounds which were before the Court of Appeal have been abandoned. It follows that it is only the issues thus identified which need to be considered by this Court. As will be seen, those questions are largely ones of principle deriving from the Constitution and are not, to any great extent, dependent on the facts of this case. However, by way of background, it is appropriate to set out a brief account of the relevant facts.
4. The Facts
4.1 Mr. M. is a Nigerian national who arrived in the State in December 2007. He applied for asylum, which application was refused. He appealed this decision to the Refugee Appeals Tribunal. On the 30th June 2008, he was notified that his appeal had been refused. He further applied for leave to remain on the 9th September 2008 and for subsidiary protection on the 24th November 2008. Both of these applications were also refused.
4.2 On the 30th October 2008, a deportation order was made against Mr. M. This order has not been revoked. Mr. M. remained in the State and, it would appear, worked unlawfully.
4.3 On the 12th August 2009, Mr. M. married a Czech national. He subsequently applied for residency in the State on the basis of his marriage to an EU national. This application was rejected on the 4th November 2010 on the basis of what was found to be a lack of necessary evidence.
4.4 Mr. M. entered into a relationship with a now-naturalised Congolese national in 2014. This relationship resulted in the birth of a child in Ireland on the 10th July 2015. Mr. M. represented himself to the Department of Social Protection at that time as living with the person concerned.
4.5 From September 2014, Mr. M. began a relationship with Ms. R. who is an Irish national. They are not married. As already noted, the third respondent is the child of Mr. M. and Ms. R., and was born on the 22nd August 2015.
4.6 Earlier, on the 21st May 2015, Mr. M. made an application under s. 3(11) of the Immigration Act 1999 (“Section 3(11)”) seeking the revocation of the deportation order against him.
4.7 Following the birth of the third respondent in August 2015, Mr. M. applied to the Minister on the 17th December 2015 for residency, on the basis of parentage of an Irish citizen child. Residency was granted on that basis on the 10th August 2017. The application for residency superseded the application under Section 3(11), which was withdrawn. It is on that basis that it was accepted that these proceedings had become moot by the time of the trial in the High Court.
4.8 This case came before the High Court in the context of an application for leave to seek judicial review coupled with an application for an injunction restraining Mr. M’s deportation. On the 1st August 2015 Mac Eochaidh J. delivered an ex tempore judgment granting an interlocutory injunction restraining deportation until further order of the Court. The application for leave was adjourned to be considered at a later date and was subsequently considered by the Humphreys J. As also already noted, the third respondent was then born on the 22nd August 2015 and later joined to these proceedings. No attempt had been made to join the third respondent prior to birth although Mac Eochaidh J. did note in his judgment that he would have considered such an application had it been deemed necessary.
4.9 The starting point for a consideration of the issues which are before this Court requires an analysis of the judgment of the High Court on the substantive issues.
5. The High Court Decision
5.1 The High Court (Humphreys J.) delivered its judgment on the 29th July 2016. In his decision, the trial judge noted that the case had seemed to be an appropriate instance for the Court to exercise its discretion to telescope the application for leave with the substantive hearing and the parties ultimately agreed to this course of action. Therefore, Humphreys J. made an order under the Court’s jurisdiction, given by O. 84, r. 24(2) of the Rules of the Superior Courts, to the effect that the application for leave be treated as the hearing of the action.
5.2 Humphreys J. also noted in his judgment that any question concerning the legal position of the unborn was strictly speaking moot by the time it fell for the High Court to reach a decision because the third respondent had been born. However, he stated that the parties appeared willing to treat the proceedings as a test case in relation to the issues. Furthermore, it was noted that there are necessary temporal limitations regarding the rights of the unborn. In this context, Humphreys J. concluded as follows:-
“A court can proceed to determine an issue that is strictly moot if the interests of justice so require. In this case there are two factors so requiring; firstly the particular suitability of issues arising from pregnancy as a basis to depart from the normal mootness doctrine, and secondly the consent of the parties.”

5.3 The trial judge then identified the issues which he considered arose from the proceedings and the pleadings of the parties in the following terms:-
“(i) [W]hether the first named applicant is entitled to notice of the date and time of his intended deportation (a point which is not moot in any event);
(ii) whether it would have been unlawful for the Minister to deport the first named applicant without first deciding on the s. 3(11) application; and
(iii) whether, when the Minister came to consider the s. 3(11) application prior to the birth of the third named applicant, she could limit herself to a consideration of the family rights of the applicants by reference to the right to life of the unborn only or whether she was obliged to consider the substantive prospective family rights as between all of the applicants that would arise on the birth of the third named applicant.”

5.4 Point (i) is not relevant to the issues before this Court but it should be noted that it was rejected by the High Court.
5.5 Likewise point (ii) is not relevant to the issues before this Court as Humphreys J. held that it was clear from the relevant authorities that such an application does not have the effect of suspending the deportation order concerned and that therefore, “It follows irresistibly from that conclusion that the Minister is not obliged as a matter of law to determine a s. 3(11) application prior to effecting deportation.”
5.6 Humphreys J. then turned to issue (iii). In addressing this issue, the trial judge set out the positions adopted by the parties, being that the Minister considered that, where an individual was the parent of an unborn, the only rights of that unborn that should be considered was the right to be born. On the other hand, the respondents contended that the Minister had an obligation to consider a broader range of rights of an unborn potential Irish citizen, including future rights, in the context of a deportation order.
5.7 Humphreys J.’s approach to addressing the question of the matters which the Minister must take into account when considering a Section 3(11) application was to first consider the broader question of what must be taken into account in any such application before turning to the application of that test in the context of the prospective birth of an applicant’s child. Humphreys J. then undertook a review of the authorities in this area at paras. 45 to 49 of his judgment and concluded as follows at paragraph 50:-
“In my view it follows from the caselaw I have referred to that the matters which the Minister must consider in the context of a s. 3(11) application are the foregoing:

(i) any representations by the applicant; and
(ii) any change of circumstances since the original decision which engages a legal provision which would have the effect of rendering the deportation unlawful by reason of an actual or prospective breach of rights. Such unlawfulness could arise under one of the following headings:-
(a) a change in the legal status of the person so as to deprive the Minister of jurisdiction to effect deportation (for example, the acquisition of EU citizenship or other EU rights);
(b) an actual or prospective threat to the life of freedom of the person, either on Convention grounds under s. 5 of the Refugee Act 1996 or in a manner that would infringe arts. 2 or 5 of the ECHR;
(c) an actual or prospective risk of torture or inhuman or degrading treatment under to s. 4 of the Criminal Justice (United Nations Convention Against Torture) Act 2000 and arts. 2 and 3 of the ECHR;
(d) any other actual or prospective breach of the rights (whether legal, constitutional, EU or ECHR) of the applicant or another person that would arise if the deportation was effected.”

5.8 The trial judge went on to note that the prohibition on refoulement is forward looking under the relevant legislative provisions and, therefore, that test considers prospective risks. On that basis he considered that there is no reason why such a forward looking approach to rights should not be applied to the prospective position of an unborn.
5.9 Humphreys J. then considered whether it would be a breach of the rights of the respondents to deport a prospective parent so that the mother would not have her partner present for the birth. He stated:-
“In my view there is no basis to elevate the desirability of having one’s partner present for the birth into a constitutional right that can be asserted in the deportation context.”

5.10 The next issue which the trial judge considered was phrased as follows:
“Is the Minister obliged to consider the prospective family rights of the parties including the prospective rights of a child who is unborn at the time of the making of a s. 3(11) application?”

It is, in substance, the findings of the trial judge in relation to this question which lie at the heart of the issues which arise on this appeal.
5.11 Humphreys J. began his consideration of this question by noting that the Minister’s position, being that the only relevant right of the unborn to be considered was the right to life, appeared to derive from Article 40.3.3 of the Constitution. The trial judge stated that this constitutional provision was adopted following a number of what he considered to be judicial decisions recognising that certain rights of the unborn are protected by Article 40.3 (for example, G. v. An Bord Uchtála [1980] I.R. 32). He rejected the contention that the introduction of Article 40.3.3 was intended to sweep away these preceding decisions and to represent the entirety of the rights of the unborn. In this regard, the trial judge differed from Cooke J’s suggestion in Ugbelase v. Minister for Justice, Equality and Law Reform [2010] 4 IR 233 that Article 40.3.3 represented a statement of the rights of the unborn “on an exclusive basis” and expressed the view that the Article itself recognised other unenumerated rights such as the right to travel in the case of the mother.
5.12 Humphreys J. continued by stating:
“In addition to these rights, other significant rights of the unborn child are recognised, acknowledged or created by common law or statute, in turn reflecting inherent natural and constitutional rights of the unborn which are implied by the constitutional order.”

5.13 At paras. 58 to 74 of his judgment, the trial judge considered in detail the various contexts in which such rights might be said to be recognised including succession to property and dealing with property on behalf of the unborn (paras. 60 to 62), tortious liability for injuries which occur while the unborn is in the womb (paras. 64 to 67) and the right to litigate on behalf of the unborn (paragraphs 71 to 74).
5.14 Humphreys J. then referred to the judgment of Irvine J. in O.E. v. Minister for Justice, Equality and Law Reform [2008] 3 IR 760, stating:-
“It is manifest from the comprehensive and compelling analysis carried out by Irvine J. that the submission by the State that the Minister is only required to consider the right to life of the unborn, and no other rights or potential rights, is entirely without merit for a series of reasons, as identified by Irvine J., which include the following:-

(i) Such an approach is arbitrary and would make the substance of rights dependent on the happenstance of the date of birth;
(ii) It is clearly established in case law that the unborn child enjoyed significant rights under the Constitution even prior to the adoption of Article 40.3.3°;
(iii) The interpretation offered by the State would, as Irvine J. points out, at p. 777: “place the rights of the unborn child, from a constitutional perspective, at a much lower level than the rights afforded to the unborn child at common law”.”

5.15 The trial judge further referred to the decision of this Court in East Donegal Cooperative Livestock Mart Limited v. Attorney General [1970] I.R. 317 and stated that this case acknowledged that prospective threats to rights need to be guarded against. The trial judge concluded on that point as follows:-
“It is irrational, and therefore unlawful, for the Minister to ignore the likely potential situation of an unborn child if to do so would be to fail to give consideration to that child’s likely rights.”

5.16 The trial judge subsequently went on to consider whether the term “unborn” could be taken to mean “unborn child” in the particular context of Article 42A of the Constitution. In this regard, he stated:-
“Since Irvine J’s decision in O.E., Article 42A of the Constitution on the rights of the child has been adopted. Section 1 of the Article provides that: “the State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights” (emphasis added). The reference to “all” children is striking and grammatically unnecessary, and must therefore have very significant substantive content and intention. As well as smacking of non-discrimination, on grounds such as the marital status of parents, it must, in my view, be given a wide interpretation and should include the child before birth.”

5.17 Humphreys J. suggested that the term “unborn child” was part of statute law on the date of the adoption of Article 42A and that therefore the use of the phrase “all children” in that constitutional provision would, in his view, support the conclusion that the term “child” was intended to include an unborn child.
5.18 Humphreys J. did note the possibility that it was not intended that Article 42A would have such an effect on deportation proceedings. Furthermore, he acknowledged the fact that many rights guaranteed by Article 42A would not be capable of practical exercise by the unborn. However, he rejected an argument, suggesting that “child” did not include an unborn child on the basis of non-exercisability of rights, as facetious and as “a simplistic and almost sneering basis to diminish or dismiss the status of the unborn child.”
5.19 The trial judge then turned to the issue of whether it could be said that Article 40.3.3 represented an exhaustive statement of the rights of the unborn. In this regard, he rejected the conclusions of Cooke J. in Ugbelase to the effect that:-
“…the only right of the unborn child as the Constitution now stands which attracts the entitlement to protection and vindication is that enshrined by the amendments in Article 40.3.3 namely, the right to life or, in other words, the right to be born and, possibly, (and this is a matter for future decision) allied rights such as the right to bodily integrity which are inherent in and inseparable from the right to life itself”.

5.20 The trial judge stated that this could only be based on “an extremely literal reading of Article 40.3.3 and [a] sheer assertion that it is an exhaustive statement of the entirety of the rights of the unborn.”
5.21 Humphreys J. further referred to the decision of the High Court (Hogan J.) in X.A. v. Minister for Justice, Equality and Law Reform [2011] IEHC 397, stating that Hogan J. largely followed the observations of Cooke J. in Ugbelase. In relation to Hogan J.’s comment in X.A. that Article 40.3.3 of the Constitution was not intended to have an effect in the context of immigration, Humphreys J. said this was a “straw man”. He continued:-
“The issue is whether in considering a deportation decision, the Minister should consider the prospective situation which is likely to unfold, and particularly such rights arising from a child’s status as a citizen as are likely to exist, rather than the state of affairs as it exists as a snapshot on the date on which the Minister’s decision is made in isolation from matters which are imminently prospective as a matter of likelihood. The proposition that Article 40.3.3° was not intended to affect deportation matters is just simply not an answer to this question. The need to consider the imminently probably state of affairs, whatever that might be likely to be, would exist even if Article 40.3.3° had never been enacted, or if it were hypothetically repealed or reworded.”

5.22 Humphreys J. preferred to follow the approach of Irvine J. in O.E.. He continued at paras. 90 and 92 of his judgment:-
“The consequence of that approach to my mind is that when the Minister is presented with an application based on the prospective parentage of an Irish child who is unborn at the date of the making of the application, the Minister must address the application on the basis that appropriate consideration should be given to the rights which that child will probably enjoy into the future in the event of being born, insofar as such prospective rights are relevant to the deportation issue.
…
The upshot of the foregoing is that the prospective legal rights and (where raised in submissions) interests that a child will acquire on birth are matters that the Minister must consider when an application is made under s. 3(11) by reference an unborn child. However she is not under any obligation to automatically allow such an application.”

5.23 Humphreys J. finally considered the nature of any constitutional family rights which might exist in relation to non-marital parents and their children, in the context of determining what matters the Minister may take into account in a section 3(11) application. In this regard, the trial judge referred to the statements of McKechnie J. in G.T. v. K.A.O. [2008] 3 IR 567, to the effect that greater recognition might be given to a father in an established cohabiting non-marital family. Humphreys J. further noted recent changes in the constitutional framework since the decision in G.T., starting with the Twenty Eighth Amendment and its requirement of commitment to membership of the European Union involving recognition of the wider family rights contained in the EU Charter of Fundamental Rights. Reference was also made to the Thirty First Amendment, recognising the natural rights of all children. That amendment, Humphreys J. stated, “… must have particular reference to the enjoyment of those rights without regard to the marital status of their parents.” Finally, Humphreys J. cited the Thirty Fourth Amendment and its extension of the availability of marriage to same-sex relationships. He concluded:-
“Any one of these developments, and certainly all of them taken together, as well as the fundamental shifts in society since the adoption of the Constitution, in my respectful view warrant a recognition that members of a non-marital relationship, and non-marital parents of both sexes in particular, enjoy acknowledgement of inherent constitutional rights in relation to their children and each other on a wider basis than has been recognised thus far.”

5.24 Consequently, Humphreys J. made the following orders:
“(i) that leave be granted in accordance with the latest amended statement of grounds;
(ii) that there be a declaration that the Minister, in considering an application under s. 3(11) of the Immigration Act 1999, is required to consider the current and prospective situation of the applicant concerned insofar as relevant to that application, including the prospective position, likely to arise on birth, of any child of the applicant unborn at the time of the application;
(iii) that the remaining reliefs sought be refused; and
(iv) that the respondents’ undertaking not to deport the first named applicant continue until withdrawn in accordance with its terms, and that there be liberty to apply in the event that the respondents seeks to so withdraw it.”

5.25 As can be seen at least certain of the findings of the High Court are potentially far reaching in their effect. It is those central findings which form the principal focus of the grounds on which leave to appeal was granted.
5.26 Under a range of headings the State argued that the approach of the trial judge was incorrect, first, by virtue of his identification of considerations or factors which had, as a matter of immigration law, to be taken into account by the Minister in considering an application to revoke under section 3(11). In addition the State argued that the analysis of the trial judge erred in holding that constitutional rights attached either to the unborn generally, to the unborn as potentially a child within the meaning of Article 42A of the Constitution and concerning non-marital family rights under the Constitution and in particular the potential rights of the third respondent.
5.27 It is in that context that it is appropriate to seek to identify the issues or groups of issues with which this Court was concerned on this appeal and to which this judgment must be directed. Those issues derive from the grounds on which leave to appeal was granted but also involve the refinement of those grounds to be found both in the written submissions filed by the parties and to the evolution of the debate during the oral hearing.
6. The Issues
6.1 Having regard to the manner in which the issues were developed at the oral hearing it seems to the Court that the following issues or groups of issues potentially arise for decision. The Court has referred to issues “potentially” arising for, at least in some respects, there may be a question as to whether it is either necessary or appropriate for the Court to resolve those issues for the purposes of giving judgment in this case. Where that consideration applies it is proposed to identify it when referring to the issue in question.
6.2 While it might be possible to characterise the issues in a number of different ways and while there could, indeed, be questions as to the appropriate order in which those issues need to be addressed, it seems to the Court that the following represents the most convenient description of the questions to be considered on this appeal.
6.3 First, there is the question of whether the fact of the impending birth of the third respondent was a factor or consideration which was required to be taken into account by the Minister in the context of the application by Mr. M. to revoke the relevant deportation order under the provisions of Section 3(11). In that context it became clear at the oral hearing that the Minister did not dispute the contention that one of the circumstances to which the Minister was required to have regard was the fact that Mr. M. was, at the time of the relevant application under section 3(11), likely to become a father of a child who was likely to be born in Ireland.
6.4 There was some dispute as to whether the position thus characterised on behalf of the Minister at the oral hearing amounted to a departure from the position which the Minister had previously adopted. However, it is not necessary for the purposes of this judgment to reach a conclusion on that dispute. It is certainly now clear that the Minister does accept that the fact that Mr. M. was due to become a father of a child likely to be born in Ireland was a circumstance to which regard was required to be had.
6.5 However, that being said, there was potentially a second question under this heading being as to whether the Minister was required, as a separate matter, to have some regard to the position of the then as yet to be born third respondent. Essentially, the Minister’s case in that regard was that the third respondent did not have legal or constitutional personality until birth and that it followed that the Minister did not have any obligation to pay separate regard to the position of the third respondent.
6.6 The second issue, which in many ways came to be closely aligned with the first, was as to whether the Minister was required to have regard to the fact that the third respondent, if and when born, would be an Irish citizen child who would enjoy all of the rights guaranteed to such a child under the Irish Constitution. The Minister, of course, agreed that the premise to that issue was factually correct in that it was accepted that, once born, the third respondent would be an Irish citizen and would enjoy the rights in question. However, the Minister again argued that the third respondent, not yet having been born at the time when the relevant application to the Minister was made, did not have a constitutional personality so that, it was said, the third respondent did not enjoy any constitutional rights at that time other than the right to life guaranteed by Article 40.3.3. On that basis it was said that the third respondent could not be said to enjoy any constitutional rights which the Minister was required to take into account notwithstanding the fact that it was acknowledged that, if and when born, the third respondent would enjoy significant constitutional rights.
6.7 In many ways, in the manner in which the debate developed at the oral hearing, the principal argument put forward on behalf of the Minister in respect of issues (i) and (ii) had many similarities. It was said that the third respondent did not, until born, have any legal or constitutional personality. On that basis it was argued, in respect of issue (i), that the Minister could not be required to have separate regard to the position of the third respondent and, with even greater strength, that the Minister could not be required, under issue (ii), to have regard to the fact that the third respondent would, if and when born, enjoy significant rights as an Irish citizen child.
6.8 In one sense if the respondents were to succeed on either issue (i) or issue (ii) there might be a question as to whether it was necessary to consider any further issues. If, contrary to the submissions of the Minister, it was legally required that consideration be given to the separate position of the third respondent either as a circumstance which was, as a matter of general law, required to be taken into account or because the constitutional rights which the third respondent would enjoy if and when born were themselves a matter which required to be taken into account, then the Minister would clearly have adopted a wrong position and the respondents would clearly be entitled to an appropriate form of declaration at least similar to that granted by the High Court.
6.9 However, it must be recalled that these proceedings were moot even at the time when they were before the High Court. It was for that reason that the High Court made a declaration as to the legal position rather than quashing any decision of the Minister for there was, of course, no decision to quash. Equally, there will not now be any decision taken by the Minister on the application of Mr. M. under section 3(11). However, part of the reason why it was considered appropriate to go ahead with these proceedings notwithstanding the fact that they were moot was that it will almost inevitably be the case that questions concerning the extent to which the Minister may or may not have to take into account the circumstances of an as yet unborn child of a potential deportee will become moot before being finally determined by a Court by virtue of the birth of the child concerned. It follows that it is almost inevitable that the only way in which such legal questions can be finally resolved is by the determination of a moot appeal. It follows in turn that the purpose of these proceedings after they became moot was clearly designed to determine the matters which the Minister was required by law to take into account in considering an application under Section 3(11) involving the potential birth of a child to the potential deportee. In addition, it is clear that, in that context, questions concerning at least the broad approach to the weight to be attached to any factors to which the Minister is required to have regard are equally important.
6.10 Even if the Courts were concerned with a straightforward case where the Minister had made a decision, which was under challenge, to decline to revoke a deportation order, a decision by the Court that the Minister had failed to take into account a factor or matter which the law required would lead to the decision of the Minister being quashed and the matter being remitted to the Minister. However, in such circumstances it would be more than appropriate for the Court to determine any questions within the Court’s competence (as opposed to questions which are for the Minister) which would arise in the circumstances of the case when the matter returned to the Minister for re-consideration. Clearly, the question of whether constitutional rights are engaged is a matter which would come into sharp focus in such circumstances. If a matter were to be remitted to the Minister without a determination by the Court as to whether any of the factors identified had constitutional status then the Minister would be left with insufficient guidance from the Court as to the proper approach to be adopted when the matter came back before the Minister for further consideration. It is important to emphasise that, in such circumstances, the Court is not determining what the ultimate decision of the Minister must be (for that is a decision which is within the jurisdiction of the Minister) but rather the Court is determining a relevant matter of law which will require to be taken into account by the Minister on the matter being remitted. The relevant matter of law would be as to whether constitutional status attaches to any of the considerations which the Minister must take into account and, possibly, the nature of any such constitutional rights. In those circumstances it seems to the Court that it is necessary to determine whether any of the constitutional issues asserted on behalf of the respondents, and as found by the trial judge, are established. Those are questions of law which would require to be properly taken into account by the Minister in the event that this issue had to be reconsidered.
6.11 However, before going on to consider the specific constitutional questions which arise, it is important, as a separate matter, to briefly address certain aspects of both statutory and common law concerning the unborn not least because considerable reliance was placed by the trial judge on those matters in coming to his conclusion that the unborn enjoyed significant constitutional rights beyond the right to life guaranteed by Article 40.3.3 of the Constitution.
6.12 Thereafter the third set of issues which arises is as to whether the third respondent had, prior to birth, any constitutional entitlements or rights which extend beyond the express terms of Article 40.3.3. Within that question it may be necessary to address the issue explored at some length at the oral hearing as to whether, prior to the adoption of the Eighth Amendment, the unborn had any constitutional rights. In addition, there is the question of whether, as the Minister argues, any such rights which may have pre-dated the Eighth Amendment were, in effect, codified by and subsumed into the Eighth Amendment so that, it is said, no continuing rights exist in the unborn born beyond those which find express recognition in Article 40.3.3. It will also be necessary, for the purposes of determining the questions which arise under this heading, to address at least some issues which arise in relation to the proper approach to the interpretation of the Constitution in areas such as this. In particular the identification of the potential source of constitutional rights which might attach to an unborn outside the scope of Article 40.3.3 needs to be considered.
6.13 Fourth, there is the question of whether an unborn is a child for the purposes of Article 42A of the Constitution. The trial judge so held. Clearly, if the trial judge was correct in that regard then, in a sense, all of the other earlier issues which have been identified would potentially become irrelevant for the very high level of constitutional protection which is conferred by Article 42A would require a very high level of regard to be paid by the Minister to the position of the third respondent prior to birth.
6.14 Fifth, and finally, it may be necessary for the Court to address the finding of the trial judge that, in the light of modern conditions and in the light of the various amendments to the Constitution on which he placed reliance, the meaning of the term “family” as used in the Constitution or the constitutional rights which attach to a non-marital family needs reconsideration. However, under that heading, an important preliminary question arises as to whether, and if so to what extent, it either was necessary or appropriate for the trial judge to go into those issues at all. It follows that similar questions need to be addressed by this Court.
7. The Submissions of the Parties
7.1 Having identified the issues or groups of issues arising, it is proposed to set out the position of the parties in respect of those issues utilising the clarification set out above. This was not necessarily the way in which the parties themselves approached those issues both in the written and in the oral submissions.
(a) The Factors to be Taken into Account
7.2 The first and second issues identified above concern the factors which the Minister was required to take into account in relation to the revocation application of Mr. M., having regard to the impending birth of the third respondent at the time the application was made. The first issue relates to the position of the third respondent as potentially an independent factor required to be taken into account by the Minister given the likelihood that the third respondent would be born in Ireland as a child of Mr. M in circumstances where it was the deportation of Mr. M which was under consideration. The second issue relates to the question of whether, in addition, the constitutional rights which the third respondent would enjoy as an Irish citizen once born must also be taken into account. This second issues has possible additional importance to the respondents for it has at least a constitutional character.
7.3 The State submitted that the trial judge correctly identified all of the factors which the Minister must take into account in any revocation application, by reference to Sivsivadze v. The Minister for Justice [2016] 2 I.R. 430 and P.O. and F.O. v. The Minister for Justice [2015] 3 I.R. 164. As noted above, the Minister did not dispute that one of the circumstances to which the Minister was required to have regard was the fact that Mr. M., at the time of making the section 3(11) application, was likely to become a father of a child born in Ireland.
7.4 However, the State continued to maintain that the Minister was not required to give separate consideration to the position of the third respondent (who was at the relevant time, of course, unborn) on the basis that unborn children do not enjoy legal personality and that their position does not, therefore, require to be taken into account as a standalone matter. On the other hand the respondents maintained that the unborn had a sufficient legal existence to justify its interest being separately considered. In addition it was said that it was not logical for the Minister to accept that the fact that Mr M. was likely to become a father of a child born in Ireland had to be taken into account but, at the same time, assert that the position of that child could be ignored.
7.5 However, in relation to the second issue, which concerns whether the Minister was required also to have regard to the fact that when born the third respondent would be an Irish citizen child enjoying the rights that entails, the State submitted that until born the unborn has no constitutional personality. As such, while acknowledging the necessary fact that if and when born the third respondent would enjoy certain constitutional rights, the State disputed the High Court’s finding that the Minister was required to take such future rights into account in the context of Mr. M.’s revocation application. The State disputed the argument that it was necessary to take into account any prospective rights of the unborn and submitted that to do so would, in effect, amount to the same thing as recognising that rights were enjoyed by the unborn before birth.
7.6 In relation to the test which the Minister is required to apply in a consideration of the immigration status of a foreign parent of a born Irish citizen child, the State placed reliance on the criteria established in the case law of this Court which, it was said, relates to the current, practical circumstances of the child and its integration into Irish society concerned (citing Oguekwe). The State submitted that a future analysis in this context is not required and, indeed, that such an analysis would be problematic given that the nature of the unborn is such that it would be incapable of having social or factual integration in Irish society.
7.7 In the first place the respondents disagreed with the State’s characterisation of this issue. It was said that the State wrongly suggested that Humphreys J. had determined that the rights of the unborn fall to be considered in the context of a revocation application as if that unborn was an Irish citizen child or that the position of the unborn must be equated with that of a born child for the purposes of Article 40.3. The respondents submitted that this mischaracterised the findings of the High Court. The respondents submitted that the key finding of the High Court is to be found at paras. 90-92 of the High Court judgment and is to the effect that the rights which the unborn child of an applicant will enjoy on birth are simply matters that the Minister must consider in the context of a revocation application without those rights being necessarily equated with those of a born child.
7.8 The respondents also noted the jurisprudence of this Court and the lower courts in relation to the rights of children and parents in immigration/deportation matters and the obligations of the Minister and the State in this regard. They noted that an Irish citizen child has personal and constitutional rights in this context. They further submitted that these rights are not unilateral and indeed in some instances rely in substance on the parents of the child concerned for their practical exercise and operation. The respondents questioned the validity of what is said to be the position of the State, being that none of the constitutional rights and protections afforded to Irish citizen children in this context apply either immediately or prospectively to the unborn.
7.9 The respondents submitted that the relevant rights of the third respondent were those identified in Oguekwe, including the right to protection of the family. The respondents argued that there was no logical reason to attribute significant constitutional weight to the presence of an Irish citizen child in the immigration context while also asserting that an unborn child, who on birth will be an Irish citizen, is what would amount to nothing more than a “constitutional cipher”. They argued that the inability to exercise certain rights is not a sound basis for justifying this distinction.
7.10 With regard to the marital status of the parents of the unborn in this context, and its relation to the right to protection of the family identified in Oguekwe, the respondents relied on the decision of Irvine J. in O.E. to support the contention that an unborn, who when born will be an Irish citizen child, but whose parents are unmarried, is nonetheless entitled to expect that once born they will enjoy the care, society and support of his or her parents. The respondents further submitted that, in any event, this issue is put beyond doubt by the terms of Article 42A which applies to all children regardless of the marital status of their parents.
7.11 Ultimately, the respondents submitted that the key issue on this appeal is as to whether the constitutional rights of the unborn warrant any consideration at all, rather than a fine calibration of the consideration required. This is said to be so because of the position of the State to the effect that a decision such as that under consideration in these proceedings is argued not to involve a requirement to consider or attach any weight at all to the position of the unborn. For that reason the respondents suggested that this issue does not properly arise on this appeal.
(b) The Common Law and Statutory Position of the Unborn
7.12 As already noted the trial judge attributed significant importance in his analysis to certain provisions concerning the unborn to be found both in the common law and in statute. In their submissions, the State approached these matters by considering the various contexts in which Humphreys J. stated that it is possible to identify relevant rights relating to the unborn. Broadly speaking, the State argued that any entitlements that the unborn might have in law exist only as limited exceptions to what is said to be the established principle that an unborn does not have legal personality. Furthermore, it was argued that the examples relied on by Humphreys J., in support of the suggestion that the unborn had a broad range of rights were legal fictions or necessary corollaries thereof. The State further argued that, where the unborn is afforded a legal entitlement in the established case law, it is always contingent on the birth of the unborn. Therefore, the State’s essential argument in this context was that the examples relied on by the trial judge do not justify the conclusion that the unborn enjoys a broader range of rights than suggested by the State. Furthermore, it was argued that it is inappropriate to identify constitutional rights by inference from statutory provisions and common law principles.
7.13 The respondents, while acknowledging that the High Court judgment considers the above issues at length, suggested that the detail of the questions addressed are not central to the determination of the issues involved in the appeal. The significance of the above issues, the respondents submitted, is the recognition that the unborn can be and is a repository of rights so that the question of whether such rights may be vindicated in utero or only on birth does not, it is said, determine the issues in the appeal. This is so, the respondents contended, because the State’s case is that the Minister is not required to give any recognition to the position of the unborn, whether on the basis of the status as unborn or the status as a prospective born child.
(c) The Constitutional Position of the Unborn
7.14 Under this issue it is necessary to consider the submissions of the parties in relation to the constitutional position of the third respondent prior to birth and whether the constitutional protection of the unborn extends beyond the express provisions of Article 40.3.3. As noted above, the related question of the constitutional position of the unborn prior to the adoption of the Eighth Amendment may also arise under this heading but only as part of the analysis required to be carried out on the question of whether the unborn have constitutional rights beyond those guaranteed by Article 40.3.3.
7.15 The State submitted that it does not follow from the recognition of the right to life as an express right of the unborn under Article 40.3.3 that other constitutionally protected personal rights must also inhere in the unborn. In that context the State noted the jurisprudence in this regard relied on by the trial judge to support the argument that, prior to the Eight Amendment, the “rights of the unborn were in any event protected by Article 40.3”. The principal decisions referred to are McGee v. Attorney General [1974] IR 284; G.; Norris v. Attorney General [1984] IR 36; and Finn v. Attorney General [1983] 1 I.R. 154. The State submitted that these decisions cannot be relied on to reach the conclusion that Article 40.3 protected the rights of the unborn prior to the Eighth Amendment it is said that none of these cases directly concerned the right to life of the unborn so that any comments in that context in those decisions are obiter. It should be noted that during oral submissions the State declined to take a definitive stance regarding the constitutional rights of the unborn, or lack thereof, prior to the Eighth Amendment, and stated merely that there was no definitive judicial decision in this regard. In that context it was said that the adoption of the Eighth Amendment meant that it was not necessary to take a stance on this issue.
7.16 In relation to judicial pronouncements in this area following the Eighth Amendment, the State suggested that the early cases dealing with this provision tend to see it as recognising a pre-existing right rather than creating a new right. However, it was further submitted that the later cases tend to focus on the purpose of the Eighth Amendment. In this regard, the State pointed to the decisions of this Court in Attorney General v. X [1992] 1 IR 1 and in Roche v. Roche [2010] 2 IR 321 and particular reliance was placed on statements in those cases to the effect that the purpose of introducing the Eighth Amendment was to prevent the introduction or legalisation of abortion. The State acknowledged that in Roche, Murray C.J. took a different view regarding the intention behind the Eight Amendment. The State noted however that, in Roche, Murray C.J. was alone among his colleagues in expressing such a view.
7.17 Ultimately, the State submitted that, even if there were indeed rights inhering in the unborn prior to the Eighth Amendment, the effect of that Amendment was to set out on an exclusive basis the extent of the constitutional protection of the unborn. In this regard, the State submitted that the approach of Cooke J. in Ugbelase is to be preferred to that of Irvine J. in O.E.
7.18 The respondents for their part submitted that the jurisprudence prior to the adoption of the Eighth Amendment clearly recognises that the unborn has constitutional personality and visibility. However, it should be noted that the respondents conceded that the trial judge erred in suggesting that there was any definitive decision in this context prior to the Eighth Amendment. They did, however, submit that there is no basis to suggest that the unborn is excluded from the protection of Article 40.3. They also submitted that, while the exact source of the protection of the right to life of the unborn within Article 40.3 prior to the Eighth Amendment might be open to debate, there was no basis for suggesting that the right to life is or was the sole right protected in relation to the unborn. This was said to be so on the basis that there is no apparent limitation in Article 40.3 to that effect.
7.19 Furthermore, the respondents submitted that it is incorrect to suggest that the Eighth Amendment was intended to represent an exclusive statement of the rights of the unborn. They disputed the argument that, if the unborn enjoyed constitutional rights prior to the adoption of Eighth Amendment, the people could have unwittingly restricted the rights of the unborn by adopting that Amendment. They argued that no one would have understood this to be the effect of the Eighth Amendment. In this regard, they submitted that the High Court was correct in declining to follow the decision of Cooke J. in Ugbelase. They submitted that the wording of Article 40.3.3 does not support the conclusion that it is intended to be an exclusive expression of the rights of the unborn. Furthermore, the respondents submitted that Cooke J.’s invocation of the maxim generalibus specialia derogant in Ugbelase is not appropriate in the context of constitutional interpretation.
(d) Article 42A
7.20 As noted above, a related issue in the context of the extent of the constitutionally protected rights of the unborn arises from the High Court’s interpretation of Article 42A of the Constitution to the effect that the phrase “all children” within that Article should be taken to include the unborn.
7.21 The State submitted that Humphreys J. erred in his interpretation of this Article. The State submitted that the wording of the provision is clear and unambiguous and does not contemplate the inclusion of the unborn in the meaning of “all children”. In arguing that the trial judge did not engage in linguistic or textual analysis or consider the intention behind the introduction of Articles 42A and the Eighth Amendment, the State submitted that the trial judge inappropriately reasoned backwards from the fact that the term “unborn child” was found in statutory provisions prior to the introduction of Article 42A. With regard to the use of the phrase “all children” in Article 42A, the State suggested that the intention behind the inclusion of this phrase in that formulation was to resolve uncertainty regarding the nature of constitutional rights held by marital and non-marital children. The State ultimately submitted that a linguistic analysis of the wording of Article 42A and 40.3.3 and a consideration of the purpose behind these Articles lead to the conclusion that Humphreys J. erred in this regard.
7.22 The respondents contended that it may not be necessary for this Court to address this issue for, it was said, if this Court is satisfied that the effect of the other provisions of the Constitution relied on is such as to confer constitutional recognition and protection to the unborn, then the precise scope of Article 42A is not determinative of this appeal. The respondents submitted that the fundamental reasoning of the High Court is that the prospective constitutional rights of the unborn must be considered in the context of immigration and deportation and, if this is accepted, then it follows that Article 42A is engaged. Nevertheless, the respondents submitted that the High Court was correct in its interpretation of Article 42A. They submitted that the trial judge’s finding is consistent with the literal interpretation of that Article. The respondents further submitted that a purposive interpretation of Article 42A also points towards the inclusion of the unborn within the meaning of “all children”. The respondents submitted that the State’s argument concerning the intention behind the introduction of Article 42A amounts to nothing more than assertions without a substantive basis to support them and disputed the argument that constitutional rights under Article 42A do not apply to the unborn because some of the rights guaranteed by that article may not be capable of exercise by the unborn. Finally, they also disputed the State’s submission that a harmonious interpretation of the phrase “all children” requires the exclusion of the unborn so as to avoid conflicts of rights. The respondents argued that no such conflict in fact arises.
(d) Non Marital Parents and “The Family”
7.23 This issue concerns the position of non-marital parents and the family under the Constitution.
7.24 The State submitted that the comments of Humphreys J., to the effect that there has been a shift in attitudes in Irish society, is merely a hypothesis and furthermore suggested that the trial judge did not identify the scope of any relevant rights asserted. The State submitted that the High Court thus erred in its conclusions in this regard.
7.25 The respondents argued that the issues addressed by the State in this context do not properly arise for consideration on this appeal. They submitted that the rights of the non-marital family in relation to their children are equivalent to the rights of the marital family and that this does not appear to be in dispute. They submitted that the State appears to accept that this is the effect of Article 42A. They noted that there may be some circumstances where there is a difference between the position of the father in an Article 41 family based on marriage compared with other non-marital family situations. However, the respondents submitted that this issue does not properly arise in this appeal.
7.26 Having identified the position of the parties it is next appropriate to turn to consideration of the issues raised. In that context it is proposed to consider issues (i) and (ii) together. The issues which arise under both of those headings concern the factors or circumstances which the Minister is required, by law, to take into account when considering a section 3(ii) application in circumstances such as arise in this case. However, those issues do not involve the more difficult and complex question of whether the unborn enjoys any current rights under the Constitution which go beyond the right to life expressly acknowledged in Article 40.3.3. It is proposed therefore, to turn to issues (i) and (ii).

8. Must the Minister Consider the Position of the Unborn?
8.1 The Court has already sought to identify the way in which this question arises. As already noted, the Minister accepts that the potential birth of a child of Mr. M. forms part of the circumstances of that respondent to which the Minister is required to have regard. However, the Minister stops short of accepting that any separate regard is required to be had to the position of that unborn in and of itself as opposed to as part of the circumstances applicable to the father. It is said that the position of the unborn in such circumstances is not a factor which, as a matter of general law, the Minister is required to take into account. Still less, it is said, is the Minister required to have regard to the fact that the third respondent would enjoy significant constitutional rights as an Irish citizen once born.
8.2 On one view the distinction which the Minister makes between the matter which it is accepted the Minister must consider, being the fact that Mr. M. was about to become a father of the third respondent, and the additional matters which the respondents argue the Minister was required to consider, being the separate position of the third respondent and furthermore the fact that the third respondent would enjoy significant constitutional rights at least when born, may not appear to be very great. The underlying facts are the same. The Minister has to consider the “situation”, to use a neutral term, which pertained at the time of the application to revoke being that the birth of the then unborn third respondent was due within approximately three months. The birth was due within one month of when proceedings were commenced at which stage no decision had been made by the Minister.
8.3 However, the Minister argued that the nature of the consideration which he is required to carry out has the potential to have a significant impact on the result of any proper consideration given. On that basis it is said that a requirement to give separate and independent consideration to the position of the unborn will potentially affect the overall assessment (even though all sides accept that such additional consideration would not necessarily be decisive). Still more, the Minister argued, the overall assessment would inevitably be significantly impacted by a requirement to take into account the constitutional rights which the unborn would enjoy in the future because those constitutional rights would be required to be given particular weight in any overall assessment.
8.4 In that latter context it is important to note that counsel on behalf of the respondents did acknowledge that the weight to be attached even to those constitutional rights which the respondents assert should be considered would not necessarily be identical to the weight which would be required to be attached to the situation of a born child. However, there can be little doubt but that the Minister is at least correct in asserting that a material weight would have to be attached thereto in any analysis where he was required to give independent consideration to the position of the unborn and even more so if he was required to give consideration to the constitutional rights which that unborn would enjoy if and when born.
8.5 On that basis the question is one of some importance because it touches on the way in which the Minister is required, as a matter of law, to have regard to the fact that the applicant for a revocation of a deportation order under section 3(11) is expected soon to be a father of an Irish citizen child and, thus, has at least the potential to impact on the ultimate result of such an application in some cases.
8.6 It is also important to identify that the issues which arise in respect of these questions are separate and distinct from the question which will be addressed shortly concerning whether the unborn enjoy constitutional rights outside the scope of Article 40.3.3. If the unborn actually have rights qua unborn then it would be very difficult to see how those rights would not have to be taken into account as a separate matter in any assessment which might lead to an impairment of those rights even if that assessment related to a third party in the sense of the potential deportation of the father of the unborn concerned. But the argument under issues (i) and (ii) does not go so far as to assert that the unborn actually has current constitutional rights separate from Article 40.3.3. The argument simply goes to the question of whether, as a matter of immigration law, the position of the unborn likely to be born in Ireland, and, potentially, under the second issue, the rights which the unborn is likely to enjoy as an Irish citizen child when born, are factors which require to be taken into account and given appropriate weight in the Minister’s assessment of an application to revoke a deportation order under section 3(11).
8.7 These questions arise under very traditional judicial review principles which assert that the lawfulness of any decision involving rights and obligations requires the relevant decision maker to take into account all matters which the law mandates but also requires that decision maker to exclude from consideration any matters which the law regards as irrelevant. Finlay C.J. formulated the principle as follows in P. & F. Sharpe Ltd v. Dublin City and County Manager [1989] I.R. 701:-
“… the decision-making authority must have regard to all relevant and legitimate factors which are before it and must disregard any irrelevant or illegitimate factor which might be advanced.”

8.8 If either or both of the matters under consideration here are required to be taken into account as a matter of law then it follows that any decision taken by the Minister which does not take them into account will not be in accordance with law and would be open to being quashed on that basis. But it does not necessarily follow that, in order for it to be the case that such matters are required as a matter of law to be taken into account, the relevant unborn requires to have a current and enforceable constitutional right. There are very many cases indeed where a decision maker is required, as a matter of law, to have regard to certain factors where no legal right let alone a constitutional right is involved. Rather, it is simply that the law requires the factor concerned to be taken into account.
8.9 A starting point must be the acceptance by the Minister that it is necessary, as a matter of law, to have regard, as a relevant circumstance appertaining to Mr. M., that he is likely to become the father of a child born in Ireland. It is difficult to see how it does not necessarily follow from that acceptance that one of the circumstances to which the Minister is required to have regard must involve a consideration by the Minister of the position of that child. There seems little logic in attempting to draw what is, in reality, a wholly artificial distinction between having regard to the fact that Mr. M. was likely, at the time of the application to revoke the deportation order concerned, to be about to be the father of a child born in Ireland but not also to have regard to the position of that child. The two questions are so inextricably linked that it just does not make sense to suggest that it is possible to have regard to one without also having regard to the other.
8.10 But there is equally little logic in stating that it is necessary for the Minster to have regard to the position of the potential father, and thus the position of the potential child, without also accepting that regard must be had to the most important fact that, in the circumstances of this case, the child concerned, once born, will become an Irish citizen with the significant rights under the Irish Constitution which attach to that status.
8.11 In the same context it is also important to recall that the assessment which it is frequently necessary to carry out in the context of deportation (whether the relevant decision is one to make a deportation order in the first place or whether, as here, the decision concerns a potential revocation of a deportation order already in place) involves the assessment of future events. Much of immigration law is concerned with assessing the risks or likely consequences of a person being returned to another jurisdiction. The matters that a decision-maker is required to address in reality concern matters that will or may happen in the future in the event of return. While it may, theoretically, be possible to speak of a current risk of a future event such an analysis is unduly technical. In substance the decision maker is considering the potential consequences of a current decision to deport (or not to revoke an existing deportation order) by necessary reference to events or circumstances which will or may occur or pertain in the future. Why then should the decision-maker exclude from their proper consideration, in an application such as that which is at issue in these proceedings, the future but important circumstance that it is likely that there will be a child of a potential deportee born in Ireland and, in the particular circumstances of this case, as an Irish-born citizen.
8.12 It is appreciated that this analysis leads to a somewhat different finding to that which was determined by Cooke J. in Ugbelase. However it would appear that the only circumstance on which Cooke J. was invited to rule in that case was the assertion that an unborn enjoyed an existing constitutional right which required to be taken into account. The conclusion reached by Cooke J., to the effect that all of the constitutional rights attaching to the unborn are now to be found within the parameters of Article 40.3.3 of the Constitution, is a matter to which it will be necessary to turn in due course under the third issue. However for the purposes of the argument under this heading it is important to emphasise that Cooke J. was not asked to consider whether it was necessary for the Minister to have regard to the position of a potential child likely to be born in Ireland or to the constitutional rights which would undoubtedly attach to such a child when born in circumstances where, as here, the child concerned would, on birth, be an Irish citizen.
8.13 While the conclusions reached in this section of this judgment necessarily point to a different answer to that given by Cooke J. in Ugbelase, the reasoning leading to those conclusions stems from an argument which was not made before him.
8.14 The Court understands the reasons why the Minister might not wish to be required to have regard to the position of the unborn and, in particular, to the rights which the unborn would enjoy when born. However, it is difficult to see that there is any real justification for the assertion that the Minister is required to have regard to the fact that Mr. M. is likely to become the father of the unborn concerned as a relevant circumstance but not have regard, simply as a factor to be taken into account, to the position of that unborn itself.
8.15 To hold that the position of the unborn has to be considered is not to say that the unborn, prior to birth, actually has currently enforceable rights to the care and company of her father. Likewise to say that the fact that the unborn, if and when born, will enjoy significant constitutional rights, is a factor to be taken into account, does not mean that the unborn necessarily has independently enforceable constitutional rights of the type contended for, being to the care and company of her father, as of the time in question. It is simply to state that both of these matters are factors which the lawful exercise of the discretion conferred on the Minister by Section 3(11) require to be taken into account.
8.16 It follows, therefore, that the debate about whether, and if so to what extent, it can be said that the unborn has a sufficient legal status to assert rights on its own behalf (or, in practical terms, to have those rights asserted on its behalf by an appropriate person) does not really affect this question. Whether or not the unborn could commence proceedings asserting its rights does not, in and of itself, determine whether the Minister is required to give appropriate consideration to the position of the unborn together with its future probable birth in Ireland, its likely status as an Irish citizen child and the constitutional rights it will then enjoy. The latter is a matter of the proper interpretation of immigration law and is not necessarily dependent on the question of whether those rights can be asserted directly.
8.17 The Court concludes, therefore, that, in assessing the position of the unborn in a case such as this, the Minister is obliged to take into account the fact that the unborn, if born, will enjoy significant constitutional rights when born.
8.18 It is, of course, the case that the reason why it was considered necessary to address these issues stems from the fact that they have the potential to affect the weight to be attached to the likely birth of an Irish citizen child to which the applicant for revocation is a father. Were it not for those questions of weight (which would have theoretically arisen had this matter been capable, in practical terms, of being remitted back to the Minister) then the issues would have been moot in circumstances where it would not have been appropriate for this Court (or indeed the High Court) to have addressed them. It follows that some weight might have to be attached to the position of the unborn and, indeed, additional weight might well have to be applied to the consideration of the undoubtedly significant constitutional rights which the unborn would enjoy on being born.
8.19 However, it is important to emphasise that the analysis which the Minister would be required, as a matter of law, to carry out in giving proper consideration to those two matters is not necessarily the same as the consideration which the Minister would be required to carry out in respect of the potential deportation of the father of a born Irish citizen child. Those later considerations are to be found in the judgment of Denham J. speaking for this Court in Oguekwe.
8.20 Oguekwe concerned a deportation order made in respect of a Nigerian father whose Nigerian wife had been granted residency under the Irish Born Child 05 scheme on the basis of her Irish born child who was, in accordance with then law, an Irish citizen. Denham J at p. 822 set out a non-exhaustive list of matters relevant for consideration by the Minister when making a decision as to deportation under s.3 of the 1999 Act of a parent of an Irish born citizen child. Those matters are specified in a context where the applicants concerned were a family within the meaning of Article 41. The list of considerations includes not only rights of the applicants but also the State’s interests and further specifies permissible approaches by the Minister to balancing the individual and family rights concerned with the State’s interest in the common good. As submitted on behalf of the respondents, the framework articulated in Oguekwe is a flexible one capable of accommodating the circumstances and facts of the particular application and persons concerned. The list commences with the statement:-
“The Minister should consider the circumstances of each case by due inquiry in a fair and proper manner as to the facts and factors affecting the family.”

8.21 Specifically in relation to the Irish citizen child Denham J. included as relevant matters:-
“5. The Minister should consider the potential interference with rights of the applicants. This will include consideration of the nature and history of the family unit.
6. The Minister should consider expressly the Constitutional rights, including the personal rights, of the Irish born child. These rights include the right of the Irish born child to:-
(a) reside in the State,
(b) be reared and educated with due regard to his welfare,

(c) the society, care and company of his parents, and

(d) protection of the family, pursuant to Article 41.
The Minister should deal expressly with the rights of the child in any decision. Specific reference to the position of an Irish born child of a foreign national parent is required in decisions and documents relating to any decision to deport such foreign national parent.”

8.22 As already stated the third respondent when born, unlike the child in Oguekwe, did not become a member of a family of the type expressly envisaged by Article 41 of the Constitution. The question of the views of the trial judge on the definition of “family” for constitutional purposes and allied matters will be considered later in this judgment. However it is accepted that, if a decision had been taken by the Minister on the revocation application whilst the third respondent was unborn, it was foreseeable that when born as a citizen she would have the rights identified at (a), (b) and (c) above. However, as Denham J. made clear, such constitutional (or any Convention) rights are not absolute or necessarily determinative. The State’s interests also require consideration and, as she stated, “the Minister should weigh the factors and principles in a fair and just manner to achieve a reasonable and proportionate decision” and “The Minister should be satisfied that there is a substantial reason for deporting a foreign national parent, that the deportation is not disproportionate to the ends sought to be achieved, and that the order of deportation is a necessary measure for the purpose of achieving the common good.”
8.23 The potential interference with one or other of the constitutional rights to reside in Ireland and to the care and company of parents by deportation of a father is obvious. However the impact of that interference for the citizen child will depend on many factors including age, existing or future probable relationship and contact with the father, possibly the relationship with, and circumstances of the mother and many more. The impact on a ten year old child who has lived in Ireland in the care of both parents for many years may be significantly different to that of a one month old child where the facts are such that it appears probable that, even if the father remained in Ireland, the child would not live with him. The assessment of the impact on the constitutional rights of, say, a two month old child by the deportation of his father may not differ greatly from that of an unborn child due to be born in two months time but both might greatly differ from that of the ten year old in the circumstances already described or, indeed, an unborn in the very early stages of gestation. The interests of the State in any given application may differ significantly and possibly depend, amongst other things, on the immigration or other relevant history of the potential deportee or applicant for revocation. The weight to be attached to those factors and the potential proportionality of any decision by the Minister to refuse revocation of a deportation order are not matters for this judgment.
8.24 It suffices to say that the Court considers that, whilst the Minister must consider the constitutional rights when born of an unborn either on an application for revocation or a proposal to deport, the weight to be attached to the potential interference with such rights will depend on all the facts and circumstances of the applicant and unborn concerned and is a matter for the Minister as is the balance to be struck with the interests of the State in reaching a proportionate decision in accordance with the principles set out by this Court in Oguekwe.
8.25 For the reasons already addressed it is now necessary to consider whether the unborn enjoys current constitutional rights which require to be taken into account in an immigration case such as this. As already noted the trial judge held that the unborn did enjoy such rights and the State argues that the trial judge was incorrect in that regard. The Court has already set out the reasons why it feels that it is necessary to address this question notwithstanding the findings already made in relation to issues (i) and (ii). It will be necessary, therefore, shortly to discuss the important constitutional issues raised under issue (iii). However, having regard to the fact that the trial judge placed reliance on certain provisions of statute law concerning the unborn and also on certain common law provisions affecting the unborn, it is appropriate first to consider those questions both for the purposes of determining whether the trial judge’s conclusion in those regards was necessarily correct but also for the purposes of considering whether any such conclusions as are or might be correct could have any proper bearing on the constitutional issues to which it will be necessary shortly to turn.
9. Statute and common law concerning the unborn
(a) The Common Law
9.1 One of the reasons given by Humphreys J. for disagreeing with the analysis in Ugbelase was that he saw as “completely incorrect” the statement by Cooke J. that the common law did not operate to enable justiciable rights to be asserted by or on behalf of the unborn child prior to birth. A number of judgments and statutes are referred to by the trial judge as supporting a contrary view to the effect that “significant” rights of the unborn child were “recognised, acknowledged or created” by common law or statute. The summary of principles identified by the trial judge in this case includes (at paragraph 101 (vi)) the following proposition:
“The unborn child enjoys significant rights and legal position at common law, by statute and under the Constitution, going well beyond the right to life alone. Many of these rights are actually effective rather than merely prospective.”

9.2 The purpose of this section is to examine the common law judgments and the statutes referred to in order to ascertain the extent to which they can be said to support this conclusion. It is not intended to suggest that this Court is thereby ruling that, in particular, any or all of the common law judgments from other jurisdictions represent either the law or the appropriate approach in this jurisdiction.
9.3 At paragraph 65 of the High Court judgment in this case there is a reference to Burton v. Islington Health Authority [1992] EWCA Civ 2, where Dillon L.J. noted that in certain contexts English courts had adopted as part of English law the maxim of the Civil Law that an unborn child is deemed to be born whenever its interests so require. The authority for this is attributed to Lord Westbury in Blasson v. Blasson 2 D.J. & S. 665, quoting from Justinian’s Digest to the effect that an unborn child is taken care of, just as much as if it were in existence, in any case in which the child’s own advantage comes into question although no other person could derive any benefit through the child before its birth.
9.4 Blasson v. Blasson was discussed by the House of Lords in Villar v. Gilbey [1907] A.C. 139. That case concerned a ruling by the Court of Appeal of England and Wales that there was a general rule for the construction of wills obliging a court to hold that, where a testator referred to children “born” in his lifetime, a child who was en ventre sa mère (that is, in the womb of the mother) before the testator’s death but was not born until after the death was to be deemed to have been born in the testator’s lifetime. The House of Lords rejected the proposition that this was a fixed rule, holding that it applied only where it was of benefit to the child. On the facts of the case, it was not in the interests of the child in question since it would have resulted in him taking a lesser estate. Where it did apply, the principle was justified on the ground that such children came within the motive and reason for the gift and should therefore be included, although it compelled the court “to do violence to the English language” (Lord Loreburn L.C.). Lord Atkinson quoted the following paragraph from Blasson v Blasson as encapsulating the rule:
“That the fiction or indulgence of the law which treats the unborn child as actually born applies only for the purpose of enabling the unborn child to take a benefit which if born it would be entitled to, and it is limited to cases where ‘de commodis ipsius partus quaeritur’.”

9.5 In Elliot v. Joicey [1935] AC 209, the House of Lords also considered the case of a child born after the death of his father. The question was whether the child was to be considered as issue “surviving” the father, in circumstances where he would not take any direct benefit thereby. The judgments stress the artificiality involved in deeming a child to have been born when it was not. At p. 233 Lord Russell of Killowen summed up Villar v. Gilbey in saying:
“First, words referring to children or issue ‘born’ before, or ‘living‘ at, or (as I think we must add) ‘surviving’, a particular point of time or event, will not in their ordinary or natural meaning include a child en ventre sa mère at the relevant date. Secondly, the ordinary or natural meaning of the words may be departed from if, but only if, that fictional construction will secure to the child a benefit to which it would have been entitled if it had been actually born at the relevant date. Third, the only reason and the only justification for applying such a fictional construction is that where a person makes a gift to a class of children or issue described as ‘born’ before or ‘living’ at or ‘surviving’ a particular point of time or event, a child en ventre sa mère must necessarily be within the reason and motive of the gift. Fourthly, that being the only reason and the only justification for applying the fictional construction, it follows that, if the person who uses the words under consideration confers no gift on the child or issue described as above mentioned, but confers the gift on someone else, it is impossible (except in the light of subsequent events) to affirm either that the fictional construction will secure to the child en ventre sa mère a benefit to which if born it would be entitled, or that the child en ventre sa mere must necessarily be within the reason and motive of the gift made. In those circumstances the words used must bear their ordinary or natural meaning.”
(Emphases added.)

9.6 It was emphasised in the speech of Lord Macmillan in the same case that the legal fiction in question was intended to alleviate the logic of the law (“which is naturally disposed to insist that at any given moment of time a child must be either born or not born, living or not living”) in the interests of the posthumous child. The Civil Law had surmounted the problem by inventing the fiction that, in all matters affecting its interests, the unborn child in utero should be deemed to be already born. English and Scots law had adopted that fiction to the extent only of enabling the child to take a benefit to which, if born, it would be entitled. It could not be invoked in the interests of a third party. Thus, if a third party’s claim depended on the child having been born within a particular time, the right would not accrue unless the child was actually born within that time.
9.7 It is clear from these authorities that the Common Law Courts, in adopting this particular principle from the civil law, did so only to a limited extent and in full consciousness that as far as the common law was concerned, they were adopting a legal fiction that was to be deployed only in limited circumstances.
9.8 In Burton v. Islington Health Authority, the Court of Appeal of England and Wales was dealing with two appeals in respect of children born with disabilities as a result of pre-natal medical negligence. In each case the health authority had argued that the injury occurred while the child was still en ventre sa mère. In those circumstances the child was not considered a person in the eyes of English law and was thus not entitled to any of the remedies or the protection of the common law.
9.9 Giving the leading judgment, Dillon L.J. referred to the general proposition, not in any way doubted in the appeals, that a foetus (as it was termed in the judgment) enjoyed no independent legal personality. It could not, before birth, sue or be made a ward of court. He said that he would have been prepared to apply the Civil Law maxim in question to the appeals, but that it was unnecessary to do so in view of the development of the common law in other jurisdictions. In particular he cited Montreal Tramways v. Leveille [1933] 4 D.L.R. 337, Watt v Rama [1972] V.R. 353, and Duval v. Seguin (1972) 26 D.L.R. (3d) 418, as supporting a conclusion that a child who suffered pre-natal injuries occurring during the mother’s pregnancy had a cause of action at birth. It is worth stressing that the approach taken by the Court of Appeal was that the cause of action could only arise from that point, since the tort of negligence was complete only when the negligent act caused damage to a person.
9.10 Attorney-General’s Reference (No. 3 of 1994) [1997] 3 All ER 936 is cited by Humphreys J. for the proposition that the unborn child may be the subject of an unlawful act. The issue in that case was whether either a murder or manslaughter charge could lie in respect of a prematurely-born child who died at the age of about three months. For the purposes of the reference it was assumed that her death was the result of the effects of a “grossly” premature birth that came about because of an assault on the mother and therefore that the death was the result of that assault.
9.11 The House of Lords unanimously held that what it termed the foetus was neither a distinct person separate from its mother nor merely an adjunct of its mother but a unique organism.
9.12 It was considered to have been “established beyond doubt for the criminal law, as for the civil law [citing here Burton v Islington Health Authority [1993] QB 204], that the child en ventre sa mère does not have a distinct human personality whose extinguishment gives rise to any penalties or liabilities at common law”. Violence to the foetus which caused its death in utero was therefore not murder. Lord Mustill described as the foundation authority for this rule the definition of murder by Sir Edward Coke as the killing of “a reasonable creature, in rerum natura” (Co. Inst., Pt. lll, ch.7, p. 50). Since the foetus was not a human person, the doctrine of “transferred malice” could not be applied and, as the accused lacked the necessary mens rea in respect of causing death or grievous bodily harm to the child should it be born alive, he could not be guilty of murder.
9.13 It is true that the Court took a different view in relation to possible liability for manslaughter by an unlawful and dangerous act. That was because of the different mental element required for that offence which did not necessarily involve intention directed towards a person. Although the child was not alive at the time of the assault, once born she might carry with her the effects of things done to her before birth. Her subsequent death completed the actus reus once the question of causation was satisfied.
9.14 It is clear that none of these cases are authority for the suggestion by the trial judge that the common law “recognised, acknowledged or created” rights in the unborn child. On the contrary, the common law held firmly to the principle that the unborn child had no legal personality. The succession law cases are expressly based on a maxim considered by the common law to be a legal fiction that should be applied only in particular circumstances. The limitations on its use demonstrate that it was not intended to reflect a broader approach to the legal existence or status of the unborn. The position in respect of crimes of violence and the tort of negligence is not, in truth, an exception to the common law either, since in all cases the crucial requirement was that the child be born alive. If that came to pass, and the child had been injured as a result of the actions of a wrongdoer while it was still in its mother’s womb, then legal consequences arising from the relevant common law rules could be visited on the person responsible but not otherwise.
(b) Statute Law
9.15 The consideration by the High Court judge of various statutory provisions relating to the unborn commences with s. 3(2) of the Succession Act, 1965 which provides:
“Descendants and relatives of a deceased person begotten before his death but born alive thereafter shall, for the purposes of this Act, be regarded as having been born in the lifetime of the deceased and as having survived him.”

This provision was seen by the trial judge as a statutory expression of the common law principle of the entitlement of the unborn to succeed to property while “en ventre sa mère”.
9.16 The trial judge further noted the statutory recognition of a power to deal with property on behalf of the unborn in particular contexts, citing, amongst other provisions, s. 75 of the Public Works (Ireland) Act 1831, which states in relevant part:
“After any lands, tenements, or hereditaments shall have been set out and ascertained for making any road or bridge hereby authorized to be made or erected, or any of the approaches thereto, it shall be lawful for all bodies politic, corporate, and collegiate, corporations aggregate or sole, tenants in tail or for life, or for any other partial or qualified estates or interests, husbands, guardians, trustees, and feoffees in trust for charitable or other purposes, committees, executors, and administrators, and all trustees and persons whomsoever, not only for and on behalf of themselves, their heirs and successors, but also for and on behalf of the person or persons entitled in reversion, remainder, or expectancy after them, if incapacitated, and for and on behalf of their cestuique trusts, whether infants, issue unborn, . . . to contract for, sell, and convey the same, and every part thereof, unto the said commissioners for the execution of this Act.”

9.17 Humphreys J. further cited s. 58 of the Civil Liability Act 1961, which is entitled “Wrongs to Unborn Child”. It provides as follows:
“For the avoidance of doubt it is hereby declared that the law relating to wrongs shall apply to an unborn child for his protection in like manner as if the child were born, provided the child is subsequently born alive.”

Some reference is also made in the High Court judgment to the provisions of the Civil Registration Act 2004 (“the 2004 Act”) regarding stillbirths. Section 2 of the 2004 Act provides:
“‘stillborn child’ means a child who, at birth, weighs not less than 500 grammes or has a gestational age of not less than 24 weeks and shows no sign of life and ‘stillbirth’ shall be construed accordingly.”

9.18 Section 28 of the 2004 Act provides for the registration of stillbirths. It provides as follows:
“(1) Subject to the provisions of this Part, when a child is stillborn –
(a) the parents or, if one of the parents is dead, the surviving parent of the child, or
(b) if both of the parents are dead, a relative of either parent,

may, not later than 12 months from the date of the stillbirth –
(i) attend before any registrar,
(ii) give to the registrar, to the best of his or her knowledge and belief, the required particulars of the stillbirth and, if it has been obtained, the certificate referred to in subsection (3),
(iii) after the registrar has entered the required particulars in relation to the stillbirth in the register, sign the register in the presence of the registrar.”

9.19 Section 29 of the 2004 Act makes provisions for the registration of stillbirths that occurred before the 31st December, 1994. Section 30 of the 2004 Act provides for a duty to notify the Ard-Chláraitheoir of birth and stillbirths.
9.20 Humphreys J. in his judgment also referred to s. 19(3) of the Registration of Title Act 1964 in the context of a statutory right for the unborn to litigate. That section provides as follows:-
“In any proceeding under this section the court shall, if so requested by the Registrar, and may in any case, if necessary, appoint a guardian or other person to represent any infant, person of unsound mind, person absent from the State, unborn person or person as to whom it is not known whether he is alive or dead; and, if satisfied that the interests of any person so represented are sufficiently protected by the representation, may make an order declaring that he shall be conclusively bound by the decision of the court and thereupon he shall, subject to the right under this Act to appeal on special leave, be bound accordingly, as if he were a party.”

9.21 The trial judge noted that, at the time of the adoption of Article 42A of the Constitution, there were what he described as numerous references to “the unborn child” in EU and national instruments. He cited inter alia the Safety, Health and Welfare at Work (General Application) Regulations 2007 (S.I. No. 299 of 2007), (“the 2007 Regulation”) which, for example, provides at Regulation 145 that:-
“An employer shall not employ a child or young person at work where a risk assessment reveals that the work –
(a) …
(b) involves harmful exposure to agents which are toxic, carcinogenic, cause heritable genetic damage, or harm to the unborn child or which in any other way chronically affects human health… ”

(c) Conclusions on relevant common and statute law
9.22 Again, it should be stressed that this examination does not in itself lead to any particular view of the issues dealt with in the case law. The point to be made here is that the authorities cited in the High Court judgment do not in fact support the trial judge’s conclusion insofar as that entailed finding a recognition by the common law of a legal personality or rights in an unborn child.
9.23 The statute law does not support this view either. The purpose of the various legislative provisions set out above is to make it clear that those provisions expressly provide for the unborn child. In the absence of such language being used, the relevant statutory provisions would have no applicability to unborn children. So, for example, the provisions of the 2007 Regulations would have no application to unborn children absent the express words referring to the unborn child to be found therein.
9.24 Having reached those conclusions it is now appropriate to discuss the important questions which arise in relation to the potential rights of the unborn in the context of an immigration case such as this. In so doing it is, of course, important to emphasise that the unborn enjoys an undoubted right to life under Article 40.3.3 of the Constitution. However there was no suggestion that there was any risk to the right to life of the unborn in this case. It follows that the precise question which this Court has to address concerns the issue of whether the unborn has any other rights guaranteed by the Constitution. It is only necessary to consider the constitutional status of any potential right to life of the unborn which might exist independent of Article 40.3.3 as a means to determining whether it followed that the unborn must enjoy other rights, beyond the right to life, which might be relevant in the context of the assessment which the Minister would be required to carry out in a case such as this.
10. The constitutional position of the unborn
(a) Introduction
10.1 The next issue to be considered is whether, as held by the trial judge, the third respondent before birth, and at the time the Minister was considering the application under section 3(11) for revocation of the deportation order in respect of Mr. M., her father, had an existing constitutional right which the Minister was required to consider when making her decision. Did the Minister have to consider not only that on birth the third respondent would have a constitutionally protected right to the care and company of her father, but that the third respondent actually had that right before birth? It may appear that little of practical consequence could follow from the resolution of this issue once it is accepted that the Minister must consider the prospective rights of the child and take account of the separation that deportation may entail, but this issue was hotly debated and has important consequences for the law more generally.
10.2 The respondents argue that, without reference to Article 40.3.3, and indeed prior to the passing into law of the Eighth Amendment inserting the first paragraph of that provision into the Constitution, the Courts had recognised that an unborn child had a right to life recognised and protected by the Constitution . It was argued that it followed logically that the unborn child must also have any other relevant right. The final step in this argument is that, on this approach, the passage of the Eighth Amendment only formalised in explicit terms the right to life of the unborn already protected by the Constitution and made express provision for the equal right to life of the mother, but that could not be understood as limiting the constitutionally protected rights of the unborn to the right to life expressed in Article 40. 3.3. It followed, therefore, it was argued that the third respondent, as an unborn child at the time of the Minister’s decision, had constitutional rights which the Minister was obliged to consider.
10.3 An important element of the respondents’ argument that the unborn child had a constitutionally protected right to the care and company of her father was the contention that, prior to 1983, the Courts made important observations to the effect that an unborn child had a constitutionally protected right to life. It followed, it was argued, that the unborn child was recognised as being a rights holder under the Constitution, and it must follow that there could be no basis for limiting the rights so held to a right to life. That was the most important, but not the only, right the unborn child had. Accordingly, much attention was paid to observations made in different cases prior to and subsequent to the enactment of the Eighth Amendment on the constitutional position of the unborn prior to the passage of the Eighth Amendment. However, the State parties on this appeal did not offer any submission on that issue maintaining only that it had not been decided prior to 1983 that the unborn had a constitutional right to life. This position is correct so far as it goes, which is not very far. It is difficult to understand how the merits of the issue which the respondents raised (and which the State parties considered raised issues of general public importance which furthermore merited both direct appeal to this Court and an expedited hearing of this appeal) can be addressed without at least considering the import of the judicial observations relied on by the respondents. The position taken is regrettable therefore not least because it deprived the Court of the precise focus that sharply honed opposing arguments can provide.
10.4 The respondents’ argument in this regard was accepted by the High Court and is succinctly set out at paragraphs 55 and 56 of the judgment of the trial judge as follows:-
“55. The Minister’s position, that the only relevant right of the unborn to be considered was the right to life, appeared to derive primarily from Article 40.3.3, which, of course, provides for the protection of the right to life of the unborn, and obliges the State to protect that right as far as practicable.
56. That sub-section was enacted in the wake of a number of judicial decisions to the effect that the rights of the unborn were, in any event, protected by Article 40.3: G v. An Bord Uchtála, per Walsh J. (Henchy and Kenny JJ. concurring), at page 69; McGee v. Attorney General & The Revenue Commissioners [1974] IR 284, per Walsh J., (Budd, Henchy & Griffin JJ. concurring), at page 312; Finn v. The Attorney General & The Minister for the Environment [1983] I.R. 154, per Barrington J. (High Court) at page 160. The Minister’s position, which I do not accept, is that Article 40.3.3 was intended to sweep away all such decisions to embody on one subsection the totality of the rights of the unborn. Even a statute would not be read in this way, and in any event the Constitution should not be read as if it were statutory law.”

10.5 The respondents also point to the judgment of Irvine J in OE & AHE v. Minister for Justice Equality and Law Reform, which was relied on by Humphreys J. in the decision which is the subject of this appeal. At para. 50 of her judgment in that case, having recorded that the State parties had pleaded that the fact that the applicant concerned was unborn as of the date of the decision meant that the applicant did not enjoy any constitutional rights other than those specified in Article 40.3.3, Irvine J. recorded the position taken by the State parties on the appeal as follows:-
“Whilst this formal plea was delivered on behalf of the respondent, this argument was not purposefully pursued in the course of the hearing. The respondent did not ask the court to consider the constitutional rights of the unborn child in this case, having regard to its impending birth, as being any different from the rights which he would have enjoyed had he been born at the time the respondent was asked to exercise his power under s. 3(11) of the Act of 1999.”

10.6 Having recorded this concession Irvine J then referred to a well known passage in the judgment of Walsh J in G v An Bord Uchtála [1980] IR 32, 69, which will be set out later in this judgment. She then continued:-
“[52] I cannot accept that the only constitutional rights enjoyed by the applicant at the time the respondent was making his decision under s.3(11) of the Immigration Act 1999, was the right to be born by virtue of Article 40.3.3 of the Constitution, which right the courts had already concluded existed prior to this amendment to the Constitution in October 1983, which rights were described by Walsh J in G v An Bord Uchtála and also by Barrington J in Finn v The Attorney General [1983] IR 154.
[53] In the aforementioned circumstances it seems only appropriate that counsel for the respondent, as she did, dealt with the present proceedings on the basis that the Constitutional rights enjoyed by the applicant at the time of the respondent’s decision, particularly having regard to his impending birth, were the same as those he would have enjoyed had he been born at that time. To have argued successfully otherwise would have placed the applicant in a position where the happenstance of a premature delivery would have afforded him rights which the respondent would have had to consider at the time he made his decision, but in the event of his having been born on his expected delivery date, he would have enjoyed no rights which require the respondent’s consideration. It seems to me that little would be achieved by enshrining the rights of the unborn to be born if such a right did not ensure that when ultimately born that infant would enjoy the constitutional rights and protection so carefully enshrined in the Constitution for the benefit of Irish citizens.
…
[55] In these circumstances, I find no difficulty in concluding that the applicant although not born at the time of the respondent’s decision under s.3(11) of the Act of 1999, should have been treated by him as enjoying precisely the same rights as he would have enjoyed had he been born prior to the making of the decision.”

It should be said that counsel for the respondents in this case did not go so far as to suggest that the pre 1983 dicta constituted decisions. With that qualification however he relied heavily on these two passages.
10.7 The State parties for their part rely on the judgment of Cooke J. in Ugbelase, which declined to follow the decision of Irvine J. and considered that the observations relied on by Irvine J in OE and which were to be relied on by Humphreys J., were obiter (para. 59) and that there had been no binding decision of the Courts that an unborn child had a right to life or indeed any other right prior to birth and prior to the passage into law of the Eighth Amendment. Cooke J. carefully analysed the decisions and concluded:-
“[74] In the court’s judgment accordingly the only right of the unborn child as the Constitution now stands which attracts the entitlement to protection and vindication is that enshrined by the amendments in Article 40 .3.3, namely, the right to life or, in other words, the right to be born and possibly, and this is a matter for future decision, allied rights such as the right to bodily integrity which are inherent in and inseparable from the right to life itself. The deportation of a non-national parent cannot in the court’s judgment be said to be in any sense an interference with that right.
[75] It follows that the respondent was under no obligation to consider for the purpose of the contested decision, the possible implications of the impact of the decision on the alleged rights …”

10.8 It is apparent that much of the difference between the parties, and indeed the judgments at the level of the High Court, flow from differing analyses of the case law to which it is necessary now to turn.
(b) The case law relied on
10.9 The first reference to this issue can be found in the landmark case of McGee. In the course of holding that Article 41 of the Constitution created a right of marital privacy which was infringed by s.17 of the Criminal Law Amendment Act 1935, making illegal the importation of contraceptives into Ireland, Walsh J made the following observations:-
“What may be permissible to the husband and wife is not necessarily permissible to the State. For example, the husband and wife may mutually agree to practise either total or partial abstinence in their sexual relations. If the State were to attempt to intervene to compel such abstinence, it would be an intolerable and unjustifiable intrusion into the privacy of the matrimonial bedroom. On the other hand, any action on the part of either the husband and wife or of the State to limit family sizes by endangering or destroying human life must necessarily not only be an offence against the common good but also against the guaranteed personal rights of the human life in question.
The sexual life of a husband and wife is of necessity and by its nature an area of particular privacy. If the husband and wife decide to limit their family or to avoid having children by use of contraceptives, it is a matter peculiarly within the joint decision of the husband and wife and one into which the State cannot intrude unless its intrusion can be justified by the exigencies of the common good.” (emphasis added)

10.10 The decision in McGee, and in particular the reliance in some of the judgments on the decision in Griswold v Connecticut (1965) 381 U.S. 479 and in any event the close and obvious comparison between the two cases, gave rise to a debate as to the extent to which the reasoning in McGee might lead to a decision that a right to privacy could extend to a decision to have an abortion. This was, of course, what had been decided by the US Supreme Court earlier the same year in Roe v Wade (1973) 410 US 113. (See by way of example , O’Reilly Marital Privacy and Family Law Studies, Spring 1977 p.8, and Binchy, Marital Privacy and Family Law: A Reply to Mr O’Reilly, Studies, Winter 1977, 330.) It is accepted that this exchange was reflective of a debate which was part of the background to the passage of the Eighth Amendment. The judgment of Hardiman J in Roche v Roche explains this aspect of the background to the passage of the Eighth Amendment :
“It is not necessary here to set out in any detail the reasons why those who promoted the amendment thought it necessary to take active steps to prevent the legalisation of abortion whether by legislation or by judicial decision. It related, in some degree, to the perception of the proponents of the Amendment to the Constitution which became Article 40.3.3 of the possibly baneful effects of such cases as McGee v. The Attorney General [1974] 1 IR 284, Griswold v. Connecticut (1965) 381 U.S. 479 and, most of all, Roe v. Wade (1973) 410 U.S. 113. These cases led certain proponents of a constitutional amendment in Ireland to embark upon a sometimes very learned analysis of them and to conclude that the emphasis, not least in the Irish case of McGee, on the authority of the family and the rights of its members to privacy, might contain the seeds of the judicial development of a right, however limited, to abortion.”

10.11 That debate was ongoing at the time of the decision in the next case on which reliance is most centrally placed in this argument. In G v An Bord Uchtála , which was decided in 1978 although reported at [1980] IR 32, Walsh J addressed this question in a slightly broader way. Again, it is relevant to set out the full text of the relevant passage from the judgment. At page 69 of the Reports he said:
“In my judgment in [McGee], I referred (at p. 310) to Articles 41, 42 and 43 of the Constitution and expressed the view, which I still hold, that these Articles “acknowledge that natural rights, or human rights, are not created by law but that the Constitution confirms their existence and gives them protection. The individual has natural and human rights over which the State has no authority. . .” Later, at p. 317 of the report, I stated:- “The natural or human rights to which I have referred earlier in this judgment are part of what is generally called the natural law.”
Not only has the child born out of lawful wedlock the natural right to have its welfare and health guarded no less well than that of a child born in lawful wedlock, but a fortiori it has the right to life itself and the right to be guarded against all threats directed to its existence whether before or after birth. The child’s natural rights spring primarily from the natural right of every individual to life, to be reared and educated, to liberty, to work, to rest and recreation, to the practice of religion, and to follow his or her conscience. The right to life necessarily implies the right to be born, the right to preserve and defend (and to have preserved and defended) that life, and the right to maintain that life at a proper human standard in matters of food, clothing and habitation. It lies not in the power of the parent who has the primary natural rights and duties in respect of the child to exercise them in such a way as intentionally or by neglect to endanger the health or life of the child or to terminate its existence. The child’s natural right to life and all that flows from that right are independent of any right of the parent as such. I wish here to repeat what I said in McGee’s Case at p. 312 of the report:- “. . . any action on the part of either the husband and wife or of the State to limit family sizes by endangering or destroying human life must necessarily not only be an offence against the common good but also against the guaranteed personal rights of the human life in question.” In these respects the child born out of lawful wedlock is in precisely the same position as the child born in lawful wedlock.” (emphasis added )

It is apparent that here Walsh J. treats an unborn child as the same as a child who has been born and as having “ natural” rights protected by the Constitution.
10.12 The next step in this regard is Norris v The Attorney General, which although reported at [1984] IR 36, was decided by this Court on the 22nd of April 1983, and before the passage of the Eighth Amendment into law. In his dissenting judgment in that case McCarthy J. addressed what he described as the “present public debate concerning the criminal law and arising from the statute of 1861 in regard to abortion – the killing of an unborn child”. Citing the extracts already referred to in both McGee v The Attorney General and G v An Bord Uchtála, McCarthy J observed:
“It is not an issue that arises in this case, but it may be claimed that the right of privacy of a pregnant woman would extend to a right in her to terminate a pregnancy, an act which would involve depriving the unborn child of the most fundamental right of all—the right to life itself. I recognize that there has been no argument in this case relevant to such an issue, but nothing in this judgment, express or in any way implied, is to be taken as supporting a view that the provisions of s. 58 of the Act of 1861 (making it a criminal offence to procure an abortion) are in any way inconsistent with the Constitution.”

Referring to the two judicial references to this question already cited, McCarthy J continued:
“For myself I am content to say that the provisions of the preamble, which I have quoted earlier in this judgment, would appear to lean heavily against any view other than that the right to life of the unborn child is a sacred trust to which all the organs of government must lend their support.”

10.13 Later that year, in July 1983, the High Court was asked at short notice to grant an injunction restraining the submission of the proposal contained in the Eighth Amendment to the Constitution Bill 1982 to the electorate for their decision in a referendum. Part of the plaintiff’s claim was for a declaration that the terms of the proposal were repugnant to the Constitution because of the protection to the right of life of the unborn which it was alleged was already contained therein. In Finn v The Attorney General and the Minister for the Environment and Ireland [1983] IR 154, Barrington J. considered the observations in McGee, G, v An Bord Uchtala and Norris set out above , and continued:
“A difficulty for this line of interpretation may arise from the fact that in many places the Constitution of Ireland, 1937, refers to the rights of the “citizen” rather than to the rights of the person. For instance Article 40, s.3, of the Constitution refers to the personal rights of the citizen, and places on the State the duty of protecting the life of “every citizen”. On the other hand, it is arguable that the term “citizen” is used in different senses in different parts of the Constitution. … On the other hand, Articles 40 to 44 (inclusive) are in a section of the Constitution which is headed “Fundamental Rights.” Article 40 is headed “Personal Rights”. It is arguable that these rights derive not from a man’s citizenship but from his nature as a human being. The State does not create these rights, it recognises them, and promises to protect them.
The French Declaration of Rights, 1789, is entitled “Declaration of the Rights of Man and the Citizen”. Sometimes the citizen is referred to in the body of the text, but Article 1 opens with the statement:- “Men are born and remain free and equal . . .” A similar switching of gear can be discovered in Articles 40 to 44 of the Constitution. Articles 41, 42 and 43 recognise that man has certain rights which are antecedent and superior to positive law. By doing so, the Constitution accepts that these rights derive not from the law but from the nature of man and of society, and guarantees to protect them accordingly. If man has any natural rights, the right to life must be among them.
The fact that the wording of Article 40, s.3, commits the State to protect and vindicate the life of “every citizen” does not justify the inference that it relieves the State of the obligation to defend and vindicate the lives of persons who are not citizens. This is because the whole scheme of moral and political values which are clearly accepted by the Constitution indicates otherwise. In McGee v The Attorney General Mr. Justice Walsh stated the matter as follows at p.310 of the report:- “Articles 40, 41, 42 and 44 of the Constitution all fall within that section of the Constitution which is titled ‘Fundamental Rights’. Articles 41, 42 and 43 emphatically reject the theory that there are no rights without laws, no rights contrary to the law and no rights anterior to the law. They indicate that justice is placed above the law and acknowledge that natural rights, or human rights, are not created by law but that the Constitution confirms their existence and gives them protection”. In The State (Nicolaou) v. An Bord Uchtála the Supreme Court expressly left open the question of whether a foreigner could invoke the Constitution to attack the validity of an Act of the Oireachtas; that question does not arise in the present case.
On the basis of the authorities opened to me by Mr. Mackey, and in the light of the above reasoning, I would have no hesitation in holding that the unborn child has a right to life and that it is protected by the Constitution.” (emphasis added)

An appeal to this Court was dismissed.
10.14 On the 7th of September 1983 the People adopted the Eighth Amendment to the Constitution , acknowledging the right to life of the unborn with due regard to the equal right to life of the mother. The case law after that date must accordingly be viewed in that light. In the Attorney General (SPUC) v Open Door Counselling Limited and Dublin Wellwoman Centre Limited [1988] IR 593, a case decided after the passage of the Eighth Amendment, Hamilton P. in the High Court said at page 597 of the report:-
“The right to life of the unborn has always been recognised by Irish law.”

10.15 Referring to the position prior to the enactment of the Eighth Amendment he quoted the judgment of Walsh J. in G v An Bord Uchtála and continued:
“These passages clearly acknowledge:-
(1) the right to life of the unborn;
(2) that that right springs primarily from the natural right of every individual to life;
(3) the right includes the right to have that right preserved and defended and to be guarded against all threats to its existence before or after birth;
(4) that it lies not in the power of a parent to terminate its existence, and
(5) any action on the part of any person endangering human life must necessarily not only be an offence against the common good but also against the guaranteed personal rights of the human life in question.”

10.16 Quoting the provisions of the Eighth Amendment which provides that “the State acknowledges the right to life of the unborn” Hamilton P continued:
“The right to life of the unborn therein referred to is not created by law or by the Constitution; the aforementioned Article merely confirms or acknowledges its existence and gives it protection.”

10.17 Quoting again the relevant passage from the judgment of Walsh J in McGee, Hamilton P. continued:
“The rights referred to in Article 40, s.3, sub-s. 3 are in the same category and are part of what is generally called the natural law.”

10.18 Turning to the passage in the judgment of McCarthy J. in Norris, Hamilton P. concluded in this respect that “consequently the judicial organ of government is obliged to lend its support to the enforcement of the right to life of the unborn, to defend and vindicate that right, and if there is a threat to that right from whatever source, to protect that right from such threat, if its support is sought”. The case was appealed to the Supreme Court and the decision upheld, without however any comment on, or repetition of, those passages.
10.19 The Eighth Amendment was approved by the people on the 7th September, 1983. Subsequently, as is well known, this Court decided Attorney General v X. Thereafter in November 1993 the Thirteenth and Fourteenth Amendments were adopted, which were known as the travel and information amendments, and to which it will be necessary to refer in more detail later in this judgment. In this regard the Supreme Court in 1995 was obliged to consider the provisions of the Information (Termination of Pregnancies) Bill 1995 introduced to give effect to the provisions of the Thirteenth and Fourteenth Amendments to the Constitution. In In re Article 26 and the Information (Termination of Pregnancies) Bill 1995 [1995] 1 IR 1, 27, the Court set out the “Position prior to the passage of the Fourteenth Amendment”, and stated:
“The determination of the issue as to whether or not the Bill or any provision thereof is repugnant to the Constitution or any provisions thereof, of necessity involves an examination of the relevant provision to the Constitution. Prior to the passage of the Eighth Amendment to the Constitution, the right to life of the unborn was not one of the personal rights acknowledged specifically by the Constitution. However the right to life of the unborn had been referred to and acknowledged by Walsh J in the course of his judgment in G v An Bord Uchtála. …”

10.20 The judgment of the Court then set out the passages from McGee, G v An Bord Uchtala and Norris, which have already been quoted above, and at page 28, stated:
“The right to life of the unborn was clearly recognised by the courts as one of the unenumerated personal rights which the State guaranteed in its laws to respect, and, as far as practicable, by its laws to defend and vindicate.”

10.21 To this list of judicial observations suggesting that the right to life of the unborn was protected by the Constitution prior to the introduction of the provisions of Art 40.3.3., may be added the dissenting judgment of Hederman J in The Attorney General v X, in which, referring to McGee, he said:
“The application of that provision (Article 40 subsection3) and the nature of the form of application adopted by the State to honour its guarantees must necessarily depend on the particular circumstances of every case in which it is sought to invoke the Article in question. It would be a mistake to think that Article 4.3.2 or the Eighth Amendment refer only to the creation or destruction of life. It appears to me that they can also be invoked to deal with other situations, and might be invoked by the mother of an unborn child or others to protect it from injury or adverse environmental conditions, the use of various toxins in the air and other health or life threatening situations. It is a protection which all lives may invoke or have invoked on their behalf. Article 40.3.2 as invoked in the McGee case could have been equally invoked at the time for the protection of an unborn life, as if, for example, Mrs McGee had been pregnant and was in some way being deprived of some procedure or other treatment or medicines, the absence of which would threaten the life of the child she was carrying. The Eighth Amendment to the Constitution was quite clearly designed to prevent any dispute or confusion as to whether or not unborn life could have availed of Article 40 as it stood before the Eighth Amendment. The Eighth Amendment made it clear, if clarity were needed, that the unborn life was also life within the guarantee of protection. It went further, and expressly spelled out a guarantee of protection of the life of the mother of the unborn life, by guaranteeing her life equality – equality of protection – to dispel any confusion that there might have been thought to exist to the effect that the life of the infant in the womb must be saved even if it meant certain death for the mother.” (emphasis added)

10.22 These then appear to be the judicial observations , made both prior and subsequent to the passage of the Eighth Amendment, which are relied on by the respondents to establish that an unborn child had actual rights protected by the Constitution not limited to the right to life guaranteed by Article 40.3.3 (and not merely the expectation of such rights on birth). It is somewhat frustrating that the Court must engage in the exercise of considering what may have been the position previously in relation to the existence of one unspecified right in order to throw light on the possible present existence of another , but that is a consequence of the arguments made in this complex area .
10.23 These observations, to use a neutral term for the moment, constitute the first building block in the argument the respondents seek to construct to lead to the conclusion asserted in this case, that the unborn child had an existing constitutional right to the care and company of its father which a Minister considering deportation was obliged to take into account . It is accordingly important to look closely at what was, and was not, said and decided in these cases.
10.24 This case is undoubtedly important in its immediate legal context, and indeed more broadly. But it also raises important issues related to the function of the court when considering novel issues of law particularly in the field of constitutional interpretation. The first of those issues relates to what a court decides and how it decides it. If it is correct to say that a decision of the court can make law – and it can be said it does so not least because a decision of a Superior Court binds everyone in a similar position unless and until altered by legislation, the decision of the People in referendum, or subsequent judicial decision – then it is equally important to recognise that courts make law in a way which is significantly different from the manner in which legislation is made by the Oireachtas. Courts may only decide cases brought before them by parties. The parties must themselves have a legitimate interest, grounded in the facts, in the resolution of their dispute. A court cannot itself initiate a legal issue, still less issue of its own accord a generally binding statement of law. Furthermore, a court may only decide (in the sense of giving a binding determination) those legal issues which are necessary and essential to resolve the legal dispute between the parties. While courts may and do say other things in the course of a judgment which may be of benefit both in the development of the law and in the assistance of the resolution of future disputes, it is only that portion of the judgment that contains what is considered to be essential and necessary for the actual decision in the case which can be said to be binding on subsequent courts. Furthermore, it is for later courts to determine what portion of the judgment meets that test. Finally, but not least importantly, when a court comes to decide even those legal issues which are necessary and essential for determination in order to decide the case, it must do so according to law, rather than any view however wise, well informed, and astute, as to what is desirable.
10.25 The fact that it is only the central reasoning leading to the particular decision (in Latin the ratio decidendi) which forms a binding part of the court’s decision having effect beyond the individual case is of course, a familiar part of the principle of stare decisis which itself is an essential part of the common law system of law. The fact that a ratio is binding provides the element of certainty and predictability : the limitation of the binding nature of a decision to the ratio provides some necessary flexibility . But in addition to that, the limited nature of the ratio decidendi can be seen itself as an important component of the judicial function more generally, derived from the separation of powers. Law may in some sense be made by judicial decision, but even in the most important case raising issues of obvious national consequence, which may inevitably be the subject of active public and political debate, law made by courts is always made indirectly, and only because it is a necessary and indeed essential consequence of the performance of the judicial function of resolving the particular dispute. The intense focus of adversarial argument on such core issues provides in addition the best assurance that the decision made can properly bind citizens and others whose legal situation may be identical, but who have not been party to the proceedings, and had no right or entitlement to participate or make representations in relation to it. This analysis of the importance of the ratio decidendi is not to depreciate the value of considered ancillary observations made in the course of a judgment, (and again in Latin obiter dicta). In many cases these statements have been accepted subsequently as anticipating developments in the law and expressing principles of value. However, it is essential to appreciate the distinction between the two.
10.26 Taking this approach, it will be apparent that the observations relied on are significantly overstated by the judgment appealed against at paragraph 56 (and set out above) when it is suggested that in particular prior to the coming into force of the Eighth Amendment, in both McGee and G v An Bord Uchtala, this Court had made “decisions” and indeed in suggesting that those decisions had been concurred in by the other judges hearing and deciding the same case. Indeed, it will become apparent that the relevant observations are in the clearest way obiter dicta which moreover did not attract the agreement of the other members of the courts hearing the cases. This of course does not mean that they can be disregarded. The Court’s task however becomes then a consideration as to whether the observations, detached as they are from the core focus of the case in which they are made, are nevertheless correct and can properly be applied when an issue is properly raised which it is necessary to decide in order to resolve the dispute between the parties. It is necessary therefore to look particularly closely at the cases in which these observations were made.
10.27 McGee was a case concerned with the question of whether there existed a right of (marital) privacy, which was infringed by s.17 of the Criminal Law Amendment Act 1935. The issue of a right to life was not debated or argued. Given the recent US precedent it was perhaps not surprising that Walsh J took the opportunity to make it clear that he considered that any right of marital privacy could not extend to protect a decision to have an abortion. In that sense the observations were negative, establishing the limits to the right of marital privacy , rather than a positive assertion of a fully developed concept: what was stated was that neither parents nor the State had a right to terminate a life.
10.28 Furthermore, these observations made by Walsh J cannot be said to have been agreed to by any of the other members of the majority in that case. He decided the case by reference to the Article 41 rights of the family, without any reliance on Griswold, as was said expressly at page 319 of the report. This appears a quite deliberate attempt to distance the judgment from that authority and moreover locate any right to marital privacy in Article 41 , which might limit the expansion of any right to privacy beyond a married couple. The members of the majority, Henchy, Griffin and Budd JJ, identified a guaranteed personal right to privacy under Article 40. 3, and did rely on the reasoning in Griswold. In terms of constitutional analysis these are very significant differences of approach. For this and other reasons, the broad statements made as to the existence of natural rights protected by natural law contained in the judgment of Walsh J, and which were relied on in later observations, cannot be said to have been concurred in or agreed to by any of the other judges in the majority. Indeed the very distinct route adopted by the majority can be seen as a marked difference from the approach taken by Walsh J.
10.29 G v An Bord Uchtála concerned an application to dispense with the consent of a natural mother to the adoption of her child. Since adoption had been regulated by statute in Ireland, two consents of the natural mother were necessary before an adoption could be made , an initial consent to placement for adoption and a later consent to adoption. Under the original Adoption Act of 1952, the consent of a natural mother to an adoption could be dispensed with by the Adoption Board in limited circumstances: if the person was incapable of giving consent by reason of mental infirmity or could not be found. Under the relatively recently enacted provisions of s.3 of the Adoption Act 1974, however, the High Court was empowered to dispense with the consent of a natural mother if satisfied it was in the best interests of the child to do so. In this case, a natural mother had consented to placement for adoption in January 1978, and the child was placed with prospective adoptive parents on the 22nd of January of that year. However, the mother wrote to the Adoption Society on the 11th of February to seek the return of her child and to withdraw her consent to placement. When she commenced proceedings for the return of the child, the prospective adoptive parents sought an order pursuant to s.3 of the 1974 Act. It is important that the adoption order had not been made, and could not have been made, without either the consent of the mother or with her consent being dispensed with pursuant to section 3. The prospective adoptive parents had no legal status in relation to the child at that point . They argued however that the best interests of the child lay in dispensing with the mother’s consent.
10.30 It seems relatively clear on the facts, at least viewed from today’s vantage point, that the proper order was to return the child to the natural mother and her family, all of whom impressed the High Court judge. There was no suggestion that the child would not be well cared for and reared appropriately. It is arguable that the issue was not whether the child was better placed with the prospective adoptive parents, but rather whether or not the child’s best interests were served by the consent of its natural mother being dispensed with so that the child could be adopted by anyone. So framed, the focus of the provision like its predecessor was on the conduct of the natural mother. So viewed the balance is reasonably clear. However, the courts approached the matter on the basis that it was argued that a decision had to be made between the natural mother and the prospective adoptive family. In seeking to address that balance, and the possibility that the interests of the child might be found to lie with the prospective adoptive parents who were a married couple with one child and could offer more by way of material support, the natural mother sought to assert constitutional rights as tipping the balance in her favour . This led the court to a consideration of the rights of mothers and children, and whether any such rights were constitutional in origin , “natural rights” protected by the constitution, or statutory rights .
10.31 The outcome of the case was anything but clear cut. This Court by a majority (Walsh, Henchy, and Kenny JJ) held that the High Court judge had correctly refused to dispense with the consent of the natural mother and that the child should therefore be returned. The dissenting judges (O’Higgins CJ and Parke J) would have remitted the matter to the High Court judge to expressly decide where the best interest of the child lay. On the broader constitutional issues which were raised, there was a different division of views. Of the majority, two judges (Henchy and Kenny JJ) held that a natural mother had a statutory right to custody, but that a child had a constitutional right to have its welfare safeguarded. Three other members of the court, (Walsh J, and the minority members O’Higgins CJ and Parke J) expressed the view that a natural mother had a natural right to custody protected by the Constitution.
10.32 This recital of the facts makes it clear that there was no question of a right to life of an unborn child being in any way an issue in G v An Bord Uchtála. Indeed the judgment of Walsh J explored a number of issues which seemed extraneous to the central and complex issue in the case. These involved the question whether the Adoption Board was exercising a judicial function, whether the original consent to the placement for adoption was invalid, and whether children, including in this respect children not yet born, had natural rights protected by the Constitution . Therefore, it is significant that the other members of the court were at pains to distance themselves from some or all of the observations made. See for example O’Higgins CJ at page 60, Kenny J pages 98 and 99, Parke J page101, and most clearly Henchy J at page 83 where the following is said:
“The case has been argued within the framework of the terms of reference imposed by that issue, [whether the consent of the natural mother should be dispensed with pursuant to s.3 of the Adoption Act 1974] so I shall confine this judgment accordingly. In so far as opinions or observations on wider and unargued topics emanate from this case, I do not wish my silence on those obiter dicta to be taken as concurrence.”

10.33 This emphasises an important point. The judgment in the High Court in this case suggests that the relevant dicta on which such reliance is placed must be taken as representing the concluded view of the courts. However, that may be to fail to take account of, and arguably misconstrue , the silence of the other members of the courts involved. In the present context the fact that other members of the court hearing the case did not agree to the observations is arguably as, if not more, eloquent than the observations themselves .
10.34 The analysis of the judgment of Walsh J in the passage relied on from G v An Bord Uchtala treats the critical issue of the constitutional position of the unborn child as part of its treatment of the rights of a born child. As a result reference is made to rights (“to be educated, to liberty, to work, to recreation, the practice of religion, to follow his or her conscience … the right to maintain that life at a proper human standard in matters of food, clothing and habitation”) which are plainly inapplicable to an unborn child. While a member of the majority for the disposition of the case, the judgment of Walsh J, even though the observations of a distinguished judge, cannot therefore be treated as expressing the views of the court. In particular, the observations on the right to life of the unborn are not merely obiter but perhaps far removed from a finding on a central issue argued by both parties and which it is necessary to decide to resolve a case.
10.35 It might be said that Finn goes somewhat further in that Barrington J there made what was described as a “finding” that the unborn child had a right to life protected by the Constitution. But, once again, that case deserves closer scrutiny. First it is apparent that the issue was not argued between the parties. At page 160 of the judgment it is recorded that counsel for the State:
“Did not dispute Mr Mackey’s submission that the Constitution protected the right to life of the unborn child; neither does he submit that the Constitution does protect the life of the unborn child. He joins issue with Mr Mackey at a later stage of Mr Mackey’s argument.”

10.36 The point on which counsel for the State in Finn took issue was in many ways an even more fundamental one. It was that, absent a breach of the constitutional procedure for the calling of a referendum, it was no function of the courts to engage with the merits of a proposal to amend the Constitution, something which was instead consigned exclusively to the People. This follows in a most fundamental way from the separation of powers, and the derivation of power under the Constitution. The High Court accepted that argument, and six days later this Court in a short 12 line judgment emphatically agreed but observing also “as these proceedings cannot be maintained the court should not find it necessary to consider the matters dealt with in the judgment of Mr Justice Barrington”. Again there is a marked distancing from the observations now relied on. Finally the observations made by McCarthy J. in Norris are very general in their terms and furthermore expressly acknowledge both that the issue was not argued and that it did not properly arise in that case.
10.37 The observations made in these four cases prior to the Eighth Amendment are the cornerstone of the respondents’ argument that, prior to 1983, the Constitution protected the right to life of the unborn and therefore protected other rights so that consequently such other rights are still protected by the Constitution notwithstanding the passage of the Eighth Amendment. The subsequent statements of Hamilton P in Attorney General (SPUC) v Open Door Counselling Limited and anor and, as Chief Justice speaking on behalf of this Court, in the Article 26 Reference on the Regulation of Information( Termination of Pregnancies) Bill 1995, repeated these dicta but do not add to them other than by repetition. Insofar as these latter cases may have suggested that decisions had been made in the pre 1983 cases, that would not appear to be justified having regard to the analysis set out above.
10.38 Pausing there, it is plain that the observations in the pre Eighth Amendment cases relied on cannot be properly described as “decisions” of the courts, nor can the individual observations be said to have been “concurred” in by the other members of the courts which heard and decided the cases. Nor can it be said that by 1983 the courts had “already concluded” that a right to life of the unborn existed and was guaranteed by the Constitution. On the contrary, when analysed, these observations, although made by judges whose views are entitled to the greatest respect, were observations made in the course of cases in which the matters discussed were a considerable remove from the issue to be determined by the court.
10.39 The question remains however as to whether those observations are correct and must lead to a conclusion that, now, an unborn has rights under the Constitution other than the right to life guaranteed by Article 40.3.3. That depends on an analysis of the reasoning in the judgments rather than the fact that the observations were made. One difficulty is that regard is that the dicta do not identify clearly a source for the right or rights. Two different routes may be detected in the dicta. First is the analysis suggested tentatively by Barrington J in Finn which would suggest that the issue is one of interpretation of the Constitutional text , and that an unborn child is to be treated as a person entitled to assert the right to life which is expressly guaranteed by Article 40.3.2. The second route appears to be implicit in the approach of Walsh J. in Mc Gee which suggests the existence of a “natural right”, not expressed in the Constitution , but which the Constitution is bound to respect and vindicate .
10.40 The route suggested by Barrington J, if correct, might lead to a conclusion that the unborn must be entitled to exercise the other rights protected by Article 40.3.2 and thus would strongly support the respondents’ argument here. However, the first difficulty with that approach is the textual problem identified by Barrington J in Finn, being that Article 40.3.2 refers to the personal rights of “citizens” which is an expression which is not apt to cover persons not yet born. There have been, as Barrington J anticipated, a number of cases in which courts have been prepared to hold that Article 40.1 may mean that non citizens may be entitled to the same or equal protection under the Constitution as citizens enjoy where it can be said that as human persons they are in the same situation. (See for example most recently NHV v The Minister for Justice [2017] IESC 82). However, that does not advance the issue much here since there are clear differences between born persons and those not yet born, most obviously in relation to their capacity to exercise rights. But approached from a purely textual perspective, there is a further difficulty.
10.41 Whether the subject of Article 40.3.2, in modern language, the rights holder, is viewed as a “citizen” or more expansively as a “person” , the rights guaranteed by that Article, namely the personal rights of the citizen, taken collectively seem to envisage a person who is born. Thus for example Article 2 of the Constitution now provides that it is the “birthright of every citizen born on the Island of Ireland to be a member of the Irish Nation”. Birth is therefore seen not as irrelevant but central to status and, thereafter, rights. The personal rights referred to in Article 40.3 are not merely those which happen to be enumerated in Article 40.3.2 such as life, person, good name and property, but they are also all the personal rights protected by Article 40 itself: equality before the law, liberty, inviolability of the dwelling home , freedom of speech, freedom of assembly, and freedom of association, as well as those rights found to be implicit in the constitutional guarantee although not expressly enumerated such as bodily integrity, the right to marry, to procreate, to travel within the State and outside the State, to seek work, to communicate, the right to litigate claims, the right to privacy, and more broadly perhaps a right to autonomy. Other rights have been suggested.
10.42 In no case have the rights either explicitly or implicitly been qualified by reference to the necessarily different position of the unborn. But taken collectively these are not rights capable of being conceived of as being readily exercisable by the unborn who not only lacks the autonomy implicit in such rights but is wholly dependent on its mother. If it was the intention of the Constitution however that only such rights were to be conferred on the unborn child before birth as were capable of being exercised by it or on its behalf, and moreover only to the extent capable of being exercised by it or on its behalf, it might at a minimum have been expected that this would have been identified and said explicitly. The textual analysis which would suggest that an unborn child is for the purposes of Article 40.3.2 a person and thereby a citizen, therefore tends to prove too much .
10.43 The other route, which it is suggested leads to the identification of a pre-existing right to life itself implying that the unborn possesses further rights such as that suggested here, is not dependent on the text. It is suggested, although not elaborated on, in the passage of Walsh J in G v An Bord Uchtála quoting an earlier passage in his judgment in McGee. That approach is that a right to life can be deduced not from the constitutional text, but rather is a “natural right” protected by the Constitution. This language of course echoes the language of Articles 41, 42, and 43, where the State “recognises” the Family as the natural and primary fundamental unit group in society and as a moral institution possessing inalienable and imprescriptible rights antecedent and superior to all positive law, acknowledges “that the Family is the primary and natural educator of the child”, and “acknowledges” that man has a natural right antecedent to positive law to private ownership of external goods. Similar language was used in the original Article 42.5 and is now employed in the new Article 42A in which the State recognises and affirms the natural and imprescriptible rights of all children. This approach might also point to the express terms of Article 40.3.3 in which the State “acknowledges” the right to life of the unborn and guarantees by its laws to defend and vindicate that right.
10.44 This approach explicitly invokes natural law. As Walsh J said in McGee and repeated in G v An Bord Uchtala, Articles 41, 42, and 43 of the Constitution “acknowledge that natural rights, or human rights, are not created by law but that the Constitutional confirms their existence and gives them protection. The individual has natural and human rights over which the State has not authority …”. Later at page 317 of the report he stated:
“The natural or human rights to which I have referred earlier in this judgment are part of what is generally called the natural law.”

10.45 This approach avoids the difficulties of textual interpretation by asserting a right outside the text but which the Constitution exists to protect, but does so at the cost of raising other significant difficulties which are not resolved in the relatively sparse dicta relied on.
10.46 There is moreover little agreement on the precepts of natural law that might be understood to touch on the particular issue that arises in this case; the question of an asserted right to care and company of a father. As the outcome of McGee itself illustrates it is possible to invoke natural law to support diametrically opposed conclusions. It is not necessary to discuss these issues at length, however, in the light of the decision of this Court in Re Article 26 of the Constitution and the Regulation of Information (Services outside the State for Termination of Pregnancies) Bill 1995. In that case counsel assigned by the Court to argue on behalf of the unborn contended in very clear terms, relying on this passage in McGee, that the Bill was invalid because it was asserted to be contrary to natural law which was itself stated to be the bedrock of the Constitution and the ultimate governor of all the laws of men. It was argued that “for so long as the present Constitution remains in force, nothing in it, or in any laws passed by the Oireachtas, or any interpretation thereof by the judiciary can run counter to the natural law”. These contentions were expressly rejected by the Court at p.38 of the report where the following is stated:
“The Court does not accept this argument. By virtue of the provisions of Article 5 of the Constitution, Ireland is a sovereign, independent, democratic state.”
At page 45 the Court continued:
“The courts, as they were and are bound to, recognised the Constitution as the fundamental law of the State to which the organs of the State were subject and at no stage recognised the provisions of the natural law as superior to the Constitution”
10.47 It is not necessary to discuss these interesting philosophical issues further in this case. It was not argued that the decision in the Article 26 reference was wrong, or that these statements are in any way questionable. It is therefore of some importance that the philosophical approach which underpins the dicta in McGee and G v An Bord Uchtala (which in fairness was not fully explored in those cases, presumably because the issue was not central to the resolution of the cases), is one which in any event has been clearly disavowed by this Court.
10.48 It is certainly the case that the dicta recited here can be deployed in support of the respondents’ arguments that, prior to 1983 and the passage of the Eighth Amendment, the Constitution already protected a right to life of the unborn and, therefore, was suggestive of the existence of other rights which were also protected. But quite apart from the difficulties with that approach it must necessarily be acknowledged that there existed powerful contrary contentions leading to different conclusions. One is that the Constitution is an instrument adopted by the People from whom all powers in the Constitution derive (Article 6) . In the words of the preamble “We, the people of Éire, … do hereby adopt, enact, and give to ourselves the Constitution”. That document, and all subsequent additions to it, are matters which the People choose as the fundamental law. The Constitution can, and should, be interpreted to mean what it says, and perhaps as importantly does not say. It is not inconceivable therefore, to put it at its lowest, that in 1937 the Constitution did not address the position of the unborn child. After all the 1967 Abortion Act in England and Wales and the decision in Roe v. Wade lay far in the future. As Hardiman J. put in Roche:
“The felt need for what became Article 40.3.3 was suggested to its proponents by legal and medical developments in the 1970s. It is a grave anachronism to seek for reference to such things 40 years earlier”.

10.49 On this approach the enactment of the Eighth Amendment was not an exercise in suplusage but was necessary in the views of those who approved it to address this changed position and make an express provision for the protection of the life of the unborn on terms debated by the People and ultimately adopted by a majority of them. On this approach Article 40.3.3 was a complete account of the right the People considered should be attributed to the unborn, and furthermore established the balance which the People desired in relation to the equal right to life of the mother.
10.50 Another is that the Constitution did, as the dicta suggested, protect a right to life of the unborn alone. There is moreover a logic to interpreting the constitutionally protected rights of the unborn as limited to such a right. One view of the importance of the right to life is arguably that it is fundamental to permitting the unborn child to reach the point of birth, which in the apt words of counsel for the respondent is a “gateway” to the commencement of the enjoyment of all rights guaranteed to persons who are born and who begin to live autonomous lives capable of involving the exercise of other rights protected and guaranteed by the Constitution.
10.51 Perhaps the most plausible interpretation of the constitutional portion prior to the passage of the Eighth Amendment was that there was uncertainty. At least four positions were capable of being canvassed: that the unborn had a right to life and a range of other rights guaranteed by the pre 1983 Constitution; that the unborn had a right to life guaranteed by the Constitution forming a gateway to rights which were acquired on birth; that the Constitution did not contain or protect any right of the unborn; and fourth that the Constitution protected a right to privacy which permitted termination of a pregnancy. In the face of this range of possible views as to the legal position the purpose of the Eighth Amendment was to remove uncertainty. Thus, in Attorney General v. X, Hederman J. said:
“The Eighth Amendment to the Constitution was quite clearly designed to prevent any dispute or confusion as to whether or not unborn life could have availed of Article 40 as it stood before the Eighth Amendment. The Eighth Amendment made it clear, if clarity were needed, that the unborn life was also life within the guarantee of protection”.
10.52 In the same case O’Flaherty J., at p. 86, recited the passage from G v. An Bord Uchtala and said:
“The fact that this right to life is now by reason of the Eighth Amendment in express words enshrined in the document”.
10.53 If this is correct, the uncertainty could only have been resolved if the Constitution as amended expressed the entire position in relation to the unborn. If for example it remained arguable that there were other sources of rights for the unborn beyond Article 40.3.3 then significant uncertainty would remain. If it could be contended for example that Articles 40.3.1 and 40.3.2 also protected the right to life of the unborn, then it might be argued that the right thus protected was different to and either more or less qualified than the right guaranteed in Article 40.3.3. If, therefore, an objective of the Eighth Amendment was to remove uncertainty, that could only be achieved if the Amendment is regarded as encapsulating and expressing definitively the constitutional position of the unborn. It is also noteworthy that the subsequent litigation such as AG (SPUC) v. Open Door Counselling, Attorney General v. X. and the Article 26 Reference on the Information (Termination of Pregnancies Abroad) Bill, all focussed exclusively on the terms of Article 40.3.3.
10.54 It is however not necessary, and arguably not possible, to resolve the question of the interpretation of the Constitution prior to the enactment of the Eighth Amendment. In this respect there is some merit in the State’s submission that the issue was not decided. The function of the Courts is to interpret the Constitution as it now stands. The People enacted and gave to themselves the Constitution when first adopted, and continue to do so on each occasion on which they approve an amendment to the Constitution. Some amendments are technical but others are more substantial and have consequential effects on the interpretation given to the Constitution more generally. A simple example is that the concept and understanding of the Family in Article 41 is necessarily affected by the passage of the Fifteenth Amendment to the Constitution removing the absolute ban on divorce and permitting the dissolution of marriage in certain circumstances. Similarly, the concept of Family must also be affected by the passage of the Thirty Fourth Amendment, known as the Marriage Equality Referendum. Furthermore, the passage of an amendment to the Constitution can also fix the interpretation of the Constitution: an interpretation of the Constitution which was possible prior to adoption of an amendment may no longer be possible because the terms of an amendment show a clear understanding of the interpretation to be given to the Constitution, even if at some abstract level that interpretation was contestable or even wrong. For this reason it is necessary to consider the Constitution as it now is in particular with the Eighth, Thirteenth and Fourteenth Amendments.
10.55 Here most attention has been addressed to the first paragraph of Article 40.3.3 which as is well known was introduced by the passage of the Eighth Amendment. However, that subparagraph was added to by the provisions of the Thirteenth and Fourteenth Amendments known popularly, and accurately, as the Travel and Information Amendments. Those paragraphs provide:
“This subsection shall not limit freedom to travel between the State and another state.
This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state.”

10.56 The object of these amendments is well known, but was also discussed in the decision in In re Article 26 and the Information (Termination of Pregnancies) Bill 1995, which considered the constitutionality of the legislation introduced in pursuance of the provisions of the third sub article of Article 40.3.3, that is the laying down of conditions by law for the provision of information . Both sub articles were adopted to deal with decisions, and dicta of this Court, in Attorney General (SPUC) v Open Door Counselling Limited and Dublin Wellwoman Centre Limited, in which it had been held that the provision of information in this jurisdiction in relation to the availability of abortions abroad was prohibited by the terms of the Eighth Amendment, and also observations made in AG v X [1992] 1 IR where a number of members of the Court had expressed the view that the unenumerated right to travel did not permit travel for the purposes of obtaining a termination of pregnancy, and any such travel could accordingly be restrained by injunction. It is not necessary here to consider whether either the adoption of the Thirteenth or Fourteenth Amendments is to be interpreted as a conclusion that the majority of the People did not approve of the interpretation which had been given to the Eighth Amendment in these cases or rather simply did not wish such interpretations to be capable of being adopted in the future. It is certainly clear however that the object of both amendments was to prevent restrictions on travel or the provision of information or travel, and in particular to preclude any interpretation of the Constitution which could lead to the grant of any order restraining the provision of such information or undertaking of such travel.
10.57 Given this clear objective, the terms of the two amendments are particularly revealing in the present context. It is stated in each case merely that “this subsection shall not limit” travel or the provision of information as the case may be. It is clear therefore that the constitutional text considered that the only relevant possible restraint on the provision of information in relation to termination of pregnancy or travel for such purpose was to be found in the terms of Article 40.3.3 and in particular the subsection introduced by the Eighth Amendment. This interpretation of the Constitution adopted by the People is inconsistent with the possibility of the existence of any constitutionally protected pre-existing right whether to life generally, or to any other possible natural rights of the unborn. If such rights were considered to exist prior to 1983 (and 1992) then in theory they could have been invoked and asserted to prevent the provision of information in relation to, or travel for the purposes of, termination. The conclusion must be that the only relevant right of the unborn in contemplation at the time of the Thirteenth and Fourteenth Amendments was that contained in Article 40.3.3 and accordingly it was only necessary to qualify that right to ensure freedom to travel or receive information. Even if, therefore, at some abstract level it was possible to argue that the Constitution may have been interpreted more broadly, the terms of the Thirteenth and Fourteenth Amendments make it clear that the Constitution must now be understood as guaranteeing the rights of the unborn in terms of Article 40.3.3 and not otherwise.
10.58 Similarly, the very fact that on birth rights are acquired and that, as this Court has held, the prospective acquisition of such rights must be in the contemplation of decision makers dealing with a pregnant woman and her partner, is also consistent with this interpretation. On this view, it is precisely because the right to life is a gateway to those other rights that it is necessary to protect that right and with it the opportunity of enjoying those other constitutional rights in the future. On this approach, birth is indeed a defining event, arguably the defining event, since it commences the process of acquisition and enjoyment of such rights. It would not be possible to seek to restrain travel for the purposes of termination of a pregnancy on the grounds that that would necessarily terminate the rights that the foetus would acquire: instead the Constitution must be understood as providing that other than the right to life of the unborn, such rights are contingent on birth.
10.59 Counsel for the respondents sought to counter this argument by suggesting that, on a harmonious interpretation of the Constitution, the greater includes the lesser. If, as he put it, after the passage of the Thirteenth and Fourteenth Amendments, the right to life of the unborn established by the Eighth Amendment could not be employed to restrain travel or the provision and receipt of information then a harmonious approach to the interpretation of the Constitution could not permit other and lesser rights to have that effect. It is however implausible that, in the specific context in which the Thirteenth and Fourteenth Amendments were adopted, which were plainly focused on difficulties caused by the interpretation given to the constitutional text, the amendments would not have addressed such other rights if it was considered that the unborn had or might have them.
10.60 This interpretation is also supported by the decision of this Court in Roche. In that case, as is well known, the plaintiff commenced proceedings seeking orders in respect of frozen embryos, permitting their use without the consent of the respondent, her husband from whom she was legally separated. In support of that contention she argued that such orders were necessary to vindicate the right to life of the relevant embryos pursuant to Article 40.3.3 of the Constitution. The claim failed in the High Court and in this Court. A majority of this Court concluded that, from a textual analysis of both the Irish and English texts, and also from a consideration of the circumstances in which the Eighth Amendment was adopted, the Court was entitled to conclude that the purpose of Article 40.3.3 was to protect the legal position created in Ireland by s.58 of the Offences Against the Person Act 1861 and therefore the unborn in the Article referred to a child in the womb and protection of an embryo only arose after implantation. Such an approach is only consistent with an understanding that the rights of the unborn are to be found in the provisions of Article 40.3.3.
10.61 In his judgment in that case Hardiman J addressed the very issue which arose and was debated in this case. At page 381 of the report, under the heading “Article 40.3.1”, he said the following:
“I do not consider that the plaintiff can rely , in the alternative , on Article 40.3.1. I remain to be convinced that this provision , with its express reference to the rights of “ citizens” and to such specific rights as “good name” and “property rights” ,extends or was ever intended to extend to a fertilised but unimplanted ovum.
Be that as it may, if the earlier provision ( i.e. Article 40.3.1) did extend to a fertilised ovum ,and to a foetus , that fact would appear to make Article 40.3.3 redundant . Without necessarily relying on canons of construction such as inclusio unius exclusio alterius, I would point out that , apart from the redundancy of the Article 40.3.3 that would follow from the plaintiffs contention, Article 40.3.1 contains no express reference at all to the right to life of the mother. This seems a remarkable omission( for the reasons given by Hederman J and quoted above) as if the earlier sub-Article applied to a fertilised ovum so as to confer a right to implantation in the mother’s uterus, there would be no explicit protection of the position of the mother. But the mother, who is a life in being, and a citizen, is undoubtedly herself within the protection of Article 40.3.1. The failure explicitly to acknowledge her position in that sub-Article strongly suggests to me that, for the reasons set out below, the position of the fertilised embryo is not within the meaning or the intent of Article 40.3.1”

10.62 Accordingly, this Court concludes that the decision of Cooke J in Ugbelase is correct, in so much as it holds that the only right of the unborn child as the Constitution now stands which attracts the entitlement to protection and vindication is that enshrined by the amendments in Article 40.3.3 namely the right to life, or in other words, the right to be born, and the deportation of a non-national father cannot be said in any sense to be in interference with that right. Accordingly the Minister was not wrong to refuse to consider the possibility of other existing rights of the unborn affected by the deportation decision. However, for the reasons already set out, the Court is satisfied that the Minister was obliged to take account of the rights of any unborn child which would accrue on birth.
10.63 The conclusion set out above does not mean that, as counsel for the respondents sought to suggest, the unborn child is either constitutionally or legally “invisible”. The terms of Article 40.3.3, the fact that this Court has held that the Minister must take account of rights which will be acquired on birth, and the provisions of common law and statute already referred to in the judgments of this Court and the court below, all recognise and protect the interests of an unborn child. Furthermore, the State is entitled to take account of the respect which is due to human life as a factor which may be taken into account as an aspect of the common good in legislating. Looked at from a practical rather than theoretical perspective, it must also be recognised that, until very recently, it had not been suggested that the unborn had any rights other than the right to life, and what has been asserted here is essentially a negative right not to be separated from a father (albeit a right mediated through the mother) which has been asserted in an attempt to prevent deportation or surrender of a father. Given the finding of this Court that even in that situation the decision maker has to take into account the future rights an unborn child will acquire on birth, it is difficult to see that any practical advantage to the respondents here, or persons similarly situated, would accrue if it had been held on this aspect of the appeal that the Constitution did protect other unspecified rights of the unborn outside Article 40.3.3.
10.64 It is next necessary to consider whether the constitutional position of the unborn can be said to have been altered by the insertion by Article 42A into the Constitution by the Thirty-First Amendment.

11. Article 42A
(a) Introduction
11.1 The Court in an earlier part of this judgment has set out the findings of the trial judge in respect of Article 42A. As will be recalled, the trial judge concluded that the reference to “all children” found in Article 42A.1° should be given a wide interpretation and “should include the child before birth”. Nevertheless, the trial judge acknowledged that Article 42A was not intended to have a significant, or perhaps any, effect on deportation proceedings. He also acknowledged that the rights of the unborn could not be, and should not be, equated with those of the born child in every respect given that many such rights are not capable of being exercised by the unborn. It may be observed at this point that no attempt was made by the trial judge to identify the rights said to repose in the unborn. In this Court, counsel for the Respondents did suggest, in the context of Article 40.3, that the unborn had a right to the care and company of his/her parents.
11.2 The trial judge was persuaded in coming to his interpretation of the words “all children” by virtue of his finding that the phrase “unborn child” was part of the statute law prior to the enactment of Article 42A. As such he considered that the unborn enjoys significant rights recognised, acknowledged or created by common law or statute. Reference has already been made previously in this judgment to the common law and to the statutory provisions relied on by the trial judge in relation to specific provisions of the law concerning unborn children. It is unnecessary to set out the detailed provisions of statute law again but it is important to bear in mind that the statute law relied on was, for the trial judge, an important factor in coming to the conclusion that the phrase “all children” included the child before birth.
11.3 The question therefore arises as to whether the words “all children” in Article 42A are capable of such broad interpretation by reference to existing statute law on the date of the adoption of Article 42A or otherwise.
(b) Principles of constitutional interpretation
11.4 In addition to the principles of constitutional interpretation already discussed concerning the identification of constitutional rights, it is in this context also useful to have regard to the judgment of this Court in Curtin v. Dáil Éireann [2006] 2 IR 556 where the following was stated by Murray C.J at para. 73:
“This court has, in a number of its decisions, referred to criteria governing the correct approach to the interpretation of the Constitution. As is to be expected, different interpretative elements are emphasised in individual judgments according to the particular context in which questions arise and the particular types of interpretative problem. . . . A correct balance has to be struck between the effect to be given to the literal meaning of particular words and the need to have regard to the terms of the Constitution as a whole.”

11.5 In Curtin Murray C.J. quoted from the judgment of O’Higgins C.J. in The People v. O’Shea [1982] I.R. 384 at page 397 where it was stated:
“The Constitution, as the fundamental law of the State, must be accepted, interpreted and construed according to the words which are used; and these words, where the meaning is plain and unambiguous, must be given their literal meaning. Of course, the Constitution must be looked at as a whole and not merely in parts and, where doubt or ambiguity exists, regard may be had to other provisions of the Constitution and to the situation which obtained and the laws which were in force when it was enacted. Plain words must, however, be given their plain meaning unless qualified or restricted by the Constitution itself. The Constitution brought into existence a new State, subject to its own particular and unique basic law, but absorbing into its jurisprudence such laws as were then in force to the extent to which these conformed with that basic law.”

11.6 Murray C.J. then went on to state, at page 610:
“The result can be expressed as follows. Where words are found to be plain and unambiguous, the courts must apply them in their literal sense. Where the text is silent or the meaning of words is not totally plain, resort may be had to principles, such as the obligation to respect personal rights, derived from other parts of the Constitution. The historical context of particular language may, in certain cases, be helpful, as explained by O’Higgins C.J. in the passage quoted above. Geoghegan J., when considering the meaning of the term ‘primary education’ in Article 42.4 of the Constitution in his judgment in Sinnott v. Minister for Education [2001] 2 IR 545, said at p. 718 that it was ‘important in interpreting any provision of the Constitution to consider what it was intended to mean as of the date that the people approved it’. Hardiman J., at p. 688, thought that it was ‘beyond dispute that the concept of primary education as something which might extend throughout life was entirely outside the contemplation of the framers of the Constitution’.”

11.7 Murray C. J. added that:
“This is not to say that taking into account the historical context of certain provisions of the Constitution excludes its interpretation in the context of contemporary circumstances.”

11.8 Thus, relying on the principles referred to above from the decision of this Court in Curtin, the State submits that the words used in Article 42A are clear and unambiguous and do not contemplate the inclusion of unborns in the meaning of “all children” for the purposes of that Article.
(c) The Eighth Amendment
11.9 Having regard to the principles of constitutional interpretation outlined above, it is appropriate to have regard to the context in which Article 42A came to be inserted into the Constitution. Before considering the provisions of Article 42A, however, it is worth recalling that the Eighth Amendment to the Constitution, which inserted Article 40.3.3°, was intended, amongst other things, to copper-fasten the legislative prohibition on abortion in this jurisdiction provided by ss. 58 and 59 of the Offences Against the Person Act 1861. (See the discussion in the Irish Constitution, J M Kelly, 4th Ed., Hogan and Whyte commencing at paragraph 7.3.247). As already discussed, a number of later and further amendments were made to Article 40.3.3°. These guaranteed freedom to travel between the State and another state and freedom to obtain or make available in the State information relating to services lawfully available elsewhere.
11.10 The word unborn was discussed by this Court in Roche. It is perhaps surprising that this authority was not considered by the trial judge. Hardiman J., in the course of his judgment in Roche at page 377, referred to the unusual nature of the phrase “the unborn”. He stated:
“The phrase ‘the unborn’ represents an unusual usage in English and it may be that the primary or Irish version clarifies it. Professor Ó Cearúil observes at p. 549 . . .: ‘Beo’ is translated principally as ‘living being’ with the secondary sense of ‘life’… It appears from the same discussion, at p. 549, that ‘gan bhreith’ means ‘without birth’. . . . Thus the phrase ‘na mbeo gan breith’ translates easily enough as ‘the living without birth’. This is an unusual phrase, either in English or in Irish and indeed Professor Ó Cearúil comments, for reasons too technical to go into here but fully expounded in his text, that one would expect further explanatory material and not the sudden finality of ‘gan breith’ which one actually finds. That, indeed, is the sense which in my view an English speaker has in reading the phrase ‘the unborn’: one is inclined, however briefly, to wonder ‘the unborn what?’ But there is no further elucidation, in the language itself, though some may be gleaned from the context . . .”

11.11 Geoghegan J. in the same case also considered the meaning of the word “unborn” as used in Article 40.3.3° of the Constitution. He said:
“I would also attach some significance to the expression ‘the unborn’. It has been said that this expression was unusual in its nakedness. I do not think that that is altogether correct but its meaning and context may be somewhat unusual. The expression ‘the unborn’ is not by any means unique but normally, far from meaning an actual baby or foetus, it would tend to mean what I might describe as ‘the as yet unborn’ or in other words future existences. The expression in this sense finds its way into two quotations in the Oxford Book of Quotations. I do not believe that the expression ‘the unborn’ would ever be used to describe a stand alone embryo whether fertilised or unfertilised or whether frozen or unfrozen. It has ultimately been accepted on all sides in this appeal that the case does not involve any determination of when life begins. Furthermore, the experts on both sides were in agreement that there is no scientific proof of when life begins. The in vitro fertilization treatment itself highlights the complexity of the succession of steps in the process leading up to a successful birth. It seems clear on the evidence before the court that pregnancy in any meaningful sense commences with implantation. I think I am entitled to take judicial notice of the fact that the referendum that led to the insertion of this provision in the Constitution was generally known as ‘the abortion referendum’.”

11.12 Geoghegan J. went on to refer to constitutional interpretation. He observed:
“Judges, however, are ordinary citizens and do participate in referenda. It would seem to me to be highly artificial if a judge could not also take judicial notice of and, to some extent at least, use as an aid to interpretation, the ordinary common understanding of what in context was involved in the referendum. Nobody could dispute that the primary purpose of the referendum was to prevent decriminalisation of abortion without the approval of the people as a whole.”

11.13 Whilst the judgment in that case considered the meaning of the word “unborn” in the context of frozen embryos and the difficult question as to what should happen to frozen embryos not yet implanted, the case is of relevance both in the interpretation of the word “unborn” and the approach that should be taken by a court in placing a constitutional amendment in its context as of the time when enacted. That leads to a consideration of the circumstances in which Article 42A was enacted.
(d) The Thirty-First Amendment
11.14 Article 42A was inserted into the Constitution following a referendum in 2012. (For reasons which are not necessary to consider here, the provisions enacted by the people in 2012 did not formally become part of the Constitution until 2015).
11.15 The provisions added to the Constitution by Article 42A have been set out above. They provided in the first instance for explicit recognition by the State of the natural and imprescriptible rights of all children. Changes were made to the existing provisions in relation to State intervention in exceptional cases where parents failed in their duty towards their children. In addition, it was provided that the State had to legislate for the adoption of any child where the parents had failed, for a period of time to be prescribed by law, in their duty towards the child and where adoption was in the best interests of the child. Provision was required to be made by law for the adoption of any child. Next, the State was obliged to provide by law that, in proceedings brought by the State for the purpose of protecting the safety and welfare of children or concerning the adoption, guardianship or custody of or access to any child, the best interests of the child should be the paramount consideration. Finally, the State was required to pass laws obliging the courts where practicable to ascertain and take into account the views of a child in relation to such proceedings as were provided for or referred to in Article 42A.
11.16 A number of important points are immediately apparent from a consideration of the terms and provisions of Article 42A. First of all, there is no distinction made between the children of married parents or unmarried parents. Second, in exceptional cases, where the parents have failed in their duty towards their children, the State is obliged to “endeavour to supply the place of the parents” with due regard for the rights of the children. Third, in cases where the parents have so failed, and again, regardless of the marital status of the parents, provision has to be made by law for the adoption of any such child where the best interests of the child so require. Provision is also made for the voluntary placement of a child for adoption. Finally, reference is made to the requirement to take into consideration the voice of the child.
11.17 It will, therefore, be readily apparent from the provisions of Article 42A.2°, Article 42A.3° and Article 42A.4° that the reference to a child or children in those sub-Articles can only be a reference to a child or children born alive. Any other interpretation of those provisions would be illogical and meaningless. Quite clearly an unborn child cannot be placed for adoption. Equally, the requirement to ascertain the views of a child can only be of relevance to a living child. How then does one interpret the phrase “all children” as used in Article 42A.1°? The Irish language version of Article 42A uses the word “leanbh” for child. The phrase “leanaí uile” is used for “all children”. This, as was pointed out in the submissions on behalf of the State, contrasts with the terms used in Article 40.3.3° of the Constitution in respect of the meaning of “unborn”. There has already been reference to the judgment of Hardiman J. in Roche in which he discussed the phrase “the unborn” by reference to the Irish language version of that word. Murray C.J., in the course of his judgment in the same case, referred to the Irish reference to the unborn,”. . . ceart na mbeo gan breith chun a mbeatha”; a phrase which as he said “can be fairly interpreted as meaning the right of life not yet born to live, or to its life.” It is clear, therefore, that there is a significant contrast between the terms used in Article 40.3.3° and Article 42A.
(e) Does “all children” in Art 42A encompass “the unborn”?
11.18 It is undoubtedly the case that the phrase “the unborn” is unusual as has been pointed out previously. As Hardiman J. memorably said “the unborn what?” Clearly, as Geoghegan J. said, it would appear to mean “the as yet unborn” or is a reference to “future existences”. It is difficult to disagree with that view. The phrase the “unborn”, as used in Article 40.3.3.°, gave constitutional protection to the right to life to the unborn, which right was not otherwise expressly to be found elsewhere in the Constitution.
11.19 Is it then possible, having regard to the purpose of the amendment which inserted Article 42A into the Constitution, to view the expression “all children” as encompassing the unborn? Prior to the introduction of Article 42A, certain difficulties in relation to the position of children in the marital family had emerged in a number of decisions of the courts. ( See for example JH (An Infant) [1985] I.R. 375 and also N v. HSE [2006] 4 IR 374.)
11.20 In N, for example, it was held by this Court that, in the case of married parents, the effect of Article 42 of the Constitution as it then stood was that there was a constitutional presumption that it was in the best interests of the child to be with its natural parents, within a family founded on marriage, unless there were very exceptional circumstances leading to a contrary conclusion. It was also held that, once the parents of a non-marital child married, the parents became a constitutional family and accordingly no adoption as had been contemplated in that case was then possible. Such cases informed the background in which the provisions of Article 42A came to be enacted. The context in which Article 42A came to be inserted into the Constitution makes it clear that it had nothing to do with the rights of the unborn, but had everything to do with the rights of children and in particular the removal of a difference in treatment between marital and non marital children.
11.21 That being so, it is not possible to support the trial judge’s interpretation of Article 42A.1°, and the phrase “all children” used therein, without excising Article 42A.1° from the remainder of Article 42A. If one carries out that exercise, is it possible to look at Article 42A.1° as creating a standalone provision conferring rights on children? How could such an exercise be regarded as an harmonious interpretation of the Constitution? Given that Article 40.3.3° of the Constitution specifically deals with the right to life of the unborn and Article 42A deals with the rights of children, it is not possible to accept the view expressed on behalf of the respondents that either a literal or purposive interpretation of Article 42A requires that it should be interpreted as including unborn children. Given in particular the nature of the rights sought to be protected by each of those two Articles of the Constitution, it is difficult to see how it could be said that the same rights attach to each category. Article 42A is a composite provision recognising the rights of children, making it clear that its provisions apply to all children regardless of the marital status of the parents, providing that the children’s best interests will be the paramount consideration and providing for the voice of the child to be ascertained in proceedings concerning them. Thus, in considering the use of the phrase “all children” as used in Art 42A.1, it is simply not possible to interpret that phrase as encompassing the unborn. They are separately dealt with in Article 40.3.3 of the Constitution.
11.22 In coming to this conclusion, it is also be helpful to consider Article 42.5, the constitutional predecessor to Article 42A.1°, which was deleted from the Constitution on the coming into force of the Thirty First Amendment. It provided as follows:
‘In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child”

11.23 It is of some importance to note that it was never suggested in any judgment prior to its deletion from the Constitution that Article 42.5, in referring to children, was understood to include the unborn. Cases in which Article 42.5 was considered concerned issues such as custody of children, (Re O’Brien 1954 I.R. 1), adoption (Re Article 26 and the Adoption (No. 2) Bill 1987, 1989 I.R. 656, 663) and many guardianship cases.
11.24 It will be recalled that the trial judge, in coming to his view on this question, made reference to the fact that the term “unborn child” was part of the statute law of the State when Article 42A was adopted. Far from this fact supporting his view, the contrary is the case. The purpose of the various legislative measures set out earlier is to make express provision for the unborn child. In the absence of such language, the relevant statutory provisions would, as pointed out earlier, have no applicability to unborn children.
11.25 For these reasons it is not possible to see how Article 42A can be understood as referring to unborn children given its clear objectives described above and the clear and unambiguous terms in which it is expressed. If it had been intended that the unborn were to be included within the ambit of Article 42A, then it would be expected that this would have been expressly stated. In any event, having regard to the nature of the rights of the child intended to be protected by Article 42A, it is difficult to see any right contained therein which could avail an unborn child.
11.25 Accordingly, the trial judge was in error in concluding that an unborn child is encompassed in the phrase “all children” as used in Article 42A of the Constitution.
12 Constitutional Rights of Non-Marital Families
12.1 As previously stated, the parents of the third respondent are not married to each other and never have been. Mr. M’s marriage to a Czech national in August, 2009 does not appear to have been dissolved. The respondents do not form a family unit within the meaning of that term as contained in Article 41 of the Constitution. They can therefore be considered as an unmarried or non-marital family unit.
12.2 The point under discussion in this part of the judgment arises out of certain comments made by Humphreys J. concerning the constitutional rights of non-marital couples and non-marital families. These remarks have, it seems fair to say, caused great concern to the State, although it must be said that the respondents have not in any way attempted to rely on the observations in question. The relevant section of the judgment appears at paragraphs 93-99 thereof with the troubling comments from the State’s perspective being found in particular at paragraphs 98 and 99.
12.3 Humphreys J. seems to have taken exception to the State position vis-à-vis the constitutional and ECHR rights of non-marital families and their children, describing them at paragraph 98 as submissions “that would not have been out of place in the socially-repressive Ireland of the 1950s”. He endorsed the judgment of McKechnie J. in G.T. v. K.A.O., which suggested that greater recognition might be considered for the type of father being discussed in that case. The trial judge added that the State’s submissions remain “mired in the middle of the last century while its citizens are voting with their feet and continuing to engage in a much wider range of family relationships than the State is prepared to acknowledge as having constitutional rights.” At paragraph 99 the trial judge explained previous decisions on the lack of rights for the non-marital family as “largely creatures of their time” and noted that “society has transformed beyond all recognition since that chain of authority was put in motion.” So too, in his view, has the constitutional framework itself been radically transformed.
12.4 In this respect Humphreys J. pointed to three constitutional referendums as indicative of deep-rooted societal change: first, he stated that the
Twenty Eighth Amendment, which allowed the State to ratify the Lisbon Treaty, requires recognition at a constitutional level of the wider family rights recognised by Articles 7 and 33 of the Charter of Fundamental Rights of the European Union; second, he pointed out that the Thirty First Amendment recognises the natural rights of “all children”, without regard to the marital status of their parents; and, third, that the Thirty Fourth Amendment “has extended the availability of marriage to a range of same-sex relationships in contexts that would have been unthinkable when the Constitution was adopted.” This, in his view, could be seen as nothing other than “a quantum leap in the extent to which the Constitution is oriented towards respect and protection for a diversity of private family relationships”.
12.5 Drawing together these developments, the trial judge made the following observations which have given rise to this ground of appeal:
“Any one of these developments, and certainly all of them taken together, as well as the fundamental shifts in society since the adoption of the Constitution, in my respectful view warrant a recognition that members of a non-marital relationship, and non-marital parents of both sexes in particular, enjoy acknowledgement of inherent constitutional rights in relation to their children and each other on a wider basis than has been recognised thus far.”

12.6 Moreover, in summarising the principles discussed in his judgment, Humphreys J. stated as follows:
“The adoption of the 28th, 31st and 34th Amendments as well as the fundamental shifts in society since the adoption of the Constitution warrant a recognition that members of a non-marital relationship, and non-marital parents of both sexes in particular, enjoy inherent constitutional rights in relation to their children and each other on a wider basis than recognised prior to those developments.”

12.7 The Court would make a number of points in relation to these observations. First, it is clear from a reading of the judgment that the relevant comments of the trial judge were not part of the ratio decidendi of his decision. The central issue for determination is set out at paragraph 88 of the High Court judgment (cited earlier in section 5 of this judgment). As can be seen, that issue related to whether the Minister is obliged to consider the prospective situation that is likely to unfold, including the rights that the child will acquire on birth, rather than merely the situation which exists on the date that the Minister’s decision is made. The trial judge’s findings on this issue are contained in paragraphs 90 and 92 of his judgment. (see the discussion supra). His conclusion was that the Minister, when dealing with an application under section 3(11) of the 1999 Act, must give appropriate consideration to the rights which that child will probably enjoy into the future in the event of being born. Thus in no sense could the comments regarding the constitutional rights of non-marital families be said to have been part of the trial judge’s reasoning on the critical issue calling for determination; the comments in question are better described as being general and observational in nature, but not intended to be of binding effect. That these comments were no more than dicta is further evidenced by the fact that the respondents made no submissions on this issue in the High Court; it simply did not form part of their case.
12.8 This perhaps explains the stance adopted by the respondents on the appeal. They stated in their written submissions that this issue regarding the rights of non-marital families does not properly fall for determination by the Court and indeed that it may be incapable of being addressed in light of the manner in which it was framed by the State. No attempt was made by the respondents to engage with the State’s submissions or to stand over the comments of the High Court judge. The same stance was adopted at the hearing of the appeal, with counsel for the respondents referring to this as a “non-issue” that does not call for resolution. Counsel freely acknowledged that paragraph 99 of the judgment of Humphreys J., cited above, was not a “finding”, as such, and that it is not connected with the operative part of the judgment, which was acknowledged as being paragraphs 88, 90 and 92 thereof.
12.9 Second, since the decision of Humphreys J. was delivered on the 29th July, 2016, this Court has, on the 15th June, 2017, delivered judgment in H.A.H. v. S.A.A. [2017] 1 I.R. 372. In that case, which arose in the context of polygamous marriages, the Court, although acknowledging that the introduction of no-fault divorce and same-sex marriage have resulted in a legal institution of marriage “that cannot be described in terms of traditional Christian doctrine” (para. 128 of the report), nonetheless rejected the proposition that “the concept of marriage no longer has a legal meaning, or that the legal meaning is a concept flexible enough to accommodate any variation no matter how different to the traditional model” (para. 129). Indeed the Court noted that marriage remains a central feature of Irish life for the majority of people and stated that “[t]he constitutional pledge to guard the institution of marriage with special care remains in place and must be accorded full respect.” In so doing the Court affirmed that marriage is a specific, constitutionally-protected relationship which must be guarded with special care.
12.10 This approach is reflected in other decisions, including J.McD. v. P.L. [2010] 2 IR 199, where this Court reaffirmed that the concept of the “family”, as recognised in the Constitution, does not encompass the relationship between a mother and a father who are not, and never were, married. (See also C.O’S. & T.B. v. Judge Doyle & Ors. [2014] 1 I.R. 556, and in particular the comments of MacMenamin J. at paragraphs 24-25 thereof).
12.11 Indeed, counsel for the respondents accepted in his oral submissions that H.A.H. is one of a long line of cases, stretching back as far as The State (Nicolaou) v. An Bord Uchtála [1966] I.R. 567, affirming that Article 41 affords protection to the family based on marriage. Accordingly, even if the trial judge’s comments were intended to be read as other than obiter dicta, they could not have the force of precedent on this point in light of the consistent case law of this Court to the contrary stretching back decades and reaffirmed on several recent occasions. In any event, these observations must be regarded as entirely obiter.
12.12 In dealing with this matter in the manner which it has, this Court is not suggesting that, if a definitive evidential framework was created within which issues of the type raised by the trial judge became central, the same would not have to be accorded due and proper respect. It cannot be doubted but that Irish society, in many fundamental ways, has changed quite dramatically in a relatively short period of time, with perhaps the greatest intensity in this regard occurring in the last twenty to twenty-five years or so. The reasons for such change and their recognition by formal structures such as those referred to by the trial judge can be viewed in a wider context as reflecting the prevailing mores of the majority of its citizens. That being so, at some point in the future the question may arise as to whether the legal and constitutional position of unmarried parents, as between themselves and their children, should be afforded greater recognition than presently exists. In the particular context of immigration that might occur if an unmarried family was to be treated less favourably than a married family.
12.13 However, the Court stresses that such issues do not arise in this case and accordingly cannot be regarded as having been decided by the trial judge.
13 Conclusions
13.1 This judgment is lengthy. This range of issues raised in the High Court and debated on this appeal together with their complexity, and importance more generally, has meant that it was necessary to discuss the law in some detail. Without detracting from the matters discussed in this judgment it is still possible to give the following summary of the Court’s considerations.
13.2 (i) The legal issue in this case relates to the process which must be followed when an application is made to revoke a deportation order under section 3(11) of the Immigration Act, 1999 on grounds that the proposed deportee is likely to become the father of an Irish citizen child.
(ii) The Minister maintained that there was no obligation to give any separate regard to the position of the unborn.
(iii) The High Court decided that this approach was invalid on a number of wide ranging grounds including a contention that the Minister was obliged to have regard to the fact of pregnancy and moreover to the likely impact of deportation on the rights which the Irish citizen child would acquire on birth. More broadly the High Court held that the unborn, at the time the Minister was asked to revoke the deportation order, had actual existing constitutional rights which the Minister was obliged to consider where were not limited to Article 40.3.3, and most relevantly included a right to the care and company of her father. In holding that the rights of the unborn were not limited to the provisions of Article 40.3.3 the High Court differed from the previous decision in the High Court (Cooke J.) in Ugbelase.
(iv) In coming to this conclusion the High Court relied on certain decisions at common law and some statutory provisions as reflecting a general legal view that the unborn had enforceable legal rights not limited to Article 40.3.3 of the Constitution.
(v) The High Court also relied on passages from decisions of the Supreme Court and High Court prior and subsequent to the passage of the Eighth Amendment as support for its decision that the unborn had constitutional rights other than as provided for in Article 40.3.3.
(vi) The High Court also decided that the unborn was a child for the purposes of Article 42A and was therefore protected by the provisions that Article.
(vii) Finally the High Court made observations about the nature of the Family protect by the Constitution.
(viii) Accordingly the High Court held that the Minister’s decision was invalid and made a declaration that the Minister, in considering an application under s.3(11) of the 1999 Act for revocation of a deportation order, is required to consider the current and prospective situation of the applicant concerned including the prospective child of the applicant unborn at the time of the application.
(ix) It should be noted that this declaration is in narrow terms and does not reflect the broader terms of the judgment.

13.3 For the detailed reasons set out in this judgment this Court has come to the following conclusions.
(i) The Minister is obliged to consider the fact of pregnancy of the partner of the proposed deportee as a relevant factor in any decision to revoke a deportation order and is obliged to give separate consideration to the likely birth in Ireland of a child of the potential deportee.
(ii) That moreover the Minister is obliged to take account of the fact that an Irish citizen child will acquire on birth constitutional rights which may be affected by deportation.
(iii) The weight that the Minister must accord to these factors is not an issue in this case. It is not the case that the Minister, having considered these matters, is precluded from refusing to revoke the deportation order.
(iv) Accordingly the decision of the High Court on this aspect of the case was correct and the declaration made is upheld. It follows that the Minister’s appeal against that declaration will be dismissed.
(v) However, neither the common law cases and statutory provisions, nor the pre and post Eighth Amendment cases relied on, when analysed and understood, support the High Court ‘s conclusions that the unborn possesses inherent constitutionally protected rights other than those expressly provided for in Art. 40.3.3.
(vi) The most plausible view of the pre Eighth Amendment law was that there was uncertainty in relation to the constitutional position of the unborn which the Eighth Amendment was designed to remove. In addition the provisions of the two subparagraphs to Article 40.3.3 introduced by the Thirteenth and Fourteenth Amendments support the Court’s view that the present constitutional rights of the unborn is confined to the right to life guaranteed in Article 40.3.3 with due regard to the equal right to life of the mother.
(vii) While it does not alter the outcome of this case, the Minister is accordingly not obliged to treat the unborn as having constitutional rights other than the rights contained in Article 40.3.3. It is accepted that the right to life is not implicated in the deportation (or revocation) decision in this case. The High Court determination in this regard is reversed.
(viii) The High Court determination that the unborn is a child for the purposes of Article 42A is also reversed.
(ix) The Court is satisfied it is not necessary to address on this appeal any argument in relation to the status of the Family, which it was accepted was not part of the High Court reasoning in coming to this conclusion.
(x) Accordingly, the formal order of this Court will be to dismiss the Minister’s appeal and affirm the declaration made by the High Court.

 

 

 

 

 

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