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K.R.A. & Or v MJE (High Court, Humphreys J, 12/05/2016)

K.R.A. & Or v MJE (High Court, Humphreys J, 12/05/2016) 

Ratio: Section 5 of the Illegal Immigrants (Trafficking) Act 2000 (as amended by section 34 of the Employment Permits (Amendment) Act 2014) applies to decisions not to revoke a deportation order made under section 3(11)(m) of the Immigration Act 1999 (as amended)

The applicants –a Nigerian mother and her Irish-born (though not citizen) child- applied for asylum in the State in March 2008. Their asylum and subsidiary protection applications were rejected, and, in November 2009, deportation orders were made in respect of them pursuant to section 3 of the Immigration Act 1999. The applicants absconded and did not present to the Garda National Immigration Bureau (GNIB) as required. In October 2014 they made applications for the revocation of the deportation orders pursuant to section 3(11) of the Immigration Act 1999. The Minister informed them that their applications would not be considered until and unless they presented to the GNIB. Upon doing so they were arrested and detained. Their detention continued until her release pursuant to Article 40 of the Constitution, by Eagar J.: A. v. Governor of the Dóchas Centre [2014] IEHC 643 (Unreported, High Court, 19th December, 2014), on the grounds that the Minister was not entitled to imposed such a condition on the consideration of the s. 3(11) application. On 18 May 2015 the Minister decided to refuse to revoke the deportation orders under s. 3(11). On 3 June 2015 the applicants were granted leave to challenge this decision by Faherty J, who also granted an injunction restraining deportation.

In this substantive judgment, Humphreys J addressed the question of whether section 5 of the Illegal Immigrants (Trafficking) Act 2000, as amended by section 34 of the Employment Permits (Amendment) Act 2014, applies to a decision not to revoke a deportation order under section 3(11) of the 1999 Act in circumstances where s. 5(1)(m) of the 2000 Act refers to “an order under s. 3(11)”.

In this case –as in any case where the Minister refuses to revoke a deportation order-, the Minister had not made an order under s. 3(11), but a decision not to revoke the deportation orders made in respect of the applicants. The only order that can be made under s. 3(11) is one to amend a deportation order. Is a judicial review challenge to a decision refusing to revoke a deportation order under s. 3(11) covered by the specific rules of judicial review set out in section 5 of the 2000 Act (as amended by the 2014 Act) or by the general rules of Order 84 of the Rules of the Superior Courts.

The Judge held that the appropriate approach to interpreting s. 5(1)(m) of the 2000 Act is dictated by s. 5 of the Interpretation Act 2005, which… provides that if the provision “on a literal interpretation would … fail to reflect the plain intention of … the Oireachtas”, then “the provision shall be given a construction that reflects the plain intention of the Oireachtas … where that intention can be ascertained from the Act as a whole”.

The Judge interpreted the terms of s. 5 of the 2000 Act along four stages, namely:-

  1. What is the literal interpretation of the provision?
  2. Can the plain intention of the Oireachtas be ascertained from the Act as a whole?
  3. If so, does the literal interpretation fail to reflect the plain intention of the Oireachtas?
  4. If so, can the provision be given an interpretation that reflects that intention?

In relation to the first question, the Judge noted that “refusal to make an order is not “an order”” (““Order” in this context is a term of art and connotes a particular type of statutory instrument, not an administrative decision”), before concluding as follows:-

“On a literal interpretation, it is therefore clear that s. 5 would only apply to a challenge to the making of an order, rather than to a challenge to a refusal to revoke a deportation order. While it is tempting and indeed generally more comfortable to stop there, s. 5 of the 2005 Act requires the court to go on to consider whether that literal interpretation should be departed from.

In relation to the second question, the learned Judge noted that he was unable to find any assistance from the legislative history of the provision because, due to the fact that it was introduced by way of Dáil report stage amendment to the Employment Permits (Amendment) Bill 2014, it did not feature in any manner in the Explanatory Memorandum to the Bill as initiated. The Judge further noted that section 5 does not appear to encompass a number of decisions (such as those made in respect of the Dublin Regulation, visa and naturalisation applications, Free Movement of Persons Regulations, family reunification applications, etc. The Judge stated that such were the omissions in the provision, and its arbitrariness, that it was not possible to discern a “a clear policy rationale that would make sense of the section as a whole…”.

More specifically in relation to section 5(1)(m) the Judge stated:-

“The one thing that the measures included in the section have in common is that they are all negative decisions affecting non-nationals. Many of them could also have the effect of seeking to hold up the removal of non-nationals from the State. The section falls within the well-established public policy objective that issues regarding the validity of administrative decisions should be determined promptly… The categories of decision concerned do not generally apply to non-nationals whose applications have been granted… The decisions covered by s. 5 are those “taken for the purpose of controlling the State’s borders” …” (para 41).

Read in that light, the Judge concluded, the plain intention Oireachtas in respect if s. 5(1)(m) can only be that it should apply to a negative decision which would have the effect of holding up the removal of a non-national, the subject of a deportation order, from the State (para 42).

In relation to the third question – does the literal interpretation fail to reflect the plain intention of the Oireachtas?-, the Judge noted that the only circumstance in which an “order” under s. 5(1)(m) would realistically be challenged was if the Minister made an order amending a deportation order, to which an applicant did not agree. This would presumably be something of a rarity. An order under s. 3(11) revoking a deportation order would generally be favourable to an applicant and thus unlikely to be challenged (para 43). The Judge therefore concluded that to interpret sub-paragraph (m) in a literal manner would achieve no useful purpose. Refusal to revoke a deportation order would be subject to the usual three-month leave period with an unfettered right of appeal. Such an interpretation would deprive sub-paragraph (m) of any real purpose or effect (para 44). This led the Judge to conclude that “despite the lack of a coherent policy discernible in s. 5 as a whole, the conclusion that the wording of sub-s. (1)(m) on a literal interpretation fails to reflect the plain intention of the Oireachtas is inescapable” (para 45).

In relation to the fourth question – can the provision be given an interpretation that reflects that intention?– the Court asked itself whether it should depart from the literal meaning of the provision in order to give effect to the plain intention of the Oireachtas. The Judge noted that there are limits to what can legitimately be done under the heading of construction or interpretation and that process cannot be pursued to breaking point” (para 47) and referred to the point made by Clarke J. (MacMenamin J. concurring) in Kadri v. Governor of Wheatfield Prison [2012] 2 I.L.R.M. 392 at para. 3.10 wherein it was held that the court cannot “use (or perhaps abuse) a section which mandates a sensible or purposive construction to, in effect, rewrite the legislation by inserting a series of detailed measures to which the Oireachtas did not address its mind”. Humphreys J held:-

“The purposive interpretation which would uphold the intention of the Oireachtas is quite clear. It is to read the words “order under section 3(11)” as meaning “decision under section 3(11)”. This does not constitute a re-writing of the section in the Kadri sense” (para 49).

Therefore, the Court concluded, the required interpretation of s. 5(1)(m) of the 2000 Act is that it applies to any “decision” under s. 3(11) rather than an order stricto sensu (para 50).

Other Issues

The Judgment addressed other questions raised by the applicant´s challenge. Firstly, it held that an applicant is not entitled to relief by way of judicial review challenging a decision refusing to revoke a deportation order on a ground which could have been available to him or her at the time the original order was made, in the absence of a change of circumstances or of refoulement arising. In this case, the applicants, in challenging the Minister´s decision not to revoke the deportation orders, argued that the child had a fundamental natural and constitutional right to education, which would be interfered with by the decision to deport because of the inadequate educational system in Nigeria. The Judge said that it was not open to the applicants to challenge the refusal to revoke the deportation orders on a ground which was available to her as a potential basis to challenge the original deportation orders, which were made in November 2009. The time for challenging the orders had long since expired (paras 54 & 55):-

“58. In the absence of the enactment of Article 42A making any significant difference to the legal position of the applicants (which I consider below), there is nothing new in the claim that deportation could interfere with the education of the second named applicant. This point was well within the scope of submissions or potential submissions in 2009, despite the tender years of the second named applicant at that stage and the fact she had not commenced primary education. Such commencement was perfectly foreseeable and, as an issue related to the prospective rights of the applicants, a legitimate subject both for submissions by them and for consideration and decision by the Minister as of the time of making the original deportation order. This is not a new point, and it is therefore inappropriate for the court to either quash the decision to affirm the deportation order, still less restrain the deportation, on the basis of a point which could have been litigated in 2009. To allow a deportation order to be challenged or upset by reference to such historic points would nullify the time limits enacted by the Oireachtas in s. 5 of the 2000 Act. An applicant cannot, by challenging a later decision, seek in substance to nullify an earlier decision contrary to the system of time limits set out in s. 5 of the 2000 Act: this would be “to permit the first decision to be attacked obliquely, after the time limited for a direct challenge had expired” (E.M.S. at p. 542). Likewise, in B.M.J.L. v. Minister for Justice and Equality [2012] IEHC 74 (Unreported, High Court, 14th February, 2012), Cross J. took the view (at para. 3.18) that it was not open to an applicant to attack a deportation order on grounds that “‘collaterally’ impugn the validity of the RAT decision” (the reference in that case to this being done “by way of an appeal” appears to refer not to an appeal stricto sensu but to an application to the Minister by way of representations for leave to remain).”

The Court then considered the question of whether the decision was invalid by reason of a failure properly to consider the constitutional right of the child to free primary education in accordance with Article 42A and the Meadows decision, and concluded that it was not. The Judge stated (at para 62) that Article 42A was not an answer to this problem. The best interests requirements in Article 42A.4 does not apply to immigration decisions: Dos Santos v. Minister for Justice and Equality [2015] IECA 210, [2015] 2 I.L.R.M. 483 (30th July, 2015) per Finlay Geoghegan J. at para. 18. The Judge further held that the right to an education, including in the case of a child of primary school age, to free primary education, is one of the natural and imprescriptible rights of the child, whether citizen or not, and therefore to be enjoyed by every child pursuant to Articles 40.3, 41, 42 and 42A of the Constitution without discrimination as to nationality or even legal status while in the country, or as to other grounds such as marital status of the child’s parents (para 65). Reference was made to N.H.V. v. Minister for Justice and Equality [2016] IECA 86 (Unreported, Court of Appeal, 14th March, 2016) (under appeal – N.H.V. v. Minister for Justice and Equality [2016] IESCDET 51) which clearly establishes that all constitutional rights are not to be viewed as in general and automatically to be applied to non-citizens, but rather that “certain non-citizens may be entitled to certain constitutionally protected fundamental or personal rights” (per Finlay Geoghegan J. at para. 19).

“73. However the entitlement to a right to education while for the time being present in the State does not thereby create an entitlement not to be removed from the State if unlawfully here, even if such removal is to a country with an inferior educational or social system. As the Minister correctly noted in the decision under review, “aliens subject to expulsion cannot claim any entitlement to remain in the territory of a contracting state in order to continue to benefit from medical, social and other forms of assistance provided by the expelling state” (N. v. Secretary of State for the Home Department [2005] UKHL 31 per Lord Nicholls of Birkenhead at para. 15, summarising ECHR caselaw in the context of art. 3 of that instrument, a proposition which is relevant by analogy).

The applicants relied on the judgment of Eagar J. in C.O.O. (Nigeria) v. Minister for Justice (No. 1) [2015] IEHC 139 (Unreported, High Court, 4th March, 2015), in which he stated (obiter) that under Article 42A, the analysis of rights of a child in the deportation context “would change remarkably” and the Minister “will have to give far greater consideration to the welfare of an applicant child” than applied under R. (Razgar) v. Home Secretary [2004] 2 A.C. 368, which itself was an attempt to set out the test under art. 8 of the ECHR (para. 35 of C.O.O.). Humphreys J rejected this argument as follows:-

“75. It is clear from para. 38 of C.O.O. that Eagar J. was relying on the best interest test in Article 42A.4.1º of the Constitution in this regard. C.O.O. was decided on 4th March, 2015, after the High Court decision in Dos Santos but before the judgment of Finlay Geoghegan J. on appeal to which I have referred. In the light of the latter judgment, it is clear beyond argument that, as the wording of Article 42A.4 expressly states, the best interest test applies to certain types of decision in which immigration matters are not included. It follows that the obiter comments of Eagar J. in C.O.O. should be re-appraised, having regard to the subsequent decision by the Court of Appeal in Dos Santos. Article 42A.4.1º simply does not apply to immigration decisions.

The Judge rejected the view that alternatively the Minister’s obligations to conduct a balancing test would change by virtue of Article 42A.1 as compared with her obligations under Art. 8 ECHR as construed in Razgar: the right to free primary education was already provided for within the Constitution at the time of the adoption of Article 42A. Furthermore, Article 42A.1 primarily extends the recognition and enjoyment of rights on a non-discriminatory basis, rather than to require in a prescriptive manner that immigration decisions must be conducted on the basis of a different weight to be attached to rights already recognised (para 76).

The Judge further held that a rational immigration policy would become impossible if Article 42A.1 was to be interpreted as creating a significant (or any) threshold or obstacle to be overcome before a child can be deported to a country with a lesser educational system or perhaps any lesser system of social protection (para 79).

“80. […] It is one thing to say that the second named applicant must be afforded educational rights while in the State. It is quite another to say that those rights are a barrier to deportation. They are not. Therefore the decision could not be invalid because of any failure by the Minister to accept that such constitutional rights were a militating factor against removal of an illegal immigrant, or a child born to such an illegal immigrant, from the State.

81. In terms of its effect on the educational or social rights of children (leaving aside family rights in this context), Article 42A makes no, or no significant, difference to the entitlement of the State to deport children who are unlawfully in the State, and is not a basis to obtain relief by way of judicial review of the refusal to revoke a deportation order, or to surmount the difficulty that any claim as to social or educational rights or interests of a child could have been the subject of representations and challenge at the time of the original deportation order.”

The conclusions reached by the Court (at para 90) were that the right to education including to free primary education is a natural and imprescriptible right of the child to be enjoyed without discrimination on grounds such as nationality, legal status or marital status of parents by any child within the jurisdiction. Such a right only applies while the child is present in the State and does not confer any right not to be removed, even to a country with an inferior social or educational system. The right of a non-national child to be or remain in the State is not a natural and imprescriptible right and therefore does not fall within the scope of Article 42A.1. Insofar as it relates to social or educational rights (leaving aside family rights), Article 42A does not represent an obstacle to deportation of a child and does not require express consideration by the Minister for Justice and Equality, and insofar as it suggests otherwise, or implies a position which amounts to requiring more detailed consideration of the deportation of a child on such grounds, the C.O.O. decision is in my view incorrect. It was rationally open to the Minister to conclude that Nigeria has a functioning educational system. There is no obligation on the Minister to consider the deportation of a child (or revocation of a deportation order) separately from that of a parent.