Efe & Ors -v- MJELR & Ors, [2011] IEHC 214 (2011)

Docket Number:2009 329 JR
Party Name:Efe & Ors, MJELR & Ors
Judge:Hogan J.










JUDGMENT of Mr. Justice Hogan delivered on 7th June, 2011

  1. In these proceedings the applicants seek to challenge a decision of the Minister where he sought to deport the first named applicant, even though the effect of that decision would be effectively to rupture - more or less permanently - his family ties with his two Irish citizen step-children. In a reserved judgment delivered on 25th February, 2011, I concluded that the applicants had established substantial grounds for contending that the Minister had not conducted a full and fair assessment of their case by reason, inter alia, of the fact that the file analysis had minimized the potential impact which the deportation of their step-father would have on such children. Leave to apply for judicial review of that decision was granted accordingly. It should also be noted that the couple also have a younger Irish born child and the issue as to whether the child is also an Irish citizen may also feature in the main proceedings.

  2. At this stage of the proceedings the applicant now contend that the common law rules of judicial review are unconstitutional in that it is contended that these rules are basically ineffective to secure the protection of the fundamental rights which are engaged by the asylum and deportation process. It is further contended that in the event that these rules are found to be constitutional, the applicants are nonetheless entitled to a declaration of incompatibility pursuant to s. 5(2) of the European Court of Human Rights Act 2003 on the ground that their right to an effective remedy under Article 13 ECHR has been violated. As the pleadings were originally constituted there was no constitutional challenge. In the companion decision, S. v. Minister for Justice, Equality and Law Reform [2011] IEHC 31, I ruled that the applicants were not entitled to seek a declaration of incompatibility without having first exhausted their constitutional remedies. Leave to amend was accordingly granted in that case, this case and the other companion cases, Oboh v. Minister for Justice, Equality and Law Reform, Fashade v. Minister for Justice, Equality and Law Reform and Alli-Balugon v. Minister for Justice, Equality and Law Reform in order to allow the parties to plead the constitutional issue. The other three cases all present similar facts and issues. This judgment also governs the constitutional and ECHR issues raised in the latter three cases so far as the adequacy of the common law judicial review rules are concerned.

  3. Before proceeding further, it is probably important to state exactly what is embraced in this description of the common law rules of judicial review. The applicants do not challenge the basic procedural rules (such as the requirements as to leave, filing of affidavits and amendment of pleadings) contained in Ord. 84 RSC. Nor do they challenge the special requirements governing applications involving the asylum and immigration process prescribed by s. 5 of the Illegal Immigrants (Trafficking) Act 2000, this matter having in any event already been conclusively determined by the Supreme Court in its decision in Re Article 26 and the Illegal Immigrants (Trafficking) Bill 2000 [2000] 2 I.R. 326. Instead, the applicants rather challenge the constitutionality of what might be termed the substantive common law rules of judicial review, namely, reasonableness, rationality and so forth on the ground that these rule do not provide an adequate remedy. In line with the proper sequence of issues indicated by the Supreme Court in Carmody v. Minister for Justice, Equality and Law Reform [2009] IESC 71, [2010] 1 I.R. 635 and McD v. L. [2009] IESC 81, [2010] 2 I.R. 199, I will first deal with the constitutional issues. It is only in the event that the applicants fail to secure a declaration of unconstitutionality that I will then proceed to consider the question of a declaration of incompatibility and the ECHR.

    The guarantees contained in Article 40.3.1 and Article 40.3.2

  4. I do not propose to dwell on what is, strictly speaking, the first question which might otherwise be thought to arise, namely, whether the Constitution (and particularly Article 40) serves to guarantee litigants an effective remedy. Of this there can be absolutely no doubt. As I pointed out in my judgment in S. v. Minister for Justice, Equality and Law Reform [2011] IEHC 31 the combined effect of Article 34.1, Article 34.3.1, Article 40.3.1 and Article 40.3.2, coupled with a wealth of corresponding case-law, is to demonstrate that the Constitution provides litigants with such a right:-

    “These examples - which are certainly by no means exhaustive - all share one common theme, namely, that the courts will ensure the remedies available to a litigant are effective to protect the rights at issue and that our procedural law (including all legislation restricting or regulating access to the courts) respects basic fairness of procedures and is neither arbitrary or unfair. Article 34.3.1, Article 40.3.1 and Article 40.3.2 thus reflect the same basic premise as that contained in Article 13 ECHR, i.e., the guarantee of an effective remedy. That, after all, is the central premise of what the express words of Article 40.3 - the vindication of rights in the case of injustice done - are all about.”

  5. It is true that, unlike Article 13 ECHR, Article 40 does not actually use the term “effective remedy”, but rather addresses itself to the concept of vindication of rights. It is, of course, merely a truism to observe that constitutional rights cannot be vindicated in the absence of an adequate remedy, as the wealth of constitutional case-law on the point amply demonstrates.This difference in approach is simply a question of verbal style - or, if you will, semantics - but it certainly amounts to the same thing. Adapting, therefore, the language of Finlay P. in The State (C.) v. Frawley [1976] I.R. 365, 374 the Constitution guarantees such a right “even if there never had been a European Convention of Human Rights, or if Ireland had never been a party to it”.

  6. It might also be observed that in his judgment in Meadows v. Minister for Justice, Equality and Law Reform [2010] IESC 3, [2010] 2 I.R. 701, 721 Murray C.J. commented that it was “the task of the Courts to ensure that where rights are wrongfully breached that remedies are effective”. These comments are all the more pertinent given that they were uttered in the context of the appropriate test of review in judicial review cases challenging the reasonableness of a ministerial deportation order. The Chief Justice also made similar comments in Carmody ([2010] 1 I.R. 635, 668) in the context of that plaintiff’s constitutional right to legal aid:-

    “[The plaintiff] is entitled to have that constitutional right vindicated. Article 40.3 of the Constitution imposes on the organs of government of the State the duty to defend and vindicate the personal rights of the citizen. As this Court has frequently pointed out, and as Henchy J. repeated in The State (Healy) v. Donoghue [1976] I.R. 325, this court is one of the organs of government. In exercising its judicial functions it must seek to vindicate such rights.”

  7. A similar issue also arose in Albion Properties Ltd. v. Moonblast Ltd. [2011] IEHC 107, albeit in a very different context. Here the question was whether this Court had the jurisdiction to grant a mandatory interlocutory injunction to require a commercial tenant - who was manifestly in default with regard to rental payments - to yield up possession. I rejected the argument that there could be any such jurisdictional bar, saying:-

    “Any supposed jurisdictional bar which prevented the court from granting injunctive relief in an appropriate case to require a defaulting tenant to yield up possession of a commercial tenancy would be at odds with duty imposed on the courts by Article 40.3.2 of the Constitution to ensure that the property rights of the plaintiff landlord are appropriately vindicated in the case of injustice done. The courts are under a clear constitutional duty to ensure that the remedies available to protect and vindicate these rights are real and effective: see, e.g., the comments of Kingsmill Moore J. in The State (Vozza) v. O’Floinn [1957] I.R. 227 at 250; those of Murray C.J. in Meadows v. Minister for Justice, Equality and Law Reform [2010] IESC 3 and the authorities set out in my own judgment in S v. Minister for Justice, Equality and Law Reform [2011] IEHC 31.”

    Against that background, we can now proceed to consider the constitutional question. The applicants contend, first, that these common law rules fail to provide an effective means of vindicating constitutional rights in the present case in that the High Court cannot itself decide whether the deportation order trenches on constitutional rights and, second, that this Court cannot receive and act upon new evidence not otherwise available to decision-maker. At the outset I have to record some unease in the manner in which I am being invited to decide this issue, since in some respects at least it is akin to conducting an abstract review of this question, almost in the manner of an Article 26 reference. It is not clear to me, for example, that the applicants can clearly point to some aspect of the application of these common law rules which in and of itself bars their path to what would otherwise be a successful challenge to the validity of the deportation decision. In some respects, at least, it might have been preferable...

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