Fares v Minister for Justice and Another

• Jurisdiction: Ireland
• Judge: Denham J.
• Judgment Date: 20 December 2007
• Neutral Citation: [2007] IESC 65
• Court: Supreme Court
• Docket Number: [S.C. No: 483/2006]
• Date: 20 December 2007

Between/

Samir Morriss Gerges Fares and by order of the High Court of 12th July, 2006 Flobater Samir Moriss Gerges Fares

Applicants/Respondents

and

The Minister for Justice, Equality and Law Reform

Respondent/Appellant

and

The Human Rights Commission and the Attorney General

Notice Parties

[S.C. No: 483/2006]

THE SUPREME COURT

Abstract:

Immigration - Asylum law - Aliens - 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 - Criteria for inclusion for consideration in scheme - Applications refused on basis that applicants not continuously resident in State since birth of child - 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 continuously resident in the State since the birth of the child. The applicants applied under the scheme. The respondent refused to consider the applications on the basis that they had not been continuously resident in the State since the birth of their child. 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 failing to have lived continuously in the State since the birth of their child 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.

1. Issue

2 At 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 yet to be considered.

3 At the core of the case is the refusal by the Minister of the first named applicant's application under the IBC 05 Scheme.

2. Eight Cases

4 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.

5 3. These related cases are:

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

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

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

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

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

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

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

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

6 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

7 Justice, Equality and Law Reform, was filed in all cases on behalf of the Minister. Similar written submissions were filed on behalf of the Minister in all cases.

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

5. Parties

9 Samir Moriss Gerges Fares, the first named applicant, and hereinafter referred to as 'the first named applicant', is married to Mrs Sohair Antone Gerges Boulis, who gave birth in the State to Flobater Samir Moriss Gerges Fares, the second named applicant, and hereinafter referred to as 'the second named applicant', on the 14th September, 2003.

6. Particular Facts

10 This case relates to the requirement in the IBC 05 Scheme of continuous residence within the State.

11 The first named applicant is an Egyptian national. On the 1st September, 2003 the first named applicant and his wife entered the State on a visitor's visa. His wife gave birth to the second named applicant in the State on the 14th September, 2003. All three left the State on the 13th October, 2003.

12 The applicants, and the first named applicant's wife (and mother of the second named applicant) re-entered the State on the 10th March, 2005 using visitors' visas. Both the first named applicant and the second named applicant's mother applied under the IBC 05 Scheme on application forms received on the 22nd March, 2005. On the 19th August, 2005 both applications were refused. The grounds for the refusal were stated as follows:

13 "It is a requirement under the revised arrangements that the applicant is residing in the State with their Irish born child on a continuous basis since the child's birth. In this case I note from your application form that you have been resident in Egypt from 13 October 2003 to 10 March 2005. On this basis I am satisfied that you do not meet the criteria for the granting of permission to remain in the State under the revised arrangements and accordingly your application is hereby refused."

7. High Court Proceedings

14 On the 21st November, 2005 the first named applicant was given leave by the High Court (Butler J.) to apply by way of judicial review for a number of declarations relating to the alleged invalidity of the decision of the Minister to refuse his application under the IBC 05 Scheme. These proceedings together with theBode case, and the other cases listed in paragraph 3 above, were heard together by the High Court.

8. High Court Order

15 The High Court held:

16 "There is no substantive difference between the position of the second named applicant as a citizen child and his father as an applicant under IBC/05 so as to distinguish them in any way from the conclusions which I reached in theBode judgment. Accordingly, for the reasons fully set out in that judgment I have concluded:

17 1. The decision taken by the [Minister] on the application under IBC/05 of the first named applicant as communicated in the letter dated 19th August, 2005 is unlawful as it was taken in breach of the second named applicant's rights under Article 40.3 of the Constitution.

18 2. The decision of the [Minister] on the application under IBC/05 of the first named applicant communicated in the letter of 19th August, 2005 is unlawful as it was taken in breach of the [Minister's] obligations under s.3(1) of the European Convention on Human Rights Act, 2003, as it was taken in a manner which is not compatible with the State's obligations to the second named applicant under article 8 of the Convention."

19 The High Court granted an order of certiorari quashing the decision of the Minister dated the 19th August, 2005 refusing the application of the first named applicant under the IBC 05 Scheme, and made an order remitting the application for consideration and determination by the Minister in accordance with law.

9. Appeal

20 The Minister appealed against the judgment and order of the High Court. The submissions before this Court were similar to those in the Bode case.

10. Decision

21 I would allow the appeal of the Minister. My general reasons are set out in theB...