S.E. v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Denham C.J.,Clarke J.,MacMenamin J.
• Judgment Date: 19 June 2017
• Neutral Citation: [2017] IESCDET 62
• Court: Supreme Court
• Date: 19 June 2017

[2017] IESCDET 62

THE SUPREME COURT

DETERMINATION

Denham C.J.

Clarke J.

MacMenamin J.

BETWEEN

S.E.

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.4° OF THE CONSTITUTION APPLIES

RESULT: The Court grants leave to appeal to this Court from the High Court.

REASONS GIVEN:

Introduction

1 This determination relates to an application seeking leave to appeal to this Court from the High Court, Humphreys J., under Article 34.5.4 of the Constitution.

2 The Court considers it desirable to point out that a determination of the Court on an application for leave, which is final and conclusive insofar as the parties are concerned, is a decision in relation to that application only. The decision is whether the question, or questions raised, and the facts underpinning them, meet the constitutional criteria for leave. Save in the rarest of circumstances, it will not be appropriate to rely upon a grant or refusal of leave as having a precedential value in relation to the substantive issues, in the context of different cases. Where leave is granted, any issue canvassed in the application will, in due course, be disposed of in the substantive decision of this Court.

The Background

3 On the 28th September, 2015, the applicant made application for asylum at Dublin Airport. He was taken to ORAC (Office of the Refugees Application Commission) to make an application for asylum, and was sent from there to accommodation for asylum seekers. The appellant claims that he then left to seek to buy credit for phone calls and became lost. He claims that, having found his way to a mosque, he was offered accommodation by another national of his home country. There is no explanation as to why he did not return to the accommodation assigned to him.

4 On the 13th October, 2015, a letter, described as 'undeliverable', was addressed by ORAC to the applicant in which it was noted that ORAC was recommending to the Minister that the applicant be refused asylum on the basis that, contrary to law, he did not inform the Commissioner of his 'change of address' within 5 working days of such change. A report setting out the reasons for that recommendation was also prepared at that time and submitted to the Minister. The subsequent decision made by the Minister noted that the applicant had missed an appointment to attend ORAC, and that staff at the accommodation to which he was sent by ORAC had confirmed that he had left on the day of his arrival and had not returned.

5 On the 3rd November, 2015, a letter was placed on the applicant's file, held by the respondent, inviting the applicant to apply for subsidiary protection. It could not be served on the applicant, as his whereabouts were unknown. On the 14th January, 2016, a letter was, for the same reason, similarly placed on file proposing to deport the applicant. It could not be served on him for similar reasons. On the 8th April, 2016, a deportation order was made and signed. On the 4th May, 2016, a notification to accompany a deportation order was marked to be delivered ' by hand', and ' required' the applicant to present himself to ' such members of An Garda Siochana, or Immigration Officer, as may serve you this notice, at the time and place of service ...'. The letter also advised ' If you fail to comply with any provision of the Deportation Order, or with any requirement within this Notice, an Immigration Officer, or a member of An Garda Siochana, may arrest and detain you without warrant in accordance with the Immigration Act, 1999...'.

6 On the 5th August, 2016, the applicant was granted a residence permission. He was invited to attend the GNIB (Garda National Immigration Bureau) to register his permission. He attended at the GNIB. On the 31st August, 2016, a deportation order was served on the applicant by hand at the GNIB, and his residence permission was not permitted to be registered. On the 8th September, 2016, the applicant states that he complied with the presentation requirement imposed on the 31st August, 2016, and was asked to present again on the 20th October, 2016. On the 27th September, 2016, the residency permission of the 5th August, 2016 was formally revoked.

7 The applicant sought leave to seek judicial review in the High Court. The application was ex parte. On the 19th October, 2016, the applicant was refused permission for leave to seek judicial review by the High Court. In essence, the applicant's case was that the actions of the respondent, in placing a proposal to deport the applicant on file, did not constitute sufficient compliance with the requirements of the legislation.

8 Section 6(1) of the Illegal Immigrants Act, 1999, was amended by s.10(c) of the Illegal Immigrants (Trafficking) Act, 2000. The applicant contends that that section permits service on a person only by two methods. His case is that the statute is mandatory in its terms. It is said the notice ' shall be addressed to him or her', and be ' served or given' on one of two methods, either (a) ' by delivering it to him', or (b) ' by sending it by post'. The applicant's case is that there is no ambiguity in the section, and that neither method of service was adopted in this case. The applicant accepts that he was assigned accommodation in a reception centre operated by the State, and that he left without providing a forwarding address. It is accepted that, arguably, the proposal to deport ought to have been sent to the reception centre as his last known address.

9 The applicant accepts that this Court held in Re Article 26 of the Constitution and in the matter of ss. 5 and 10 of the Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 I.R. 360, at pages 395/396, that it is not unreasonable for the State...