XX v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr Justice Peter Charleton
• Judgment Date: 23 July 2019
• Neutral Citation: [2019] IESC 59
• Court: Supreme Court
• Docket Number: [S.C. No. 133 of 2018],Supreme Court appeal number: S:AP:IE:2018:000133 Court of Appeal record number 2017/169 [2018] IECA 124 High Court record number: 2015/647JR [2016] IEHC 377
• Date: 23 July 2019

Between

XX

Applicant/Appellant

- and -

The Minister for Justice Respondent

[2019] IESC 59

Charleton J.

O'Donnell Donal J.

MacMenamin J.

Dunne J.

Charleton J.

O'Malley Iseult J.

Supreme Court appeal number: S:AP:IE:2018:000133

[2019] IESC 000

Court of Appeal record number 2017/169

[2018] IECA 124

High Court record number: 2015/647JR

[2016] IEHC 377

An Chúirt Uachtarach

The Supreme Court

Judicial review – Mootness – Collateral attack – Applicant seeking judicial review – Whether the application was moot

Facts: The applicant/appellant commenced proceedings by way of judicial review, with leave granted by MacEochaidh J on 23 November 2015, seeking a declaration that he was entitled to apply for a declaration of refugee status under s. 8 of the Refugee Act 1996 and also seeking an order of mandamus that the application be considered. On 30 November 2015, the respondent, the Minister for Justice, made a deportation order, supported by what the judge in the High Court described as “forty pages of reasoned analysis, which is certainly one of the most detailed and extensive analyses supporting a deportation” that he had seen. On 21 December a new judicial review was commenced, with leave given by MacEochaidh J, challenging the deportation order and an interim injunction was granted. There were then applications to the Court of Appeal and the European Court of Human Rights. Ultimately, the High Court in judgments dated 24 June 2016 and 29 July 2016 refused the reliefs sought ([2016] IEHC 377 and [2016] IEHC 475). On foot of this, the applicant was deported on 6 July 2016. The applicant appealed to the Supreme Court from the Court of Appeal. The Minister claimed that this application was moot, in the sense that no practical result to his benefit would result from any judgment in his favour.

Held by Charleton J that if the applicant had made an application which was valid, he would have the benefit of s. 9(2) of the 1996 Act; hence, the case was not moot. Charleton J held that what was involved in this appeal was an impermissible collateral attack on an earlier step in proceedings which should then have been challenged. Charleton J held that no indication was possible as to whether any successful outcome could have been anticipated if those steps had been taken. Charleton J held that what was not possible in the code of legislation dealing with international protection is a later challenge which has the guise of a separate argument, but which in substance is an attempt to undermine a decision that is within the limits of the boundaries whereby it may be challenged, but was not then challenged.

Charleton J held that the judgment of the Court of Appeal should therefore be upheld.

Appeal dismissed.

Judgment of Mr Justice Peter Charleton delivered on Tuesday 23 July 2019

1 For clarity, the applicant is also called Khalid, which is not his name but is common in the Arabic-speaking world as a given name and as a family name. The necessity to use initials arises from the protection of anonymity granted by statute; see MARA (Nigeria) v Minister for Justice and Equality [2014] 1 IR 561. Particular care to the extent of using incorrect initials and a name unrelated to the applicant arises due to the fact that he is alleged to be active for Daesh, or Islamic State of Iraq and the Levant, ISIL, or ISIS, and as such was deported from Ireland on security grounds in 2016. Khalid's appeal is taken by him against a complex background of steps pursuant to legislation passed by the Oireachtas for the protection of refugees. The proper interpretation of that legislation in relation to applying for refugee status, and then withdrawing that application and subsequently applying again, arises. Since very many asylum applications become judicial review applications in the High Court, the interpretation and application of the legislative provisions requiring such challenges to be taken within a particular timeframe and not later as a collateral attack is also in issue. Finally, since Khalid was deported from Ireland, the Minister claims that this application is moot, in the sense that no practical result to his benefit will result from any judgment in his favour.

Asylum: application and withdrawal

2 Khalid is of Palestinian origin. He arrived in Ireland with his family in early 2000 when his wife was heavily pregnant. He applied for asylum on the grounds that his religious and political beliefs resulted in harassment by the authorities in his country of origin. This application was sent for processing in the ordinary way. Shortly thereafter his wife gave birth to a child who was an Irish citizen, by virtue of the then applicable form of Article 2 of the Constitution providing for citizenship to all those born in this jurisdiction. The conditions for citizenship changed by virtue of the Twenty-Seventh Amendment of the Constitution Act 2004 following a referendum of the people. Shortly after the time of his asylum application, Khalid decided that his prospects of obtaining residence in the State were better pursued through his status of having a child who was a citizen. Consequently, by letter of 14 August 2000, Khalid told the asylum division of the Department of Justice, Equality and Law Reform that: ‘having already applied to Immigration in Stephens Green for residency on the basis of my Irish Born Child, I now wish to withdraw my asylum application.’

3 This letter was acknowledged by the respondent Minister. Further, the plain reality is that thereafter the application of Khalid was treated as one for immigration. On 15 August 2000, the letter was replied to thus by the Department:

I am directed by the Minister for Justice, Equality and Law Reform to refer to your recent letter regarding your wish to withdraw your case for asylum which has been noted on our files. I also note that you wish to apply for residency in the State on the basis of your Irish Born Child. Your application for residency will be forwarded to the Immigration Division of this Department for further consideration. All future enquiries should be made in writing to [name given of the] Immigration Division [address given]…

4 Had the letter not been treated as withdrawing the asylum application, steps would have been taken by the Department to process it by interviewing Khalid. That never happened. At all times both sides acted as if the application for asylum was not to proceed. Rather, Khalid was thereafter treated as applying to immigrate to Ireland on the basis of having an Irish citizen in his family. In fact, permission to remain in the State was granted but by the time of the events detailed hereafter it had expired. At that time, back in the year 2000, applications for asylum were not subject to statutory regulation but were processed by means of an informal set of steps agreed in correspondence with the Office of the United Nations High Commissioner for Refugees. Since a consensus as to the proper management of those applications was achieved through an exchange of letters between officials, this was known as the Hope-Hanlon procedures.

5 By a complex route, the Minister claims that if the application for asylum was treated as having been withdrawn, such withdrawal is statutorily equivalent to a refusal of permission and thus requires the consent of the Minister for such a withdrawn applicant to enter the asylum adjudication and processing system for a second time. Under section 8(1)(a) of the Refugee Act 1996, a person ‘who arrives at the frontiers of the State seeking asylum in the State or seeking the protection of the State against persecution … may apply to the Minister for a declaration’ that he or she is a refugee. This will then be processed in the usual way, though the system and legislation have now changed. Under section 17(7) of the 1996 Act, a ‘person to whom the Minister has refused to give a declaration may not make a further application for a declaration under this Act without the consent of the Minister.’ As it turns out, the 1996 Act was not then in force. Commencement was by the Refugee Act 1996 (Commencement) Order 2000 ( SI No 365 of 2000) and it is agreed that this was subsequent to any steps taken in this case. Commencement took place on 20 November 2000.

6 The Minister argued that the transitional provisions under section 28 of the 1996 Act capture the withdrawal made prior to the commencement of the legislation, and transform it into a refusal. Section 28 applies to a person who ‘before the commencement of this section’ had made an asylum application ‘but a decision in relation thereto had not been made by the Minister’. That application is ‘deemed to be an application under section 8’ of the 1996 Act and any ‘step taken by the Minister before such commencement … shall be deemed to have been taken under this Act.’ Further, section 28A(1)(b) provides that in relation to such an application, which is a deemed application under section 8, ‘this Act … shall apply to the application.’ Further, since the 1996 Act, as quoted, was later amended, as the numbering implies, such an application is deemed to have been made after the commencement of the Immigration Act 2003. This provides that a withdrawn application is to be deemed to be one refused by the Minister. Consequently, it is argued that section 17(7) of the 1996 Act applies. Whether a statutory provision applies retrospectively depends upon the express wording of the legislation or upon the necessary construction of the enactment as a whole; Sweetman v Shell [2016] IESC 58. Where the terms of the legislation are express, as here, then retrospectivity is the will of the Oireachtas, subject only to constitutional considerations. But, what is of prime concern here is whether as of the commencement of the 1996 Act, which happened after the quoted letter in November 2000, there was any such application for refugee...