Filing a judicial review application for deportation does not automatically stay the order's implementation pending the hearing.

THE SUPREME COURT

[S.C. 70 of 2005]

[S.C. 71 of 2005]

[S.C. 72 of 2005]

[S.C. 73 of 2005]

Denham J.

McGuinness J.

Hardiman J.

Geoghegan J.

Fennelly J.

In the matter of Article 40.4 of the Constitution

and

in the matter of the Habeas Corpus Act, 1782.

Between/

Bosun Adebayo

Peter Chinedu Igwe

Folashade Jacob, Oyeshola Jacob and Ronké Jacob

Jide Johnson Ondukan

Applicants/Respondents

and

Commissioner of An Garda Síochána

Respondent/Appellant

and

The Minister for Justice, Equality and Law Reform

Notice Party/Appellant

Judgment delivered on the 2nd day of March, 2006 by Denham J.

1. I concur with the judgment of Geoghegan J. on the issues for determination on this appeal.

2. Although it does not arise for decision, the issue as to whether the institution of judicial review proceedings challenging the validity

of a deportation order has the automatic effect of staying the implementation of the order pending the outcome of those

proceedings, was the subject of submissions before the Court.

2.1 There was a finding by the High Court. The High Court (Peart J.) held that:

“- I am compelled to the view that once judicial review proceedings have been properly commenced, and I include within that

concept proceedings commenced outside the fourteen day time limit, but in which an extension of time is being sought, it is

unnecessary for any injunction to be sought in order to ensure that steps are not taken to give effect to the very deportation

order sought to be impugned in those proceedings.”

Such an analysis means that once a motion seeking judicial review has been filed – even if it was outside the 14 days required by

statute but that it sought an extension of time – the State would be stayed from proceeding with the deportation and that it would

not be necessary to seek an injunction.

2.2 The Oireachtas has established a statutory scheme providing for the means of access to the courts by persons subject to orders

under the immigration legislation. The portion of the legislation relevant to this analysis is s. 5(1) of the Illegal Immigrants (Trafficking)

Act, 2000. It refers to a variety of orders and decisions under immigration legislation. For the purpose of this case I shall refer only, as

an example, to the reference to a deportation order. Thus s. 5(1) provides:

“5.—(1) A person shall not question the validity of—

...

(c) a deportation order under section 3(1) of the Immigration Act, 1999,

...

otherwise than by way of an application for judicial review under Order 84 of the Rules of the Superior Courts (S.I. No. 15

of 1986) (hereafter in this section referred to as "the Order").

(2) An application for leave to apply for judicial review under the Order in respect of any of the matters referred to in

subsection (1) shall—

(a) be made within the period of 14 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 there is

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 the 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 subsection shall not apply to a determination of the High Court in so far as it involves a question as to the

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

(4) The High Court shall give such priority as it reasonably can, having regard to all the circumstances, to the disposal of

proceedings in that Court under this section.

(5) The Superior Court Rules Committee may make rules to facilitate the giving of effect to subsection (4).”

2.3 This legislation was considered by the Supreme Court in Re Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2. I.R. 360, which

held, inter alia, that the requirement to proceed by way of judicial review within a limited period served the legitimate public policy

objective of seeking to bring about, at an early stage, legal certainty as regards administrative decisions and facilitated the better

administration and functioning of the system for dealing with the applicants for asylum or refuge status. As to the extension of time

provisions, it was held that the discretion of the High Court to extend the time period for good and sufficient reason was sufficiently

wide to avoid injustice and to enable persons who had shown reasonable diligence to have sufficient access to the courts and was

not unreasonable. The Court, referring to the constitutional right of access to the courts, held that it was sufficient to say that such

a right means the right to have all justiciable questions involving the administration of justice heard and determined by a court

established by or in accordance with the Constitution. In considering the conditions and limitations imposed on non-nationals, the

Court held that the scheme was consistent with the constitutional right of access to the courts and the principles of constitutional

justice.

The Court said of s.5 (1):

“It is within the competence of the Oireachtas to regulate by law, by primary legislation or, in the due exercise of its powers, by

way of secondary legislation, such as statutory instruments, procedural matters, including procedural remedies, before the

courts provided constitutional rights and other provisions of the Constitution relating to the courts are not infringed. Section

5(1) specifies judicial review as the only procedure by which a person may question the validity of any decision or other matters

referred to at paragraphs (a) – (n) of the subsection. All of those matters fall to be decided in an administrative process by

persons authorised by law to decide them. It is not the function of the courts to decide such matters anew on their merits but

to determine the validity of the decisions taken as a question of law. Should a person seek to challenge the validity of any of

the matters covered by the subsection, he or she will not be limited as to the grounds upon which the validity of a decision may

be attacked by virtue of being confined to judicial review as the only form of remedy. Given that the jurisdiction of the courts is

limited to reviewing whether any such matter has been decided in accordance with law, the grounds for challenging such

validity would not be any more extensive under other procedures such as proceedings commenced by plenary summons. Indeed

judicial review is a remedy which is regularly opted for by persons seeking to challenge the validity of administrative decisions.

The court concludes that judicial review as such is not an inadequate remedy.”

The Court analysed the requirement that the application for judicial review be brought within 14 days and the power of the High Court

to expand that right. The Court held that a non-national has a constitutional right of access to the courts to challenge the validity of

a decision such as a deportation order. Thus there are both the constitutional right and statutory rights to consider.

2.4 The statutory scheme is bedded on the procedure under Order 84 of the Rules of the Superior Courts, 1986 Order 84, r. 18 (1)

provides that an application for an order of certiorari, mandamus, prohibition or quo warranto shall be made by way of an application

for judicial review in accordance with the provisions of Order 84. Provision is also made for an application for a declaration or

injunction. Order 84, r. (20)(2) provides that an application for leave to apply for judicial review shall be made by motion ex parte

grounded upon recited documents. The court on considering the application may grant leave on such terms as it deems fit. Order 84,

r. 20(7) specifically provides that where leave to apply for judicial review is granted than if the relief sought is an order of certiorari

or prohibition and the court so directs the grant of leave shall operate as a stay of the proceedings until the determination of the

application or court order. There is no explicit provision for a stay prior to the court order on the application for leave to apply for

judicial review.

2.5 The Oireachtas provided that applications from non-nationals be brought under this scheme of judicial review. Historically judicial

review arose from the prerogative writs where conditional orders were sought on ex parte applications by applicants and an order

made on the ex parte application. Subsequently, permanent orders were made after the full hearing. In such a process an interim

order, including an interim injunction, was available on the initiation of the process. However, this process has changed under Order

84 of the Rules of the Superior Courts, 1986, the legislation and the practice and procedures which have developed. The current

system involves the filing of a notice of motion in the Central Office of the High Court and receiving a future date for the moving of

the motion for leave to apply for judicial review. Even if an applicant has papers ready within the 14 days, he or she may receive a

date for the motion to proceed some considerable time in the future. This is a gap in the judicial review process which would not have

existed under the historic system of ex parte applications where parties went to court for leave to apply, with the papers. There is no

doubt that because of the volume and complexity of cases, case management is necessary today and the procedure which served

well for hundreds of years is not such as to cope efficiently with the position today. However, constitutional and statutory rights, if

they exist, may not be nullified by procedural rules.

2.6 The Court referred to the situation in The Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 I.R. 360 at p. 391 where it stated:

“It must be remembered that the statutory power to make a deportation order and its implementation derives from s. 3 of the

Immigration Act, 1999. The court has already held that a non-national has a constitutional right of access to the courts to

challenge the validity of a decision such as a deportation order. The second objection raised by counsel assigned by the court

is to the effect that, if the power to deport under the Act of 1999 is exercised in a particular fashion, particularly when that

Act, or some other Act, does not contain a provision preventing deportation before a minimum period has elapsed, there would

be a denial of that person’s right of access to the courts. Whether a person is entitled to remain within the State for a minimum

period of time in order to exercise a constitutional right to bring judicial review proceedings, is a matter to be determined in

appropriate proceedings in the High Court concerning the powers of deportation deriving from the Act of 1999. Section 5 of the

Bill does not purport to affect the exercise by the State of its power or its discretions in the implementation of a deportation

order. On the contrary, it allows for a means of access to the courts to challenge its validity.” [The underlying is added].

2.7 As this important issue does not require to be decided in this case I offer no opinion, other than to acknowledge its significance

and potential.

3. Conclusion

In conclusion, I agree with the judgment of Geoghegan J. on the issues for determination on this appeal.

As to the issue of whether the bringing of an application for leave within time to take judicial review proceedings challenging the

validity of a deportation order under s. 5 of the Illegal Immigrants (Trafficking) Act, 2000 has the automatic effect of staying any

deportation pending the hearing of that application, I express no opinion and await a case where it is an issue.