IESC 5 · Supreme Court

THE SUPREME COURT

No. 107/01 and 115/01

Keane, C.J.

Denham, J.

McGuinness, J.

Geoghegan, J.

Fennelly, J.

IN THE MATTER OF AN INTENDED JUDICIAL REVIEW

BETWEEN

B. APPLICANT

AND

THE GOVERNOR OF THE TRAINING UNIT GLENGARIFF PARADE DUBLIN

RESPONDENT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

NOTICE PARTY/RESPONDENT

No. 164/01

BETWEEN

S. APPLICANT/APPELLANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE INTERIM REFUGEE APPEALS AUTHORITY, IRELAND AND THE

ATTORNEY GENERAL

RESPONDENTS

Judgment of Mrs Justice McGuinness delivered the 30th day of January 2002

I have had the advantage of reading the judgment about to be delivered by Mr Justice Geoghegan and I am in agreement with

his reasoning and his conclusions. I wish to add a few brief comments.

Section 5 sub-sections (2) and (3) of the Illegal Immigrants (Trafficking) Act 2000 provide as follows:

“5(2) An application for leave to apply for judicial review under the Order [Order 84 of the Rules of the Superior Courts]

in respect of any of the matters referred to in sub-section (1) shall

(a) be made within the period of fourteen days commencing on the date on which the person was notified of the

decision, determination, recommendation, refusal or making of the order concerned unless the High Court

considers that it has good and sufficient reason for extending the period within which the application shall be

made, and

(b) be made by motion on notice (grounded in the manner specified in Order in respect of an ex parte motion for

leave) to the Minister and any other person specified for that purpose by order of the High Court, and such leave

shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the

decision, determination, recommendation, refusal or order is invalid or ought to be quashed.

(3)(a) The determination of the High Court of an application for leave to apply for judicial review as aforesaid or of an

application for such judicial review shall be final and no appeal shall lie from the decision of the High Court to the

Supreme Court in either case except with the leave of the High Court which leave shall only be granted where the High

Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the

public interest that an appeal should be taken to the Supreme Court.

(b) This sub-section shall not apply to a determination of the High Court insofar as it involves a question as to the

validity of any law, having regard to the provisions of the Constitution.”

The procedural history of the above entitled cases has been fully set out by Geoghegan J. in his judgment. In summary, in both

cases the Applicant/Appellant seeks orders pursuant to Section 5(2)(a) of the 2000 Act extending the time within which the

Applicant may issue and serve a notice of motion seeking relief by way of judicial review. In both cases extension of time was

refused by Finnegan J. (as he then was) in the High Court. The Applicants/Appellants seek to appeal the refusal of the High

Court to extend time. The question now at issue before this Court is whether the leave of the High Court is required for the

bringing of such an appeal.

Senior Counsel for the Appellants, Mr Trainor, submitted that the application for an extension of time is a separate and distinct

application, which must be considered and either allowed or refused prior to the Court’s consideration of the actual application

for leave to bring judicial review proceedings and prior to any “determination” of that application. The application to extend

time in itself, therefore, is not affected by the provisions of Section 5(3)(a).

Senior Counsel for the Respondents, Mr McEntee submitted that it was the clear intention and policy of the Act that there

should be in general terms no appeal from the determination of the Court in regard to either leave to issue judicial review

proceedings or the judicial review proceedings themselves. It would be a strained interpretation to suggest that an appeal

should lie from the mere application to extend time. Such an interpretation would lead to an absurd result and should therefore

be rejected. He stated that the intentions of the legislature were clear. In a situation where extension of time was refused that

would indeed be a “determination” of the leave to seek judicial review and would in fact be the end of the matter. It was clear

from the wording of the Act that a decision which determined the proceedings could not be appealed.

While Counsel for the Appellants argued that an application for extension of time under the Act should correctly be brought

separately and in advance of the actual application for leave, I am in agreement with Geoghegan J. that it is of no great

moment whether the application for extension of time is sought separately in advance of the actual application for leave or

whether the application for extension of time is contained in the same initiating document as the application for leave. In either

case the question of extension of time must be the first matter to be considered and decided by the High Court. If extension of

time is refused, it may well have the effect of preventing the application for leave; if granted, however, it does not “determine”

the application for leave, which the Court must then go on to consider and determine. Since the decision to allow an extension

of time is not, therefore, a “determination” of the application for leave, it appears that it would be open to the Respondent to

appeal against that decision.

The right of access to the Courts is a well established and important constitutional right. That right extends to non-nationals.

As was stated by the learned Chief Justice giving the judgment of this Court in In the Matter of Article 26 of the Constitution

and Section 5 and Section 10 of the Illegal Immigrants (Trafficking) Bill 1999 (Supreme Court 28th August 2000) at page 31 of

the judgment:-

“It would be contrary to the very notion of a State founded on the rule of law, as this State is, and one in which,

pursuant to Article 34 justice is administered in Courts established by law, if all persons within this jurisdiction, including

non-nationals, did not, in principle, have a constitutionally protected right of access to the Courts to enforce their legal

rights. In Murphy v Greene [1992] IR 566 at 578 Griffin J. observed:

‘It is beyond question that every individual, be he a citizen or not, has a constitutional right of access to the

Courts. Stated in its broadest terms, this is a right to initiate litigation in the Courts’”

It is accepted that access to the Courts may be regulated by legislation. Such legislation should, however, be clear and

unambiguous in its terms.

The provisions of Section 5(2) and (3) have a very considerable effect on access to the Courts by certain non-nationals.

Access is curtailed in particular by the time limit of fourteen days and also by the prohibition of an appeal except with the

granting of a certificate by the High Court. The fourteen day limit makes time a matter of crucial importance in this type of

application for leave to issue judicial review proceedings - of far greater importance than it is in practice in ordinary applications

for leave under Order 84 of the Rules of the Superior Courts.

When the provisions of Section 5 were being considered by this Court pursuant to the reference by the President under Article

26 of the Constitution, Counsel for the Attorney General laid great stress in his submissions to this Court on the power of the

High Court to extend its fourteen day time limit. These submissions are reflected in the judgment of the Court at page 23:

“As regards the power of the High Court to extend time under Section 5(2)(a), this is analogous to the general power of

the Court to extend time for ‘good reason’ under Order 84, Rule 21(1) of the Rules of the Superior Courts. All the Plaintiff

has to show, the onus being on him, is that there are reasons which both explain the delay and afford a justifiable

excuse for the delay. (O’Donnell v Dun Laoghaire Corporation (No. 2) [1991] ILRM 301 at 315.) It was submitted that it

would be impossible to anticipate the infinite variety of circumstances in which applications for extension of time might

arise but the jurisdiction of the High Court to extend time under this section is ‘a generous and extensive one’. It was

submitted that having regard to the presumption of constitutionality which attaches to the discretionary powers

conferred by the Bill (particularly when exercised by the High Court), it must be assumed that factors such as language

difficulties, absence of official documentation, impecuniosity, unfamiliarity with the legal system, illness and a host of

similar considerations would, in an appropriate case, justify the High Court granting an extension of time. The High Court

must extend time should constitutional principles of fairness and protection of constitutional rights so require.”

This reasoning was accepted by the Court. At page 43 of the judgment the Court held:

“In applying that test in this case, the Court acknowledges that there are likely to be cases, perhaps even a very large

number of cases, in which for a range of reasons or a combination of reasons, persons, through no fault of their own,

are unable to apply for leave to seek judicial review within the appeal limitation period, namely fourteen days. This is a

situation with which the Courts deal on a routine basis for other limitation periods. The fourteen day time limit envisaged

by the Bill is not the shortest with which the Courts have had to deal.

Moreover the discretion of the Court to extend the time to apply for leave where the Applicant shows ‘good and

sufficient reason’ for so doing is wide and ample enough to avoid injustice where an Applicant has been unable through

no fault of his or hers, or for other good and sufficient reason, to bring the application within the fourteen day period.”

It seems to me that the very importance of the power to extend time, on which the constitutionality of the sub-section

depended, would lead one to accept the Appellant’s contention that both the application for extension of time and the Court’s

decision on that application should be treated separately from the “determination” of the actual application for leave to issue

judicial review proceedings. At the very least, this seems to me to be a tenable interpretation of the section. This is particularly

so in the situation where a decision to grant a extension of time would not be a “determination” of the application for leave. If

one were to accept that a refusal to grant an extension of time amounted to a “determination” of the entire application for

leave, this would create a situation where, depending on the decision of the Court, one party to the proceedings would have a

right to appeal while the other party would not.

Article 34.4.3 of the Constitution provides that:

“The Supreme Court shall, with such exceptions and subject to such regulations as may be prescribed by law, have

appellate jurisdiction from all decisions of the High Court, and shall also have appellate jurisdiction from such decisions of

other Courts as may be prescribed by law.”

This general right of appeal is an inherent part of the right of access to the Courts. While it may be curtailed by law in certain

circumstances, it is well settled (as has been pointed out by Geoghegan J.) that it may be curtailed only if such curtailment is

set out in the most clear and unambiguous terms. It appears to me that the relevant statutory provisions in the instant case

are sufficiently ambiguous to allow for the interpretation contended for by the Appellants and that therefore the Statute does

not clearly prohibit the general right of appeal from a refusal to extend time.

Since drafting this judgment I have had the opportunity of reading the judgment about to be delivered by Mr Justice Fennelly,

with which I also agree.

I would therefore take the view that the Court should entertain both appeals.