Adebayo v Commissioner of an Garda Síochána

JudgeMr. Justice Fennelly,Denham J.
Judgment Date02 March 2006
Neutral Citation[2006] IESC 8
Date02 March 2006
CourtSupreme Court
Docket Number[S.C. Nos. 70 to 73 and 227 to 230 of 2005]

[2006] IESC 8


Denham J.

McGuinness J.

Hardiman J.

Geoghegan J.

Fennelly J.

[S.C. 70 of 2005]
[S.C. 71 of 2005]
[S.C. 72 of 2005]
[S.C. 73 of 2005]
Adebayo & Ors v Commissioner of An Garda Siochana
In the matter of Article 40.4 of the Constitution and in
the matter of the Habeas Corpus Act, 1782.
Bosun Adebayo Peter Chinedu Igwe Folashade Jacob, Oyeshola Jacob and Ronké Jacob Jide Johnson Ondukan


Commissioner of An Garda Síochána


The Minister for Justice, Equality and Law Reform
Notice Party/Appellant


Habeas corpus;



Detention - Control - Persons subject of habeas corpus orders free from detention outside jurisdiction - Whether conditional orders of habeas corpus remain effective -Whether jurisdiction to make other orders restoring status quo ante - In re D [1987] IR 449 approved - Constitution of Ireland 1937, Article 40 - Order requiring return of applicants to State pending hearing vacated (70-73 & 227-230/2005 - SC - 2/3/2006)[2006] IESC 8, [2006] 2 IR 298

Adebayo v Commissioner of An Garda Síochána


Judgment delivered on the 2nd day of March, 2006 by Denham J.


1. I concur with the judgment of Geoghegan J. on the issues for determination on this appeal.


2. Although it does not arise for decision, the issue as to whether the institution of judicial review proceedings challenging the validity of a deportation order has the automatic effect of staying the implementation of the order pending the outcome of those proceedings, was the subject of submissions before the Court.


2 2.1 There was a finding by the High Court. The High Court (Peart J.) held that:

"- I am compelled to the view that once judicial review proceedings have been properly commenced, and I include within that concept proceedings commenced outside the fourteen day time limit, but in which an extension of time is being sought, it is unnecessary for any injunction to be sought in order to ensure that steps are not taken to give effect to the very deportation order sought to be impugned in those proceedings."


Such an analysis means that once a motion seeking judicial review has been filed û even if it was outside the 14 days required by statute but that it sought an extension of time û the State would be stayed from proceeding with the deportation and that it would not be necessary to seek an injunction.


2 2.2 The Oireachtas has established a statutory scheme providing for the means of access to the courts by persons subject to orders under the immigration legislation. The portion of the legislation relevant to this analysis is s. 5(1) of the Illegal Immigrants (Trafficking) Act, 2000. It refers to a variety of orders and decisions under immigration legislation. For the purpose of this case I shall refer only, as an example, to the reference to a deportation order. Thus s. 5(1) provides:


2 " 5.ù(1) A person shall not question the validity ofù




( c) a deportation order under section 3(1) of the Immigration Act, 1999,




otherwise than by way of an application for judicial review under Order 84 of the Rules of the Superior Courts (S.I. No. 15 of 1986) (hereafter in this section referred to as "the Order").


(2) An application for leave to apply for judicial review under the Order in respect of any of the matters referred to in subsection (1) shallù


a ( a) be made within the period of 14 days commencing on the date on which the person was notified of the decision, determination, recommendation, refusal or making of the Order concerned unless the High Court considers that there is good and sufficient reason for extending the period within which the application shall be made, and


b ( b) be made by motion on notice (grounded in the manner specified in the Order in respect of an ex parte motion for leave) to the Minister and any other person specified for that purpose by order of the High Court, and such leave shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the decision, determination, recommendation, refusal or order is invalid or ought to be quashed.


a (3) ( a) The determination of the High Court of an application for leave to apply for judicial review as aforesaid or of an application for such judicial review shall be final and no appeal shall lie from the decision of the High Court to the Supreme Court in either case except with the leave of the High Court which leave shall only be granted where the High Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.


b ( b) This subsection shall not apply to a determination of the High Court in so far as it involves a question as to the validity of any law having regard to the provisions of the Constitution.


(4) The High Court shall give such priority as it reasonably can, having regard to all the circumstances, to the disposal of proceedings in that Court under this section.


(5) The Superior Court Rules Committee may make rules to facilitate the giving of effect to subsection (4)."


3 2.3 This legislation was considered by the Supreme Court in Re Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2. I.R. 360, which held, inter alia, that the requirement to proceed by way of judicial review within a limited period served the legitimate public policy objective of seeking to bring about, at an early stage, legal certainty as regards administrative decisions and facilitated the better administration and functioning of the system for dealing with the applicants for asylum or refuge status. As to the extension of time provisions, it was held that the discretion of the High Court to extend the time period for good and sufficient reason was sufficiently wide to avoid injustice and to enable persons who had shown reasonable diligence to have sufficient access to the courts and was not unreasonable. The Court, referring to the constitutional right of access to the courts, held that it was sufficient to say that such a right means the right to have all justiciable questions involving the administration of justice heard and determined by a court established by or in accordance with the Constitution. In considering the conditions and limitations imposed on non-nationals, the Court held that the scheme was consistent with the constitutional right of access to the courts and the principles of constitutional justice.


The Court said of s.5 (1):

"It is within the competence of the Oireachtas to regulate by law, by primary legislation or, in the due exercise of its powers, by way of secondary legislation, such as statutory instruments, procedural matters, including procedural remedies, before the courts provided constitutional rights and other provisions of the Constitution relating to the courts are not infringed. Section 5(1) specifies judicial review as the only procedure by which a person may question the validity of any decision or other matters referred to at paragraphs (a) û (n) of the subsection. All of those matters fall to be decided in an administrative process by persons authorised by law to decide them. It is not the function of the courts to decide such matters anew on their merits but to determine the validity of the decisions taken as a question of law. Should a person seek to challenge the validity of any of the matters covered by the subsection, he or she will not be limited as to the grounds upon which the validity of a decision may be attacked by virtue of being confined to judicial review as the only form of remedy. Given that the jurisdiction of the courts is limited to reviewing whether any such matter has been decided in accordance with law, the grounds for challenging such validity would not be any more extensive under other procedures such as proceedings commenced by plenary summons. Indeed judicial review is a remedy which is regularly opted for by persons seeking to challenge the validity of administrative decisions. The court concludes that judicial review as such is not an inadequate remedy."


The Court analysed the requirement that the application for judicial review be brought within 14 days and the power of the High Court to expand that right. The Court held that a non-national has a constitutional right of access to the courts to challenge the validity of a decision such as a deportation order. Thus there are both the constitutional right and statutory rights to consider.


2 2.4 The statutory scheme is bedded on the procedure under Order 84 of the Rules of the Superior Courts, 1986 Order 84, r. 18 (1) provides that an application for an order of certiorari, mandamus, prohibition or quo warranto shall be made by way of an application for judicial review in accordance with the provisions of Order 84. Provision is also made for an application for a declaration or injunction. Order 84, r. (20)(2) provides that an application for leave to apply for judicial review shall be made by motion ex parte grounded upon recited documents. The court on considering the application may grant leave on such terms as it deems fit. Order 84, r. 20(7) specifically provides that where leave to apply for judicial review is granted than if the relief sought is an order of certiorari or prohibition and the court so directs the grant of leave shall operate as a stay of the proceedings until the determination of the application or court order. There is no explicit provision for a stay prior to the court order on the application for leave to apply for judicial...

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