Supreme Court rejects automatic stay of deportation orders during the 14-day judicial review period absent court direction.

THE SUPREME COURT

Record Nos. 227-230/05

Record Nos. 70-73/05

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/

(1) BOSUN ADEBAYO

(2) PETER CHINEDU IGWE

(3) FOLASHADE JACOB, OYESHOLA JACOB AND RONKE JACOB

(4) 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 of Mr. Justice Fennelly delivered the 2nd day of March, 2006

1. I entirely agree with the judgment of Geoghegan J, the reasons he has given and the orders he proposes, except on one point.

Indeed, as Geoghegan J acknowledges, the point probably does not strictly arise. He also expresses his views as being tentative.

2. The point concerns whether, during the fourteen-day period permitted for an application for Judicial Review of a deportation order

and, where an application for leave is made, following the making of such application, there is an automatic stay on the

implementation of the order pending the outcome of those proceedings.

3. Geoghegan J takes “the view that no deportation may be implemented during the currency of the fourteen day period and that if

in fact an application for leave is brought within that period no deportation order may be implemented until the court determines

the application for leave and only then if the court does not order otherwise upon the granting of leave.” His view is based on an

interpretation of the Illegal Immigrants (Trafficking) Act, 2000, particularly section 5 and the manner in which it incorporates by

reference certain provisions of the Rules of Court.

4. I find myself unpersuaded. Certainly in a situation where this issue is secondary to the principal points decided, I would be

reluctant to reach a conclusion that the Act impliedly imposes a restraint on the implementation of orders duly made. Undoubtedly,

the points made by Geoghegan J strongly suggest that there should be such a stay. The problem is that there is simply no statutory

provision for it. I find myself in agreement with the submission made on behalf of the Appellants that it has never been the law that

the mere institution of proceedings would operate with the same effect as a Court order. I do not think such an important provision

can be implied. Nor do I think the problem can be solved by reference to Order 84 of the Rules of the Superior Courts. Section 5 of

the Act of 2000 uses that Order as its point of reference for its provisions in respect of Judicial Review. For present purposes, it is

important that section 5(2) provides, in relevant part:

“An application for leave to apply for judicial review under the Order………shall-

(a) be made within fourteen days……………, and

(b) be made on notice…………”

5. Order 84, Rule 20(7) provides:

“Where leave to apply for judicial review is granted then-

“(a) If the relief sought is an order of prohibition or certiorari and the court so directs, the grant shall operate as a stay of the

proceedings to which the application relates until the determination of the application or unless the court otherwise orders;

………” (emphasis added).

6. I do not believe that the provision for a stay, if “the court so directs,” where leave is granted, can be extended by implication to

the stage where the application is made. It is certainly an unfortunate feature of the legislation that the requirement that leave be

applied for on notice and that “substantial grounds” be established has, to a large extent, slowed the entire process. In my own view,

the normal system of applications ex parte for leave operated as a perfectly effective filter of unmeritorious applications and certainly

led to quicker decisions. However, the effect of the legislation is that the only express statutory provision for a prima facie automatic

stay does not take effect until leave is actually granted. A fortiori, I am not convinced that there is an automatic stay during the

fourteen-day period, where no application for leave has yet been made. On the other hand, I entirely agree that, where the

application for leave is itself made outside the fourteen-day period, so that an extension of time is essential, there can be any

question of an implied stay.

7. I repeat that, save in respect of this matter, I am in full agreement with the judgment of Geoghegan J, including his obiter

observations regarding the possibility that orders such as that made by Peart J would be made in other cases.