S.G. (Albania) v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 23 March 2018
• Neutral Citation: [2018] IEHC 184
• Docket Number: [2017 No. 734 J.R.]
• Court: High Court
• Date: 23 March 2018

BETWEEN

S.G. (ALBANIA)

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

[2018] IEHC 184

[2017 No. 734 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Asylum, Immigration and Nationality – Issuance of deportation order – S. 5 of the Refugee Act 1996 – S. 3 of the Immigration Act 1999 – Effect of repeal of Act – The Interpretation Act 2005 – The International Protection Act 2015 – Refoulement procedure – Certiorari

Facts: The present case pertained to the interplay between s. 5 of the Refugee Act 1996 and s. 50 of the International Protection Act 2015. The applicant was subject to a deportation order issued by the respondent subsequent to the applicant's refusal of asylum claim. The making of the said order was analysed in 2016 after the Act of 2015 came into force; however, it was notified in 2017. The applicant contended that the refoulement issue, which was the basis of her claim, was considered under s. 5 of the 1996 Act, which had now been repealed and her case could not come within the ambit of the savings provisions under the 2015 Act. The parties were in dispute as to whether s. 27 of the Interpretation Act 2005 was of any relevance to the applicant's situation. The respondent submitted three alternatives before the Court namely, taking away the reference of s. 5 of the 1996 Act; or deeming s. 5 as continuing in force for the purpose of s. 3 of the Immigration Act 1999; or applying s. 27(1)(c) of the 2005 Act and preserving the right of the applicant to rely on s. 5 of the 1996 Act, notwithstanding its repeal. The applicant presented two options namely, interpreting the definition of 'applicant' in s. 2 or of a person in s. 50(7) of the 2015 Act to cover the applicant's case; or interpreting s. 3 of the 1999 Act to s. 5 of the 1996 Act as referable to s. 50 of the 2015 Act.

Mr. Justice Richard Humphreys granted an order of certiorari to the applicant and thus, quashed the order of the respondent. The Court rejected all the alternatives proposed by the respondent. The Court adopted one of the options given by the applicant. The Court opined that s. 26(2)(f) applied to the present situation where the refoulement provisions were set under the 2015 Act to the effect that when the 1996 Act ('former statute') was repealed and re-enacted, by the 2015 Act ('new statute'), a reference in 1999 Act ('other statute'), should be read as a reference to the provisions of the 2015 Act to the same subject matter as that of the 1996 Act. The Court, therefore, held that both the deportation order and the analysis in support of that order contained erroneous statement that the said order was subject to s.5 of the 1996 Act. The Court concluded that in a nutshell, s. 5 of the 1996 Act had been repealed and any references to s. 5 should now be construed as references to s. 50 of the 2015 Act.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 23rd day of March, 2018

1 The present case illustrates some problems of statutory interpretation relating to repeals, commencements, savings and transitional provisions: a cocktail with the capacity to chill the heart of even the most seasoned drafter.

2 The problem at issue involves the interplay of four enactments in particular:

(i). the Refugee Act 1996, now repealed;

(ii). the Immigration Act 1999, which contains a reference to the repealed 1996 Act;

(iii). the Interpretation Act 2005, which specifies how references to repealed Acts are to be construed; and

(iv). the International Protection Act 2015, which repeals the 1996 Act and contains new provisions for processing protection claims.

Facts

3 The applicant is a national of Albania, who arrived in the State on 24th November, 2012. She applied for asylum, a claim which was refused by the Refugee Applications Commissioner. She appealed unsuccessfully to the Refugee Appeals Tribunal.

4 On 19th July, 2013 she applied for subsidiary protection. That application was again refused by the Refugee Applications Commissioner on the basis that there were no substantial grounds to show a real risk of harm. On 28th July, 2016 an appeal to the tribunal against that decision was refused.

5 The Minister then made a proposal to deport the applicant on 14th October, 2016. The applicant submitted representations on 4th November, 2016 pursuant to s. 3 of the 1999 Act including further documentary evidence in support of her claim of risk of harm in the form of an ' attestation'. The making of a deportation order was analysed in the Department of Justice and Equality on 16th December, 2016 but a deportation order was in fact not formally made until 13th January, 2017. This was not until after the law had changed by the commencement of the 2015 Act on 31st December, 2016.

6 After the making of the order there was then an unexplained delay in serving the order on the applicant, which ultimately occurred on 29th August, 2017.

7 The applicant now seeks certiorari of the deportation order, and I have heard submissions from Mr. David Leonard B.L. for the applicant and Ms. Siobhán Stack S.C. (with Ms. Grainne Mullan B.L.) for the respondent.

How the problem arose

8 The problem here is that the applicant's refoulement situation was considered under s. 5 of the 1996 Act, as of 16th December, 2016, but that provision was repealed by the 2015 Act on 31st December, 2016, prior to the formal making of the order. The 2015 Act included a similar provision in s. 50, so the issue comes down to whether the applicant should have been considered under s. 5 of the 1996 Act, or s. 50 of the 2015 Act, or alternatively whether neither of these applied.

9 A point that will become important later in the discussion is that the protection now available under s. 50 of the 2015 Act is wider and more beneficial than that previously available under s. 5 of the 1996 Act. Section 5(1) of the latter Act provides that ' A person shall not be expelled from the State or returned in any manner whatsoever to the frontiers of territories where, in the opinion of the Minister, the life or freedom of that person would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion.' However while s. 50(1)(a) of the 2015 Act is in similar terms, the section goes on to add ', or (b) there is a serious risk that the person would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.' Thus there is an extension of the protections available to an applicant under the terms of the new provision. Now it may be that s. 50(1)(b) does little more than replicate protections under the ECHR in any event but that is not hugely material for present purposes. The main point to note for when it becomes relevant later is that s. 50 provides greater protection for applicants than s. 5.

The nature of statutory repeal

10 To put the matters at issue in the appropriate setting it seems helpful to set out a few contextual matters regarding the nature of statutory repeal.

11 An enactment by definition can only be fully repealed once (Francis Bennion, Statutory Interpretation 4th ed. (London, 2002) says that the effect of repealing a (fully) repealed Act is ' none at all' (p. 252)). By contrast an enactment can be partially repealed ( e.g. for various different purposes or in relation to various different provisions) a number of times. Repeals can be looked at in a number of ways (express or implied, for example) but perhaps are best viewed as coming in four varieties.

(i). Firstly there is the full repeal without express qualification. A repeal simpliciter without express additional qualification must be taken as a full repeal, as to do otherwise would create significant uncertainty. The effect of a repeal is as if the statute had not been enacted except in respect of matters past and closed (see Surtees v. Ellison (1829) E.R. 594 (1829) 9 B. & C. 750, Eton College v. Minister of Agriculture [1964] Ch. 274). Full repeal is thus subject to the inherent intention that past transactions are not disturbed, and in addition, in relation to past matters, is subject to general savings under the 2005 Act.

(ii). Secondly, one can have a repeal with express qualification, but where such qualification refers only to past matters, above and beyond the specific past matters catered for in the 2005 Act. And indeed, express savings provisions normally do deal only with past transactions (including transactions 'in the pipeline'), where more detail is thought necessary than is provided by the 2005 Act. Such a repeal can also be regarded as a full repeal.

(iii). Thirdly, there may be specific savings provisions in the repealing Act which provide that the Act continues to have ongoing effect for new future transactions or matters. If such provisions are included then the original Act has not been fully repealed (whatever the ostensibly full wording of the repealing section may be). This is, in reality, a partial repeal even though it may look full at first sight. Such enactments may have ' an uneasy existence as repealed provisions which are somehow still in force' (Bennion, 4th ed., p. 258).

(iv). Fourthly, a repeal can be expressly partial. A partial repeal may have effect in relation to certain provisions of the statute, leaving others intact, or more complicatedly may repeal the original provision for certain purposes or in respect of certain of its applications, leaving other purposes or applications intact.

12 In the present case there seems to be agreement between the parties that the repeal of the 1996 Act is a full repeal in sense 2, namely a repeal with savings as to past matters, both contained in the Act itself (s. 70) and the general savings in the 2005 Act. In addition, there seems to be agreement that the specific express savings in the 2015 Act do not apply to this applicant. The disagreement seems, therefore, to focus...