GK, MM, ZM (an infant applying by her father and next friend GK) and PK (an infant applying by her father and next friend GK) v Minister for Justice, Equality and Law Reform, the Appeals Authority, Ireland and Attorney General

• Jurisdiction: Ireland
• Judge: Mr. JusticeFinnegan
• Judgment Date: 06 March 2001
• Neutral Citation: [2001] IEHC 29
• Date: 06 March 2001
• Docket Number: No. 13/1A 2001
• Court: High Court

[2001] IEHC 29

THE HIGH COURT

Finnegan

No. 13/1A 2001

K (G) & ORS v. MINISTER FOR JUSTICE & ORS

JUDICIAL REVIEW

BETWEEN

G.K. AND M.M. AND Z.M. (AN INFANT APPLYING BY HER FATHERAND NEXT FRIEND G.K.) AND P.K. (AN INFANT APPLYING BY HIS FATHER ANDNEXT FRIEND G.K.)

APPLICANTS

AND

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM ANDAPPEALS AUTHORITY AND IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

Citations

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)

ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999

BRADY V DONEGAL CO COUNCIL 1989 ILRM 282

IRISH ASPHALT LTD V BORD PLEANALA 1996 2 IR 179 1997 1 ILRM 81

KSK ENTERPRISES LTD V BORD PLEANALA 1994 2 IR 128

R V STRATFORD ON AVON DISTRICT COUNCIL 1985 3 AER 769

RAINSFORD V LIMERICK CORPORATION 1995 2 ILRM 561

VAN DE VELDE V SPECIAL EDUCATION LEAVES TRIBUNAL 1996 CROWN OFFICE PRACTICE 121

GUERIN V GUERIN 1992 2 IR 293

IMMIGRATION ACT 1999 S3

Synopsis:

PRACTICE AND PROCEDURE

Delay

Immigration - Refugee and asylum - Litigation - Solicitors - Delay - Application to extend time in order to bring judicial review proceedings - Whether application should be granted - Immigration Act, 1999 (2001/13/1A - Finnegan J - 6/3/01) [2002] 1 ILRM 81

K(G) v Minister for Justice

The applicants sought permission from the court to bring judicial review proceedings. The applicants had applied for refugee status which was refused. The application was out of time and thus leave was sought. Finnegan J held that the applicants had acted promptly. The applicants would therefore be granted the extension of time sought.

1 JUDGMENT delivered by the Honourable Mr. JusticeFinneganon the 6th day of March 2001.

2 This is an application by the Applicants for an Order extending the time within which to bring an application for leave to apply for Judicial Review the intended application being one being regulated by the Illegal Immigrants (Trafficking) Act 2000Section 5 (2) which requires that such an application be made within the period of fourteen days commencing on the day on which the person was notified of the decision, determination, recommendation, refusal or making of the Order concerned unless the High Court considers that there is good and sufficient reason for extending the period within which the application shall be made.

3 The Judgment of the Supreme Court on the reference to it on the Illegal Immigrants (Trafficking) Bill 1999 has this to say of the objective of the legislature in imposing the fourteen day limitation period:-

" The Court is satisfied that the objectives of the Bill as regards the fourteen day limitation period can be reasonably inferred from the provisions of the Bill. There is a well established public policy objective that administrative decisions, particularly those taken pursuant to detailed procedures laid down by law, should be capable of being applied or implemented with certainty at as early a date as possible and that any issue as to their validity should accordingly be determined as soon as possible. (Brady -v- Donegal Co. Co., Irish Asphalt Limited -v- An Bord Pleanala and K S K Enterprises Limited -v- An Bord Pleanala [1994] 2 IR 218 at 135). Furthermore it may be inferred from the Bill and the surrounding circumstances that the early establishment of the certainly of the decisions in question is necessary in the interests of the proper management and treatment of persons seeking asylum or refugee status in this country. The early implementation of decisions duly and properly taken would facilitate the better and proper administration of the system governing seekers of asylum for both those who are ultimately successful and ultimatelyunsuccessful."

4 For these reasons the Court is of the view that the State has a legitimate interest in prescribing procedural rules calculated to ensure and promote an early completion of Judicial Review proceedings of the administrative decisions concerned. However, in doing so, the State must respect constitutional rights and in particular that of access to theCourts.

5 Accordingly, the Court is of the view that there are objective reasons concerning the public interest in the certainty of the validity of the administrative decisions concerned on the one hand and the proper and effective management of applications for asylum or refugee status on the other. Such objective reasons may justify a stringent limitation of the period within which Judicial Review of such decisions may be sought provided constitutional rights are respected.

6 The test is not whether a more extended period of time within which to seek leave to apply for Judicial Review (whether slightly longer or very much longer) would permit the same policy objectives to attained. As already mentioned, procedures of the Courts may be regulated by law. It is a matter of policy and discretion for the legislature to choose the appropriate limitation period. The legislature is not obliged to choose the longest possible period that might be thought consistent with the policy objective concerned. However, in exercising that discretion the legislature must not undermine or compromise a substantive right guaranteed by the Constitution such as the right of access to the Courts. Where a limitation period is so restrictive as to render access the Courts impossible or excessively difficult it may be considered unreasonable in the sense Costello J found the rigid rule in Brady -v- Donegal Co. Co. to be unreasonable and therefore unconstitutional. In applying that test in this case, the Court acknowledges that there are likely to be cases, perhaps even a very large number of cases, in which for a range of reasons or combination of reasons, persons, through no fault of their own, (as in the Brady Case), are unable to apply for leave to seek Judicial Review within the appeal limitation period, namely fourteen days. This is a situationwith which the Courts deal on a routine basis for other limitation periods. The fourteen day time limit envisaged by the Bill is not the shortest with which the Courts have had to deal.

7 Moreover, the discretion of the Court to extend the time to apply for leave where the Applicant shows "good and sufficient reason" for so doing is wide and ample enough to avoid injustice where an Applicant has been unable through no fault of his or hers, or for other good and sufficient reason to bring the application within the fourteen day period. For example Counsel assigned to the Court have argued that the complexity of the issues, or the deficiencies or inefficiencies in the Legal Aid Service, may prevent the Applicant from being in position to proceed with his application for leave within the period of fourteen days.

8 However, where this has occurred through no fault of the Applicant, it may be advanced as a ground for extending the time for applying for leave for Judicial Review. In R. -v- Stratford on Avon District Council and another [1985] 3 All ER 769 the Court of Appeal in England and Wales held that difficulty in seeking and getting legal aid constituted a good reason for extending the time limit within which to apply for Judicial Review. It held that:-

"It is a perfectly legitimate excuse for delay to be able to say that the delay is entirely due to the fact that it takes a certain time for a certificate to be obtained from the legal aidauthorities".

9 That was where despite proper endeavours upon part of the Applicant and her legal advisors, a difficulty still arose.

10 The Court is satisfied that the...