S (I)(A Minor) & S (A)(A Minor) v Min for Justice and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 21 January 2011
• Neutral Citation: [2011] IEHC 31
• Court: High Court
• Date: 21 January 2011

[2011] IEHC 31

THE HIGH COURT

[No. 763J.R./2009]

S (I)(A Minor) & Ors v Min for Justice & Ors

BETWEEN

IS (A MINOR SUING BY HER MOTHER AND NEXT FRIEND AS), AS (A MINOR SUING BY HER MOTHER AND NEXT FRIEND AS) AND AS

APPLICANTS

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND ATTORNEY GENERAL

RESPONDENTS

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5(1)

MCD (J) v L (P) & M (B) 2010 1 ILRM 461 2009/34/8411 2009 IESC 81

CONSTITUTION ART 29.6

X (R) & ORS v MIN FOR JUSTICE UNREP HOGAN 10.12.2010 2010 IEHC 446

CONSTITUTION ART 29.4.6

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S1

CONSTITUTION ART 34.3.1

CONSTITUTION ART 40.3.1

CONSTITUTION ART 40.3.2

LAND LAW (IRL) ACT 1881

LOFTUS BRYANS ESTATE, IN RE; BRYAN & ORS v IRISH LAND CMSN & ORS 1942 IR 185

MACAULEY v MIN FOR POSTS & TELEGRAPHS 1966 IR 345

COURTS OF JUSTICE ACT 1924

BYRNE v IRELAND & AG 1972 IR 241

MESKELL v CORAS IOMPAIR EIREANN 1973 IR 121

GRANT v ROCHE PRODUCTS (IRL) LTD 2008 4 IR 679 2008 27 5893 2008 IESC 35

HERRITY v ASSOCIATED NEWSPAPERS (IRL) LTD 2009 1 IR 316 2008/28/6242 2008 IEHC 249

O'BRIEN v KEOGH & O'BRIEN 1972 IR 144

WHITE v DUBLIN CITY COUNCIL & ORS 2004 1 IR 545 2004 2 ILRM 509 2004/50/11423 2004 IESC 35

MCALLISTER, IN RE 1973 IR 238

MURPHY v DUBLIN CORP & MIN FOR LOCAL GOVT 1972 IR 215 1973 107 ILTR 65

S (A) & v S (W) & REGISTRAR GENERAL OF BIRTHS & DEATHS 1983 IR 68 1984 ILRM 66 1983/4/1063

BLEHEIN v MIN FOR HEALTH & ORS 2009 1 IR 275 2008 2 ILRM 401 2008/3/594 2008 IESC 40

PESCA VALENTIA LTD v MIN FOR FISHERIES & ORS 1985 IR 193 1986 ILRM 68 1985/6/1462

CONSTITUTION ART 40.3

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5(2)(A)

MARSHALL TWO KINDS OF COMPATIBILITY: MORE ABOUT SECTION 3 OF THE HUMAN RIGHTS ACT 1998 1999 PL 377

MURPHY v AG 1982 IR 241

A v GOVERNOR OF ARBOUR HILL PRISON 2006 4 IR 99 2006/1/19 2006 IESC 45

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

K (G) & ORS v MIN FOR JUSTICE & ORS 2002 2 IR 418 2002 1 ILRM 401 2001/13/3557

B (J)(A MINOR) & ORS v MIN FOR JUSTICE UNREP COOKE 14.7.2010 2010 IEHC 296

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 24

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 24(3)

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 52(1)

ZAMBRANO v OFFICE NATIONAL DE L'EMPLOI (ONEM) UNREP ECJ 30.9.2010 (CASE NO C-34/09)

IMMIGRATION

Practice & procedure

Amendment of grounds - Judicial review proceedings - Challenge to validity of deportation order - Right to effective remedy - Amendment to enable challenge to constitutionality of common law rules - Whether applicants could seek declaration of incompatibility under European Convention of Human Rights Act 2003 in absence of challenge to constitutionality of the common law judicial review rules - Other legal remedy adequate and available - Failure to challenge constitutionality of common law rules - Whether common law rules of judicial review contained restrictions which denied effective remedy - Whether amendment should be permitted - Nature of proposed amendment - Jurisdictional limits of power to grant declaration of incompatibility - Whether entirely new ground of challenge - Amendment to rely on the provisions of the European Charter of Fundamental Rights - J McD v LP [2009] IESC 81, [2010] 1 ILRM 461 applied - RX v Minister for Justice [2010] IEHC 446, (Unrep, Hogan J, 10/12/2010) and GK v Minister for Justice [2002] 2 IR 418, [2002] 1 ILRM 401 considered - Re Loftus Bryan's Estate [1942] IR 185; Macauley v Minister for Posts and Telegraphs [1966] IR 345; Byrne v Ireland [1972] IR 241; Meskell v CIE [1973] IR 121; Grant v Roche Products [2008] IESC 35, [2008] 4 IR 679; Herrity v Independent Newspapers Ltd [2008] IEHC 249, [2009] 1 IR 316 O'Brien v Keogh [1972] IR 144; White v Dublin City Council [2004] IESC 35, [2004] 1 IR 545, [2004] 2 ILRM 509; Re McAllister [1973] IR 238; Murphy v Dublin Corporation [1972] IR 215, (1973) 107 ILTR 65; S v S [1983] IR 68, [1984] ILRM 66; Blehein v Minister for Health and Children [2008] IESC 40, [2009] 1 IR 275, [2008] 2 ILRM 401; Pesca Valentia Ltd v Minister for Fisheries [1985] IR 193, [1986] ILRM 68; Murphy v Attorney General [1982] IR 241; JB v Minister for Justice [2010] IEHC 296, (Unrep, Cooke J,14/7/2010); Zambrano v Office National De L'Emploi (Case C-34/09) (Unrep, ECJ, 30/9/2010) and A v Governor of Arbour Hill Prison [2006] IESC 45, [2006] 4 IR 99, [2006] 2 IR 262 mentioned - Constitution of Ireland 1937, Articles 29.6, 34.3.1 and 40.3.1 - European Convention of Human Rights Act 2003 (No 20), s 5(1) - European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, article 13 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Amendments partially (2009/763JR - Hogan J - 21/1/2011) [2011] IEHC 31

S (I)(A Minor)) v Minister for Justice

Facts The first applicant was an Irish citizen while the second applicant and third applicants were Nigerian nationals. The first and second applicants were the children of the third applicant. separate deportation orders had been made in respect of the second and third applicants. The applicants brought judicial review proceedings seeking to challenge the deportation orders. It was contended by the applicants that their right to an effective remedy contained in Article 13 of the European Convention of Human Rights had been infringed in that the common law substantive judicial rules (review for reasonableness, rationality and proportionality) did not sufficiently allow the High Court when exercising its supervisory jurisdiction to engage in a merits based review of these decision. It was contended that these rules were legally defective. For example, it was contended that, unlike the present law and practice in judicial review matters, the Court should have the right to receive and consider additional evidence over and above that which was before the Minister when he made the original deportation orders.

Held by Hogan J in allowing the amendment sought. The court was not permitted by statute to grant a declaration of incompatibility unless it was clear that no other legal remedy was available. The court had no jurisdiction to grant a declaration of incompatibility under s. 5(1) of the European Convention of Human Rights Act, 2003 Act unless the constitutional question has been disposed of adversely to the applicants' contentions. Although an amendment at this late stage was unsatisfactory, the amendment should be allowed as the applicants had always maintained that the existing common law rules were inadequate to secure an effective remedy. The amendment was also necessary by virtue of the jurisdictional limits of the power to grant a declaration of incompatibility contained in s. 5(1) and, specifically, the fact that the court can only grant the applicants such a declaration in circumstances where their constitutional remedies have been exhausted. A further application for the amendment of the pleadings relating to the provisions of the EU Charter of Fundamental Rights would be refused as the applicants had never previously raised any questions relating to EU law or the Charter.

Reporter: R.F.

1 1. In these judicial review proceedings the applicants have brought a motion whereby they seek to amend the grounds by which they challenge the validity of a deportation order made by the Minister for Justice, Equality and Law Reform. As we shall presently see, this motion in fact presents a vitally important issue of law concerning the interaction of the Constitution and the European Convention of Human Rights. Before examining this question it is necessary first to set out briefly the background to these proceedings.

2 2. The first applicant is an Irish citizen who born here on 24 ^th September, 2003. The second applicant and third applicants are Nigerian nationals. The first and second applicants are the children of the third applicant. In June, 2009 the Minister for Justice, Equality and Law Reform made separate deportation orders in respect of the second and third applicants. The validity of these deportation orders is the critical issue at the heart of these proceedings.

3 3. In the proceedings as originally constituted the applicants contended that their right to an effective remedy contained in Article 13 ECHR had been infringed in that the common law substantive judicial rules (review for reasonableness, rationality and proportionality) did not allow (or, at least, did not sufficiently allow) the High Court when exercising its supervisory jurisdiction to engage in a merits based review of these decision. These rules were said to be legally defective in other respects in that, for example, it is contended that, unlike the present law and practice in judicial review matters, this Court should have the right to receive and consider additional evidence over and above that which was before the Minister when he made the original deportation orders.

4 4. To that end, the applicants sought a declaration of incompatibility under s. 5(1) of the European Convention of Human Rights Act 2003 ("the 2003 Act") in respect of these common law rules. When this case was first opened before me, I raised the question with counsel for both parties as to whether the applicants were entitled to seek this relief on a free standing basis or whether, alternatively, they were first obliged, consistently with the language of s. 5(1) itself, to demonstrate first that no other remedy was, in the language of the sub-section, "adequate and available". The proceedings were then adjourned to enable the applicants to bring a motion whereby, even at this very late stage, they could apply to amend the proceedings to enable them to challenge the...