FP v Minister for Justice

• Jurisdiction: Ireland
• Judgment Date: 30 July 2001
• Date: 30 July 2001
• Docket Number: [S.C. Nos. 41 and 42 of 2001]
• Court: Supreme Court

F.P. v. Minister for Justice

F.P. and A.L.

Applicants

and

The Minister for Justice, Equality and Law Reform

Respondent

F.P. v. Minister for Justice

C.B.

Applicant

and

The Minister for Justice, Equality and Law Reform, Respondent and The Attorney General, Notice Party

[S.C. Nos. 41 and 42 of 2001]

[S.C. Nos. 43 and 44 of 2001]

Supreme Court

Aliens - Deportation - Humanitarian leave to remain - Reasons - Inherent power of State to deport aliens - Statutory considerations - Application to Minister for leave to remain in State on humanitarian grounds - Exercise of discretion - Whether State's constitutional obligation to protect institution of marriage could limit ministerial discretion - Deportation orders - Form of orders - Extent of duty to notify and give reasons - Immigration Act, 1999 (No. 22) s. 3 - Illegal Immigrants (Trafficking) Act, 2000 (No. 29), s. 5(2) - Constitution of Ireland, 1937, Article 41.3.1.

The applicants applied for asylum in the State, were refused at first instance and unsuccessfully appealed. The applicants then applied pursuant to s. 3(3)(b) of the Immigration Act, 1999, to the respondent for humanitarian leave to remain in the State and were refused. The first and second applicants appealed against the refusal of the High Court (Smyth J.) to grant them leave to institute judicial review proceedings in respect of the deportation orders subsequently made in regard to each of them. The respondent appealed against the decision of the High Court to allow the third applicant leave to institute judicial review proceedings on the ground that reasons were not given in respect of the proposed deportation, in breach of the provisions of s. 3(3)(a) of the Act of 1999. The third applicant appealed the High Court decision to refuse leave to apply for judicial review on the other grounds sought by him and submitted that Article 41.3.1 of the Constitution precluded the respondent from deciding to deport one partner to a marriage while the other's application for leave to remain was pending.

Held by the Supreme Court (Keane C.J., Denham, Murphy, Murray and Hardiman JJ.), in dismissing the appeals and cross-appeal and affirming the judgment and order of the High Court, 1, that the State possessed an inherent power to deport aliens, which was the subject of detailed regulations protecting the constitutional and human rights of applicants for asylum.

Laurentiu v. Minister for Justice [1999] 4 I.R. 26considered.

2. That the respondent could make a deportation order in respect of any person who fell within one of the categories listed in s. 3(2) of the Act of 1999, subject to the subsequent provision that representations for leave to remain on humanitarian grounds were sought and considered, if made.

3. That s. 3(3)(a) of the Act of 1999 provided that the respondent must notify and give reasons for the proposed deportation order; the word reasons (plural) embraced the singular reason and where a number of reasons were given he could not afterwards rely on any other uncommunicated reason to defend compliance with the legislation.

4. That the question of the degree to which a decision should be supported by detailed reasons would vary with the nature of the decision itself. In the instant case, the respondent, in the exercise of his discretion, had to consider the matters in s. 3(6) of the Act of 1999; in that regard he was entitled to consider the reason for the proposed deportation order. He was obliged to consider personal or other factors which would render it unduly harsh or inhumane to proceed to deportation; these were factors to be considered in the context of the requirements of the common good and public policy (which included the maintenance of the integrity of the asylum and immigration systems) and where it arose, national security.

NíÉilíéilí v. Environmental Protection Agency (Unreported, Supreme Court, 30th July, 1999); The Illegal Immigrants (Trafficking) Bill, 1999[2000] 2 I.R. 360; Laurentiu v. Minister for Justice[1999] 4 I.R. 26 followed. MJT Securities Ltd. v. Secretary of State for the Environment[1998] J.P.L. 138;O'Donoghue v. An Bord Pleanála[1991] I.L.R.M. 750;International Fishing Vessels Ltd. v. Minister for Marine[1989] I.R. 149;Dunnes Stores Ireland Company v. Maloney[1999] 3 I.R. 542approved.

5. That, where a large number of persons applied, on individual facts, for the same relief, the nature of the authorities' consideration and form of grant/refusal of relief might be similar or identical, however, this would not diminish the validity of the decision nor convert it into a mere administrative formula.

6. That the respondent was obliged to notify the applicants in writing of his decision and reasons for it and was entitled to do so by letter; the deportation order itself did not need to contain the reasons for the respondent's decision.

7. That the State's obligation to protect with special care the institution of marriage and protect it against attack, could not be invoked to limit the respondent's discretion in relation to determining leave to remain in respect of an individual applicant whose application for asylum was refused.

Obiter dictum: That there was an arguable case that the provisions of s. 3(3)(a) of the Act of 1999 were mandatory, to be complied with literally and incapable of waiver or estoppel.

Cases mentioned in this report:-

Dunnes Stores Ireland Company v. Maloney [1999] 3 I.R. 542; [1999] 1 I.L.R.M. 119.

The Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 I.R. 360.

International Fishing Vessels Ltd. v. Minister for Marine [1989] I.R. 149.

Laurentiu v. Minister for Justice [1999] 4 I.R. 26; [2000] 1 I.L.R.M. 1.

McNamara v. An Bord Pleanála (No. 1) [1995] 2 I.L.R.M. 125.

MJT Securities Ltd. v. Secretary of State for the Environment (1998) J.P.L. 138; (1998) 75 P. & Cr. 188

NíÉilíéilí v. Environmental Protection Agency (Unreported, Supreme Court, 30th July, 1999).

O'Donoghue v. An Bord Pleanála [1991] I.L.R.M. 750.

Osheku v. Ireland [1986] I.R. 733; [1987] I.L.R.M. 330.

Pok Sun Shum v. Ireland [1986] I.L.R.M. 593.

Appeal from the High Court.

The facts are summarised in the headnote and are more fully set out in the judgment of Hardiman J., infra.

By notices of appeal dated the 19th and 20th February, 2001, the first and second applicants appealed the judgment and order of the High Court (Smyth J.) given on the 25th January, 2001, whereby they were refused leave to institute judicial review proceedings in respect of deportation orders made in regard to each of them. By notice of appeal dated the 19th February, 2001, the respondent appealed against the decision of the High Court to allow the third applicant leave to institute judicial review proceedings on the ground that reasons were not given in respect of the proposed deportation in breach of the provisions of s. 3(3)(a) of the Act of 1999. The third applicant appealed the High Court decision to refuse leave to apply for judicial review on the other grounds sought by him.

The appeal was heard by the Supreme Court on the 22nd and 23rd May, 2001.

Cur. adv. vult.

Keane C.J. 30th July, 2001

I agree with the judgment of Hardiman J..

Denham J.

I also agree with Hardiman J.

Murphy J.

I also agree Hardiman J.

Murray J.

I have read the judgment about to be delivered by Hardiman J. and I also agree.

Hardiman J.

In these cases the applicants appeal against the refusal of the High Court (Smyth J.) to grant them leave to institute judicial review proceedings in respect of deportation orders made in regard to each of them, other than the third applicant who was granted leave to apply for such relief on a single ground and this is the subject of a cross-appeal.

The factual background to each case, and the procedural steps taken in relation to each applicant, are set out in the judgment of the High Court Judge (see [2002] 1 I.L.R.M. 16). I gratefully adopt his summary. On the hearing of this appeal, it was not contended that there was any error or omission in either the personal or the procedural histories of the applicants and their applications.

Starting point

Each applicant applied for asylum in the State and was refused. Each appealed and was unsuccessful in the appeal. Two of the applications were found to be "manifestly unfounded".

Accordingly, as the High Court Judge found at p. 26 of the report,"These cases take as their point of departure, the conclusion of a process under the Refugee Act, 1996 … no...