P, L & B v Minister for Justice

• Jurisdiction: Ireland
• Judge: Hardiman J.
• Judgment Date: 30 July 2001
• Neutral Citation: [2001] IESC 107
• Court: Supreme Court
• Date: 30 July 2001

[2001] IESC 107

THE SUPREME COURT

Keane C.J.,

Denham J.

Murphy J.

Murray J.

Hardiman J.

P & L & B v. MIN FOR JUSTICE & AG

P. v. THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM

41/01

L. v. THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM

42/01

and

B. v. THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM and THE ATTORNEY GENERAL

43 & 44/01

Citations:

IMMIGRATION ACT 1999 S3(3)(b)

IN THE MATTER OF ART 26 OF THE CONSTITUTION & S5 & S10 OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999 2000 2 IR 360

POK SUN SHUM V IRELAND 1986 ILRM 593

OSHEKU V IRELAND 1986 IR 733

LAURENTIU V MIN FOR JUSTICE 1999 4 IR 42

IMMIGRATION ACT 1999 S3(1)(f)

IMMIGRATION ACT 1999 S3(3)(a)

IMMIGRATION ACT 1999 S3

IMMIGRATION ACT 1999 S3(2)

IMMIGRATION ACT 1999 S3(3)

INTERPRETATION ACT 1937 S11(a)

IMMIGRATION ACT 1999 S3(6)

REFUGEE ACT 1996 S5

NI EILI V ENVIRONMENTAL PROTECTION AGENCY UNREP SUPREME 30.7.1999

MJT SECURITIES LTD V SECRETARY OF STATE FOR THE ENVIRONMENT 1998 JPL 138

O'DONOGHUE V BORD PLEANALA 1991 ILRM 750

INTERNATIONAL FISHING VESSELS V MIN FOR MARINE 1989 IR 149

DUNNES STORES V MALONEY 1999 3 IR 542 1999 1 ILRM 119

LAURENTIU V MIN FOR JUSTICE 1999 4 IR 26

IMMIGRATION ACT 1999 S3(6)(a)

IMMIGRATION ACT 1999 S3(6)(b)

IMMIGRATION ACT 1999 S3(6)(c)

IMMIGRATION ACT 1999 S3(6)(d)

IMMIGRATION ACT 1999 S3(6)(e)

IMMIGRATION ACT 1999 S3(6)(f)

IMMIGRATION ACT 1999 S3(6)(g)

IMMIGRATION ACT 1999 S3(6)(h)

IMMIGRATION ACT 1999 S3(6)(j)

IMMIGRATION ACT 1999 S3(2)(i)

IMMIGRATION ACT 1999 S3(7)

IMMIGRATION ACT (DEPORTATION) REGS 1999 SI 319/1999

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)(b)

MCNAMARA V BORD PLEANALA (NO 1) 1995 2 ILRM 125

CONSTITUTION ART 41.3.1

Synopsis

Aliens

Aliens; constitutional; judicial review; duty to give reasons; statutory interpretation; applicants appealing refusal of leave to apply for judicial review against respondent's decision to order their deportation; respondent appealing grant of leave to B.; whether refusal of asylum and failure of appeal in that regard was sufficient basis for respondent to order deportation; whether sustainable argument made for purposes of leave application that use of plural form "reasons" requires that respondent must give an additional reason; whether respondent bound to have regard to s.3(6) Immigration Act, 1999; whether respondent entitled to take into account the reason for the proposal to make a deportation order; whether the "common good" implies any conclusion derogatory of applicants as individuals; whether reasons stated in letter of notice received by applicants adequate and sufficiently understandable; whether deportation order itself, as opposed to notification of decision, should contain reasons for decision and date of effect of deportation; whether State's obligation to protect with special care the institution of marriage and protect it against attack precludes respondent from deciding to deport one partner while the other's application for leave to remain pending; whether trial judge correct, in the case of B., in granting leave to apply for judicial review, where failure to expressly give reasons after the coming into effect of 1999 Act.

Held: Appeals dismissed.

P v. Min for Justice, Equality and Law Reform - Supreme Court: Keane C.J., Denham J., Murphy J., Murray J., Hardiman J. - 30/07/2001 - [2002] 1 IR 164 - [2002] 1 ILRM 38

Three applicants, P, L. and B, who were randomly selected from a large number of similar cases, brought judicial review proceedings seeking to quash by certiorari deportation orders the respondent had made against them. An application for asylum in each has been refused as had their subsequent appeals. Held by Smyth J the applicants had not discharged the burden of proof that any of the decisions impugned were unreasonable. The respondent did not act ultra vires and there was no error on the face of the records that would entitle the applicants to certiorari. In the case of B there was a failure by the respondent to give him reasons for the making of the deportation order in the respondent’s letter of notice under section 3(a) of the Immigration Act 1999. B only was entitled to an order of certiorari. Mr. Justice Smyth also certified that the points raised in the case were of exceptional public importance and should be taken to the Supreme Court. In the Supreme Court Mr. Justice Hardiman held that the respondent Minister was entitled to refer to the necessity to maintain the integrity of the asylum and immigration system. Adequate reasons had been given by the respondent. The appeal of the applicants would be dismissed. However the trial judge was correct in allowing judicial review proceedings to be taken by one of the applicants (B) and the Minister’s cross-appeal in relation to this matter would be dismissed.

JUDGMENT of

Hardiman J.

delivered the 30th day of July, 2001. [nem diss]

1 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.

2 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.

3 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".

4 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)".

5 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.

6 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,1999to 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.

7 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,

8 (c) The Order actually made.

9 These points are to a large extent common to each Applicant. Certain additional points, particularly relating to the Applicant B., will be considered below.

10 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.

11 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. inOsheku 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".

12 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.

13 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.

14 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.

15 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.

16 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...