Chain Wen Wei v Minister for Justice and The Commissioner of an Garda Siochana

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan,Mr. Justice O'Donnell,Mr. Justice Woulfe
• Judgment Date: 19 December 2024
• Neutral Citation: [2024] IESC 58
• Court: Supreme Court
• Docket Number: S:AP: IE: 2023:000131

Between/

Chain Wen Wei

Applicant

and

Minister for Justice and The Commissioner of An Garda Siochana

Respondents

Tang Ting Ting

Applicant

and

Minister for Justice and The Commissioner of An Garda Siochána

Respondents

[2024] IESC 58

O'Donnell C.J.

Woulfe J.

Hogan J.

Murray J.

Donnelly J.

S:AP: IE: 2023:000131

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Public policy – Statutory interpretation – Immigration Act 2004 s. 4(3)(j) – Appellants seeking judicial review of the decision to refuse them a permission to land or be in the State – Whether the phrase “public policy” in s. 4(3)(j) of the Immigration Act 2004 must be narrowly construed

Facts: The appellants, Mr Wei and Mr Ting, applied for leave to appeal to the Supreme Court from the decision of the Court of Appeal (Faherty J) which upheld the decision of the High Court (Burns J) which refused the appellants’ applications for judicial review of the decisions made by the immigration authorities to refuse them a permission to land or be in the State, pursuant to s. 4 of the Immigration Act 2004. The Supreme Court granted leave to appeal. The Court considered that the appeal raised significant and important issues relating to the operation of the 2004 Act and, specifically, the precise ambit of the public policy provision contained in s. 4(3)(j). The appellants submitted that the phrase “public policy” in s. 4(3)(j) is no more than a residual category of possible reasons to refuse leave to land and one that must be narrowly construed; in addition, by virtue of its juxtaposition with the phrase “national security” in the same subsection, it connotes the existence of something relating to personal conduct on the part of the non-national that could adversely affect one of the fundamental interests of the State.

Held by Woulfe J that the principles governing statutory interpretation had been restated by the Court in Heather Hill and A.B. & C. (A Minor) v The Minister for Foreign Affairs and Trade [2023] 1 ILRM 335. Woulfe J agreed with Humphreys J as to the broad scope of “public policy” in s. 4(3)(j) of the 2004 Act. In the light of Woulfe J’s interpretation of s. 4(3)(j) in Li and Wang v Minister for Justice and Equality [2015] IEHC 638, he held that the immigration officers were entitled to refuse to give a permission to the appellants, on the grounds that their entry into, or presence in, the State could be contrary to public policy. Woulfe J held that the public policy in question was set out in the “New Immigration Regime for Full Time Non-EEA Students, Guidelines for Language...Students” issued by the Irish National Immigration Service in January, 2011 (the 2011 Guidelines), which specified that it was not permissible for a student to come to Ireland to undertake a distance learning course. Woulfe J held that the 2011 Guidelines represent a clear and consistent expression of a policy position by the Executive, and he agreed with the Court below that the policy is a perfectly rational one. Woulfe J held that the operation of the 2011 Guidelines was triggered by the Covid-19 pandemic, and the Government Guidelines of October 2020 whereby English language providers were directed to move all tuition online.

Woulfe J held that the Courts below did not err in construing s. 4(3)(j) of the 2004 Act as they did. Therefore, Woulfe J dismissed the appeal.

Appeal dismissed.

JUDGMENT of Mr. Justice Gerard Hogan delivered the 19 ^th day of December 2024

Introduction

1 . The appellants in this case are two Malaysian nationals who were refused leave to enter the State on 12 ^th December 2020. At the time of their arrival, Malaysian nationals were visa exempt for the purposes of entry into the State. The appellants had both entered the State in order to pursue a full-time English language course which was due to commence on 4 ^th January 2021. Due to the exigencies of the Covid-19 pandemic this course was being held at that time on-line and not in person. At the time official guidelines (the details of which I will presently consider) sought to restrict the entry of non-nationals into the State to pursue an on-line teaching course of this nature.

2 . The applicants were, however, refused entry to the State by immigration officers pursuant to s. 4(3)(j) of the Immigration Act 2004 (“the 2004 Act”). This sub-section provides that permission may be refused if the officer is satisfied that “the non-national's entry into, or presence in, the State could pose a threat to national security or be contrary to public policy.” It is accepted that the students posed no threat to national security. It is said, however, that the grant of leave to land was justified on the ground that their presence in the State would be contrary to public policy. The present appeal accordingly turns on the proper interpretation of the words “contrary to public policy” as it appears in the sub-section.

3 . The entry of students wishing to pursue language courses in Ireland had previously been governed by Guidelines issued by the Irish National and Immigration Service in October 2011. These Guidelines provide that it was not possible for students to come to Ireland “to undertake a part-time course or a distance learning course.” While the English language course which the appellants sought to pursue did not originally fall into this category, due to the exigencies of the Covid-19 pandemic, the organisers of the course were obliged to offer it on-line for much of the calendar year 2020. At this point, the 2011 Guidelines had been supplemented by further Guidelines published by the Government on 27 ^th October 2020. These Guidelines had provided that entry into the State for those seeking to pursue English language courses was being restricted by virtue of the pandemic. It expressly stated that “…prospective students seeking to enter the State should wait until in-person tuition has been resumed.” (Emphasis supplied). The two applicants were refused leave to land by virtue of this particular policy. It is not suggested that these 2020 Guidelines had any particular statutory foundation.

4 . The applicants then immediately sought leave to apply to judicial review of this decision. The decisions to refuse leave to land were upheld by Burns J. in two complementary judgments delivered on 23 ^rd March 2021. In her judgments Burns J. considered two earlier High Court judgments which had arrived at differing conclusions on the meaning of this phrase in s. 4(3)(j) of the 2004 Act. She declined to follow the first of these decisions (a decision of mine delivered as a judge of the High Court in Ezenwaka v. Minister for Justice, Equality and Reform [2011] IEHC 328) on the basis that this decision had not had sufficient regard to the use of the word “or” in the sub-section. She concluded that the reference to public policy should be regarded as separate and distinct from the reference to national security. The judge accordingly rejected the suggestion that the phrase should bear a narrower interpretation which had been adopted in Ezenwaka as being a variation of national security, albeit perhaps one which was “somewhat more flexible in its scope and reach than national security properly so called.”

5 . As the applicants had been refused entry by reference to public policy as reflected in the published guidelines of 27 ^th October 2020, Burns J. found that the refusal was lawful for the purposes of s. 4(3)(j) of the 2020 Act. Burns J. nevertheless granted leave to appeal to the Court of Appeal pursuant to s. 5(2) of the Illegal Immigrants (Trafficking) Act 2000 on the issue of the proper construction of the meaning of the phrase “public policy” in s. 4(3)(j) of the 2004 Act.

6 . The appeals were dismissed by the Court of Appeal in a comprehensive judgment delivered by Faherty J. on 2 ^nd June 2023: see Wen Wei v. Minister for Justice and the Commissioner of An Garda Siochana [2023] IECA 138. In her judgment, Faherty J. concluded (at 93) that this was not a case where the principle of noscitur a sociis was properly to be applied, saying that the “two expressions are far from synonymous with one another or naturally sequential”. She added (at 94) that “each of these concepts is entirely capable of being seen as a separate and distinct concept and not requiring the application of the maxim noscitur a sociis.” She also stressed (at 95) the fact that neither concept had been defined in the 2004 Act and where both concepts were separated by the word “or”.

7 . Before proceeding any further, I should state that I entirely agree with the comments of O'Donnell C.J. regarding the form of the stay order which was originally granted by the High Court in this case. This stay order effectively amounted to an open-ended ex parte interlocutory injunction restraining the deportation of the applicants.

8 . For all the reasons expressed by Collins J. and myself in our respective judgments in MD v. Board of Management of A Secondary School [2024] IESC 11 I consider that the practice of granting open-ended stays of this kind in judicial review applications should cease. If a stay is going to be granted, the same general practice governing the granting of interlocutory injunctions should be followed so that in particular any party affected by the stay is entitled to be heard before such an order is made. As the Chief Justice has observed in this case and as I remarked in MD, it may be that the actual wording of Ord. 84(2)(b) of the Rules of the Superior Courts has contributed to this confusion given that it appears – on at least one reading of this provision – expressly to permit the granting of stay orders of this kind. If so, it may be that the wording of this sub-rule might with advantage be reconsidered by the Superior Court Rules Committee.

The interpretation of section 4(3)(j) of the 2004 Act

9 . At the heart of the present appeal lies the question of...