Supreme Court allows Minister's appeal, ruling IBC 05 Scheme does not require Constitutional or Convention rights consideration.

THE SUPREME COURT

[S.C. No: 480/2006]

Murray C.J.

Denham J.

Fennelly J.

Kearns J.

Finnegan J.

BETWEEN/

MERCY OVIAWE, MARRIAN OVIAWE,

EMMANUEAL OVIAME (SUING THROUGH HIS MOTHER AND NEXT FRIEND MERCY OVIAWE), MICHAEL OVIAWE (SUING

THROUGH HIS MOTHER AND NEXT FRIEND MERCY OVIAWE), LUCKY OVIAWE (SUING THROUGH HIS MOTHER AND NEXT

FRIEND MERCY OVIAWE), PEACE OVIAWE (SUING THROUGH HIS MOTHER AND NEXT FRIEND MERCY OVIAWE), FAITH OVIAWE

(SUING THROUGH HIS MOTHER AND NEXT FRIEND MERCY OVIAWE), UNITY OVIAWE (SUING THROUGH HIS MOTHER AND NEXT

FRIEND MERCY OVIAWE),

APPLICANTS/RESPONDENTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT/APPELLANT

AND

THE HUMAN RIGHTS COMMISSION

NOTICE PARTY

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 principal 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

The first named applicant is a national of Nigeria who arrived in the State in March, 2002. The seventh and eighth named applicants

were born in the State on the 29th July, 2002 and are Irish citizens - being the twin son and daughter of the first named applicant.

The remaining applicants are other children of the first named applicant, who have resided with her in the State since 2002.

6. Particular Facts

This case raises the issue of criminal activity of an applicant. The first named applicant submitted an application under the IBC 05

Scheme. By letter dated the 16th November, 2005 the application of the first named applicant was refused. The reason given was:-

"The Minister stated in his announcement that persons of good character who give honest and complete details can

expect to be granted permission to remain in the State. I am advised by the Garda National Immigration Bureau that in

January 2001 and January 2004 you were convicted of offences contrary to Section 4 of the Theft Act, 2001. On this

basis, I am not satisfied that you are a person of good character 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 first named applicant was convicted in January, 2004 of offences contrary to s.4 of the Criminal Justice (Theft and Fraud

Offences) Act, 2001. The charges related to the theft of goods to the value of €99.00. The first named applicant pleaded guilty and

was sentenced to three months imprisonment which was suspended for 12 months on her bond of €300 to keep the peace and be of

good behaviour. The first named applicant disclosed the conviction on her application form for the IBC 05 Scheme. The learned trial

judge stated that "her application under IBC/05 was considered and determined without any consideration of the constitutionally

protected personal rights of her citizen children."

7. High Court Proceedings

On the 8th May, 2006, the applicants were given leave to seek an order of certiorari quashing the decision of the Minister dated the

16th November, 2005.

8. High Court Order

The learned High Court judge stated that the only difference of substance between this case and the Bode case was the reason for

the refusal of the application under the IBC 05 Scheme. The High Court then went on to hold that this necessitated consideration of

the following issues:-

"1. Were the revised arrangements known as IBC/05 addressed to non-national parents of Irish born children born before 1

January, 2005 with a criminal conviction?

2. Does the fact of Mrs. Oviawe's criminal conviction alter the entitlement of her twin citizen children to have their

personal rights within the meaning of Article 40.3 of the Constitution or right to respect for their private life within the

meaning of article 8 of the Convention considered and taken into account by the Minister in determining their mother's

application under IBC/05."

The High Court pointed out that the IBC 05 Scheme form asked whether the applicant had been convicted of any offence in the State

or abroad and, if so, to give details.

High Court Judgment

The High Court held that notwithstanding her criminal conviction the first named applicant was a person invited to make an application

under the IBC 05 Scheme. The High Court stated that it had formed the view (for the reasons set out in Bode) that the twin children

have a qualified right to have their constitutionally protected personal rights under Article 40.3 considered and taken into account by

the Minister. Similarly, that no submission was made under article 8 of the Convention seeking to justify the decision taken without a

consideration of the citizen children's right by reason of the criminal conviction of the first named applicant. The conclusions reached

were:

"For the reasons set out both in this judgment and the Bode judgment:

1. The decision taken by the [Minister] on the IBC/05 application of the first named applicant as communicated in

the letter of 16th November, 2005 is unlawful as it was taken in breach of the seventh and eighth named applicants’

rights under Article 40.3 of the Constitution.

2. The decision of the [Minister] on the IBC/05 application of the first named applicant communicated in the letter

of 16th November, 2005 is unlawful as it was in breach of the [Minister's] obligations under s. 3(1) of the European

Convention on Human Rights Act, 2003 as it was not taken in a manner of which is compatible with the State’s

obligations under article 8 of the Convention to respect the right to private life of the seventh and eighth named

applicants as citizens of the State."

The High Court granted an order of certiorari quashing the decision of the Minister dated the 16th November, 2005, to refuse to grant

residency under the IBC 05 Scheme, and remitted the application for consideration and determination in accordance with law.

9. Appeal

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

Bode.

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

While the IBC 05 Scheme envisaged that persons with criminal convictions might apply under the scheme, the Minister had made clear

that the criteria of the scheme included that they "have not been involved in criminal activity". This was a requirement of the

scheme.

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. The parameters of the scheme were clearly stated. These requirements

included "not been involved in criminal activity". The scheme was administered by the Minister, according to the terms of the scheme.

There was evidence that the first named applicant had been convicted of a criminal offence and the Minister was entitled to reach

the decision he did on the evidence.

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

the applicants. Thus this aspect of the application, the High Court order, and the appeal are misconceived and premature. Applicants

who are unsuccessful in their application under the IBC 05 Scheme remain in the same position as they had been prior to the making

of the application. Constitutional and Convention rights are a matter for consideration in other processes, for example under s.3 of the

Immigration Act, 1999 as amended.

It is clear that the first named applicant did not come within the criteria of the IBC 05 Scheme, and the Minister was entitled to so

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