Z.K. v Reception and Integration Agency

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 15 January 2016
• Neutral Citation: [2016] IEHC 20
• Docket Number: [2016 No. 7 J.R.]
• Court: High Court
• Date: 15 January 2016

[2016] IEHC 20

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2016 No. 7 J.R.]

BETWEEN

Z.K.

APPLICANT

AND

RECEPTION AND INTEGRATION AGENCY,

MINISTER FOR JUSTICE AND EQUALITY,

ATTORNEY GENERAL AND IRELAND

RESPONDENTS

Asylum, Immigration & Nationality – Accommodation of asylum seeker – Transfer of place of accommodation – Judicial review – Fair procedures

Facts: The applicant sought leave for judicial review of the decision of the first named respondent to transfer the applicant from the present lodging facility to another owing to the abusive behaviour of the applicant towards the personnel of the said accommodation facility. The applicant claimed that there was lack of proper food and hygiene in the said accommodation facility and his repeated complaints regarding standard of living were not paid any attention.

Mr. Justice Richard Humphreys refused to grant leave for judicial review to the applicant. The Court held that since the said accommodation facility was managed by private individuals, the remedy of judicial review was inappropriate. The Court found that the remedy of the judicial review could not be revoked to challenge the transfer decision of the first named respondent as it was a purely managerial decision.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 15th day of January, 2016

1 The applicant, who is Algerian, unlawfully arrived in the State on 6th March, 2014. He was refused asylum on 10th June, 2014, a decision which he has appealed. That appeal is outstanding.

2 He has been accommodated in the ‘direct provision’ system at Viking House, Coffee House Lane, Waterford, since his arrival in the State. Viking House is a private accommodation centre run by a private limited company, Mill Street Services Ltd., which has a commercial relationship with the Reception and Integration Agency in order to accommodate asylum seekers. It is accepted that the accommodation is a facility provided by the State rather than a mandatory system. The applicant is not compelled as a matter of law either to utilise it or to be in the State at all. While I appreciate that he may not have the resources to fund his own accommodation, there is no analogy with prison accommodation as was suggested in the course of the application.

3 Unfortunately, the applicant's time at Viking House has not been an entirely happy one. He received a total of five written warnings in respect of his behaviour, by letters dated 27th June, 2014; 30th October, 2014; 11th November, 2014; 2nd December, 2014 and 15th October, 2015 (final warning); followed by a letter of 15th December, 2015 requiring his transfer out of the accommodation (giving rise to the present application).

4 The applicant meanwhile launched a series of complaints in relation to conditions in Viking House, particularly in relation to alleged shortcomings in the food and hygiene standards.

5 The complaint giving rise to the transfer decision was triggered by a written report from the manager of Viking House, dated 14th December, 2015, which alleged that the applicant subjected the manager and another staff member to ‘a tirade of verbal abuse’. This was followed by the applicant going to the reception area and subjecting the manager and the chef to a ‘ prolonged session of abuse using every expletive imaginable, he left nothing unsaid. All of the above is recorded on the CCTV system complete with audio.’

6 Notably, in his grounding affidavit for the present application, the applicant does not deny this allegation.

7 The Reception and Integration Agency's response to this was to issue the final letter in relation to his behaviour, dated 15th December, 2015, signed by Ms. Siobhan O'Higgins on behalf of the Reception and Integration Agency, which notified him that ‘ your ongoing behaviour is contrary to the smooth running of the centre, is completely unacceptable to the Reception and Integration Agency and cannot continue to be tolerated under any circumstances. In order to defuse the situation it has been decided to relocate you to Richmond Court, Richmond Street, Longford.’

8 This proposed course of action was met with a volley of correspondence from John Gerard Cullen Solicitors, on behalf of the applicant, including a letter of 18th December, 2015, in which they state ‘ We now intend to institute High Court proceedings against the Minister for Justice/RIA/Siobhan O'Higgins personally and An Garda Síochána.’

9 This threat to sue a public servant personally for signing an administrative letter on behalf of a government department or agency is unacceptable in the absence of exceptional circumstances which do not exist here. The fact that the threat was not carried out is all to the good, but it needs to be stated that a threat such as this should never have been made in the circumstances. That is not to say that there are not circumstances in which a public servant could be personally liable for mala fides, but those are rare indeed and certainly the present case has nothing in common with such a claim. In addition, there are other circumstances where a public servant holds a particular office which is not a corporation sole, and can legitimately be sued in his or her own name in the capacity of the holder of that office. For example, where the respondent to an Article 40 application is a particular member in charge of a Garda station, or a particular prison governor, neither of which offices is a corporation sole, it is permissible to name the individual as the respondent (as has been done historically in many leading cases on habeas corpus, such as Entick v. Carrington (1765) 19 St. Tr. 1029; 95 E.R. 807 and Liversidge v. Anderson [1942] A.C. 206), but it would not be altogether accurate...