Mercy Oviawe and Others (applicants/respondents) v The Minister for Justice, Equality and Law Reform (respondent/appellant) and The Human Rights Commission (notice party)

• Jurisdiction: Ireland
• Judge: Denham J.
• Judgment Date: 20 December 2007
• Neutral Citation: [2007] IESC 66
• Docket Number: [S.C. No: 480/2006]
• Court: Supreme Court
• Date: 20 December 2007

THE SUPREME COURT

Murray C.J.

Denham J.

Fennelly J.

Kearns J.

Finnegan J.

[S.C. No: 480/2006]

Between/

Mercy Oviawe, Marrian Oviawe, Emmanueal Oviawe (suing through his mother and next friend Mercy Oviawe), Michael Oviawe (suing through his mother and next friend Mercy Oviawe), Lucky Oviawe (suing through his mother and next friend Mercy Oviawe), Peace Oviawe (suing through her mother and next friend Mercy Oviawe), Faith Oviawe (suing through her mother and next friend Mercy Oviawe), Unity Oviawe (suing through his mother and next friend Mercy Oviawe)

Applicants/Respondents

and

The Minister for Justice, Equality and Law Reform

Respondent/Appellant

and

The Human Rights Commission

Notice Party

Abstract:

Immigration - Asylum - Aliens - Control of aliens - Executive administrative scheme - “Irish Born Child 2005” scheme - Executive discretion - Whether constitutional rights of applicants required to be considered in exercise of executive discretion - Applications refused on basis that applicants engaged in criminal activity - Whether refusal to consider applications illegal as being in breach of constitutional rights - Whether decision to refuse to consider applications should be quashed

the respondent established a scheme (“the Irish Born Child 2005 (IBC05)” scheme) whereby alien parents of children born in the State prior to the 1st January, 2005, could apply to him for consideration for permission to remain temporarily in the State. One of the criteria for exclusion from consideration was whether the applicant had been engaged in criminal activity. The applicants applied under the scheme. The respondent refused to consider the applications on the basis that they had been convicted of an offence in the State. The High Court quashed that refusal by way of judicial review. The respondent appealed to the Supreme Court.

Held by the Supreme Court in allowing the appeal that the applicability criteria of the administrative scheme were clear and explicit and it was the duty of the respondent to consider each application to see if it met the criteria of the scheme. The scheme was an exercise of executive power of the respondent and did not purport to address constitutional rights or rights under the European Convention on Human Rights. The applicants failed to come within the criteria of the scheme, in having being engaged in criminal activity and the respondent made a decision validly within the terms of the scheme to refuse to consider applications on that basis. The consequence was that the applicants were in the same position as they were prior to applying under the scheme and their substantive rights under the Constitution and the European Convention on Human Rights would be considered prior to any decision to deport them.

Reporter: P.C.

1 Judgment delivered the 20th day of December, 2007 by Denham J.

2 1. Issue

3 At issue in this case is the decision of a Minister of the Government, made in an administrative scheme established as an exercise of executive power, to deal with a unique group of foreign nationals. It is submitted, on the one hand, that, inter alia, in this scheme the Constitutional and Convention rights of applicants were required to be considered in accordance with law. On the other hand, it was submitted that neither Constitutional nor Convention rights arose to be considered. Thus, the nature of the scheme is at the core of the appeal, and, with it, the nature of any judicial review. Also, at the kernel of the case, is the fact that the position of a foreign national, who failed in an application under the scheme, remains the same as it was prior to the application, with all relevant Constitutional and Convention rights remaining yet to be considered.

4 At the core of the case is the refusal by the Minister of the first named applicant's application under the IBC 05 Scheme.

5 2. Eight Cases

6 The Minister for Justice, Equality and Law Reform, the respondent/appellant, hereinafter referred to as the 'the Minister', has appealed from the judgments of the High Court (Finlay Geoghegan J.) in seven cases where the High Court quashed the decision of the Minister to refuse applications for permission to remain in the State to foreign national parents of Irish born children under a scheme which he had introduced. In the eighth case, the Minister is appealing against the order for costs made in the High Court.

7 3. These related cases are:

• (i) Bode v. The Minister, Appeal No. 485/2006

• (ii) Oguekwe v. The Minister, Appeal No. 489/2006

• (iii) Dimbo v. The Minister, Appeal No. 484/2006

• (iv) Fares v. The Minister, Appeal No. 483/2006

• (v) Oviawe v. The Minister, Appeal No. 480/2006

• (vi) Duman v. The Minister, Appeal No. 482/2006

• (vii) Adio v. The Minister, Appeal No. 481/2006

• (viii) Edet v. The Minister, Appeal No. 005/2007

8 The Minister was represented in all the cases by the same counsel. The same affidavit of Maura Hynes, a principal officer in the Department of Justice, Equality and Law Reform, was filed in all cases on behalf of the Minister. Similar written submissions were filed on behalf of the Minister in all cases.

9 4. The general facts and law relating to the Minister's decision in the administrative scheme in the seven cases are set out in the Bode judgment. The particular facts, law and decision of this case are set out herein.

10 5. Parties

11 The first named applicant is a national of Nigeria who arrived in the State in March, 2002. The seventh and eighth named applicants were born in the State on the 29th July, 2002 and are Irish citizens - being the twin son and daughter of the first named applicant. The remaining applicants are other children of the first named applicant, who have resided with her in the State since 2002.

12 6. Particular Facts

13 This case raises the issue of criminal activity of an applicant. The first named applicant submitted an application under the IBC 05 Scheme. By letter dated the 16th November, 2005 the application of the first named applicant was refused. The reason given was:

14 "The Minister stated in his announcement that persons of good character who give honest and complete details can expect to be granted permission to remain in the State. I am advised by the Garda National Immigration Bureau that in January 2001 and January 2004 you were convicted of offences contrary to Section 4 of the Theft Act, 2001. On this basis, I am not satisfied that you are a person of good character as set out in the Minister's announcement and, accordingly, your application for permission to remain in the State under the revised arrangements is hereby refused."

15 The first named applicant was convicted in January, 2004 of offences contrary to s.4 of the Criminal Justice (Theft and Fraud Offences) Act, 2001. The charges related to the theft of goods to the value of EUR99.00. The first named applicant pleaded guilty and was sentenced to three months imprisonment which was suspended for 12 months on her bond of EUR300 to keep the peace and be of good behaviour. The first named applicant disclosed the conviction on her application form for the IBC 05 Scheme. The learned trial judge stated that "her application under IBC/05 was considered and determined without any consideration of the constitutionally protected personal rights of her citizen children."

16 7. High Court Proceedings

17 On the 8th May, 2006, the applicants were given leave to seek an order of certiorari quashing the decision of the Minister dated the 16th November, 2005.

18 8. High Court Order

19 The learned High Court judge stated that the only difference of substance between this case and the Bode case was the reason for the refusal of the application under the IBC 05 Scheme. The High Court then went on to hold that this necessitated consideration of the following issues:

20 "1. Were the revised arrangements known as IBC/05 addressed to non-national parents of Irish born children born before 1 January, 2005 with a criminal conviction?

21 2. Does the fact of Mrs. Oviawe's criminal conviction alter the entitlement of her twin citizen children to have their personal rights within the meaning of Article 40.3 of the Constitution or right to respect for their private life within the meaning of article 8 of the Convention considered and taken into account by the Minister in determining their mother's application under IBC/05."

22 The High Court pointed out that the IBC 05 Scheme form asked whether the applicant had been convicted of any offence in the State or abroad and, if so, to give details.

23 High Court Judgment

24 The High Court held that notwithstanding her criminal conviction the first named applicant was a person invited to make an application under the IBC 05 Scheme. The High Court stated that it had formed the view (for the reasons set out in Bode) that the twin children have a qualified right to have their constitutionally protected personal rights under Article 40.3 considered and taken into account by the Minister. Similarly, that no submission was made under article 8 of the Convention seeking to justify the decision taken without a consideration of the citizen children's right by reason of the criminal conviction of the first named applicant. The conclusions reached were:

25 "For the reasons set out both in this judgment and the Bode judgment:

26 1. The decision taken by the [Minister] on the IBC/05 application of the first named applicant as communicated in the letter of 16th November, 2005 is unlawful as it was taken in breach of the seventh

27 and eighth named applicants' rights under Article 40.3 of the Constitution.

28 2. The decision of the [Minister] on the IBC/05 application of the first named applicant communicated in the letter of 16th November, 2005 is unlawful as...