P., L., & B. -v- Minister for Justice Equality and Law Reform, [2001] IESC 107 (2001)

Docket Number:41/01; 42/02; 43 & 44/01
Party Name:P., L., & B., Minister for Justice Equality and Law Reform
Judge:Hardiman J.

THE SUPREME COURTKeane C.J.,Denham J.Murphy J.Murray J.Hardiman J.P. v. THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM 41/01L. v. THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM 42/01andB. v. THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM and THE ATTORNEY GENERAL 43 & 44/01JUDGMENT of Hardiman J. delivered the 30th day of July,2001.In these cases the Applicants appeal against the refusal of the High Court (TC Smyth J.) to grant them leave to institute judicial review proceedings in respect of Deportation Orders made in regard to each of them, other than Mr. B. who was granted leave to apply for such relief on a single ground. This is the subject of a cross-appeal.The factual background to each case, and the procedural steps taken in relation to each Applicant, are set out in the judgment of the learned High Court Judge. I gratefully adopt his summary. On the hearing of this Appeal, it was not contended that there was any error or omission in either the personal or the procedural histories of the Applicants and their applications.Starting point.Each Applicant applied for asylum in the State and was refused. Each appealed and was unsuccessful in the appeal. Two of the applications were found to be "manifestly unfounded".Accordingly, as the learned High Court judge found at page 9 of his judgment, "These cases take as their point of departure the conclusion of a process under the Refugee Act, 1996...... no proceedings have been taken against the various decisions made under (that Act)".It follows from this, and may be important to emphasise, that the Applicants have not sought to challenge in any way the decisions of the competent authorities whereby their applications for asylum were refused. They have followed another course.This course involved them in applying for what is often referred to as humanitarian leave to remain and is more properly described as the making of representations in writing pursuant to Section 3(3)(b) of the Immigration Act, 1999 to the Minister urging him not to make a Deportation Order in respect of a person making the representations, despite the existence of an unchallenged refusal of asylum.In the present case, a number of points were taken relating to:-(a) The proposal to make a Deportation Order,(b) The consideration given to the representations,(c) The Order actually made.These points are to a large extent common to each Applicant. Certain additional points, particularly relating to the Applicant B., will be considered below.The statutory scheme.The statutory scheme in relation to the notifications and decisions about the Applicants have been comprehensively set out in the judgment of the learned trial judge and again I gratefully adopt what he has said. It is convenient however to set out certain of the statutory provisions at the point where they arise in this judgment, for the sake of clarity.The legal context.The topic of "The constitutional status of non-nationals" has been comprehensively considered by the Supreme Court in In the Matter of Article 26 of the Constitution and Section 5 and Section 10 of the Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360 at pages 382 to 386 of the report. The observations in the judgment of the Court indicate exhaustively the essential constitutional background to legislation such as that governing the procedures impugned here. I would draw particular attention to the citations from the judgment of Costello J. in Pok Sun Shum v. Ireland [1986] ILRM 593 and from Gannon J. in Osheku v. Ireland [1986] IR 733. The effect of these is repeated in the judgment of Keane J. (as he then was) in Laurentiu v. Minister for Justice [1999] 4 IR 42 where he asserts:-"........The general principle that the right to expel or deport aliens inheres in the State by virtue of its nature and not because it has been conferred on particular organs of the State by statute".In both the earlier judgments this inherent power is regarded as an aspect of "the common good related to the definition, recognition and protection of the boundaries of the State", per Gannon J.The inherent nature of these powers in a State is demonstrated by their assertion over a vast period of history from the very earliest emergence of States as such, and its existence in all contemporary States even though these vary widely in their constitutional, legal and economic regimes, and in the extent to which the rule of law is recognised.In Ireland, the other common law jurisdictions, the member States of the Economic Union and elsewhere this power is the subject of detailed regulation both by domestic law and by international instruments. There is detailed provision directed at ensuring the constitutional and human rights of Applicants for asylum. In these cases it is to be presumed, and the documents exhibited in these applications in my opinion demonstrate, that these rights have been fully vindicated in unchallenged proceedings conducted pursuant to statutory provisions.The proposal to deport.Since Mr. B. has in fact been granted leave to apply for judicial review on a ground relating to this initial aspect of the procedure, what follows under this heading mainly applies to the other two Applicants.It is undisputed that the Applicants are persons to whom the provisions of Section 3(1)(f) apply, that is that they are non-nationals whose applications for asylum have been refused by the Minister and are accordingly persons in respect of whom he may make a Deportation Order requiring each of them to leave the State within such period as may be specified in the Order and thereafter remain out of the State.Section 3(3)(a), so far as relevant, provides that:-"Where the Minister proposes to make a Deportation Order, he or she shall notify the person concerned in writing of his or her proposal and of the reasons for it....".In the...

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