Adio and Others v Minister for Justice

JurisdictionIreland
CourtSupreme Court
JudgeDenham J.
Judgment Date20 December 2007
Neutral Citation[2007] IESC 63
Date20 December 2007
Docket Number[S.C. No: 481/2006]

THE SUPREME COURT

Murray C.J.

Denham J.

Fennelly J.

Kearns J.

Finnegan J.

[S.C. No: 481/2006]

Between/
Folashade Olubunmi Adio,Fuod Adio (a minor suing by his mother and next friend Folashade Olubunmi Adio) Farouq Adio (a minor suing by his motherand next friend Folashade Olubunmi Adio)
Applicants/Respondents
The Minister for Justice, Equality and Law Reform
Abstract:

Immigration - asylum law - Aliens - Control of aliens - Executive administrative scheme - “Irish Born Child 2005” scheme - Executive discretion - Whether constitutional rights of applicants required to be considered in exercise of executive discretion - Application for consideration under scheme made outside time limit - Whether refusal to consider applications made outside time limit illegal as being in breach of constitutional rights - Whether decision to refuse to consider applications should be quashed

the respondent established a scheme (“the Irish Born Child 2005 (IBC05)” scheme) whereby alien parents of children born in the State prior to the 1st January, 2005, could apply to him for consideration for permission to remain temporarily in the State. A closing date for such applications was set as the 31st March, 2005. The applicants applied under the scheme outside the time limit. The respondent accordingly refused to consider the applications. The High Court quashed that refusal by way of judicial review. The respondent appealed to the Supreme Court.

Held by the Supreme Court in allowing the appeal that the applicability criteria of the administrative scheme were clear and explicit and it was the duty of the respondent to consider each application to see if it met the criteria of the scheme. The scheme was an exercise of executive power of the respondent and did not purport to address constitutional rights or rights under the European Convention on Human Rights. The applicants failed to come within the criteria of the scheme, in failing to make the application within the designated time limit and the respondent made a decision validly within the terms of the scheme to refuse to consider applications made outside the designated time limit. The consequence was that the applicants were in the same position as they were prior to applying under the scheme and their substantive rights under the Constitution and the European Convention on Human Rights would be considered prior to any decision to deport them.

Reporter: P.C.

1

Judgment delivered the 20th day of December, 2007, by Denham J.

1. Issue
2

At issue in this case is the decision of a Minister of the Government made in an administrative scheme established as an exercise of executive power, to deal with a unique group of foreign nationals. It is submitted, on the one hand, that, inter alia, in this scheme the Constitutional and Convention rights of applicants were required to be considered in accordance with law. On the other hand, it was submitted that neither Constitutional nor Convention rights arose to be considered. Thus the nature of the scheme is at the core of the appeal, and, with it, the nature of any judicial review. Also, at the kernel of the case is the fact that the position of a foreign national, who failed in an application under the scheme, remains the same as it was prior to the application, with all relevant Constitutional and Convention rights remaining yet to be considered.

3

At the core of the case is the refusal by the Minister of the first named applicant's application under the IBC 05 Scheme.

2. Eight Cases
4

The Minister for Justice, Equality and Law Reform, the respondent/appellant, hereinafter referred to as the 'the Minister', has appealed from the judgments of the High Court (Finlay Geoghegan J.) in seven cases where the High Court quashed the decision of the Minister to refuse applications for permission to remain in the State to foreign national parents of Irish born children under a scheme which he had introduced. In the eighth case the Minister is appealing against the order for costs made in the High Court.

5

3. These related cases are:

  1. (i) Bode v. The Minister, Appeal No. 485/2006

  2. (ii) Oguekwe v. The Minister, Appeal No. 489/2006

  3. (iii) Dimbo v. The Minister, Appeal No. 484/2006

  4. (iv) Fares v. The Minister, Appeal No. 483/2006

  5. (v) Oviawe v. The Minister, Appeal No. 480/2006

  6. (vi) Duman v. The Minister, Appeal No. 482/2006

  7. (vii) Adio v. The Minister, Appeal No. 481/2006

  8. (viii) Edet v. The Minister, Appeal No. 005/2007

6

The Minister was represented in all the cases by the same counsel. The same affidavit of Maura Hynes, a principle officer in the Department of Justice, Equality and Law Reform, was filed in all cases on behalf of the Minister. Similar written submissions were filed on behalf of the Minister in all cases.

7

4. The general facts and law relating to the Minister's decision in the administrative scheme in the seven cases are set out in theBode judgment. The particular facts, law, and decision of this case are set out herein.

5. Parties
8

Farouq Adio (a minor suing by his mother and next friend Folashade Olubunmi Adio), the third named applicant, and hereinafter referred to as 'the third named applicant' was born in the State on the 27th March, 2003. The third named applicant is the son of Folashade Olubunmi Adio, the first named applicant, and hereinafter referred to as 'the first named applicant'. The first named applicant is a national of Nigeria and arrived in the State in March, 2003. Fuad Adio (a minor suing by his mother and next friend Folashade Olubunmi Adio), the second named applicant, is hereinafter referred to as 'the second named applicant'. He is also a son of the first named applicant, he was born in Nigeria in 2001.

6. Particular Facts
9

This case raises the issue of the time limit requirements for applications under the IBC 05 Scheme.

10

The learned High Court judge found that the first named applicant submitted an application form to the IBC 05 Scheme on the 26th April, 2005, which was received by the Minister on the 5th May, 2005.

11

The decision of the Minister was given by letter dated 29th November, 2005, in the following terms:

12

"I am directed by the Minister for Justice, Equality and Law Reform to refer to the IBC/05 application form submitted by you in connection with the revised arrangements announced by the Minister on 15th January 2005 for the processing of applications for permission to remain in the State from the non-national parents of Irish born children born before 1st January, 2005.

13

As stated on the application form, and in the Minister's announcement, the closing date for the submission of applications for consideration under the revised arrangements was 31st March 2005. Your application, which was received by this Department on 5th May, 2005, was too late for consideration. Accordingly, I am to inform you that an application from you cannot be considered under the revised arrangements. The IBC/05 application form and your original supporting documents are returned herewith."

14

A further application was made on her behalf and the letter which had been sent out on the 29th November, 2005 was re-issued on the 19th December, 2005.

7. High Court Proceedings
15

By order of the High Court on the 13th February, 2006, the applicants were granted leave to apply by way of an application for judicial review for:

16

"1. An order of certiorari by way of an application for judicial review quashing the decision of the [Minister], dated 29th November, 2005 and re-issued by letter dated 19th December, 2005 refusing to consider the first named applicant's application for permission to reside in the State;

17

2. An order ofmandamusby way of an application for judicial review directing the [Minister] to consider the application of the first named applicant to reside in the State with the second and third named applicants."

8. High Court Order
18

The learned High Court judge noted that as in many of the other applications in the related proceedings the primary submission made was that each of the decisions, of the 29th November, 2005, and 19th December, 2005, was unlawful or invalid in that they were taken without any consideration of the personal rights of the Irish citizen child guaranteed by Article 40.3 of the Constitution and in breach of the citizen child's right to respect for his private life under Article 8 of the European Convention on Human Rights as implemented in the State. As in the related cases, the Minister submitted that he was not required to consider the Constitutional or Convention rights in making decisions under the scheme.

19

The High Court held, having considered issues of Constitutional and Convention rights:

20

"Accordingly, I have concluded that in relation to the application submitted on 26th April, 2005 by the first named applicant, whilst the Minister was not obliged by the terms of the revised arrangements known as IBC/05 to consider that application, neither was he precluded from doing so by the terms of the IBC/05. He retained a discretion to consider and determine the IBC/05 application and having regard to the existence of that discretion he was bound in determining whether or not to consider the application to consider the personal rights of the citizen child protected by Article 40.3 and to exercise the discretion so as to respect and as far as practicable vindicate and defend the qualified right of the citizen child to live in Ireland.

21

No submission was made that any interest of the common good required the respondent to refuse to consider an application on IBC/05 submitted after the 31st March, 2005, without considering the constitutionally protected rights of the citizen child. Submissions were made as to the necessity for a time limit but not for a time limit which automatically excluded consideration of a late application where the...

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