K v The Minister for Justice & Equality

• Jurisdiction: Ireland
• Judge: O'Donnell J
• Judgment Date: 13 March 2018
• Neutral Citation: [2018] IESC 18
• Docket Number: [S.C. No. 113 of 2017],Supreme Court record no: S:AP:IE:2017 :000113
• Court: Supreme Court
• Date: 13 March 2018

BETWEEN/

MAK

APPELLANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

[2018] IESC 18

O'Donnell Donal J.

O'Donnell J.

McKechnie J.

MacMenamin J.

O'Malley J.

Finlay Geoghegan J.

Supreme Court record no: S:AP:IE:2017 :000113

THE SUPREME COURT

Immigration and asylum – Judicial review – Deportation – Applicant seeking leave to seek judicial review – Whether there was a failure to comply with s. 3(1) of the Immigration Act 1999

Facts: The applicant was a Pakistani national. On the 23rd of March 2012 he arrived in Ireland and sought asylum status. That application was refused later that year. By October 2016 he had been refused his application for subsidiary protection and accordingly was issued with a proposal to issue a deportation order under s. 3(3)(a) of the Immigration Act 1999. Submissions were made on his behalf, considered by the respondent, the Minister for Justice and Equality, and rejected. Accordingly a deportation order was made on the 13th of January 2017. In an appeal to the Supreme Court from the refusal of a judge of the High Court to grant leave to seek judicial review, the applicant contended that there was a failure to comply with s. 3(1) which provides that the Minister "may by order (in this Act referred to as "a deportation order") require any non-national specified in the order to leave the State within such period as may be specified in the order and to remain thereafter out of the State". The date on which the specified non-national, the applicant, was required to leave the State was not specified in the order itself, but rather in the accompanying s. 3(3)(b)(ii) letter which was served upon the appellant in accordance with the provisions of the Act. The question was whether what was done was in sufficient compliance with the requirements of the Act, that the period within which the non-national was required to leave the State be specified in the order.

Held by O'Donnell J that the question must be approached both through the Barras principle, after Barras v Aberdeen Steam Trawling and Fishing Company Ltd [1933] AC 402, and the test set out in Mogul of Ireland v Tipperary (NR) County Council [1976] 1 IR 260. O'Donnell J found it noteworthy that the decision in FP v The Minister for Justice [2002] 1 IR 164 made specific reference to the fact that the order in question was in precise conformity with the terms contained in the 1999 statutory instrument. Given the central importance of deportation in immigration matters it seemed reasonable to O'Donnell J to assume that had any doubt been expressed as to the conformity of that form with the requirements of the Act, it would have been changed long ago. Given the fact that deportation orders and notices under s.3(3)(b)(ii) are regularly and continually the subject of legal challenge, O'Donnell J found that it would be unsurprising that a form which had received approval in the decision of the Supreme Court would continue to be employed. O'Donnell J noted that in this case, in the language of Mogul, there were no new factors, no shift in the underlying considerations, and no suggestion that the decision had produced untoward results, not within the range of the court's foresight when FP was decided; furthermore the decision had to that extent become inveterate and acted on, on that basis to such an extent that greater harm would result from overruling it than from allowing it to stand. O'Donnell J held that it was sufficient to decide this case to conclude that there are competing interpretations of the section, one of which had been adopted by the Court. O'Donnell J found that the best that could be said of the interpretation for which the appellant contended was that it may have force, but it is not unanswerable. O'Donnell J held that it was not for the Court to choose between interpretations as if the matter came before the Court for the first time; the approach of the courts to a provision which has been the subject of consideration by both the judicial and legislative branches was well established and provided clear guidance in this case. Adopting the language of Henchy J in Mogul, O'Donnell J held that it had not been shown that the decision in FP's case was clearly wrong, nor that justice requires that it should be overruled.

O'Donnell J held that the Court would dismiss the appeal and uphold the decision of the High Court refusing leave to seek judicial review.

Appeal dismissed.

Judgment of O'Donnell J delivered the 13th of March 2018

1 The applicant is a Pakistani national. On the 23rd of March 2012 he arrived in Ireland and sought asylum status. That application was refused later that year. By October 2016 he had been refused his application for subsidiary protection and accordingly was issued with a proposal to issue a deportation order under s.3(3)(a) of the Immigration Act 1999 (as amended). Submissions were made on his behalf, considered by the Minister and rejected. Accordingly a deportation order was made on the 13th of January 2017. This order is in standard form. It is however central to the argument in this case, accordingly it is desirable to set it out in full.

'IMMIGRATION ACT 1999

DEPORATION ORDER

WHEREAS it is provided by subsection (1) of s.3 of the Immigration Act 1999 (No. 22 of 1999) that, subject to the provisions of section 5 (prohibition of refoulement) of the Refugee Act 1996 (No. 17 of 1996), and the subsequent provisions of the said section 3, the Minister for Justice and Equality may by order require a non-national specified in the order to leave the State within such period as may be specified in the order and to remain thereafter out of the State;

WHEREAS M A K is a person in respect of whom a deportation order may be made under subsection (2)(f) of the said section 3;

AND WHEREAS the provisions of section 5 (prohibition of refoulement) of the Refugee Act 1996 and the provisions of the said section they are complied with in the case of MAK;

NOW, I, Michael Kirrane, on behalf of the Minister for Justice and Equality, in exercising the powers conferred by subsection (1) of section 3, hereby require you the said M A K to leave the State within the period ending on the date specified in the notice served on or given to you under subsection (3)(b)(ii) of the said section 3 pursuant to subsection (9)(a) of the said section 3 and to remain thereafter out of the State.

GIVEN UNDER the official seal of the Minister for Justice and Equality this 13th day of January 2017.'

2 Along with the deportation order, as anticipated in the order itself, the applicant was served with a letter by way of registered post issued pursuant to s.3(3)(b)(ii). That letter informed the applicant that the Minister decided to make a deportation order in respect of him and a copy of that order and the Minister's considerations pursuant to s.3 of the Immigration Act were enclosed with the letter. The letter stated that the reason for the Minister's decision was that the applicant was a person whose application for international protection had been refused. Having regard to the factors set out in s.3(6) of the Immigration Act 1999, the Minister was satisfied that in the interest of public policy and the common good in maintaining the integrity of the asylum and immigration systems, any feature of the case which might tend to support the applicant being granted leave to stay in the State was outweighed by the foregoing. The operative part of the letter for present purposes was then set out in bold print as follows:

'The Deportation Order requires you to leave the State and to remain outside the State thereafter.

You are obliged to leave the State by 3rd March 2017. Please advise this office of your travel arrangements that you make to comply with the Deportation Order.

If you do not leave the State by 3rd March 2017 you are liable to be deported and the following requirements under the provisions of section 3(9)(a)(i) of the Immigration Act 1999 (as amended) must be observed:

- you are required to present yourself to the member in charge Booth number 1 Garda National Immigration Bureau, 13-14 Burgh Quay, Dublin 2, on Wednesday the 8th of March 2017 at 10am to make arrangements for your removal from the State.'

3 The letter went on to require the applicant to produce any travel documentation or passport which may assist in or facilitate his removal from the State, and was required to cooperate in any way necessary to enable a member of the Garda Síochána or immigration officer to obtain such document or passport and required him to reside at the address set out in the letter pending removal from the State. He was also informed that failure to leave the State by the 3rd of March was a failure to comply with the provision of the Deportation Order and could result in arrest and detention without warrant and failure to comply with any other provisions of the Deportation Order might also give rise to arrest. Further requirements under s.3(9)(a)(i) could be made.

4 There is no lack of clarity about what was contemplated, and the appellant in this case, being served with the letter of the 31st of January, the Deportation Order of the 13th of January, and the Minister's considerations pursuant to s.3 of the Immigration Act 1999, was clearly put on notice by the contents of this documentation which was served on him at the same time, of what he was required to do under the Deportation Order. The clarity of what was done in this regard is not therefore in issue: what is challenged is its legality.

5 In essence what is contended here is that there was a failure to comply with s.3(1) which provides that the Minister 'may by order (in this Act referred to as 'a deportation order') require any non-national specified in the order to leave the State within such period as may be specified in the order and to remain thereafter out of the State'. Undoubtedly the date on which the...