E v The Minister for Justice and Equality
| Jurisdiction | Ireland |
| Judge | O'Donnell J |
| Judgment Date | 13 March 2018 |
| Neutral Citation | [2018] IESC 20 |
| Docket Number | Supreme Court record no: S:AP:IE:2017 :000072,[S.C. No. 72 of 2017] |
| Court | Supreme Court |
| Date | 13 March 2018 |
[2018] IESC 20
THE SUPREME COURT
O'Donnell Donal J.
O'Donnell Donal J.
McKechnie J.
MacMenamin J.
O'Malley Iseult J.
Finlay Geoghegan J.
Supreme Court record no: S:AP:IE:2017 :000072
Immigration and asylum – Statutory procedure – Deportation – Applicant seeking leave to challenge deportation order – Whether statutory procedure had not been complied with
Facts: The applicant came to Ireland from Egypt on the 28th of September 2015, and on arrival at Dublin Airport made a claim for asylum. The applicant never attempted to further process his application for asylum. A report under s. 13 of the Refugee Act 1996 recommended refusal of the application on the grounds that he had not notified the Refugee Appeals Commissioner of his change of address, indeed, no address had ever been provided. Accordingly, his application was deemed to have been withdrawn under s. 9(4A) of the 1996 Act. This in turn led to consideration of the making of a deportation order under s. 3 of the Immigration Act 1999. The applicant sought leave to challenge the deportation order on the grounds that the statutory procedure had not been complied with. The specific argument was that the 1999 Act s. 3(3)(a) proposal to make the deportation order and the notification of the making of the order pursuant to s.3(3)(b)(ii) were not lawfully served upon the applicant and were thereby unlawful. The application for leave to seek judicial review was refused by the High Court (Humphreys J), in a judgment delivered on the 19th of October 2016. An application for leave to appeal to the Court of Appeal was refused. Subsequently, the applicant appealed to the Supreme Court.
Held by O'Donnell J that there was no absurdity in the interpretation of the Act. O'Donnell J held that while the Oireachtas did not anticipate all possible circumstances and make provision for them, that did not amount in itself to absurdity; even if it did, O'Donnell J did not think it was possible to determine the clear purpose of the Act in that regard so as to offer an interpretation of s. 6 to achieve any such purpose. O'Donnell J held that the Court would be obliged to construct an entirely new provision governing the situation such as that which arose in this case where no address was provided at all, and in doing so to offer a solution which the Oireachtas may or may not have adopted. In O'Donnell J's view, this went further than s. 5 of the Interpretation Act 2005 permits. Accordingly, O'Donnell J was satisfied that the approach taken by the parties in this case was correct.
O'Donnell J held that the Court would allow the appeal and make the costs orders agreed between the parties.
Appeal allowed.
The applicant in this case, SE, came to Ireland from Egypt on the 28th of September 2015, and on arrival at Dublin Airport made a claim for asylum. It is perhaps important to observe that the applicant arrived illegally, and his only entitlement to remain in Ireland was because he had claimed to be a refugee. Under s.9 of the Refugee Act 1996 a person who arrives at the frontier of the State seeking asylum shall be given leave to enter the State and pursuant to s.9(2) of the same Act is entitled to remain in the State until the determination of the application.
The applicant was brought to the Office of the Refugee Appeals Commissioner. He was then placed in a taxi for the accommodation centre at Balseskin Reception Centre. In the normal course there is quite an elaborate process for the assessment of asylum applications. However, in this case the process was short circuited by the fact that the applicant himself never attempted to further process his application for asylum. Instead he left the centre saying that he was looking for telephone credit, claimed that he then became lost, asked directions to a mosque, met a fellow Egyptian, who then he says accommodated him for a number of months. As far as the authorities were concerned he did not reappear until he surfaced almost a year after first arriving in Ireland when he obtained a permit for an atypical working scheme, in this case involving fishing. For that purpose he had to attend at the gardaí in Wexford where his past fleeting engagement with the immigration system emerged. It transpired that in the intervening period a deportation order had been made against him. Accordingly his work permit was revoked and steps were taken to enforce the deportation order giving rise to these proceedings.
The failure of the applicant to pursue his application for asylum in any way, had the inevitable consequence that it would be refused. In the event a report under s.13 of the Refugee Act recommended refusal of the application on the grounds that he had not notified the Commissioner of his change of address, indeed in truth, no address had ever been provided. Accordingly, his application was deemed to have been withdrawn under s.9(4A) of the Refugee Act 1996 (as amended). This in turn led inevitably to consideration of the making of a deportation order under s.3 of the Immigration Act 1999 ('the 1999 Act'), since one of the classes of persons who can be made the subject of a deportation order is a person 'whose application for asylum has been refused by the Minister', (Section 3(2)(f) of the 1999 Act). It is at this point that the procedure under the 1999 Act becomes relevant.
Section 3(3)(a) of the 1999 Act provides as follows:
'Subject to subsection (5), where the Minister proposes to make a deportation order, he or she shall notify the person concerned in writing of his or her proposal and of the reasons for it and, where necessary and possible, the person shall be given a copy of the notification in a language that he or she understands.
(b) A person who has been notified of a proposal under paragraph (a) may, within 15 working days of the sending of the notification, make representations in writing to the Minister and the Minister shall—
(i) before deciding the matter, take into consideration any representations duly made to him or her under this paragraph in relation to the proposal, and
(ii) notify the person in writing of his or her decision and of the reasons for it and, where necessary and possible, the person shall be given a copy of the notification in a language that the person understands.'
Subsection 4 provides that the notification of a proposal of the Minister under subsection (3) shall include a statement that the person may make representations within 15 working days or may leave the State before the Minister makes any decision, or consent to the making of the deportation order within 15 days.
Subsection...
To continue reading
Request your trial
-
Health Service Executive v M.C.
...be asked to rewrite legislation (citing in that respect the decision of the Supreme Court in S.E. v. Minister for Justice and Equality [2018] IESC 20, [2018] 3 I.R. 317, and Irish Life and Permanent plc v. Dunne [2015] IESC 46). The HSE did not develop its argument in respect of s. 5 of the......
-
Shao v Minister for Justice and Equality (No. 2)
...plea regarding lack of candour, abuse of the system, or otherwise. The Supreme Court decision in E. v. Minister for Justice and Equality [2018] IESC 20, [2018] 3 I.R. 317 was on the basis of the parties having agreed to compromise the case by the time judgment was delivered so, consequently......
-
Shao v Minister for Justice & Equality
...2 I.R. 544. Order 22 Before concluding, it is possibly worth noting that the Supreme Court in S.E. v. Minister for Justice and Equality [2018] IESC 20 [2018] 3 I.R. 317 per O'Donnell J. at para. 16 and 17 noted that there might be a “lacuna” in the 1999 Act in respect of service where no ad......