K.R.A. v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 12 May 2016
• Neutral Citation: [2016] IEHC 289
• Court: High Court
• Docket Number: [2015 No. 299 J.R.]
• Date: 12 May 2016

[2016] IEHC 289

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2015 No. 299 J.R.]

BETWEEN

K.R.A.

and

B.M.A. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND K.R.A.)

APPLICANTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

Asylum, Immigration & Nationality – S. 5 of the Illegal Immigrants (Trafficking) Act 2000 – S. 3 (11) of the Immigration Act 1999 – Revocation of deportation orders – Right to education of minor Purposive interpretation – Art. 42A of the Constitution

Facts: The applicants sought an order of certiorari for quashing the decision of the respondent refusing to revoke the orders of deportation made against the applicants. The key issue arose as to whether a refusal to revoke an order under s. 3 (11) of the Immigration Act, 1999, would cover the cases that fell under s. 5 of the Illegal Immigrants (Trafficking) Act, 2000. The applicants contended that the decision of the respondent for not revoking deportation orders were invalid as it would contravene the right of the second named applicant/child to free primary education guaranteed under art. 42A of the Constitution.

Mr. Justice Richard Humphreys refused to grant an order of certiorari to the applicants. The Court, however, granted liberty to the applicants to apply for leave to the Court of Appeal in relation to the scope of s. 5 of the Illegal Immigrants (Trafficking) Act, 2000. The Court adjourned the matter to a date fixed in order to bring an application for leave to the Court of Appeal depending upon the desire of the applicants. The Court granted an injunction restraining the deportation of the applicants until the date for filing the leave application was fixed. The Court held that since a literal interpretation of s. 5 of Illegal Immigrants (Trafficking) Act, 2000, failed to intimate the plain intention of the legislature, it was desirable to give purposive interpretation to s. 5 (1) (m) of the Act of 2000. The Court held that the words ‘orders under s. 3(11)’ should be read to mean ‘decision under s. 3(11)’ of the said Act of 1999 and thus, s. 5 (1) (m) was applicable to said s. 3 (11). The Court observed that the constitutional right to enjoy free primary education of children being an inalienable right of a child enshrined under art. 40.3, 41, 42 and 42A of the Constitution were subject to the qualification that those rights were not absolute. The Court observed that entitlement to the right to education would not give a legal right to a person to stay unlawfully in the State. The Court opined that law laid down under C.O.O. (Nigeria) v. Minister for Justice (No. 1) [2015] IEHC 139 insofar that it suggested that a Minister was bound to give greater consideration to the best interests of a child under art. 42A of the Constitution was incorrect in the light of the decision of the Court of Appeal in Dos Santos v. Minister for Justice and Equality [2015] IRCA 210, wherein the Court of Appeal held that art. 42A.4 had no applicability to immigrant decisions.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 12th day of May, 2016

1 The first named applicant was born in Nigeria in 1975. She married Mr. F.A., and had three children. In early 2008, she came to Ireland while pregnant leaving her husband and those children behind in Nigeria.

2 On 10th March, 2008 the first named applicant sought asylum in the State. This was in due course rejected by the Refugee Applications Commissioner.

3 On 14th March, 2008, the second named applicant was born to the first named applicant in Ireland.

4 On 27th March, 2009, she was notified by the Minister of an intention to make deportation orders. Solicitors on her behalf applied for subsidiary protection on 29th April, 2009. That application was rejected on 9th November, 2009.

5 Deportation orders were made against both applicants on 18th November, 2009, and the first named applicant was required to present herself to the Garda National Immigration Bureau (G.N.I.B.) on 8th December, 2009. This she failed to do, and instead went into hiding from the G.N.I.B. for almost five years.

6 On 23rd October, 2014, while evading the G.N.I.B., she made a s. 3(11) application for revocation of the deportation orders. She was informed on 28th October, 2014 that this would not be considered until she presented herself. She then did so but was arrested and detained. That detention continued until her release pursuant to Article 40 of the Constitution, by Eagar J.: A. v. Governor of the Dóchas Centre [2014] IEHC 643 (Unreported, High Court, 19th December, 2014), on the grounds that the Minister was not entitled to imposed such a condition on the consideration of the s. 3(11) application. I might pause to observe that rule of law considerations might suggest that the more significant illegality in the case, that one might have thought needed to be addressed prior to favourably considering any such application, was the disregard by the first named applicant of her legal obligations, but the correctness or otherwise of the aforementioned decision does not fall to be considered in the present application.

7 On 28th April, 2015, Article 42A of the Constitution came into force.

8 Shortly, thereafter on 18th May, 2015, the Minister decided to refuse to make an order under s. 3(11).

9 On 3rd June, 2015, the applicant was granted leave to bring the present proceedings by Faherty J., who also granted an injunction restraining deportation.

Is the respondent entitled to make a delayed pleading objection having failed to do so in a timely manner?

10 I must begin by recording certain pleading objections taken at a very late stage on behalf of the respondent. This arose in the following manner. At the hearing of this matter, Anthony Moore B.L. represented the respondent. After Ms. Rosario Boyle S.C. (who appeared with Mr. Anthony Lowry B.L., for the applicant) had outlined her submission, she says that I asked Mr. Moore whether there was any pleading objection being taken with any of the points sought to be raised and I was told that there was not. I accept her account of the matter which accords with my own recollection and to reinforce that conclusion, her solicitor has a note to that effect. It turns out that the respondent's solicitor also has a note consistent with that conclusion, albeit that it is said to record that there was no pleading objection to the Article 42A argument being made. Furthermore, Mr. Moore did not positively disagree with this account, and indicated merely that as some time had passed since the hearing he could not specifically recall. Nor did he recall making any pleading objection during the hearing (quite understandably, since none was made). After all matters had been argued, judgment was reserved. In the course of preparing judgment I identified some additional materials that had not been opened at the hearing and I listed the matter for mention, having first, through my judicial assistant, given the parties a list of materials which were under consideration as well as a list of the questions which appeared to arise. The intention was to assist the parties in giving specific notice of any such material. Whether such an approach is in fact necessary or appropriate may be a matter of opinion and at best is a matter of degree. The one thing that such an approach does not amount to is an invitation to re-argue the case. No such list of material could be exhaustive in any event because further cases may come to the court's attention between the furnishing of such a list and the giving of judgment. One cannot be obliged to engage in an endless iterative process. Any such information to parties is given in a spirit of assistance rather than obligation.

11 When the matter was listed for mention, I was informed on behalf of the respondent that Mr. David Conlan Smyth S.C. was now leading Mr. Moore that a further two hours were requested for additional oral submissions. I did not consider that such an expenditure of time was appropriate in the circumstances and afforded a somewhat shorter period for oral submissions on 9th May, 2016. I do not think that the respondent has been in any way disadvantaged by having to comply with such time limits. I was also given supplementary written submissions by both sides. In the respondent's submissions, objection was taken for the first time to a number of the applicant's points on the grounds that they did not come within the order granting leave, made by Faherty J., in particular that the applicants were not entitled to rely on the failure to consider the right to free primary education and the failure to consider the child's application separately.

12 On further discussion, Mr. Conlan Smyth accepted that the latter complaint is in fact pleaded (ground I) and withdrew that objection. The objection regarding the alleged omission to plead a failure to consider the right to free primary education was maintained.

13 There is a distinction between a party making a belated substantive submission as to the law (for example, by unearthing an important authority which it had overlooked) and a party making a belated pleading objection to a point which has already been argued in the case. The former may sometimes be acceptable, even appropriate. The latter is in a different category.

14 If a party has a pleading objection, it must make that objection in a clear and timely manner so that a clear ruling can be made and the hearing can proceed on a definite basis. No such objection was made during the original hearing. The fact that I have afforded the parties a brief opportunity to say anything further in the light of additional materials does not set everything at nought and allow a second bite of the cherry on any and all issues. It is far too late to take any pleading objection at such a late...