O (O) and Others v Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 09 February 2011
• Neutral Citation: [2011] IEHC 104
• Date: 09 February 2011
• Court: High Court

[2011] IEHC 104

THE HIGH COURT

[No. 675 J.R./2009]

O (O) & Ors v Minister for Justice

JUDICIAL REVIEW

BETWEEN

O.O., S.O., O.O. (A MINOR SUING BY HIS FATHER AND NEXT FRIEND O.O.) AND O.P.O (A MINOR SUING BY HIS FATHER AND NEXT FRIEND O.O.)

APPLICANTS

AND

THE MIINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

U (MA) & ORS v MIN FOR JUSTICE (NO 2) UNREP HOGAN 9.2.2011 2011 IEHC 95

U (MA) & ORS v MIN FOR JUSTICE (NO 1) UNREP HOGAN 13.12.2010 2010 IEHC 492

IMMIGRATION ACT 1999 S3(1)

IMMIGRATION ACT 1999 S3(11)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5(1)

RSC O. 28 r1

S (I) & ORS v MIN FOR JUSTICE & ORS UNREP HOGAN 21.1.2011 2011 IEHC 31

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)

NI EILI v ENVIRONMENTAL PROTECTION AGENCY & ORS 1997 2 ILRM 458 1998/9/2656

M (S) v MIN FOR JUSTICE & ORS UNREP SUPREME 3.5.2005 2005/37/7640 2005 IESC 27

PRACTICE & PROCEDURE

Pleadings

Amendment - Judicial review proceedings - Application to amend statement of grounds - Challenge constitutionality of s 3(1) of Immigration Act 1999 - Intention of Oireachtas that applicant advance entirety of grounds within 14 day period prescribed by s 5(2) of Illegal Immigrants (Trafficking) Act 2000 - Proposed challenge to constitutionality of s 3(1) of Act of 1999 not contemplated at commencement of proceedings - Whether exceptional circumstances for allowing amendment - S(I) v Minister for Justice, Equality and Law Reform [2011] IEHC 31 (Unrep, HC, Hogan J, 21/1/2011) distinguished; Ni Eili v Environmental Protection Agency [1997] 2 ILRM 458; M(S) v Minister for Justice, Equality and Law Reform [2005] IESC 27 (Unrep, SC, 3/5/2005) considered - Immigration Act 1999 (No 22), s 3 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - European Convention on Human Rights Act 2003 (No 20), s 5 - Rules of the Superior Courts 1986 (SI 15/1986), O 28, r 1 - Application refused (2009/675JR - Hogan J - 9/2/2011) [2011] IEHC 104

O(O) v Minister for Justice, Equality and Law Reform

Facts The application was broadly similar to the one made in MAU v. Minister for Justice (Hogan J, 2009 881 JR, 9/02/11) in which Hogan J had refused an application to amend proceedings. The additional ground sought to be raised related to a previous ruling that under s. 3(1) of the Immigration Act 1999, once a deportation order took effect it was a life long exclusion from the State, subject only to the mitigating effects of s. 3(11) of the 1999 Act and the power of the Minister to revoke a deportation order. An application was now being brought to amend the pleadings to challenge the constitutionality of such a life long ban. Unlike the previous MAU case however the present case had not proceeded to judgment and the jurisdictional bar to any amendment which was present in that case was not present in this case. The applicants also sought leave to enable them to seek a declaration of incompatibility under s. 5(1) of the European Convention of Human Rights Act 2003. It was contended on behalf of the applicants that previous judgments had now clarified the law in this area.

Held by Hogan J in refusing the application. It was clear that the Court had a jurisdiction to permit the amendment under Order 28, rule 1 of the Rules of the Superior Courts. Both the statement of grounds and the grounding affidavit contained pleas to the effect that the deportation order would have a disproportionate impact on their constitutional rights and rights protected by the European Convention of Human Rights. There was nothing to suggest the constitutionality of s. 3(1) of the 1999 Act was ever sought to be challenged. The proposed new ground of challenge was entirely new and could not even remotely be said to be simply an amplification of arguments already advanced. By prescribing a requirement that applications for judicial review of deportation orders must be commenced within 14 days, subject to the power to extend time for good and sufficient reason, the Oireachtas had clearly intended that all such applicants must advance the entirety of their grounds of challenge within that period. This legislative policy would be seriously likely to be compromised were a late amendment of this kind to be permitted some twenty months after the proceedings were commenced. An amendment of this kind at such a late stage could only be countenanced in quite exceptional circumstances.

Reporter: R.F.

1 1. This application to amend the applicants' statement of grounds raises issues which are similar to - but not quite identical to - the issues which also arose for decision in the other judgment which I am also delivering today, MAU v. Minister for Justice, Equality and Law Reform (No.2). Both applications take as their starting point the earlier judgment delivered by me in MAU v. Minister for Justice, Equality and Law Reform (No.1) [2010] IEHC 492.

2 2.The net question which arose for consideration in MAU (No. 1) concerned the interpretation of s. 3(1) of the Immigration Act 1999 ("the 1999 Act") and the effect of a deportation order made under that sub-section. I held that it was clear beyond argument that the consequence of s. 3(1) was that once the deportation order takes effect, the subject of that order must endure a life long exclusion from the State, subject only to the mitigating power of the Minister for Justice, Equality and Law Reform to revoke a deportation order already made by virtue of s. 3(11).

3 3. Subsequent to the delivery of this judgment - albeit before the perfection of the order and the disposal of issues such as costs and whether a certificate dealing with leave to appeal should be granted - the applicants in that case then applied to amend their pleadings to enable them now for the first time to challenge the constitutionality of s. 3(1) of the 1999 Act on the ground that it effects a disproportionate interference with their constitutional rights by virtue of this life long ban. In the alternative, they also sought leave to enable them to seek a declaration of incompatibility under s. 5(1) of the European Convention of Human Rights Act 2003. In the judgment which I have just delivered today, I held that this Court had no jurisdiction to permit an amendment of the pleadings post-judgment and in respect of which proceedings the Court was now functus officio, at least so far as the question of the validity of the deportation order was concerned.

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