LAT and Others v Minister for Justice and Equality and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 02 November 2011
• Neutral Citation: [2011] IEHC 404
• Docket Number: [No. 796 J.R./2011]
• Court: High Court
• Date: 02 November 2011

T (LA) & Ors v Min For Justice & Ors

BETWEEN /

LAT, AFT (A MINOR SUING THROUGH HER FATHER AND NEXT FRIEND LT), MFT (A MINOR SUING THROUGH HER MOTHER AND NEXT FRIEND BG)

APPLICANTS

AND

MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND ATTORNEY GENERAL

RESPONDENTS

[2011] IEHC 404

[No. 796 J.R./2011]

THE HIGH COURT

IMMIGRATION LAW

Deportation

Order - Judicial review - Delegated powers - Order made by Director General of Irish Naturalisation and Immigration Service - Caltrona principle - Whether deportation order had to be made personally by respondent - Caltrona Ltd v Commissioner of Works [1943] 2 All ER 560; Tang v Minister for Justice [1996] 2 ILRM 46; Devanney v Shields [1998] 1 IR 230; R v Home Secretary, ex p. Oladehinde [1991] 1 AC 254 considered - Immigration Act 1999 (No 22), s 3 - Application refused (2011/796JR - Hogan J - 2/11/2011) [2011] IEHC 404

AT(L) v Minister for Justice and Equality

Facts Section 3(1) of the Immigration Act 1999 provides, inter alia, 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 applicants sought to have their deportation order quashed by way of judicial review. The deportation order had been made in the name of the respondent by the Director General of the Irish Naturalisation and Immigration Service of the Department of Justice and Equality. No challenge was made to his general competency and the Court found it was clear that he was probably the most experienced civil servant in the State in immigration matters. Nor was it disputed that he had been duly authorized by the Minister to make such orders. However, it was contended that the order had to have been signed by the Minister himself and had no authority to delegate that function to a senior civil servant.

Held by Mr Justice Hogan in dismissing the application for judicial review that the Carltona doctrine (see Carltona Ltd. v Commissioner of Works [1943] 2 All ER 560), governing the relationship between civil servants and the responsible Minister, had been expressly approved in Ireland by the Supreme Court (Tang v Minister for Justice [1996] 2 ILRM 46; Devanney v Shields [1998] 1 IR 230 cited).

2. that insofar as there were exceptions to the Carltona doctrine, they would seem to arise by necessary implication, and the issue was whether the applicants” case presented a matter of significant importance where the respondent was expected to make the decision personally (per the dicta of Denham J in Devanney v Shields).

3. That the decision to deport is far from a purely formal one, and often requires a detailed appraisal of the facts, and the application of government policy, together with a consideration of statutory prohibition, and constitutional and ECHR provisions.

4. That the decision to deport is often a complex one with significant implications for the individual the subject of the order, but it was not of such intrinsic importance to the community at large that the decision could only be made by the Minister personally, and that it could not be said that the Oireachtas must have intended that the Minister alone should personally take the decision to deport in every single case.

5. That it followed that the deportation decision was lawfully made in the name of the Minister by Mr. Waters, given the application of the Carltona doctrine.

6. That the Minister for Justice did not have to make deportation orders under section 3(1) of the Immigration Act 1999 personally as the Carltona doctrine applied to the making of deportation orders under section 3(1) of the Immigration Act 1999.

IMMIGRATION ACT 1999 S3(1)

CARLTONA LTD v COMMISSIONER OF WORKS 1943 2 AER 560

TANG v MIN FOR JUSTICE 1996 2 ILRM 46

DEVANNEY v SHIELDS 1998 1 IR 230

WADE ADMINISTRATIVE LAW 7ED P357

MINISTERS & SECRETARIES ACT 1924 S2

CONSTITUTION ART 28.4.1

REFUGEE ACT 1996 S5

DAIL DEBATES (2005) 600 COL 750

KAP (ORSE TANG) & ORS v MIN FOR JUSTICE 1996 2 ILRM 46

R v HOME SECRETARY EX PARTE OLADEHINDE 1991 1 AC 254

CONSTITUTION ART 28.4.1

Mr. Justice Gerard Hogan

1 This application for judicial review of a deportation decision made on the 29^th July, 2011, presents but a single issue of law, namely, whether a deportation order made pursuant to s. 3(1) of the Immigration Act 1999 ("the 1999 Act") must be made personally by the Minister for Justice and Equality.

2 The applicants in the present proceedings are Nigerian nationals and are the subject of a deportation order made in the name of the Minister on 29^th July, 2011, by Noel Waters, the Director General of the Irish Naturalisation and Immigration Service of the Department of Justice and Equality. It is the authority of Mr. Waters to make this decision in the name of the Minister which is the important issue of law which arises in this case. The deportation order has not been challenged on any other grounds.

3 It may be said immediately that no challenge has been made to Mr. Waters general competency and it is clear from his affidavit that he is probably the most experienced civil servant in the State so far as immigration maters are concerned. Nor is it disputed but that Mr. Waters has been duly authorised by the Minister to make such orders. If, however, on its proper construction, s. 3(1) of the 1999 Act requires the Minister to make the decision personally, then it is plain that the ensuing deportation decision is invalid in law, irrespective of the general competency and status of Mr. Waters or whether the making of the order was otherwise justified.

4 The present proceedings originally came before me on 17^th October, 2011, in circumstances where the applicants sought an interlocutory injunction restraining their deportation pending the outcome of a leave application. At the prompting of the Court, it was agreed that that application would be tried as the full hearing of the judicial review application itself. Given that the legal issue was such a net one, this seemed to be the most efficient use of judicial resources.

5 It is against this background that we may now consider the legal issue thus raised.

6 Carltona Ltd. v. Commissioners of Works [1943] 2 All E.R. 560 is the eponymous...