Duman and Others v Minister for Justice, Equality and Law Reform

• Jurisdiction: Ireland
• Judge: Denham J.
• Judgment Date: 20 December 2007
• Neutral Citation: [2007] IESC 64
• Court: Supreme Court
• Docket Number: [S.C. No: 482/2006]
• Date: 20 December 2007

THE SUPREME COURT

Murray C.J.

Denham J.

Fennelly J.

Kearns J.

Finnegan J.

[S.C. No: 482/2006]

Between/

Gheorghe Dorin Duman and Alina-Vita Gap Samolia and Kevin Duman (an infant suing by his father and next friend, Gheorghe Dorin Duman)

Applicants/Respondents

and

The Minister for Justice, Equality and Law Reform

Respondent/Appellant

Abstract:

Immigration -Asylum - 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 - Applications refused on basis that applicants engaged in criminal activity - Whether refusal to consider applications 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. One of the criteria for exclusion from consideration was whether the applicant had been engaged in criminal activity. The applicants applied under the scheme. The respondent refused to consider the applications on the basis that they had been convicted of an offence in the State. 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 having being engaged in criminal activity and the respondent made a decision validly within the terms of the scheme to refuse to consider applications on that basis. 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.

2 1. Issue

3 The 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.

4 At the core of the case is the refusal by the Minister of the first and second named applicants' applications under the IBC 05 Scheme.

5 2. Eight Cases

6 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.

7 3. These related cases are:

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

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

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

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

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

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

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

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

8 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 in all cases on behalf of the Minister.

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

10 5. Parties

11 Kevin Duman, the third named applicant and hereinafter referred to as 'the third named applicant', was born in Ireland on the 14th November, 2001 and is an Irish citizen. He has resided in the State since his birth. Gheorghe Dorin Duman, the first named applicant and hereinafter referred to as 'the first named applicant', is the father of the third named

12 applicant and is a Romanian national. Alina-Vica Gap Samolia, the second named applicant, and hereinafter referred to as 'the second named applicant', is the mother of the third named applicant, and is a Romanian national.

13 6. Particular Facts

14 The first and second named applicants each made an application under the IBC 05 Scheme and both were refused. It is common case that each have been convicted of a shoplifting offence. The letters from the Minister included the following findings. In relation to the first named applicant it was stated:

15 "In announcing the revised processing arrangements the Minister stated that persons of good character who have not been involved in criminal activity can expect to be granted permission to remain in the State. I am advised by the Garda National Immigration Bureau that on 1 March 2004, you were convicted of a shoplifting offence contrary to Section 4 of the Theft Act, 2001.

16 On the basis of the foregoing, I am not satisfied that you are a person of good character who has not engaged in criminal activity as set out in the Minister's announcement and, accordingly, your application for permission to remain in the State under the revised arrangements is hereby refused."

17 In relation to the second named applicant's application it was stated:

18 "In announcing the revised arrangements the Minister stated that persons of good character who have not been involved in criminal activity can expect to be granted permission to remain in the State. I am advised by the Garda National Immigration Bureau that on 9 May 2002 at the Dublin District Court 46, you were convicted of a shoplifting offence contrary to Section 2 of the Larceny Act, 1916, as amended and received a three year suspended sentence. I am advised that two othercharges were also taken into - consideration.

19 On the basis of the foregoing, I am not satisfied that you are a person of good character who has not engaged in criminal activity as set out in the Minister's announcement and, accordingly, your application for permission to remain in the State under the revised arrangements is hereby refused."

20 The Minister was requested to reconsider the matter. His reply was that the position regarding the applications remained as detailed previously.

21 7. High Court Proceedings

22 By order of the High Court (Peart J.) on the 12th December, 2005, the applicants were granted leave to seek certain reliefs by way of judicial review, including an order of certiorari quashing the Minister's decision.

23 The High Court (Finlay Geoghegan J.) on the 14th November, 2006, noted, in considering the decision:

24 'These proceedings were heard with the proceedings 2006 No. 504 J.R. Mercy Oviawe & Ors. v. The Minister for Justice. Equality and Law Reform and Ors. and immediately after the proceeding 2006 No. 102 J.R. Deborah Olarantimi Bode v. The Minister for Justice,

25 Equality and Law Reform in both of which I have delivered judgments today. Insofar as relevant, the position of the applicants in these proceedings is similar to the position of the applicants in the Oviawe v. Minister for Justice Equality and Law Reform [2006] IEHC 342 proceedings. In each there is an Irish citizen child and a non-national parent or parents who made an application from within the State under IBC/05 which was refused by reason of a criminal conviction. Further in each, the decision on IBC/05 was taken without any consideration of the rights of the citizen child."

26 The High Court held that there was nothing that distinguished this case from Oviawe. Thus, for the reasons given in the High Court in Bode

27 and

28 Oviawe, the High Court reached the following conclusions:

29 "1. The decision taken by the [Minister] on the applications under IBC/05 of the first and second named applicants as communicated in the letters of 12th September, 2005, and confirmed in the letters of 24th November, 2005 are (sic) unlawful as it was taken in breach of the third named applicant's rights under Article 40.3 of the Constitution.

30 2. The decision of the [Minister] on the applications under IBC/05 of the first and second named applicants communicated in the letter of 12th September, 2005, and confirmed in the letters of 24th November, 2005 are unlawful as they were taken in breach of the [Minister's] obligations under section 3(1) of the European Convention on Human Rights Act, 2003,...