Okunade v Minister for Justice Equality and Law Reform & the Attorney General, [2012] IESC 49 (2012)

Docket Number:481/11
Judge:Clarke J.

THE SUPREME COURT[Appeal No: 481/11] Denham C.J.Hardiman J.Fennelly J.O'Donnell J.Clarke J. Between/Oluwaseun Comfort Okunade and Daniel Temiloluva Okunade (an infant suing by his mother and next friend Oluwaseun Comfort Okunade)Applicants/Appellants andThe Minister for Justice Equality and Law Reform, Ireland and The Attorney GeneralRespondents Judgment of Mr. Justice Clarke delivered the 16th of October, 2012 1. Introduction1.1 It hardly needs to be stated that there has been a significant growth, over the last decade or so, in the number of persons coming to Ireland seeking international protection under the various legal schemes which apply in such cases. That growth in numbers has, in turn, led to a very significant expansion in the volume of immigration cases which have come before the courts. Decisions of statutory bodies connected with that immigration process or related decisions made by the first named respondent ("the Minister") are frequently challenged in judicial review applications. It also does need to be noted, and will be addressed further in the course of this judgment, that the statutory regime for the consideration of applications involving international protection and the statutory regime which governs any challenges in the courts against adverse decisions made in that process, are cumbersome and apt to add to the difficulties with which the courts are faced in considering such challenges.1.2 It is against the backdrop of that situation that the applicants in these proceedings ("the Okunades") came to challenge two separate decisions made by the Minister. It will be necessary, in due course, to set out in a little more detail the interaction between the Okunades and the persons and bodies dealing with international protection in this jurisdiction. However, a stage was reached where the Okunades had failed in an application to have refugee status conferred on them and also had subsequently failed in an application for subsidiary protection under EU law as implemented in Ireland. The Minister had made a decision to deport. In those circumstances the Okunades sought to commence judicial review proceedings directed towards challenging both the refusal of their application for subsidiary protection and the decision to deport. For reasons which it will be necessary to address, there are procedural complications (which stem from the legislation itself) with how such applications are required to progress before the court. In addition, partly because of aspects of the statutory regime which controls the way in which some judicial review challenges in this field can be brought, and partly because of the large number of cases requiring to be heard, it can take some significant time before the court can conduct even the initial assessment required to decide whether leave to seek judicial review should be granted.1.3 In the past it would appear that, where a relevant application for leave was pending, the Minister usually gave an undertaking not to deport until such time as the court had an opportunity to hear an application for leave to seek judicial review. However, in circumstances which will be addressed in this judgment, the Minister took a somewhat different view in more recent times and indicated that such an undertaking would not be given, at least in some cases. The case of the Okunades was one such. Faced with the prospect of deportation while their application for leave was pending, the Okunades brought an application before the High Court (Cooke J.) seeking to have their deportation restrained. For reasons set out in his judgment Cooke J. came to the view that a restraining order should not be made. It is against that decision of the High Court that the Okunades have appealed to this court.1.4 In order to understand the precise issues which arise in these proceedings it is necessary to start by describing some of the difficulties which derive from the complex statutory context to which I have referred.2. The Difficulties with the Statutory Context2.1 The starting point has to be to note that two separate bases exist for formal international protection in the Irish statutory context. As a matter of Irish law, and as a result of the implementation of Ireland's international obligations, a person is entitled to seek refugee status under the provisions of the Refugee Act, 1996 as amended ("the 1996 Act"). Separately a person is entitled to apply for subsidiary protection under the provisions of the European Communities (Eligibility for Protection) Regulations 2006 (S.I. 518/2006) ("the Regulations") which implement, in this jurisdiction, Council Directive 2004/83 EC (of the 29th April, 2004 on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons who otherwise need International Protection) ("the Directive"). For completeness it should be noted that, prior to making a deportation order, the Minister is required to consider the criteria set out in s.3(6) of the Immigration Act, 1999 ("the 1999 Act"). In practical terms proposed deportees have an opportunity to make representation to the Minister for leave to remain in the country on the sort of humanitarian grounds specified in that section or on the basis of a contended interference with respect for private and family life protected by Art.8 of the European Convention on Human Rights ("EHCR").2.2 The 1996 Act did not, in the main, come into operation until the 20th November, 2000. It is not necessary to set out in any great detail the procedure which that Act prescribes for persons seeking refugee status. In simple terms an application is first considered by the Refugee Applications Commissioner ("RAC"). Where the RAC recommends that the relevant applicant be declared to be a refugee the Minister has no discretion but to accept the report of the RAC and give the relevant applicant a declaration of refugee status (see s.70(1)(a) of the 1996 Act).2.3 However, where the commissioner recommends against the applicant, an appeal is available to the Refugee Appeals Tribunal ("RAT"). Persons whose application for refugee status is ultimately refused as a result of that process can seek to have the decision reviewed by the High Court in judicial review proceedings. However, s.5 of the Illegal Immigrants (Trafficking) Act, 2000 ("the 2000 Act") controls the manner in which such a challenge (and certain but not all other challenges to decisions in the immigration field) can be brought. First, any challenge governed by s.5 must be brought by means of an application for judicial review under Order 84 of the Rules of the Superior Courts ("RSC") (see s.5(1)). In addition the application for leave is required, under subsection (2), to be made within 14 days of the notification of the measure to be challenged (with the power in the High Court to extend that time for good and sufficient reason) and on notice to the Minister. Furthermore, the High Court is required not to grant leave (under subsection (2)(b)) unless satisfied that there are "substantial grounds" for contending that the relevant measure is invalid or ought to be quashed. In addition, for completeness, there is, in cases covered by s.5, a limitation on the right to appeal from an adverse decision of the High Court to this court in that leave of the High Court must be obtained by means of a certificate to the effect that the decision of the High Court "involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken" to this court.2.4 Under Irish law it is necessary that a person have been refused refugee status, in order that such a person can apply for subsidiary protection. While the benefits of subsidiary protection are not as extensive as the benefits of refugee status they are, nonetheless, significant. The application for subsidiary protection is made to the Minister who is entitled to have regard to the reports and decisions of both the RAC and the RAT in considering the matter.2.5 However, s.5 of the 2000 Act does not apply to a challenge to a decision to refuse subsidiary protection. Therefore, the ordinary provisions of Order 84 of the RSC apply. In that context it should be noted that Order 84 itself has been modified since these proceedings commenced. It was, however, the old version of Order 84 which applied at the time when these matters were considered by Cooke J. In those circumstances the ordinary rule required that an application for judicial review in respect of a subsidiary protection order be made promptly, but in any event within six months of the decision under challenge. In addition, because the ordinary provisions of Order 84 applied, the application for leave could be made ex parte rather than on notice to the Minister and the ordinary threshold for the grant of leave to seek judicial review, being that there is an arguable case, applied. There are, therefore, very significant differences between the judicial review regime which applies relating to, respectively, challenges to decisions made under the 1996 Act, on the one hand, and challenges in respect of subsidiary protection decisions, on the other hand.2.6 The final piece of the statutory jigsaw is the deportation order made by the Minister. Obviously an effective deportation order requires that a person has either not sought to avail of any of the international protection measures to which reference has been made or, having so sought, has failed to achieve either refugee status, the benefit of subsidiary protection measures or humanitarian leave. It follows that a successful challenge to adverse determinations in respect of any of those questions has the potential to affect the effectiveness of a deportation order. However, adverse orders remain valid and in force unless and until they are either quashed by a court of competent jurisdiction or an interlocutory order of such...

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