F. L. v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 10 May 2012
• Neutral Citation: [2012] IEHC 189
• Court: High Court
• Date: 10 May 2012

[2012] IEHC 189

THE HIGH COURT

[No. 850 J.R./2011]

L (F) v Min for Justice

BETWEEN

F. L.

APPLICANT

AND

MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

IMMIGRATION ACT 1999 S3

T (LA) & ORS v MIN FOR JUSTICE & ORS UNREP HOGAN 2.11.2011 2011/47/13240 2011 IEHC 404

CARLTONA LTD v CMRS OF WORKS & ORS 1943 2 AER 560

DEVANNEY v DISTRICT JUDGE SHIELDS & ORS 1998 1 IR 230

TANG & LEUNG v MIN FOR JUSTICE 1996 2 ILRM 46 1995/21/5597

LAURENTIU v MIN FOR JUSTICE & ORS 1999 4 IR 26

ALIENS ACT 1935 S5(1)(E)

CONSTITUTION ART 15.2.1

CONSTITUTION ART 28.2

CONSTITUTION ART 28.4.1

MEADOWS v MIN FOR JUSTICE & ORS 2010 2 IR 701 2011 2 ILRM 157 2010 IESC 3

O (O) & O (B) (A MINOR) v MIN FOR JUSTICE & ORS UNREP COOKE 4.5.2011 2011/43/12294 2011 IEHC 175

EEC DIR 2004/83 ART 4(1)

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 267

M (M) v MIN FOR JUSTICE & ORS UNREP ECJ 26.4.2012 (CASE NO CâÇæ277/11)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8(2)

IMMIGRATION LAW

Deportation

Minister - Powers - Delegation - "Carltona doctrine" - Whether Minister required to personally consider and sign deportation order - Whether ministerial powers lawfully exercised by civil servant - Whether "Carltona" doctrine negatived by statute - Whether Minister required to furnish applicant with proposed decision to deport for comment - Whether deportation constituted inference with right to family life - Carltona Ltd v Commissioners of Works [1943] 2 All ER 560; Tang v Minister for Justice [1996] 2 ILRM 46; Devanney v District Judge Shields [1998] 1 IR 230; Meadows v Minister for Justice [2010] IESC 3, [2010] 2 IR 701; OO v Minister for Justice [2011] IEHC 175, (Unrep, Cooke J, 4/5/2011); LAT v Minister for Justice [2011] IEHC 404, (Unrep, Hogan J, 2/1/2011); MM v Minister for Justice (Case C-277/2011), (Unrep, ECJ, 26/4/2012) considered - Aliens Act 1935 (No 14), s 5 - Immigration Act 1999 (No 22), s 3 - Constitution of Ireland 1937, arts 15 and 28 - Directive 2004/83/EEC, art 4 - Treaty on the Functioning of the European Union, art 267 - European Convention on Human Rights and Fundamental Freedoms 1950, art 8 - Leave to seek judicial review refused (2011/850JR - Hogan J - 10/5/2012) [2012] IEHC 189

L(F) v Minister for Justice and Equality

Facts The applicant, a national of Algeria, sought leave to challenge a decision of the respondents to make a deportation order in respect of her. On behalf of the applicant it was submitted that the Minister was obliged by s. 3 of the Immigration Act 1999 to personally consider and sign deportation orders. On behalf of the respondent it was contended that such decisions could lawfully be taken in the name of the Minister by a senior civil servant by virtue of the 'Carltona' doctrine. It was contended on behalf of the applicant that the Minister was obliged pursuant to Article 4(1) of Directive 2004/83/EC (Qualifications Directive) to supply her in advance of a draft of a negative subsidiary protection decision so that she could comment on it.

Held by Hogan J. in refusing the grant of interlocutory relief: Nearly every statutory power which was devolved by law on Ministers by the Oireachtas involved the exercise of executive power in one shape or another. It could not follow from this premise that the relevant Minister must be expected to take every decision of this kind personally. The nominated civil servant remained free to make the decision in question while the Minister remained accountable to Dáil Éireann for all such decisions, both as a matter of constitutional law (in Article 28.4.1) and as a matter of political theory and reality. As there was a judgment presently awaited from the European Court of Justice regarding the Qualifications Directive the application for leave in this respect would be adjourned.

1 1. The principal issue for resolution in these proceedings whereby the applicant seeks leave to apply for judicial review is whether the Minister is obliged by s. 3 of the Immigration Act 1999 ("the Act of 1999") personally to consider and sign deportation orders or whether - as the respondent contends - such decisions may lawfully be taken in the name of the Minister by a senior civil servant by virtue of what has come to be known as the " Carltona" doctrine. In the present case, the deportation order was made in respect of Ms. L., an Algerian national, by Mr. Noel Waters, a senior civil servant who is duly authorised by the Minister to take decisions of this nature in his name. Mr. Waters is the Director General of the Irish Naturalisation and Immigration Service and he is probably the most experienced civil servant in the State with responsibility for immigration and asylum matters.

2 2. These questions were fully considered by me in my judgment in T. v. Minister for Justice and Equality, High Court, 2 November 2011.Counsel for the applicant, Mr. Noonan, invited me not to follow this decision in the face of additional authorities which he sought to bring to my attention. But before considering this issue, it is necessary to say something about the background facts of this case.

3 3. The applicant is an Algerian national who arrived in Ireland in September 2007, but who did not apply for asylum until some two years later. A key part of her asylum claim was that she was the director of a women's rights organisation in Algeria and that she had suffered persecution and discrimination from the police. By decision dated the 8 ^th June 2010 the Refugee Appeals Tribunal found against the applicant on credibility grounds. No documentation could be sourced by the Tribunal in relation to this organisation and the Tribunal concluded that the applicant had an inadequate knowledge of other women's human rights groups in Algeria such as would take from the general credibility of her account. No challenge has been taken to that decision.

4 4. The applicant then made an application for leave to remain and for subsidiary protection. The application for subsidiary protection was refused on 22 ^nd July, 2011, and on 23 ^rd August, 2011, the applicant was informed that a deportation order had been made.

5 5. So far as the deportation order is concerned, the net question is whether Mr. Waters could lawfully execute that order in the name of the Minister. If the Carlton doctrine does not apply, then there is little dispute but that the order is ultra vires and void, irrespective of the experience, standing and status of Mr. Waters. In that situation, this would count for nothing, since Mr. Waters simply would not have been authorised by law to take this decision. Although, as I have already indicated, this question was fully examined by me in T., it seems necessary to consider this issue afresh.

The Carltona Principle

6 6. As I pointed out in T., Carltona Ltd v. Commissioners of Works [1943] 2 All E.R. 560 is the eponymous decision of the English Court of Appeal which conveniently describes a key constitutional doctrine governing the relationship between civil servants and the responsible Minister. Here private property had been requisitioned by a civil servant acting under the authority of the Minister pursuant to war-time regulations. The Minister in question had not, of course, actually taken the decision, but Lord Greene M.R. rejected the argument that the decision to requisition the property was invalid on that ground ( [1943] 2 All E.R. 560, 563):-

"In the administration of government in this country the functions which are given to ministers...are functions so multifarious that no minister could ever personally attend to them. To take the example of the present case, no doubt there have been thousands of requisitions in this country. It cannot be supposed that this regulation meant that, in each case, the minister in question should direct his mind to the matter. The duties imposed upon ministers and the powers given to ministers are normally exercised under the authority of ministers by responsible officials of the department. Public business could not be carried on if that were not the case."

7 7. Having thus described the decision in Carltona, I then continued:-

"This principle has been expressly approved in this jurisdiction by the Supreme Court: see Tang v. Minister for Justice [1996] 2 I.L.R.M. 46 and Devanney v. Shields [1998] 1 I.R. 230. As the late Professor Wade pointed out in a passage from Administrative Law (7 ^th Ed., at p. 357) (which was quoted by Hamilton C.J. in Devanney) "strictly speaking, there is not even delegation in these cases". The civil servants rather acts in the name of the Minister pursuant to a general principle of law which, in this jurisdiction, is buttressed by the provisions of s. 2 of the Ministers and Secretaries Act 1924, by virtue of which the Minister is invested as a corporation sole. The Minister thus has political responsibility for the acts of his civil servants and, of course, he is accountable in this regard to Dáil Eireann: see Article 28.4.1 of the Constitution. The Minister is also free to take any particular decision himself. The point nevertheless is that his responsible civil servants are free to take such decisions in the name of the Minister, save where this principle is negatived, either expressly or impliedly, by either the context of the relevant legislation or, perhaps, by the general law."

8 8. In...