AJK v The Minister for Defence_Final
| Jurisdiction | Ireland |
| Judge | Ms. Justice Donnelly |
| Judgment Date | 28 February 2020 |
| Neutral Citation | [2020] IECA 64 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record Number: 2019/223,[C.A. No. 223 of 2019] |
| Date | 28 February 2020 |
[2020] IECA 64
Donnelly J.
Faherty J.
Power J.
Record Number: 2019/223
THE COURT OF APPEAL
Order of certiorari – Defence Forces – Enlistment – Appellant seeking an order of certiorari quashing the decision of the respondent refusing to permit him to enlist in the Defence Forces in accordance with law – Whether the appellant was precluded from enlistment by the provisions of s. 53(1) of the Defence Act 1954, or by DFR (Defence Forces Regulation) A10 recruiting regulations
Facts: The appellant appealed to the Court of Appeal against a decision of the High Court (O’Regan J) refusing the appellant an order of certiorari quashing the decision of the respondent, the Minister for Defence, dated 31st January, 2018, which the appellant maintained amounted to a refusal to permit him to enlist in the Defence Forces in accordance with law. He was also refused a declaration that as the holder of a declaration of subsidiary protection he was eligible to enlist with the defence forces ([2019] IEHC 159). The following issues arose for consideration: (i) Did the Minister have the power to review the decision of the Defence Forces dated 4th May, 2017 refusing to allow the appellant to enlist? (ii) Is the decision of 31st January, 2018 amenable to judicial review? (iii) Is the appellant precluded from enlistment by the provisions of s. 53(1) of the Defence Act 1954, or by DFR (Defence Forces Regulation) A10 recruiting regulations?
Held by Donnelly J that the decision on enlistment made by the Chief of Staff of the Defence Forces was not a decision merely as to personal characteristics of the appellant but was a decision that all applicants in the same legal situation as the appellant were not entitled as a matter of law to enlist in the Defence Forces; the Chief of Staff was directly responsible to the Minister for the performance of such a fundamental duty of interpreting the legislation correctly. Donnelly J held that, by making the Chief of Staff responsible to the Minister, the Minister retained a power of review over whether those duties were being operated in accordance with law. Donnelly J was satisfied that the decision of 31st January, 2018 was a final decision which was amenable to judicial review. In the circumstances she was satisfied that the appellant was within time to challenge the decision with regard to his enlistment in the Defence Forces. She held that the Minister had constructed an argument and placed upon s. 53 of the 1954 Act an interpretation that it does not bear. She held that the Minister cannot be bound in estoppel by interpretations that his department (whether the civil or military element thereof) had given to this section previously. She held that the confusion and lack of clarity as to the meaning of s. 53 by the Department of Defence was because s. 53 actually provides for a simple requirement that those who are enlisting must sign up to a term of enlistment for a prescribed period of time; those who are unwilling to sign up to such a period could not be enlisted under the Act, while those who are willing to sign up and who are otherwise not disqualified by the recruiting regulations made under the Act are entitled to be enlisted. Donnelly J held that if by operation of law or otherwise, their entitlement to reside in the State ceases, then the applicable rules and regulations concerning rights of residence will come into play; if, through lack of right of residence, and therefore permission to work, or through an act of deportation, they are no longer in a position to serve in the Defence Forces, they will be liable to discharge. Donnelly J held that, up until that point occurs, they are obliged to render service to the State in accordance with the terms of their enlistment. She held that if the Minister has a genuine concern about persons who have restricted or limited rights of residence he remains free, subject to the statutory provision, set out in s. 53 of the 2015 Act, to amend the enlistment and recruiting regulations.
Donnelly J held that the appeal would be allowed.
Appeal allowed.
This judgment concerns an appeal against a decision of the High Court (O'Regan J.) refusing the appellant an order of certiorari quashing the decision of the respondent (hereinafter “the Minister”) dated 31st January, 2018, which the appellant maintains amounted to a refusal to permit him enlist in the Defence Forces in accordance with law. He was also refused a declaration that as the holder of a declaration of subsidiary protection he was eligible to enlist with the defence forces (see the decision of the High Court AJK v the Minister for Defence [2019] IEHC 159).
The appellant is a Pakistani national under the age of 25. He came to Ireland as an unaccompanied minor in 2012 and secured subsidiary protection status in October 2014. At that time, he was granted permission to remain in the state for a three-year period. On 20th June, 2017, he secured an extension of that three-year period with permission valid until 20th June, 2020.
In August 2015, he applied to join the General Service of the Defence Forces but that application was not successful. In April 2016 he submitted a second application to join the General Service, and in May 2016 he applied to join the Naval Service. He was enlisted in the Naval Service on 19th December, 2016 and commenced training on 3rd January, 2017. He left the Naval Service on 19th January, 2017, having purchased his discharge in accordance with law, as he was confident he would secure a place with the General Service which was his preference. He could not apply to the General Service if he was a member of the Naval Service.
The appellant was duly selected for enlistment with the General Service and was invited to the Curragh Camp on 24th April, 2017. On that date, he was told orally that he was not eligible to enlist on the basis that he required a minimum of twelve years' permission to reside in the State or his permission had to be open ended. This was followed up by an email the following day. On 4th May, 2017, a letter on Defence Forces headed notepaper was sent to him which stated: -
“I have the following information which may help you acquire the required Certificate of Registration from the Department of Justice, Equality and Law Reform.
As you are a non-national the current legal position is set out clearly in para. 127 of Admin Instruction A10 as follows (emphasis in bold of the critical provision) -
Non-nationals must have a minimum of three years legal and unbroken residency in the State and they must meet residency and work permit conditions as laid down by the Department of Justice, Equality and Law Reform and the Department of Enterprise, Trade and Employment. Applicants must have established residency and must be in possession of a Certificate of Registration (also called the Certificate of Residency or the Green Book) issued by Immigration & Citizenship Division, Department of Justice, Equality and Law Reform. This authorised period of residency must be open ended or, as a minimum, must cover the period of engagement including any reserve commitment. Care must be taken when examining this document as the duration of residency stamps vary from case to case.” (emphasis in original)
The appellant's solicitor subsequently engaged in correspondence with the military authorities who had written this letter and cc'd that correspondence to the Minister. The import of the letter from the appellant's solicitor was that they understood this to be a stated policy position of the Defence Forces. They sought a review of the decision because they viewed it as an inflexible unpublished policy and therefore an illegality.
At various stages they sent reminders to both the military authorities and to the Minister. On 8th November, 2017, the Department of Defence replied acknowledging receipt of the three previous letters. That letter stated “[t]he Department is currently engaging with the military authorities in relation to this matter and we will revert to you in due course.” Having received that letter, the appellant's solicitor engaged with the Minister by letter of 22nd November, 2017. The solicitor requested a final decision and gave the Minister 14 days in which to make a final decision in respect of the client. He asked for a reconsideration of the case. On 5th December, 2017, the Department of Defence replied, acknowledging the urgency for the appellant but said that the time limit of 14 days was not feasible. The Department said that the issues had been brought to the immediate attention of the appropriate military authorities. The appellant's solicitor again wrote on 12th December, 2017 giving a further period of 28 days. He again wrote on 9th January, 2018 giving a further 14 days, and on 24th January, 2018, giving a further 7 days.
On 31st January, 2018, the Department of Defence made a substantive reply. In the first instance they said that they engaged with military authorities and established that the appellant's attestation in the Naval Service was administratively incorrect under current legislation. The letter stated: -
“In addition to this error, it has also been established that your client did not have a residency permission that would allow him to satisfy current Defence Forces induction criteria in terms of residency. The period of engagement for enlistment is twelve years (comprising of five years Permanent Defence Forces and seven years Reserve Defence Forces service) and as such, the authorised period of residency must be open ended or as a minimum, must cover the stated twelve year period.”
The letter went on to say -
“There are currently no regulatory provisions under section...
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