Supreme Court dismisses asylum appeal claiming conflict of roles between International Protection Officers and Minister officials under the 2015 Act.

THE SUPREME COURT

[RECORD NO.: 2021/70]

[2022] IESC 49

O’Donnell C.J.

MacMenamin J.

O’Malley J.

Baker J.

Hogan J.

BETWEEN:

ASA

APPELLANT

AND

MINISTER FOR JUSTICE & EQUALITY

RESPONDENT

Judgment of Mr. Justice John MacMenamin dated the 24th day of

November, 2022

Introduction

1. The International Protection Act, 2015 (“the Act of 2015” or “the Act”) established new

procedures for persons applying for asylum in this State. The Act identifies two categories of

international protection which may take the form of asylum or subsidiary protection.

Alternatively, if unsuccessful in applying for either category of international protection,

applicants may still be granted leave to remain in the State by the Minister for Justice. All these

matters are now dealt with on the basis of information provided in one singular process. In this

appeal, the appellant contends that the manner in which the respondent (“the Minister”)

operated this new system under the Act of 2015 creates a conflict of roles between International

Protection Officers (“IPOs”), who administer the international protection system, and civil

servants who are officials of the Minister, who deal with the leave to remain process.

International protection involves the application of EU legal principles, now embodied in the

2015 legislation. Leave to remain decisions, on the other hand, are governed by national law,

and are determined by officers of the Minister; provision for this is also contained in the 2015

Act.

2. At its simplest, the appellant’s case is that the alleged conflict of roles derives from the

possibility that IPOs, who administer the international protection system might also be asked

to consider leave to remain applications. In this appeal and another linked matter, MK (Albania)

v. Minister for Justice & Equality (“MK”), the appellants staged a two-pronged attack on how

the system is operated. In addition to this alleged conflict of roles argument, MK deals with a

further broad question, that is, the right of an unsettled migrant to consideration of their

constitutional or Convention rights prior to deportation.

3. This judgment outlines:

(i) the circumstances and the procedure adopted.

(ii) the High Court judgment and findings.

(iii) The appeal to this Court.

(iv) The law applicable.

(v) Textual analysis of the Act.

(vi) Application of the Carltona principle.

(vii) Interpretation in accordance with EU law.

(viii) Ruling of 5th February, 2022.

(ix) Conclusion on EU law argument.

(x) The Refugee Act, 1996.

(xi) Conclusion and Summary

(i) The Circumstances and Procedure

3. The applicant in this appeal is ASA. He is a national of Nigeria. He left that state in

December, 2016. He travelled to Germany on a visa and lived there for two years. He did not

apply for international protection whilst in Germany. He entered this state in December, 2018,

and unsuccessfully claimed international protection.

4. What follows is now a broad description of the procedures sufficient to understand the

chronology. On the 2nd March, 2020, the appellant was notified by letter from the international

protection office that an IPO had recommended that he should not be given a refugee or

subsidiary protection declaration. This decision was made pursuant to s.39(3)(c) of the 2015

Act. A “Report to assist in the preparation of” the s.39 decision was signed by “E.S.,

International Protection Officer”. An additional document entitled “Report pursuant to s.35(12)

of the International Protection Act” accompanied those two sets of documents. This third report

was divided into two parts and had a dual purpose: first, to set out any additional information

which, in the opinion of the IPO was relevant concerning the application, and second, to

provide any information relevant to a voluntary return to country of origin or a leave to remain

application (ss. 48 and 49 of the Act respectively).

The Order Challenged

5. Also included was a notice pursuant to s.49(5) of the Act which informed the appellant

that, having considered his application, the Minister had decided, pursuant to s.49(4)(b) of the

2015 Act, to refuse him permission to remain in the State. This “refusal decision” was

accompanied by a “Statement of Reasons” made under s.49(5) of the Act signed by Ms. S.N.,

described as “Case Worker, International Protection Office”. This document concluded with a

paragraph headed “Decision”, which stated that, having considered the applicant’s family and

particular circumstances, and his right to respect for private and family life, he should not be

given permission to remain in the State under s.49 of the 2015 Act. The High Court granted

the appellant leave to seek judicial review of the Minister’s refusal of leave to remain on 8th

July, 2020. The challenge was based primarily on the alleged conflict of roles, as based on the

Carltona principle, referring to the power of officials to act in the name of the Minister.

6. For reasons that will become clear later, it is necessary to point out that the appellant

did not raise any claim to the international protection process followed in his case. His

challenge was confined to the leave to remain decision.

(ii) The High Court Judgment and Findings

7. In the High Court, Tara Burns J. dismissed the judicial review challenges (ASA v.

Minister for Justice, [2021] IEHC 276) . She made a series of findings as to how the procedure

actually operated within the Department of Justice. She held that the officials in what is termed

the “International Protection Office” of the Immigration Service Division in the Department of

Justice could lawfully perform two separate roles under the Act of 2015. But, she pointed out,

for the purposes of dealing with applications for international protection, such persons

functioned as ‘international protection officers’, having been so appointed by the Chief

International Protection Officer. For the purposes of performing the Minister’s executive

functions under s.49 of the Act (leave to remain), they were also understood to be acting as

civil servants and officers of the Minister for Justice. The judge did not find evidence of a

conflict of roles or functions. It will be helpful at this stage to briefly outline her findings on

the evidence before her.

Case Processing Unit

8. Burns J. found that a “Case Processing Unit”, established in 2018, is now solely

responsible for examining applications for international protection. The Unit is staffed by civil

servants/case workers who examine applications and make recommendations in their capacity

as IPOs, and who must act independently of the Minister. The overall management of this Unit

is the responsibility of the Chief International Protection Officer. When an IPO makes a

recommendation under s.39(3)(c) of the Act, to the effect that an applicant should not be given

any form of international protection, the applicant’s file is then passed to a different unit, known

as the “Permission to Remain Unit”.

Permission to Remain Unit

9. The High Court judgment held that the “Permission to Remain Unit” is separate and

distinct from the Case Processing Unit. It is staffed by different civil servants, and dedicated to

making decisions on applications for permission to remain in the State, made under s.49 of the

Act. In this instance, the case workers/officials make decisions in their capacity as officers of,

and under the authority of, the Minister. The High Court judge held that where an officer of

the Minister makes a leave to remain decision under s.49, he or she is not exercising the

functions of an IPO, but, rather, acting solely as an officer of the Minister, even though case

workers may have also been formally appointed as IPOs.

Appeals and Subsequent Procedure

10. In the case of international protection, the Act allows for appeals to the International

Protection Appeals Tribunal (“IPAT”). Where that body affirms a recommendation of an IPO

that an applicant should not be given international protection, the Minister reviews the

permission to remain decision, and has regard to whether an applicant has submitted new

information that would have been relevant to the original decision, or if an applicant has

informed the Minister of a change of circumstances (see s.22 of the Act). This decision is then

made by a different case worker, acting as an officer of the Minister within the Permission to

Remain Unit. This review is not performed by an officer who made the original permission to

remain decision. The High Court judge held there was no evidence that any decision concerning

this appellant involved any overlap of function between the International Protection and Leave

to Remain offices. I return to this point later.

11. As originally initiated, the appellant’s case was based on the “Carltona doctrine”. This

doctrine or principle is based on a presumption that ministerial officials acting in this capacity

do so in the persona of the Minister. At the outset of the case, the appellant contended that the

Act of 2015, in terms, prohibited persons from functioning both as IPOs for international

protection purposes, and also, potentially, acting as the alter ego of the Minister when it came

to leave to remain decisions. His counsel sought to rely on Carltona Ltd. v. Commissioner of

Works [1943] 2 All ER 560 (“Carltona”), approved and applied in Tang v. Minister for Justice

[1996] 2 ILRM 46 (“Tang”); Devanney v. Shields [1998] 1 I.R. 230 (“Devanney”); and W.T.

(a minor) & Anor. v. Minister for Justice & Equality & Ors. [2015] 2 ILRM 225 (“W.T.”).

12. Burns J. concluded that the appellant had not established that there were any breaches

or violations of the Carltona doctrine, and that, an invocation of the principle did not in fact

assist the appellant’s case. She held that no provision of the 2015 Act had expressed or implied

that a decision to grant permission to remain to a failed asylum seeker pursuant to s.49 of the

2015 Act could only be taken by the Minister herself, as such interpretation would lead to what

is termed as an “absurdity”.

13. The judge adverted to the fact that a decision to grant permission to land, made pursuant

to s.4 of the Immigration Act, 2004, is taken by Immigration Officers acting on behalf of the

Minister, not by the Minister herself. She pointed out that s.49(11)(a) of the 2015 Act actually

deems such s.4 decisions to be ones made pursuant to s.49(11)(a) of the 2015 Act. It would,

therefore, be incongruous that an immigration officer be expressly permitted to make such a

s.4 decision on behalf of the Minister, but that by contrast, the 2015 Act should be interpreted

as meaning that only the respondent Minister herself, acting personally, could take a s.49

permission to remain decision when, for statutory purposes, such decisions are deemed to be

one and the same. The judge observed that, had any such limitation or demarcation of roles

been intended by the Oireachtas, specific legislative words would have been necessary. Had it

been intended that such decisions be taken personally by the Minister, the Act would have had

to so provide in terms. Similarly, express words would have been necessary to confine

consideration of s.49 permission to remain decisions only to officers of the Minister who were

not IPOs.

14. Turning then to the EU law issue raised, the judge rejected the contention that the

Minister exercised any role as a “determining authority” responsible for making decisions at

first instance under Article 2 the Procedures Directive 2005/85/EC. (See PNS v. Minister for

Justice & Equality [2020] IESC 11.) Such authority is defined in the Directive as any quasi-

judicial or administrative body in a Member State responsible for examining applications for

international protection on first instance in such cases. But, she held the Minister did not

perform any such role which was independently performed by IPOs.

15. Burns J. was not persuaded that the position was altered by the fact that an

“International Protection Office” did not, in fact, exist in statutory form. In her view, the system

which had been set up was such as corresponded with a description of a determining authority

as identified in the Procedures Directive. She rejected the proposition that the structure of the

2015 Act, which differentiated between the powers of international protection officers and

those of the Minister, carried with it a statutory implication that the powers of the Minister

could not, on other occasions, be exercised by case workers in the International Protection

Office.

(iii) The Appeal to this Court

16. This Court granted leave to appeal directly in a Determination ([2021] IESCDET 115)

that identified two issues: first, whether the Act of 2015 itself precluded IPOs from making

leave to remain decisions; and second, whether, by exercising their devolved powers under s.49

of the 2015 Act in dealing with leave to remain decisions, IPOs were in conflict with the duties

and functions they are mandated to carry out in the area of international protection under the

2015 Act.

The Appellant’s Case in this Appeal

17. In presenting his case to this Court, counsel for the appellant made a number of

preliminary submissions on the Carltona principle. He did not suggest that the decision of this

Court in W.T., which, relatively recently, again approved Carltona, was incorrect. Rather, he

contended that, more recently, in R v. Adams [2020] UKSC 19; [2020] 1 WLR 2077 (“Adams”),

the Supreme Court of the United Kingdom had distinguished Carltona on the facts and law,

and had not applied a presumption that an official acted as alter ego of the Secretary of State.

The UKSC so decided on the basis that the Northern Ireland legal instrument in question was

worded in a manner where there was a clear inference that the power in question was

exclusively reserved to the Secretary of State, and was a prerogative power of the utmost

seriousness, involving deprivation of liberty. Counsel submitted that the 2015 Act could, and

did, raise an exclusion of the Carltona principle. Counsel submitted that the evidence adduced

in the High Court indicated the potential for confusion of roles between that of an IPO, carrying

out functions under the international protection function, and that of an officer with the same

job description carrying out a leave to remain decision. He contended that the very nature of a

leave to remain determination differed substantially from a question of international protection

which came to be decided at first instance. He submitted that, for the reasons he outlined, the

manner in which the system worked could potentially raise the spectre of nemo iudex in causa

sua, and that there was a risk of breach of that principle between international protection

applications, on the one hand, and a requirement for an analysis of non-refoulement which

might arise under s.50 of the Act when leave to remain issues arose. Counsel cited the joint

CJEU judgments of B and D (C-57/09 and C-101/09) and Article 4.1 of the Procedures

Directive (2005/85/EC) which, he contended, raised the question of whether IPOs were

competent to make international protection decisions before they made permission to remain

decisions, rather than vice versa. Article 4.1 of that Directive provides that “Member States

shall designate for all procedures a determining authority which will be responsible for an

appropriate examination of the applications in accordance with this Directive, in particular

Articles 8(2) and 9.” Article 8(2), in turn, lays down requirements that decisions be taken

objectively and impartially on the basis of precise and up-to-date information from appropriate

sources, and that the personnel examining applications and taking decisions have the

knowledge with respect to relevant standards applicable in the field of asylum and refugee law.

Counsel contended that the procedure called into question whether the Directive was complied

with.

(iv) The Law Applicable

19. The issue of leave to remain decisions under the earlier Immigration Act, 1996 was

considered by this Court in FP & Anor. v. The Minister for Justice [2002] 1 I.R. 164. This

present case, however, involves analysing the text of the successor 2015 Act in order to

determine whether there is, or can be, a conflict of roles in the two functions. At the outset, it

is useful to recall what is contained in the Carltona doctrine as it has evolved and been applied

in this State. Both the decision and subsequent case law establish the principle that officials

acting on behalf of a minister of government are presumed to be acting as the alter ego of that

minister, such that a decision made by that official will, subject to certain limited conditions,

be presumed to be that of the minister. The Carltona principle may be displaced, but only when

there is clear legislative intention to the contrary, indicating that the decision should be made

by a Minister personally. In this appeal, Counsel argues that the text of the 2015 Act shows

that the presumption does not apply; alternatively, he submits that Adams provides recent

persuasive authority which suggests that there should not be such a presumption; and that

whether the principle of devolved power applies, should, rather, depend on an open-ended,

case-by-case analysis of the wording of the subject legislation in addition to any other relevant

factors. Thus, it is said the system as it operates involves IPOs acting ultra vires and without

statutory authority.

The Procedure for International Protection

20. The decision-making procedure under the 2015 Act is described by the High Court

judge, as well as in other recent case law. (See PNS v. Minister for Justice, [2020] IESC 11.) It

is fundamental that persons making international protection decisions are independent and

impartial. (Cf. D and A v. Refugee Applications Commissioner (Case C-175/11, 31st January

2013.) Under s.39 of the Act, IPOs acting impartially make recommendations concerning

entitlement to international protection, refugee or subsidiary protection. Adverse decisions can

be appealed to the International Protection Appeals Tribunal (“IPAT”) (ss. 40 and 41 of the

Act). Dependent on the outcome of an appeal, the Minister may accept a favourable

recommendation by an IPO or IPAT (s.61 of the Act), and grant refugee status or subsidiary

protection declarations. Alternatively, the Minister may issue a refusal (s.47 of the Act). In the

event of such refusal, the Minister shall then make a decision as to whether an applicant may

nonetheless be granted leave to remain in the State on humanitarian grounds, which include his

private and family life (s.49).

21. Leave to remain decisions are governed by national law. An unsuccessful applicant may

volunteer to return to their country of origin (s.49). But s.52 of the Act provides that, if the

Minister has refused to issue an international protection declaration, and then refuses to grant

an applicant leave to remain in the State, then she “shall” make an order for deportation (s.51).

The appellant’s case is that the Act does not permit the type of system operated by the Minister,

which, it is said, allows for a conflict of roles between officers operating the international

protection system, and officials involved in deciding leave to remain applications.

The Act

22. The question in this case is whether the provisions cited and relied on do, or do not,

indicate a legislative intention that IPOs are legally precluded from engaging in s.49 leave to

remain decision-making? The appellant’s case is that such a meaning can be discerned or taken

as implied from the provisions cited. Even before analysing the text of the Act, this first requires

a precise determination as to how the Act should be scrutinised, and whether the Carltona

presumption applies. It is necessary, therefore, to make some further observations on Carltona

and subsequent case law, even at the cost of re-traversing old ground.

The Carltona Judgment and its status in the law of the State

23. In Carltona, the decision challenged related to the requisition of factory premises in

England. The appellant contended the Commissioners of Works were not entitled to take

possession of the premises on the grounds that the notice was invalid, as the decision to

requisition had not been personally made by the Minister concerned.

24. In the Court of Appeal of England and Wales, Greene M.R. pointed out that, even at

the time of the judgment, the functions given to ministers of state were so multifarious that no

such minister could ever personally attend to them. Speaking in the context of the requisition

decision, he observed that thousands of orders had been made by individual ministers. It could

not be supposed that the regulation permitting requisition meant that, in each individual case,

the Minister in person should direct his mind to the matter. Speaking more generally, he

observed the duties appointed upon ministers, and the powers given to them, were normally

exercised under the authority of those ministers by responsible officials of the department.

Public business could not be carried out if that were not the case. Constitutionally, the decision

of such an official was, in fact, a decision of the minister, for which he or she would be

responsible, and must answer to the legislature. If, in an important matter, a Minister selected

an official of such junior standing that they could not be expected competently to perform the

work, the minister would have to answer for that in Parliament. The whole system of

departmental organisation and administration was based on the concept that, being responsible

to Parliament, ministers would see that important duties are committed by experienced

officials. If they did not do that, Parliament was the place where complaint should be made

against them (paras. (a) to (c), at p.563).

25. Correctly understood, the principle does not involve the delegation of powers. Instead,

officials are understood to act as the alter ego of the minister, so that in this State a decision

made on behalf of the Minister by one of his or her officials is taken as the decision of that

Minister. In general, a delegation of power, including the requirement that the degree of

supervisory control is preserved, must be close enough for the decision to be identifiable as

that of the delegating authority. But in Carltona this requirement does not apply. The Minister

is seen as acting through her official. The official acts as a surrogate, not a delegate. This

principle is the basis of the Carltona doctrine, whereby the presumption that an official is acting

on behalf of a minister applies, unless there are clear statutory words which indicate otherwise.

26. It is fair to comment that the principle has acquired near canonical status. It establishes

that the courts recognise that, in the absence of express statutory language to the contrary, the

doctrine will generally apply, save in circumstances where the legislation specifically provides

that the decision is to be taken by the Minister herself. As classically defined, even the

seriousness of a decision does not determine whether or not a decision could be devolved to

officials. However, that official must be sufficiently qualified to make a decision of the type

under consideration.

27. These statements of principle were all approved by Hamilton C.J., speaking for this

Court, in Tang. The Tang judgment is highly relevant, not only for its strong affirmation of the

principles there identified, but also because of the fact that the approval of this Court was

expressed in the context of the devolved power of officials of the Minister – the same

respondent as in this appeal – to make leave to remain decisions under the Aliens Act, 1935. It

is hard to see any real distinction in the scope of the power considered in Tang and the same

type of decision under consideration. Such decisions are highly significant to the people

concerned. Officials must demonstrate the greatest care in considering and applying the

approach to decision-making. In Tang, Hamilton C.J. stated, definitively, that he was satisfied

that Greene M.R.’s observations in Carltona represented “an accurate statement of the law as

regards the powers of the Minister in relation to the granting or refusal of permission to aliens

to remain in the State” (p. 28, emphasis added).

28. Hamilton C.J. continued:

“Having regard to the extensive powers conferred on the Minister the Aliens Act, 1935,

and the regulations made thereunder, it cannot be supposed that it was the intention of

the legislature that the Minister personally should exercise these powers.

The duties imposed upon the Minister and the powers given to the Minister can be and

are normally exercised under the authority of the Minister by responsible officials of

the Minister's department.” (p. 29, emphasis added)

The advised usage of the word “supposed” in the passage quoted is significant. It derives from

the fact of there being an assumption that the principle applies.

29. The observations in Tang, were, if possible, more definitively iterated in Devanney v.

Shields [1998] I.R. 230. In Devanney the Court (Hamilton C.J., O’Flaherty, Denham,

Barrington and Keane JJ.) revisited the issue, in the context of a decision by the High Court,

wherein it was held that the decision to appoint a District Court Clerk should be made

personally by the Minister.

30. The High Court judge took the view that the position of a District Court Clerk was an

important statutory position which carried serious responsibility in the administration of

justice. District Court Clerks were not only appointed by the Minister, but held office at the

will of, and could be removed by, the holder of that office. The judge did not consider that the

Carltona principle applied to such a position. He was of the view that Carltona was a principle

that had very general application in administrative matters, but that it originated in “rather

peculiar wartime circumstances”, and in a case where the relevant decision was one of

thousands of similar decisions which would have been impractical for the Commissioner of

Works or the Minister to make personally. The judge held that the appointment of a District

Court Clerk was clearly an important statutory position carrying serious responsibilities, and

that the holder of that office, once appointed by the Minister, could be removed by the Minister.

31. On appeal, Hamilton C.J. pointed out, on behalf of the Court, that he had already, in

terms, specifically approved the Carltona principle in Tang. Quoting the then current edition

of Wade on Administrative Law, the Chief Justice pointed out that there was no question of

even delegation in Carltona decisions, as delegation would require a distinct act by which the

power was conferred upon some person not previously competent to exercise it. But, in

Carltona, the authority of officials to act in their ministers’ names derived from a general rule

of law, and not from any particular act of delegation. Legally and constitutionally, the act of

the official is the act of the minister, without any need for specific authorisation in advance, or

ratification afterwards. Even where there are express statutory powers of delegation, they are

not, in fact, employed as between a minister and his own officials. Such legal formalities would

be out of place within the walls of a government department. (Quoting from Wade, 7th Edition,

page 357).

32. In Devanney, Hamilton C.J. also took the opportunity to consider the case of Regina v.

Home Secretary, ex p. Oladehinde [1991] 1 AC 254, where, sitting as a member of a Divisional

Court, Woolf L.J. had expressed some doubts in relation to the extent or rigour of the principle.

Delivering judgment in the Court of Appeal in Oladehinde, Donaldson M.R. pointed out that

Woolf L.J. had opined that the Carltona principle should be regarded as “an implication which

is read into a statute in the absence of any clear contrary indication by Parliament that the

implication is not to apply.” (p. 282, emphasis added) Donaldson M.R. put matters this way:

“In this we think that he must be mistaken because [the implication] applies equally

where the minister's powers are derived otherwise than from statute: e.g. from

prerogative powers. We think that the better view is that this is a common law

constitutional power, but one which is capable of being negatived or confined by

express statutory provisions…”. (p. 282, emphasis added.)

In Devanney, Hamilton C.J. stated, in terms, that he accepted the view of Donaldson M.R. that

the principle outlined in Carltona was a common law constitutional power, but one which was

capable of being negatived or confined only by express statutory provision.

33. In a concurring judgment in Devanney, Denham J. pointed out that, whilst not named

as such, the Carltona principle had been previously applied by Finlay P. in Director of Public

Prosecutions v. O’Rourke (High Court, Unreported, Finlay P., 25th July, 1983), where the

assignment of a District Court clerk was found not to be a matter which required the Minister’s

personal decision. She explained that, although it was referred to as a “principle” and had

entered the law of this State by way of common law, the doctrine was, in fact, a “fundamental

concept” which enabled a democratic government to function, and for ministers to act

efficiently in, yet to accept responsibility for, their actions in complex modern government,

where a vast number of decisions must be taken. The doctrine, or principle, enabled ministers

to remain responsible and accountable to the legislature while having responsible officials

make many of the decisions. It was “an eminently practical rule which has important

constitutional implications – it retains accountability” (p. 260, per Denham J.). The principle

arose in relation to the statutory power of a minister, where it was a matter of construing the

relevant legislation. It envisaged the official acting “as” the Minister, rather than “delegated

by” the Minister. But, she held, even the mere existence of words by staff describing the powers

as “delegated”, or a document so stating, did not preclude that person from acting as minister.

The official was the alter-ego of the minister, exercising devolved power. In expressing these

views, Denham J. located the exercise of the power within the function of the government by

the Minister, acting under Article 28.1 of the Constitution, exercising the executive power of

the State (Article 28.2), and responsible to Dáil Eireann (Article 28.4.1).

34. Also concurring, Keane J. also pointed out that, in Devanney, no challenge had been

advanced to the correctness of the decision of this Court in Tang, and that it would be

remarkable if the principle, unanimously held applicable by the Court in that case, to decisions

“by officials as to whether immigrants should be allowed to remain in the State” (p. 263) was,

for some reason, not applicable to the appointment and assignment of a District Court clerk to

a particular area.

35. It is, of course, true that nothing directly in relation to the issue of deportation arose in

Tang. (By contrast, see LAT & Others (Applicants) v. The Minister for Justice & Equality &

Ireland, [2011] IEHC 404 (“LAT”).) But, like this case, Tang did deal with a leave to remain

decision, a matter of significant consequence. On the Carltona principle, the judgments in

Devanney were clear to the point of being definitive. They expressed settled law.

36. In W.T., the issue to be determined was whether the decision to make a deportation

order pursuant to s.3(1) of the Immigration Act, 1999 had to be taken personally by the

Minister. The argument had been considered and rejected by the High Court in LAT. In LAT,

Hogan J. pointed out that an examination of the 1999 Act referred consistently to the Minister

without any qualification, unlike in Oladehinde referred to earlier. At risk of repetition, in W.T.,

the court again pointed out that it was “well recognised in the law” that each minister must both

bear political responsibility to the Dáil, and legal responsibility to the courts, for actions taken

by their own departments; that ministers are regarded as being one and the same as the

government departments of which they are the political heads; that departmental officials act

in the name of the minister; that in making administrative decisions, discretion is conferred on

a minister, not merely as an individual, but rather as the person who holds office as head of a

government department, which collectively holds a high degree of collective corporate

knowledge and experience, all of which are imputed to the political head of the department

(para. 1). The court observed that, frequently, a minister’s officials will prepare documents for

consideration, consider objections, summarise memoranda, and outline a policy approach to be

taken by the minister as an integral part of the decision-making process. Part of this

arrangement is that the functions entrusted to departmental officials are performed at an

appropriate level of seniority, and within the scope of responsibility of their government

department. No express act of delegation is necessary.

37. Having cited and approved prior authorities, including Carltona, Bushell v. Secretary

for State for the Environment [1981] AC 75, Oladehinde, Tang and Devanney, the court went

on to hold that the principle involved a significant degree of reciprocal trust between ministers

and officials, as the actual decision-maker is vested with the minister’s devolved power. As a

matter of prudence, if no more, a minister might often put in place sufficient procedures to

ensure that decisions which are of high significance to individuals (such as deportation), are

actually reflective of government policy, and are, truly, exercised in a manner which is

genuinely discretionary (para. 2).

38. It is true that the principle is capable of being negatived or confined by “express

statutory provisions or by clearly necessary implication” (Hogan & Morgan, Administrative

Law in Ireland, 11-83, 5th Edition). In such cases, the test is whether it could be established

that a statute “clearly conveys that the Carltona principle is not to be recognised, or clearly

implies such a conclusion” (W.T., para. 3). The principle does not apply to statutory office

holders exercising decision-making functions which are delegated by statute. While legislation

might restrict or prohibit a minister’s power to devolve a decision and might require the

minister to exercise such decision-making power personally, this would require very clear

statutory terminology, for example, words to the effect that a direction or decision should be

made or performed by a minister “and not by a person acting under his authority”. The

judgment in W.T. concluded that it followed:–

“… that a court will be very slow to read into a statute any such implicit limitation;

providing that the devolved power does not conflict with the duties of an official in the

discharge of their specific functions, and that the decision in question is suitable to

their grading and experience.” (para. 5)

39. These passages from W.T. and the earlier judgments are cited to show the extent to

which Carltona is embedded in the case law. Denham J.’s description of its constitutional

background is not easily ignored. It has not been argued that these judgments are incorrect in

some aspects; still less clearly incorrect to the point they should not now be followed. Each

judgment specifically approves the Carltona presumption. In Devanney, Keane J. pointed out

that there had been no suggestion that Tang had been wrongly decided or did not represent the

law. In this case, counsel sought to navigate these shoals and waters by suggesting that Adams,

considered below, is an evolution of the law; but that W.T., Devanney, and Tang, remain the

law. As will be seen, when Adams is considered below, this is not an easy course to chart. It is

first necessary to consider the case of R(Bourgass) v. Secretary of State for Justice [2015]

UKSC 54; [2016] AC 384 (“Bourgass”).

Bourgass

40. That there may, on occasion, actually be statutory words from which an exclusion can

be implied is clear from Bourgass. There the UK Supreme Court considered the question of

whether the Secretary of State could authorise the segregation of prisoners for greater than 72

hours. The court decided that, in such a situation, there was an unlawful devolution of power.

While prison governors were civil servants, they were also independent statutory office

holders. The powers of the Secretary of State and prison governors were laid down in prison

rules. A prison governor was empowered to order initial segregation. But, critically, by statute,

the Secretary of State was expressly given the power to extend the segregation beyond 72 hours.

In the light of such a clear statutory provision, it was hardly surprising that the U.K. Supreme

Court held that Carltona presumption was implicitly excluded. Bourgass, based on a distinct

statutory context from that under consideration, does not assist the appellant.

R v. Adams

41. Counsel for the appellant asked the Court to consider the judgment of the Supreme

Court of the United Kingdom in R v. Adams [2020] UKSC 19, [2020] 1 WLR 2077. There, the

Supreme Court of the United Kingdom held that:

(i) While it was unnecessary for the purpose of deciding the case, the court was not

minded to characterise the Carltona principle as a legal presumption; rather, its

provisional view was that the matter should be approached as a matter of technical

analysis unencumbered by application of presumption;

(ii) That the legislation did not necessarily contradict the Carltona principle was

not determinative;

(iii) The structure of the legislation may indicate that Parliament’s intention was that

a minister should take a decision personally (see discussion below);

(iv) The severity of the consequences of a decision for an individual may be a factor

pointing towards a parliamentary intention that the minister take the decision

personally;

(v) In R v. Adams there was no reason to think that signing custody orders would

be an impossible burden; a further factor pointing to the exclusion of the Carltona

principle.

(cf. De Smith’s Judicial Review, Fourth Supplement to 8th Ed., Donnelly, Hare & Bell, Eds.

113 et seq.)

42. Adams can only be seen as something of a departure, and it must be seen in its historical

context, having regard to the power in question - that of temporary detention- on the order of

the Secretary of State for Northern Ireland. Lord Kerr was of the view that, despite Parliament’s

willingness to displace the Carltona doctrine with express statutory language on occasion, that

alone did not amount to the “creation of a presumption in law that the principle must be taken

to apply unless it has been removed by express statutory language”. He advocated, rather, an

“open-ended examination” of factors previously identified in the Northern Ireland Court of

Appeal decision of McCafferty’s Application [2009] NICA 59, where Coghlin L.J. had outlined

factors which could be taken into account such as the framework of the legislation, the language

of pertinent provisions contained therein, and the importance of the subject matter. In other

words, Coghlin L.J. placed emphasis on the gravity of the consequences following from the

exercise of the power, rather than the application of a presumption, per se.

43. Adams, and indeed McCafferty must, however, be considered against their respective

statutory and historical contexts. In Adams, the court explained Article 4(1) of the Detention

of Terrorists (Northern Ireland) Order 1972 provided:

““Where it appears to the Secretary of State that a person is suspected of having been

concerned in the commission or attempted commission of any act of terrorism or in the

direction, organisation or training of persons for the purpose of terrorism the Secretary

of State may make an order (hereafter in this Order referred to as an ‘interim custody

order’) for the temporary detention of that person.”.” (Emphasis added)

44. Article 4(2) of that order provided:

“An interim custody order of the Secretary of State shall be signed by the Secretary

of State, Minister of State or Under Secretary of State.” (Emphasis added.)

45. The fact of a requirement for a signature by the Secretary of State must be seen as

critical to the Adams decision. It renders it less surprising that, in light of those words and the

context, the Supreme Court of the United Kingdom held that the Carltona principle should not

be applied, and that, in the circumstances, the Secretary of State should have personally

considered the case. As a consequence of the absence of such consideration, the interim custody

order in question was invalid, because it was not considered by the Secretary of State

personally. But the statutory wording is obviously critical. It led the court to the view that the

distinction between making (Article 4(1)), and signing (Article 4(2)), the order was of such

significance that it called for quite distinct interpretation and application. The custody order to

be signed was that of the Secretary of State. This denoted that it was a personal decision. It is

difficult to envisage how the Secretary of State could have been called on to sign a document

depriving a person of their liberty without personal consideration of the substance of what was

being signed. This was a reasonable inference from the text of the legislation. Added to this

was the fact that the power was a “momentous” one, and that there was no reason to believe

that this would place an impossible burden on the Secretary of State (paras. 31 to 40). When

seen in that light, it is easy to understand the judgment in Adams, which perhaps did not even

require an “open-ended” analysis. The decision has, however, been the subject of some

commentary in the neighbouring jurisdiction expressing concern as to its scope in future

administrative decision-making.

46. It must nevertheless be said that the principle, as originally enunciated, has been

specifically approved by this Court in Tang, Devanney, and W.T. Counsel’s argument was as

forceful as it was erudite. The Court has been referred to De Smith, Eighth Edition, where some

doubt is cast on the scope of the doctrine, noting that Lord Woolf remained among the

distinguished panel of editors. I remain unpersuaded that, for the purposes of this case at least,

the Court should depart from the safe ground of Carltona, which has been long understood as

the premise for administrative decision-making in government.

V Textual Analysis of the Act

47. While it is a “substantially overused” metaphor in legal writing, it is fair on this

occasion to regard Carltona as the interpretative prism through which the 2015 Act should be

examined. The question is whether a legislative intention can be discerned from the 2015 Act,

and whether, in fact, the Act does evince a legislative intention that there should be a distinct

separation of roles between IPOs and the Minister’s officials in determining international

protection applications, by contrast with leave to remain determinations made by the Minister,

through her officers?

S.2: “International Protection Officer”

48. The independent status of an IPO is a key feature. In s.2 of the Act “international

protection officer” is defined as a “person who is authorised under s.74 of the Act” to perform

the functions conferred on an international protection officer by or under the Act. Section 74,

in turn, provides that the Minister may authorise in writing such and so many persons as he or

she considers appropriate to perform the functions conferred on an international protection

officer by or under the Act.

49. But what follows next is important for establishing whether there was a legislative

intention to create a complete wall of separation between the IPO decision-makers and

Minister’s officers dealing with leave to remain applications. Section 74 goes on to provide, in

addition:

“… (2) An authorisation [of an IPO] under this section shall cease -

(a) where the Minister revokes, under this section, the authorisation,

(b) in the case of a person who is an officer of the Minister, where the

person ceases to be an officer of the Minister, or

(c) in the case of an authorisation that is for a fixed period, on the expiry of

that period. (Emphasis added)

Even were it seen in isolation, and in the absence of any other words, this provision is obviously

telling. It clearly envisages that whatever about the decision-making process which must be

independent as a matter of national law giving expression to EU principles, an IPO decision-

maker may also be an officer of the Minister. As s.74(2)(b) provides, when a person ceases to

be an officer of the Minister, they will also cease to be an IPO, as they have been appointed to

that position. The implication is that a person may have been an officer of the Minister, but

then appointed to the role of an IPO, which requires independence and impartiality. It precludes

an argument that the legislative intent is that the two decision-makers are to be in entirely

separate categories. The very wording of this sub-section militates strongly against the

appellant’s case. It strongly supports the respondent’s case that there is no intention to create

an absolute segregation of decision-makers of the type urged. But, to repeat, one point is also

crystal clear: whether a person is an officer of the Minister or when acting as an IPO they must

be entirely independent in carrying out their functions of decision-making.

50. Reflecting the Procedures Directive, the Act itself contains guarantees of independence

for international protection officers. Section 74(4) provides:

“(4) An international protection officer shall be independent in the performance of

his or her functions.” (emphasis added.)

This is a statutory guarantee that officers must carry out this function independently of any

outside influence or pressure. There can, therefore, be no question of compromising the

independence of any person acting as an IPO in the performance of their functions as a

decision-maker.

Chief International Protection Officer

51. Similarly, the position of Chief International Protection Officer must also be

independent. Section 75 of the Act provides that the Minister shall appoint a person, being an

international protection officer, to perform the functions conferred on the Chief International

Protection Officer by or under the Act. The section goes on to provide that the Minister may

revoke an appointment under this section (s.75(2)); and that the functions of the chief

international protection officer under this Act shall include “the management of the allocation

to international protection officers, for examination under this Act, of applications for

international protection”.

52. But, just as in the case of an IPO, the Act provides that the Chief International Protection

Officer “shall be independent in the performance of his or her functions.” This does not evince

any statutory intention, other than independence in the performance of the role of Chief

International Protection Officer. But what is provided as to independence is not in itself

sufficient to displace the Carltona presumption; this is especially so in light of the provisions

of s.74(2).

53. It must be recollected that this was a case where the High Court heard evidence on

which it based its findings. Just as in the case of an IPO, there was no finding by the High Court

judge that the fact that a person may also have been an official of the Minister created some

conflict of roles in the task of actual decision making. If there had been any such evidence or

finding then, irrespective of Carltona, this would be a very different case. There would be a

violation of the Act, and of EU law. There was no evidence or finding that the system as now

administered creates a conflict or compromises independence in the task of decision-making.

Functions Other than under Section 39(3)(c)

54. Section 76, in turn, provides that the Minister “may enter into contracts for services

with such and so many persons as he or she considers necessary to assist him or her in the

performance of his or her functions under this Act and such contracts with such persons shall

contain such terms and conditions as the Minister may, with the consent of the Minister for

Public Expenditure and Reform, determine.” (s.76(1)). But there is then an exclusion providing

that such person “may perform any of the functions (other than the function consisting of the

making of a recommendation to which subsection (3) of section 39 applies) of an international

protection officer under this Act.” (s. 76(2).

55. Seen in context, this permits the Minister to assign such “contract persons” to carry out

functions, other than the important role of determining whether an adverse recommendation

should be made under s.39(3)(c). The section refers to the performance of the Minister’s

functions under the Act. But, again, there is nothing sufficient to displace the Carltona

principle. Nor does it contain anything suggesting the conflict of roles in decision making.

Section 39(3)(c) is considered presently. If anything, s.76(1) again illustrates the fact that

negative recommendations must be performed by persons independent in their functions.

Interview Procedure

56. The Act contains provisions giving effect to the unified “one stop procedure”. Section

35 provides that, following the conclusion of a personal interview, the interviewer shall prepare

a report in writing of what emerged. As outlined earlier, the report prepared under s.35(12) is

to comprise two parts: (a) one of which shall include anything that, in the opinion of the

international protection officer, is relevant to the application; and (b) the other, which shall

include anything that would, in the opinion of the international protection officer, be relevant

to the Minister’s decision under s.48 (voluntary return), or s.49 (leave to remain), in the event

that the section concerned were to apply to the applicant (s.35(13). This procedure was

implemented in the appellant’s case.

57. Thus, the information provided by this process not only deals with the application for

international protection application; but also with anything that might relate to a leave to remain

question. This is part of the “one stop” process. But there is no indication of a displacement of

Carltona, or evidence of conflict of functions in the actual process of decision making.

Examination of an Application and Report by IPO

58. Section 34 deals with the examination of an application for international protection. It

provides that an IPO is to decide whether to recommend under s.39(2)(b) that the applicant

should be given a refugee declaration, or should not be given a refugee declaration, and should

be given a subsidiary protection declaration, or “s.39(3)(c) the applicant should be given

neither a refugee declaration nor a subsidiary protection declaration”.

59. Section 39 is closely connected to the procedure denoted in s.34. Section 39 provides,

inter alia:

“(1) Following the conclusion of an examination of an application for international

protection, the international protection officer shall cause a written report to be

prepared in relation to the matters referred to in section 34.”

60. In the event of the IPO reaching an adverse conclusion, s.39(3)(c) provides that,

following the conclusion of an examination for an application for international protection, the

officer shall cause a written report to be prepared in relation to the matters referred to in s.34,

which may include, at s.39(3)(c), a recommendation that “the applicant should be given neither

a refugee declaration nor a subsidiary protection declaration”. There is no indication of any

legislative intention to displace the Carltona doctrine. Nor are there High Court findings

regarding a conflict of roles in decision making between international protection decisions and

those concerning leave to remain now considered.

Leave to Remain

61. Leave to remain determinations are dealt with in s.49 of the Act. This is a distinct

function carried out under national law, by an officer of the Minister acting in the person of the

Minister. The section provides that where a recommendation referred to in s.39(3)(c) is made,

that the applicant should be given neither a refugee declaration nor a subsidiary protection

declaration, the Minister shall then consider, in accordance with this section, whether to give

the applicant concerned a permission under this section to remain in the State (in this section

referred to as a “permission”) (s.49(5)). For the purposes of his or her consideration under this

section, the Minister shall have regard to (a) the information (if any) submitted by the applicant

under subsection (6), and (b) any relevant information presented by the applicant in his or her

application for international protection, including any statement made by him or her at his or

her preliminary interview and personal interview. In deciding whether to give an applicant a

permission, the Minister shall have regard to the applicant’s family and personal circumstances

and his or her right to respect for his or her private and family life, having due regard to:

“… (a) the nature of the applicant’s connection with the State, if any,

(b) humanitarian considerations,

(c) the character and conduct of the applicant both within and (where relevant and

ascertainable) outside the State (including any criminal convictions),

(d) considerations of national security and public order, and

(e) any other considerations of the common good. …”

62. The section goes on to provide, at sub-section 4, that, having considered the matters

referred to in sub-sections (2) and (3), the Minister shall decide to (a) give the applicant a

permission to remain in the State, or (b) refuse to give the applicant such a permission.

Thereafter, sub-section (5) provides that the Minister shall, in writing, notify the applicant

concerned and his or her legal representative of the Minister’s decision under sub-section (4),

which notification is to be accompanied by a statement of the reasons.

63. Under sub-section (6) an applicant may, at any stage prior to the preparation of the

report under s.39(1) in relation to his or her application, submit information that would, in the

event that sub-section (1) applies to the applicant, be relevant to the Minister’s decision under

this section. Succeeding sub-sections deal with the procedure to be adopted in the event of

additional information coming to hand which may be relevant regarding change of

circumstances. There is nothing in these provisions, or the High Court findings, which assists

the appellant’s case.

64. As mentioned earlier, s.4 of the Immigration Act, 2004 empowers immigration officers

to grant permission to land in the State to non-national persons. Section 49(11)(a) of the 2015

Act refers to that provision, stating,“(a) A permission given under this section (for leave to

remain) shall be deemed to be a permission given under section 4 of the Act of 2004 and that

Act shall apply accordingly …”, and that a reference in any enactment to a permission under

section 4 of the Act of 2004 shall be deemed to include a reference to a permission given under

this section. (s.49(11)(b)).

Deportation

65. For completeness, s.51(1) provides that, subject to s.50, the Minister shall make a

deportation order in relation to a person where the Minister has refused under s.47 both to give

a refugee declaration and to give a subsidiary protection to the person, and is satisfied that s.

48 (5) does not apply in respect of the person, and has refused under section 49 (4) to give the

person a permission under that section. (s.51(1)(a),(b) and (c)). Decisions of this type are made

by officers of the Minister. Again, there is nothing which assists the appellant’s case.

(vi) Application of the Carltona principle

66. In summary, I am not persuaded any of the provisions cited or any other provision assist

the appellant. Section 74, quoted earlier, speaks in terms of the Minister revoking the

authorisation of an international protection officer who is an officer of the Minister. The

implication is clear. Rather than there being a contrary intention, the 2015 Act actually provides

that a person can, potentially, be an officer of the Minister but, if acting as an IPO, must be

permitted total independence in decision making. Clearly, there is no suggestion that such

individual could perform both roles in the same case or be engaged in both functions

simultaneously.

67. The express words of the Act simply cannot be put to one side. In a sense, they put the

matter beyond doubt. There is nothing in s.75 which would prevent a Chief International

Protection Officer also being an officer of the Minister, but he or she must be entirely

independent when engaging in international protection decision making. Contractors may

perform certain functions, but certainly not making s.39 recommendations. But it is the

Minister who is later to consider s.39(3)(c) recommendations, decide on them, and, where

necessary, consider leave to remain applications. By contrast, leave to remain and deportation

orders will be made by the Minister’s officers acting in the person of the Minister, just as an

Immigration Officer may issue a permission to land under s.4 of the Immigration Act, 2004. It

is sufficient to say there is nothing to be found in any of the sections quoted or in the findings

which suggests the implication, still less the stipulation for which the appellant urges in this

case.

68. There is nothing in the High Court judge’s factual findings regarding the operation of

the system which would indicate that there is an unlawful confusion or conflation of decision-

making functions between persons carrying out the function of an IPO, and persons engaging

in leave to remain decisions. The question at issue is not whether the situation is desirable, but

whether it is lawful. It goes without saying that the deciders from the same division cannot

simultaneously perform the two distinct roles in any individual case. The fact that these

functions are now carried out in separate decisions, involving separate criteria and legal

considerations, may not mean that, in other cases, officials are incapable of making these

separate decisions; but they and the Minister must recognise the very distinct nature of the

decision-making role. Self-evidently, no official could or should be involved in making both a

decision on international protection and thereafter on a leave to remain issue in the same case.

In fact, the judge found that these functions were now carried out by distinct persons and

distinct units within the Department. One point stands repetition: if there had been evidence of

a conflict in the function of decision-making, the outcome of this case could be different. If

evidence of a conflict of functions were to emerge it would, at minimum, raise a question mark

over strict compliance, and whether the functions were being performed in accordance with the

clear requirements of EU law to which this judgment presently moves.

69. I add this. Even if an open-ended Adams approach had been adopted in this case, the

outcome would have been no different. Even a purely textual analysis leads to the same

conclusion. The legislation says nothing suggesting a disapplication of Carltona. The structure

of the Act of 2015 does not suggest any intention by the Oireachtas that the Minister personally

should take the decisions. While the consequences are undoubtedly significant for the

appellant, that is not, in itself, determinative. Per contra Adams, there is reason to infer that

requiring the Minister to sign and consider the order would be a significant burden.

(vii) Interpretation of the Act in accordance with EU Law

65. As well as advancing submissions under the Carltona principle, counsel for the

appellant correctly submits that the 2015 Act was brought into effect to reflect a number of EU

legislative instruments, including the Procedures Directive and Directive 2004/83/EC (“the

Qualifications Directive”). He contends that the effect of these Directives is that international

protection decisions should be made entirely separately, by separate bodies, known as

determining authorities, which are to be independent of the Minister.

66. A number of points are very clear. An applicant has a right to be interviewed, heard and

have decisions concerning them made by an independent decision-maker who is familiar with

the relevant law. As well as under statute, these rights arise under the Procedures Directives as

applied in this State under Article 41 of the Charter. The procedure must be transparent.

Fairness and impartiality must be at the centre of the process. The reasons for any decision

must be clear. EU law requires no less (Mukarubega v. Préfet de police, Case C-166/13; MV v.

Minister for Justice, Equality & Law Reform, Case C-277/11; European Commission v.

Republic of Poland, Case C-530/16). Failure to effectively implement the fundamental

requirements laid down in the Directives and the case law will lead to a violation of EU law.

Judicial review which allows for a thorough opportunity to examine the reasons for a decision

provides an adequate remedy under EU law.

67. Counsel referred the Court to EU case law on the Directives as authority for his

argument. He submitted that his case was reinforced by what was previously provided in s.6(2)

of the Refugee Act, 1996, which preceded the 2015 Act. The 1996 legislation provided that the

Refugee Appeals Commissioner was to be independent in the exercise of his or her functions

under the Act. However, prior to consideration, it is important to set out the fact that the

appellant’s advisers endeavoured to substantially broaden the case.

(viii) Ruling of 5th February, 2022

68. On the 5th February, 2022, this Court delivered a ruling on the scope of this appeal. The

ruling must be read in conjunction with the judgment. As set out there, the appellant applied to

introduce issues which had not been argued before the High Court. The application to introduce

a new argument was brought on foot of a notice of motion seeking to contend that, in

circumstances where the international protection office did not exist as a statutory body or

entity, that office, without staff or other personnel, was incapable of meeting the definition of

a “determining authority” for the purposes of Article 4.1 of Directive 2005/85/EC on minimum

standards of procedures in member states for granting and withdrawing refugee status (“the

Procedures Directive”).

69. This is a court of final appeal, as designated under the Constitution. In general, it

concerns only issues first canvassed in a court of first instance, where both parties have the

right to make their case and adduce evidence. In the course of its ruling, this Court pointed out

that:

(i) A fundamental distinction existed between the procedures necessary to

determine an asylum subsidiary protection issue under s.39 of the 2015 Act, which was

not challenged; and, on the other hand, an application under s.49 of the Act in relation

to leave to remain within the State, which the appellant did challenge in these

proceedings.

(ii) In these proceedings, the appellant challenged only the s.49 decision made in

his case. He never raised any challenge to the s.39(c) decision, or the procedures

employed. More specifically, the appellant made no challenge whatever to whether or

not the procedure which had earlier been employed in his case complied with any

provision of the Procedures Directive.

(iii) In ruling on the application, the Court also observed that the appellant had

already been permitted to file an amended statement of grounds in the High Court on

the 26th February, 2021. In response to that, the respondent filed an amended notice of

opposition. The case in the High Court was run on the basis described. Evidence was

called on this basis.

70. In its ruling, this Court also pointed out that, in determining an application under s.49,

the question was not whether the appellant was entitled to asylum or subsidiary protection, but

rather, whether, having regard to his family and personal circumstances, the right to respect for

private and family life, any connection with the State, other humanitarian considerations,

character and conduct, and other criteria, including national security and the common good, he

should be given permission to remain in the State. (cf. s.49(4) of the 2015 Act; AWK (Pakistan)

v. Minister for Justice & Equality, Ireland & The Attorney General [2020] IESC 10).

71. The ruling of this Court contained a timeline of the proceedings in the High Court and

outlined the original grounds upon which judicial review had been sought, and the amended

broader statement of grounds which have been permitted. As the Court pointed out in its ruling,

the issue before the High Court remained essentially one of vires, albeit combined with a claim

of factual error. But the relief in question was confined to s.49(4) of the Act. The appellant had

no locus standi now to challenge the earlier international protection procedure applied in his

case. He was long out of time to do so. He was not entitled to advance a case premised on a ius

tertii basis, that is the potential rights of a hypothetical third party. Had it been necessary to do

so the respondents might have been required to call entirely different evidence to deal with the

international protection decision. Moreover, there was no evidence that the procedures adapted

in the international protection aspect of the appellant’s case were suspect or tainted by a conflict

of function.

(ix) Conclusions on EU Law Argument

72. With that argument as to scope, I turn then to the second leg of the appellant’s argument.

This relates to the interpretation of the Act, and the administration of the system concerning

him by reference to the Procedures Directive, and the Qualifications Directive. The

fundamental question again is to what extent must there be a separation of function. The

requirements for fairness and independence are set out, inter alia, in the case law cited earlier,

and the Directives. But it must also be based on the facts as found by the High Court judge

which were not challenged.

73. It is true that B and D, Cases C-57/09 and C-101/09, the CJEU stated that state

protection which a member state has discretion to grant in accordance with its own national

law must not be confused with international protection within the meaning of Directive

2004/83/EC, and that there must be a clear distinction between both. This is fundamental. But

it does not assist the appellant in this case. It is necessary again to have regard to the underlying

factual situation relating to the permission to remain arising in this case.

74. The 2015 Act does draw a clear distinction between international protection and

permission to remain, setting out two separate processes with separate criteria made by separate

decision-makers, namely, IPOs in the former instance, and the Minister’s officers in the latter.

The fifth question raised before the CJEU in B and D was whether it was compatible with

Article 3 of the Directive 2004/83/EC for a member state to recognise that a person excluded

from refugee status by Article 12(2) of the Directive ((a) “Crime against peace, war crime,

crime against humanity”, (b) serious non-political crime, (c) acts contrary to the purposes and

principles of the United Nations) has a right of asylum under its constitutional law. The

applicants had been granted protection under German national law which, for that purpose, was

not to be confused with refugee status within the Directive. But the CJEU held that such grant

under national law did not infringe the system established by the Directive. This is a different

issue from that which arises in this case. There is no confusion of status between protection

under national law and that under EU law. The Act of 2015 clearly makes the distinction

between international protection procedures, on the one hand, and leave to remain, where

national law applies, on the other. On the facts as presented and unchallenged in this case, the

judgment does not assist the appellant.

75. In any case, the appellant did not initiate the case on the basis that the Act in its text or

operation contravened EU law. The ruling on the scope of this case applies national procedural

law. It is based on the concept of fair procedures guaranteed under the Constitution. This Court

cannot reconstitute itself as a court of first instance now to hear evidence which was not

addressed in the High Court. There are no findings to base any adverse conclusion as to how

the Act is now administered. Had evidence been adduced of an actual violation of EU law

principles, the position would be different.

(x) The Refugee Act, 1996

76. Counsel also made reference in this context to s.6(2) of the Refugee Act, 1996, which

he contended had provided, that previously the Office of the Refugee Appeals Commissioners

(“ORAC”) was to be independent in the exercise of his or her functions under the Act. In fact,

the statutory reference is not to the Office of the Refugee Appeals Commissioner, but to the

independence of the office holder.

77. Section 6 of the 1996 Act, in full, provides:

“6(1)(a) For the purposes of this Act, there shall be a person (referred to in this Act as

“the Commissioner”) who shall be known as the Refugee Applications Commissioner.

(b) The Commissioner shall perform the functions conferred on him or her by this

Act.”

(2) The Commissioner shall be independent in the exercise of his or her functions

under this Act.

(3) The provisions of the First Schedule shall have effect in relation to the

Commissioner.”

None of the sub-sections makes any reference to the Office of the Refugee Applications

Commissioner. That term is not deployed in the Act of 1996. The sections refer to the

Commissioner, not the Office.

78. Insofar as the appellant seeks to make the case that the Act of 2015 constitutes a radical

departure in relation to either function or independence of persons having charge of making

such decisions, I am not so persuaded.

79. In fact, under the 1996 Act, the first instance decision-making body was formerly the

Refugee Applications Commissioner, and his or her staff or authorised officers. These were

recognised as the Office of the Refugee Applications Commissioner (“ORAC”). Since 2015,

this first instance function is now performed by individually appointed international protection

officers working within what is known to those engaged in the work as the International

Protection Office. The fact that para. 2 of the First Schedule of the 1996 Act referred to the

“term of office” of the Commissioner does not alter the position that what is in reference is

simply to the duration of office which the holder of that position would remain in it, subject to

renewal. I am not at all persuaded that this phraseology actually created a statutory entity

known as the Office of the Refugee Applications Commissioner, a term which is not to be

found in the 1996 Act. But, again, this argument suffers from two frailties: first, the

international protection was not challenged; second, it has not been alleged, at any stage, that

there was some actual unfairness in the procedure.

(ix) Conclusion and Summary

80. In conclusion, nothing in this judgment should be read as a diminution of the

importance of the decision-making process which is considered. The persons entrusted with

these functions are making decisions which can fundamentally affect the lives and well-being

of these individuals whose applications are being considered. It is true the judgment in this case

can be seen as “technical law”: but the substance of the decisions touches on the lives of people

who at minimum are entitled to an effective and efficient decision-making process.

Unnecessary prolongation of the process can lead to continuing uncertainty in the lives of

persons who, for whatever reason, found it necessary to leave their countries of origin. Such

people are entitled to an independent, impartial and objective determination of their status and

entitlements. Those entrusted with the task will necessarily have these points to the forefront

of their minds.

81. But there is nothing in the findings of the High Court to indicate that the appellant did

not actually receive an independent, impartial and objective determination in relation to the

leave to remain application which is the decision actually challenged. It has not been said that

some material matter was left out. It was not suggested that the relevant decision was tainted

other than in the manner contended for. The findings in the High Court were based on the

evidence adduced there. Those findings are not a sufficient basis for this Court to draw any

adverse conclusion in relation to the integrity of the s.49(4) decision made in this case. There

are no findings from the High Court judgment from which an inference could be made that the

decision made in the appellant’s case was flawed as a result of some procedural issue.

82. It is to be noted that while High Court judgment determined that the 2015 Act did not

establish the International Protection Office, and that it is not a legal entity, it went on to

observe that it was clear that such office did have a de facto existence, that correspondence

issued from it notifying applicants for international protection of the outcome of their

application, together with the outcome of the Minister’s permission to remain consideration

pursuant to s.49(4) of the 2015 Act. Neither the evidence, nor the High Court judgment,

supported a contention that there has been some fundamental departure in terms of procedure

or substance between the procedures operated under the 1996 Act, and those now in being in

the 2015 Act.

83. I would affirm the High Court judgment for the reasons set out. On the basis of the High

Court findings and the law there is no conflict of roles or functions as alleged. This judgment

holds that the Carltona principle remains in effect and in force as a matter of Irish law. The

presumption derived from that principle does not assist the appellant in this case, where there

are no express or implied words to be found in the 2015 Act which provide a basis that the

presumption is to be rebutted or dis-applied. There is nothing in the Act, or in the procedure

adopted in the leave to remain decision concerning the appellant that gives rise to any finding

of unlawfulness under EU law. The appellant’s case that the decision was made by an

unauthorised officer of the Minister must fail. Insofar as arises within the scope of this appeal,

there is nothing to suggest that the decision-making in the appellant’s case denied him any

procedural or substantial right to which had was entitled. For the reasons set out in this

judgment, I would, therefore, dismiss the appeal.