Supreme Court allows Minister's appeal, holding IBC 05 Scheme excludes Constitutional rights consideration for late applicants.

THE SUPREME COURT

[S.C. No: 481/2006]

Murray C.J.

Denham J.

Fennelly J.

Kearns J.

Finnegan J.

BETWEEN/

FOLASHADE OLUBUNMI ADIO, FUOD ADIO (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND FOLASHADE OLUBUNMI ADIO)

FAROUQ ADIO (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND FOLASHADE OLUBUNMI ADIO

APPLICANTS/RESPONDENTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT/APPELLANT

Judgment delivered the 20th day of December, 2007, by Denham J.

1. Issue

At issue in this case is the decision of a Minister of the Government made in an administrative scheme established as an exercise of

executive power, to deal with a unique group of foreign nationals. It is submitted, on the one hand, that, inter alia, in this scheme the

Constitutional and Convention rights of applicants were required to be considered in accordance with law. On the other hand, it was

submitted that neither Constitutional nor Convention rights arose to be considered. Thus the nature of the scheme is at the core of

the appeal, and, with it, the nature of any judicial review. Also, at the kernel of the case is the fact that the position of a foreign

national, who failed in an application under the scheme, remains the same as it was prior to the application, with all relevant

Constitutional and Convention rights remaining yet to be considered.

At the core of the case is the refusal by the Minister of the first named applicant's application under the IBC 05 Scheme.

2. Eight Cases

The Minister for Justice, Equality and Law Reform, the respondent/appellant, hereinafter referred to as the 'the Minister', has appealed

from the judgments of the High Court (Finlay Geoghegan J.) in seven cases where the High Court quashed the decision of the Minister

to refuse applications for permission to remain in the State to foreign national parents of Irish born children under a scheme which he

had introduced. In the eighth case the Minister is appealing against the order for costs made in the High Court.

3. These related cases are:

(i) Bode v. The Minister, Appeal No. 485/2006

(ii) Oguekwe v. The Minister, Appeal No. 489/2006

(iii) Dimbo v. The Minister, Appeal No. 484/2006

(iv) Fares v. The Minister, Appeal No. 483/2006

(v) Oviawe v. The Minister, Appeal No. 480/2006

(vi) Duman v. The Minister, Appeal No. 482/2006

(vii) Adio v. The Minister, Appeal No. 481/2006

(viii) Edet v. The Minister, Appeal No. 005/2007

The Minister was represented in all the cases by the same counsel. The same affidavit of Maura Hynes, a principle officer in the

Department of Justice, Equality and Law Reform, was filed in all cases on behalf of the Minister. Similar written submissions were filed

on behalf of the Minister in all cases.

4. The general facts and law relating to the Minister's decision in the administrative scheme in the seven cases are set out in the

Bode judgment. The particular facts, law, and decision of this case are set out herein.

5. Parties

Farouq Adio (a minor suing by his mother and next friend Folashade Olubunmi Adio), the third named applicant, and hereinafter

referred to as 'the third named applicant' was born in the State on the 27th March, 2003. The third named applicant is the son of

Folashade Olubunmi Adio, the first named applicant, and hereinafter referred to as 'the first named applicant'. The first named

applicant is a national of Nigeria and arrived in the State in March, 2003. Fuad Adio (a minor suing by his mother and next friend

Folashade Olubunmi Adio), the second named applicant, is hereinafter referred to as 'the second named applicant'. He is also a son of

the first named applicant, he was born in Nigeria in 2001.

6. Particular Facts

This case raises the issue of the time limit requirements for applications under the IBC 05 Scheme.

The learned High Court judge found that the first named applicant submitted an application form to the IBC 05 Scheme on the 26th

April, 2005, which was received by the Minister on the 5th May, 2005.

The decision of the Minister was given by letter dated 29th November, 2005, in the following terms:-

"I am directed by the Minister for Justice, Equality and Law Reform to refer to the IBC/05 application form submitted by

you in connection with the revised arrangements announced by the Minister on 15th January 2005 for the processing of

applications for permission to remain in the State from the non-national parents of Irish born children born before 1st

January, 2005.

As stated on the application form, and in the Minister's announcement, the closing date for the submission of applications

for consideration under the revised arrangements was 31st March 2005. Your application, which was received by this

Department on 5th May, 2005, was too late for consideration. Accordingly, I am to inform you that an application from

you cannot be considered under the revised arrangements. The IBC/05 application form and your original supporting

documents are returned herewith."

A further application was made on her behalf and the letter which had been sent out on the 29th November, 2005 was re-issued on

the 19th December, 2005.

7. High Court Proceedings

By order of the High Court on the 13th February, 2006, the applicants were granted leave to apply by way of an application for

judicial review for:

"1. An order of certiorari by way of an application for judicial review quashing the decision of the [Minister], dated 29th

November, 2005 and re-issued by letter dated 19th December, 2005 refusing to consider the first named applicant's

application for permission to reside in the State;

2. An order of mandamus by way of an application for judicial review directing the [Minister] to consider the application of

the first named applicant to reside in the State with the second and third named applicants."

8. High Court Order

The learned High Court judge noted that as in many of the other applications in the related proceedings the primary submission made

was that each of the decisions, of the 29th November, 2005, and 19th December, 2005, was unlawful or invalid in that they were

taken without any consideration of the personal rights of the Irish citizen child guaranteed by Article 40.3 of the Constitution and in

breach of the citizen child's right to respect for his private life under Article 8 of the European Convention on Human Rights as

implemented in the State. As in the related cases, the Minister submitted that he was not required to consider the Constitutional or

Convention rights in making decisions under the scheme.

The High Court held, having considered issues of Constitutional and Convention rights:-

"Accordingly, I have concluded that in relation to the application submitted on 26th April, 2005 by the first named

applicant, whilst the Minister was not obliged by the terms of the revised arrangements known as IBC/05 to consider that

application, neither was he precluded from doing so by the terms of the IBC/05. He retained a discretion to consider and

determine the IBC/05 application and having regard to the existence of that discretion he was bound in determining

whether or not to consider the application to consider the personal rights of the citizen child protected by Article 40.3

and to exercise the discretion so as to respect and as far as practicable vindicate and defend the qualified right of the

citizen child to live in Ireland.

No submission was made that any interest of the common good required the respondent to refuse to consider an

application on IBC/05 submitted after the 31st March, 2005, without considering the constitutionally protected rights of

the citizen child. Submissions were made as to the necessity for a time limit but not for a time limit which automatically

excluded consideration of a late application where the vindication of the citizen child’s constitutional right to live in Ireland

so required.

Accordingly, I have concluded that the decisions made herein to refuse to consider the applications of the first named

applicant for permission to remain in the State were invalid as they did not consider the personal rights of the citizen child

and were taken in breach of the third named applicant’s rights under Article 40.3 of the Constitution."

9. The Minister has appealed against the judgment and order of the High Court. The submissions before the Court were similar to

those in the Bode case.

10. Decision

I would allow the appeal of the Minister. My general reasons are set out in the Bode judgment. My particular reasons are set out in

this judgment.

11. Conclusion

The application was misconceived. The IBC 05 Scheme was an administrative scheme established by the Minister exercising executive

power to deal with a unique group of foreign nationals in a generous way, on the criteria of the scheme. The parameters of the

scheme were clearly set out and included time limits for applications. The scheme was administered by the Minister within the criteria

of the scheme.

At no time was it intended, within the ambit of the scheme, that the Minister would consider Constitutional or Convention rights of

applicants. The grounds of the application and the appeal relating to Constitutional or Convention rights were misconceived, and

premature. Applicants who are unsuccessful on an application to the IBC 05 Scheme are in the same position after the application as

they were prior to the application. Constitutional and Convention rights await consideration.

It was a requirement of the scheme that applications be made within a specified time. The first named applicant did not make his

application within the time required in the scheme. The Minister consequently acted correctly within the scheme in refusing to

consider the application.

Bearing in mind the analysis of the IBC 05 Scheme in Bode, and the extent of judicial review of such an administrative scheme, I would

allow the Minister's appeal on this matter, and reverse the decision of the High Court.

The Constitutional and Convention rights of the applicants remain to be considered in another, appropriate, process.