Supreme Court allows Minister's appeal, dismissing constitutional rights claims as misconceived due to criminal convictions.

THE SUPREME COURT

[S.C. No: 482/2006]

Murray C.J.

Denham J.

Fennelly J.

Kearns J.

Finnegan J.

BETWEEN/

GHEORGHE DORIN DUMAN AND ALINA-VICA GAP SAMOLIA

AND KEVIN DUMAN (AN INFANT SUING BY HIS FATHER AND NEXT FRIEND, GHEORGHE DORIN DUMAN)

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

The 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 and second named applicants' applications 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

in all cases on behalf of the Minister.

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

Kevin Duman, the third named applicant and hereinafter referred to as 'the third named applicant', was born in Ireland on the 14th

November, 2001 and is an Irish citizen. He has resided in the State since his birth. Gheorghe Dorin Duman, the first named applicant

and hereinafter referred to as 'the first named applicant', is the father of the third named applicant and is a Romanian national. Alina-

Vica Gap Samolia, the second named applicant, and hereinafter referred to as 'the second named applicant', is the mother of the third

named applicant, and is a Romanian national.

6. Particular Facts

The first and second named applicants each made an application under the IBC 05 Scheme and both were refused. It is common case

that each have been convicted of a shoplifting offence. The letters from the Minister included the following findings. In relation to the

first named applicant it was stated:-

"In announcing the revised processing arrangements the Minister stated that persons of good character who have not

been involved in criminal activity can expect to be granted permission to remain in the State. I am advised by the Garda

National Immigration Bureau that on 1 March 2004, you were convicted of a shoplifting offence contrary to Section 4 of

the Theft Act, 2001.

On the basis of the foregoing, I am not satisfied that you are a person of good character who has not engaged in criminal

activity as set out in the Minister's announcement and, accordingly, your application for permission to remain in the State

under the revised arrangements is hereby refused."

In relation to the second named applicant's application it was stated:-

"In announcing the revised arrangements the Minister stated that persons of good character who have not been involved

in criminal activity can expect to be granted permission to remain in the State. I am advised by the Garda National

Immigration Bureau that on 9 May 2002 at the Dublin District Court 46, you were convicted of a shoplifting offence

contrary to Section 2 of the Larceny Act, 1916, as amended and received a three year suspended sentence. I am advised

that two other charges were also taken into consideration.

On the basis of the foregoing, I am not satisfied that you are a person of good character who has not engaged in criminal

activity as set out in the Minister's announcement and, accordingly, your application for permission to remain in the State

under the revised arrangements is hereby refused."

The Minister was requested to reconsider the matter. His reply was that the position regarding the applications remained as detailed

previously.

7. High Court Proceedings

By order of the High Court (Peart J.) on the 12th December, 2005, the applicants were granted leave to seek certain reliefs by way of

judicial review, including an order of certiorari quashing the Minister's decision.

The High Court (Finlay Geoghegan J.) on the 14th November, 2006, noted, in considering the decision:-

"These proceedings were heard with the proceedings 2006 No. 504 J.R. Mercy Oviawe & Ors. v. The Minister for Justice,

Equality and Law Reform and Ors. and immediately after the proceeding 2006 No. 102 J.R. Deborah Olarantimi Bode v.

The Minister for Justice, Equality and Law Reform in both of which I have delivered judgments today. Insofar as relevant,

the position of the applicants in these proceedings is similar to the position of the applicants in the Oviawe v. Minister for

Justice Equality and Law Reform [2006] IEHC 342 proceedings. In each there is an Irish citizen child and a non-national

parent or parents who made an application from within the State under IBC/05 which was refused by reason of a criminal

conviction. Further in each, the decision on IBC/05 was taken without any consideration of the rights of the citizen child."

The High Court held that there was nothing that distinguished this case from Oviawe. Thus, for the reasons given in the High Court in

Bode and Oviawe, the High Court reached the following conclusions:-

"1. The decision taken by the [Minister] on the applications under IBC/05 of the first and second named applicants as

communicated in the letters of 12th September, 2005, and confirmed in the letters of 24th November, 2005 are (sic)

unlawful as it was taken in breach of the third named applicant’s rights under Article 40.3 of the Constitution.

2. The decision of the [Minister] on the applications under IBC/05 of the first and second named applicants communicated

in the letter of 12th September, 2005, and confirmed in the letters of 24th November, 2005 are unlawful as they were

taken in breach of the [Minister's] obligations under section 3(1) of the European Convention on Human Rights Act, 2003,

as they were taken in a manner which is not compatible with the State's obligations to the third named applicant under

article 8 of the Convention."

The High Court held that the applicants were entitled to orders of certiorari of the Minister's decisions refusing the first and second

named applicants' applications under the IBC 05 Scheme and remitted the applications for consideration and determination by the

Minister in accordance with law.

8. Appeal

The Minister appealed against the judgment and orders of the High Court. The submissions to this Court were similar to those in the

Bode case.

9. Decision

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

reasons are set out in this judgment.

10. Conclusion

This case raises the issue of criminal activity of applicants.

I am satisfied that the proceedings and appeal are misconceived. The IBC 05 Scheme was an administrative scheme established by

the Minister to deal with a unique group of foreign nationals. The parameters of the scheme were established clearly. The criteria

included that applicants should not have been involved in criminal activity.

The scheme was administered by the Minister within its criteria. Both the applicants have been involved in criminal activity and have

been convicted of offences.

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

Constitutional or Convention rights of the applicants. Thus the grounds of the application, and the appeal, relating to Constitutional

and Convention rights, were misconceived, and premature.

Applicants, unsuccessful in their application under the IBC 05 Scheme, remain in the same position they were in before their

application. All relevant Constitutional and Convention rights remain to be considered, in another process, for example under s.3 of the

Immigration Act, 1999, as amended.

Consequently, I would allow the appeal and reverse the decision of the High Court.