W.W. and Another v The Minister for Justice and Another

• Jurisdiction: Ireland
• Judge: Ms. Justice Faherty
• Judgment Date: 02 June 2023
• Neutral Citation: [2023] IECA 138
• Court: Court of Appeal (Ireland)
• Docket Number: Record Number: 2021/147

Between/

Chain Wen Wei

Appellant

and

The Minister for Justice and The Commisioner of an Garda Síochána

Respondents

Between/

Tang Ting Ting

Appellant

and

The Minister for Justice and The Commissioner of an Garda Síochána

Respondents

[2023] IECA 138

Faherty J.

Ní Raifeartaigh J.

Binchy J.

Record Number: 2021/147

Record Number 2021/148

THE COURT OF APPEAL

Judicial review – Leave to land – Immigration Act 2004 s. 4(3)(j) – Appellants challenging the refusal of leave to land – Whether “public policy” is to be interpreted as meaning general Government policy or instead is to be defined as a variant of “national security”

Facts: The appellants, Ms Wei and Ms Ting, were nationals of Malaysia and, accordingly, visa exempt for the purposes of entry into the State. Each of the appellants sought permissions to land and enter the State through Cork airport on 12 December 2020 in order to undertake an English language course which was to commence on 4 January 2021. Both were refused entry on 12 December 2020. Each of the appellants challenged the refusal of leave to land by way of judicial review. By orders made on 23 March 2021, the High Court (Burns J) dismissed the appellants’ respective judicial review proceedings as against the respondents, the Minister for Justice and the Commissioner of An Garda Síochána, from which orders the appellants appealed to the Court of Appeal. The case raised the issue of whether, for the purposes of s. 4(3)(j) of the Immigration Act 2004, “public policy” is to be interpreted as meaning general Government policy or instead is to be defined as a variant of “national security”. The question arose in circumstances where there were two conflicting High court judgments on the issue and where the High Court judge in the instant case had certified the issue as a point of public importance.

Held by Faherty J that, in construing s. 4(3)(j) as she did, the trial judge had regard to the long title to the 2004 Act as an important contextual point which gives voice to the intention of the Act to control the entry of non-nationals into the State in the interests of the common good, something which guided the first respondent in his decision-making and instructions to immigration officers. Faherty J held that while the term “public policy” is not defined in the 2004 Act, neither was it defined in the Aliens Order 1946 which the 2004 Act adopted in large part. She held that the trial judge did not err in declining to follow Ezenwaka v MJELR [2011] IEHC 328, nor in holding that: (i) the question of admission to the State of non-EEA nationals is a matter solely for the first respondent to be determined in accordance with domestic law as provided for by s. 4(3) of the 2004 Act; (ii) EU law has no application in this realm; (iii) it is a matter for the first respondent to regulate the conditions under which persons can be admitted into the State; (iv) with respect to non-EEA students undertaking an English language course, the first respondent had adopted a legitimate policy of not permitting a student to enter the State if that course was to be conducted online (v) if such a student sought to enter the State, the first respondent must be in a position to refuse permission to enter, on an individualised basis, so as to give effect to his function of regulating entry into the State, in order to give effect to the purpose of the 2004 Act; (vi) the Oireachtas must have intended that the first respondent would be empowered to refuse entry for legitimate policy reasons on an individual basis and accordingly, “public policy” as referred to in s. 4(3)(j) must refer to Government policy relating to the regulation of entry into the State, as opposed to relating only to personal conduct on the part of a non-national which poses a real and immediate threat to fundamental policy interests of the State; (vii) otherwise, the first respondent would not be in a position to regulate entry into the State and give effect to the purpose of the Act; (viii) as regards its interpretation, two different concepts are at play within s.4(3)(j), the first being that a non-national can be refused permission to land if her entry into or presence in the State could pose a threat to national security and the second being that a non-national can be refused permission to land if her entry into or presence in the State is contrary to public policy. Faherty J held that each of the above findings logically and principally flowed from the powers granted to the first respondent under s. 4(3) and from the context and purpose of the 2004 Act itself.

Faherty J dismissed the appellants’ appeals. She held that the respondents should be awarded their costs.

Appeals dismissed.

UNAPPROVED

JUDGMENT of Ms. Justice Faherty delivered on the 2 ^nd day of June 2023

1 . This case raises the issue of whether, for the purposes of s.4(3)(j) of the Immigration Act 2004 (hereinafter “the 2004 Act”), “public policy” is to be interpreted as meaning general Government policy or instead is to be defined as a variant of “national security”. The question arises in circumstances where there are two conflicting High court judgments on the issue and where the High Court Judge in the instant case has certified the issue as a point of public importance.

2 . The appellants are nationals of Malaysia and, accordingly, visa exempt for the purposes of entry into the State. Each of the appellants sought permissions to land and enter the State through Cork airport on 12 December 2020 in order to undertake an English language course which was to commence on 4 January 2021. Both were refused entry on 12 December 2020. Each of the appellants challenged the refusal of leave to land by way of judicial review. By Orders made on 23 March 2021, the High Court (Burns J.) dismissed the appellants' respective judicial review proceedings as against the respondents, from which Orders the appellants now appeal to this Court.

3 . The entry of the appellants into the State was governed by s.4 of the 2004 Act.

4 . Section 4(1) allows the first respondent (through an immigration officer) to give to a non-national permission to be in the State. Section 4 provides in relevant part:

“4.—(1) Subject to the provisions of this Act, an immigration officer may, on behalf of the Minister, give to a non-national a document, or place on his or her passport or other equivalent document an inscription, authorising the non-national to land or be in the State (referred to in this Act as “a permission”).

(2) A non-national coming by air or sea from a place outside the State shall, on arrival in the State, present himself or herself to an immigration officer and apply for a permission.

(3) Subject to section 2(2), an immigration officer may, on behalf of the Minister, refuse to give a permission to a person referred to in subsection (2) if the officer is satisfied—

(a) that the non-national is not in a position to support himself or herself and any accompanying dependants;

(b) that the non-national intends to take up employment in the State, but is not in possession of a valid employment permit (within the meaning of the Employment Permits Act 2003);

(c) that the non-national suffers from a condition set out in the First Schedule;

(d) that the non-national has been convicted (whether in the State or elsewhere) of an offence that may be punished under the law of the place of conviction by imprisonment for a period of one year or by a more severe penalty;

(e) that the non-national, not being exempt, by virtue of an order under section 17, from the requirement to have an Irish visa, is not the holder of a valid Irish visa;

(f) that the non-national is the subject of—

(i) a deportation order (within the meaning of the Act of 1999),

(ii) an exclusion order (within the meaning of that Act), or

(iii) a determination by the Minister that it is conducive to the public good that he or she remain outside the State;

(g) that the non-national is not in possession of a valid passport or other equivalent document, issued by or on behalf of an authority recognised by the Government, which establishes his or her identity and nationality;

(h) that the non-national—

(i) intends to travel (whether immediately or not) to Great Britain or Northern Ireland, and

(ii) would not qualify for admission to Great Britain or Northern Ireland if he or she arrived there from a place other than the State;

(i) that the non-national, having arrived in the State in the course of employment as a seaman, has remained in the State without the leave of an immigration officer after the departure of the ship in which he or she so arrived;

(j) that the non-national's entry into, or presence in, the State could pose a threat to national security or be contrary to public policy;

(k) that there is reason to believe that the non-national intends to enter the State for purposes other than those expressed by the non-national.

(l) that the non-national—

(i) is a person to whom leave to enter or leave to remain in a territory (other than the State) of the Common Travel Area (within the meaning of the International Protection Act 2015) applied at any time during the period of 12 months immediately preceding his or her application, in accordance with subsection (2), for a permission,

(ii) travelled to the State from any such territory, and

(iii) entered the State for the purpose of extending his or her stay in the said Common Travel Area regardless of whether or not the person intends to make an application for international protection.”

5 . Section 4(4) of the 2004 Act provides that an immigration officer who refuses to give a permission to a non-national pursuant to subsection (3) “shall as soon as may be inform the non-national in writing of the grounds for the refusal”.

6 . Upon arriving in the State on 12 December 2020, both appellants were refused permission to land by the...