Jaimee v Minister for Justice and Equality & IHREC

• Jurisdiction: Ireland
• Judge: Mr Justice Peter Charleton,Mr. Justice Gerard Hogan,Ms. Justice Elizabeth Dunne
• Judgment Date: 01 February 2023
• Neutral Citation: [2023] IESC 2
• Court: Supreme Court
• Docket Number: Supreme Court appeal number: S:AP:IE:2021:000149 [2021] IEHC 521

Between

Jaimee Middelkamp

Applicant/Respondent

and

The Minister for Justice and Equality

Respondent/Appellant

and

The Irish Human Rights and Equality Commission

Amicus Curiae

[2023] IESC 2

O'Donnell CJ

Dunne J

Charleton J

Hogan J

Murray J

Supreme Court appeal number: S:AP:IE:2021:000149

High Court record number: 2020/182 JR

[2021] IEHC 521

An Chúirt Uachtarach

The Supreme Court

Judgment of Mr Justice Peter Charleton delivered on Wednesday 1 February 2023

1 The issues as to whether any rights ever arose in favour of Jaimee Middelkamp under the European Convention on Human Rights and the nature of the letter written by Barrett J to her, explaining his reasoning, as part of his judgment, are linked. That link is the avoidable complexity of law that has removed simplicity of analysis as to where people stand in terms of immigration law, and which threatens the status of ministerial decisions with unending review.

2 While the judgment of Hogan J, with which this judgment concurs as to the result, is a model of clarity, that is because of the way the reasoning deftly negotiates issues placed by counsel for Jaimee Middelkamp in the way of the obvious disposal of this issue. There is a plain reality to this situation: Jaimee Middelkamp and her husband decided in Canada on their own destiny, decided to get married, decided that it would be to their advantage as a couple for him to be educated in Ireland, knew that they must apply for a visa, obtained a visa enabling him to study dentistry in Cork for four years, obtained a visa enabling her to work and live in Ireland for two years, knew that this latter visa was non-renewable, knew that this was the limit of what could be obtained for a foreigner seeking to reside and work in another state, could have returned to Canada and applied for another visa, could have returned to Canada and come for an ordinary 90-day stay as a tourist from time to time without limitation (save the requirement of each being a separate trip); but chose instead to claim a human rights complication where no possible analysis, and no assertion on their part to the Minister, indicates any engagement of rights, much less deprivation of her rights, on the choices made by them. This claim was made in the context of staying in Ireland and then claiming some sort of continuing right.

Duty of clarity

3 In 1823, Best J, in a case over a disputed search warrant where those searching were ostensibly assaulted, declared that judges were “bound to take care that the law relating to the duty of constables shall rest upon broad, plain, intelligible principles”; R v Weir (1823) 107 ER 108 at 111. Consciousness of that same duty should rest on judges in areas of law where the administration of legislation is cast upon officials of departments of government. The administration of planning law, of immigration law and of asylum law carries the same imperative: that the law should remain accessible and readily capable of being applied to the statutory framework within which public servants operate. Certainty of law is a duty cast on all branches of government. Thereby, it is required that legislation is comprehensible. Thereby, administrative decisions need to be made through concise reasons which lay out the path to a decision so that those affected will know where they stand and through what law they stand there. Thereby, judges are required to give effect to the law by an application of taking what the law says and reasoning a result in the context of the facts. But, it must be appreciated in the context of genuinely thought-out statutory intervention in the fields of immigration, planning and other branches of law that what the Oireachtas is genuinely about is the setting of defined rules in terms which may be taken in the terms in which legislation is set. Where a possible displacement in our system arises is, in contrast to continental civil law systems, in not taking the actual words of a statute as a complete answer, as a code is taken to be the sole text applied to a given set of circumstances where judges have a Roman law training. Our system does not differ. A statute is not to be taken as a foundation text for the application of imagination. If certainty of law is to remain a cornerstone of our legal system, then what the law says in terms of ordinary sense should become the point of disposal rather than the basis of an inventive argument.

4 Arising from the duty of maintaining certainty of law, it should never be necessary for a public servant to embark on what is not their role: that of issuing legal and factual analyses that are beyond the complexity that the legislation demands. Legislation is of its nature the creation of imperative requirements. Unless ambiguity indicates a difficulty in interpretation, officials should be safe in following the legislation and in a simple indication of reasons to that effect. Since it is also accepted that the reasons required of judges hearing cases must be assessed as to adequacy by the, entirely notional, member of the public sitting at the back of the court and hearing all of the evidence and submissions, no greater duty in the analysis of an issue should be cast on a public servant in the administration of a statute; see the reasoning of Clarke CJ in Connelly v An Bord Pleanála & Ors [2018] IESC 31 at [5.4], [2021] 2 IR 752 at [30], which emphasised the requirement of any reasoning in an administrative decision to “enlighten any interested party as to why the decision went the way it did” and see Lord Hope in Helow v Secretary of State for the Home Department [2008] UKHL 62 at [1–3] as to the qualities of the reasonable and unbiased observer and as to how they would judge decisions of administrators or courts.

Circumstances

5 It is unnecessary to repeat the circumstances as set out in the principal judgment of Hogan J in relation to this Canadian couple. From the opening of the academic term in 2018, Jaimee Middelkamp's husband had a visa to study dentistry in University College Cork for a duration of four years. She applied for a working visa under a scheme negotiated with other countries, including her and her husband's home country of Canada, which enabled a visit and work to support that for up to two years. The reciprocal arrangements did not indicate, and nor did the legislation, any possibility of extension. As this two-year period of working in a Cork law firm as a paralegal was drawing to a close, she claimed a human right to stay with her husband. She cited Article 8 of the European Convention on Human Rights. She could, and should, have done precisely what Canada had negotiated on her behalf; stayed two years and returned home and asked to return separately or visited her husband on three-month holiday stints which for Canadians do not require a visa and which may be repeated. It is notable that counsel could refer to no decisions from Canada raising issues as to Irish people staying beyond the two-year working stay, either under the Canadian Charter of Rights and Freedoms, adopted in 1982, or any human rights instrument applicable in any of the other countries with cross-referable facilities.

Applicability of the Convention

6 Article 8 of the European Convention on Human Rights cannot be validly argued into this case. When someone makes a bargain on the basis of reciprocal rights proffered by their home country, that person has a duty to abide by what has been negotiated by international agreement. There are not just rights, there are also duties, including the duty of officials to uphold the clear letter and purpose of the law and the duty of those using a privilege to respect what has been conferred by international agreement. Could an Article 8 claim apply when, for instance, government officials were proposing the adaptation of reciprocal facilities? Would they have to consider, in setting a two-year limit, that some people on working visas would be married couples or have a private life to be taken into consideration in coming to Ireland? Could a person applying for a working visa just mention that they are married and that their husband/wife are likely to be in Ireland to thereby generate a complex analysis on the right of the State not to grant such a visa by turning that absolute right into yet another balancing exercise as between the entitlement of any country to refuse entry at its borders and an asserted human right? This is not a case of a person in peril of persecution or random violence, it is about civilized relations as between states and the rule of law.

7 It is right to emphasise the primacy of the Constitution over any statute and over any international instrument, outside of obligations necessitated by membership of the European Union, as Hogan J sets out so clearly in his judgment. Perhaps the reason that practitioners bring the Convention into almost every argument is that while the Constitution gives a framework for the operation of the State and is the ultimate jurisdictional limit of legal and administrative operation, it is less obviously so given the tangential operation of the Convention as legislatively expressed. Section 3(1) of the European Convention on Human Rights Act 2003 provides:

Subject to any statutory provision (other than this Act) or rule of law, every organ of the State shall perform its functions in a manner compatible with the State's obligations under the Convention provisions.

8 Since the Convention applies to “every organ of the State” (albeit that the Oireachtas and the courts are both expressly declared by s. 1(1) of the 2003 Act not to be ‘organs of the State’ for this purpose) and in a manner not limited by any boundaries but expanded into the performance of every function, it is natural that Article 8 comes to mind as a potentially fertile ground for contending that an official failed to consider a privacy...