Supreme Court allows appeal on constitutional challenge to deportation order while referencing ECJ on EU law.

THE SUPREME COURT

[Appeal No: 87/2011]

Fennelly J.

O'Donnell J.

McKechnie J.

Clarke J.

MacMenamin J.

Between/

Haq Nawaz

Applicant/Appellant

and

Minister for Justice Equality and Law Reform, Ireland and The Attorney General

Respondents

and

[Appeal No: 283/2011]

Between/

Haq Nawaz

Plaintiff/Respondent

and

The Minister for Justice Equality and Law Reform, Ireland and The Attorney General

Defendants/Appellants

Judgment of Mr. Justice Clarke delivered the 29th November, 2012.

1. Introduction

1.1 These two appeals throw up yet further aspects of the regime for the consideration of international protection in Ireland. This

court has already, in Okunade v. Minister for Justice, Equality and Law Reform & ors [2012] IESC 49, commented on the unnecessarily

complicated statutory regime for the consideration and judicial review of applications for international protection. These appeals throw

up two further aspects of that regime which it is, in my view, at least possible to describe as curious. The real issues which arise on

both these appeals are as to whether the two aspects of the regime concerned go beyond being curious and fall foul of, in one case,

the Constitution, and in the other case, relevant and applicable EU law.

1.2 The backgrounds to both cases are the attempts made by Mr. Haq Nawaz ("Mr. Nawaz") to remain in Ireland. Those attempts

have a long and complicated history. It will be necessary to address some aspects of that history in due course. However, it is

possible to set out in relatively brief terms the two aspects of the statutory regime which come under scrutiny in these appeals.

1.3 Appeal 87/2011 arises in proceedings ("the judicial review proceedings") in which Mr. Nawaz, as applicant, seeks judicial review

designed to establish that one aspect of the current Irish statutory regime in respect of international protection is inconsistent with

directive 2004/83/EC ("the qualification directive"). The qualification directive provides for international protection in the Member

States of the EU. Two different categories of international protection are specified. The first is refugee status which, of course, has a

wider international context going back to the Geneva Convention. The second is subsidiary protection which derives from the

qualification directive itself. In simple terms Mr. Nawaz says that he does not qualify for refugee status for he does not fear

persecution for a Convention reason. Nonetheless he does claim that he qualifies for subsidiary protection. As noted by this court in

Okunade (see para. 2.4 of my judgment) it is necessary that a person have been refused refugee status, under the Irish regime, in

order that such a person can apply for subsidiary protection. Mr. Nawaz asserts that the Irish regime, insofar as it appears to require

him to make an application for refugee status, on what he describes as a "false" basis, before he can apply for subsidiary protection,

is inconsistent with the qualification directive. Mr. Nawaz failed in his judicial review proceedings before the High Court (Ryan J.),

(Nawaz v. Minister for Justice, Equality and Law Reform [2010] IEHC 489), judgment in that regard being delivered on the 15th

December, 2010, and appeals against that finding to this court. As the point involved in that appeal is one of European Union law

only, it follows that a determination of the relevant point of EU law is "necessary" to a finalisation of the appeal. As this court is the

court of final appeal in Ireland it further follows, therefore, that this court is obliged to refer the matter to the European Court of

Justice ("ECJ") unless the point is acte clair in accordance with the jurisprudence of the ECJ. This judgment (insofar as it relates to

appeal 87/2011) is concerned, therefore, only with the question of whether the qualification directive is clear in permitting the

relevant means of its implementation adopted in Ireland.

1.4 Appeal 283/2011 concerns plenary proceedings ("the plenary proceedings") commenced by Mr. Nawaz as plaintiff against the

relevant Minister, Ireland and the Attorney General ("the State") in which he seeks, amongst other things, declarations to the effect

that s. 3 of the Immigration Act, 1999 ("the 1999 Act") is inconsistent with the Constitution. It will be necessary to address the basis

given to substantiate that allegation in due course. However, the broad statutory regime allows for a person who is notified of a

proposed deportation order to make representation to the Minister for Justice, Equality and Law Reform ("the Minister") for what is

sometimes referred to as humanitarian leave to remain in Ireland although strictly speaking such representations are to the effect that

the Minister should not, having regard to the considerations set out in s.3(6) of the 1999 Act, made a deportation order. In the

alternative to making such representations, the statutory regime allows such a person to voluntarily leave the country and thus not

be subject to a formal deportation order. Curiously, if a person invokes their entitlement to seek humanitarian leave but fails in that

regard it is said on behalf of the State that the person concerned is immediately subject to a deportation order and the opportunity

to leave without a formal deportation no longer is available. In the plenary proceedings Mr. Nawaz asserts that the regime is

inconsistent with the Constitution in failing to provide him with an opportunity to leave voluntarily in the event that his request for

humanitarian leave is denied. He asserts that there are significant practical disadvantages attaching, both in respect of Ireland and in

respect of other jurisdictions, to being a deportee. He asserts that there is no rational basis for according a person threatened with

deportation, who chooses not to seek humanitarian leave, the opportunity to leave without a deportation order, while not affording

the same opportunity to persons who have sought humanitarian leave.

1.5 However, the State asserts that the substance of Mr. Nawaz's constitutional challenge amounts to a collateral attack on the

deportation process in his case so that, it is said, there is an obligation on him to comply with s.5 of the Illegal Immigrants

(Trafficking) Act, 2000 ("the 2000 Act"), which requires any person who wishes to question the validity of a variety of orders

(including deportation orders and other connected notices) made or given in the immigration process to only proceed by judicial

review sought in the manner mandated by the 2000 Act.

1.6 The State applied to the High Court to have those aspects of the plenary proceedings, which sought to question the validity of

the relevant provisions of the 1999 Act on constitutional grounds, (there were some other issues raised in the plenary proceedings to

which I will briefly refer in due course) struck out on the basis that the proceedings were said to have been wrongly commenced as

plenary proceedings contrary to s.5 of the 2000 Act. The High Court rejected that application, Nawaz v. Minister for Justice, Equality

and Law Reform (unreported, High Court, 25th May, 2011, Laffoy J) and refused the strike out sought. The State has appealed to

this court against that refusal.

1.7 As the issue arising on Appeal No. 87/2011 is, for the reasons set out, very narrow, I turn first to that question. The issue

concerns stand alone subsidiary protection.

2. Stand-alone Subsidiary Protection

2.1 This court has, for reasons which I will address, decided to make an order for reference to the ECJ. A copy of that order is

annexed to this judgment. That order, between paras. 2 and 8, sets out the relevant facts referable to appeal 87/2011. That order

also sets out the relevant European Union and domestic legal measures.

2.2 As already noted the argument put forward on behalf of Mr. Nawaz is that the qualification directive requires that he be entitled

to apply for subsidiary protection without first making an application, which he does not believe to be correct, for refugee status. It

was argued on behalf of the State at the hearing before this court that the correct question which this court should address, in

determining whether to order a reference, was as to whether it was clear that the qualification directive did not preclude the method

of implementation adopted in Ireland. That analysis, it seems to me, is correct.

2.3 Ireland has chosen to implement the qualification directive by providing for separate regimes in respect of applications for,

respectively, refugee status and subsidiary protection. Those aspects of the qualification directive which relate to subsidiary

protection were implemented in Ireland by the adoption of the European Communities (Eligibility for Protection) Regulations, 2006 (S.I.

18 of 2006) ("the Regulations"). Regulation 4(2) of the Regulations provides that the Minister is not obliged to consider an application

for subsidiary protection from a person other than one to whom s.3(2)(f) of the Immigration Act, 1999 applies. The latter section

refers to "a person whose application for asylum has been refused by the Minister". This court has already decided, in Izevbechai &

ors v. Minister for Justice, Equality and Law Reform [2010] IESC 44, that regulation 4(2) does not confer any power or discretion on

the Minister to consider applications for subsidiary protection other than those provided in that regulation being from persons whose

applications for asylum have been refused by the Minister.

2.4 It follows that Ireland has implemented a regime whereby it is necessary to have applied for and to have been refused refugee

status before an application for subsidiary protection can be brought. The question of European Union law which arises is as to

whether such a regime is compatible with the obligations on Ireland contained within the qualification directive.

2.5 Counsel for the State argued that the qualification directive, on its proper interpretation, does not require any Member State to

provide for a stand-alone application for subsidiary protection. Attention was drawn to the fact that the qualification directive, at

Art.2(e), contains a definition of persons eligible for subsidiary protection which uses the term "who does not qualify as a refugee". It,

thus, seems clear that a person cannot be both a refugee and a person entitled to subsidiary protection. Rather subsidiary protection

is designed to offer international protection in cases not captured by the internationally recognised definition of refugee. On that

basis it is argued on behalf of the State that it is open to a Member State, in transposing the qualification directive, to adopt a

separate process for the consideration of whether a person is entitled to refugee status, on the one had, and subsidiary protection,

on the other hand. As pointed out in Okunade Ireland is, indeed, unique among the Member States of the EU in having adopted such a

divided process. Some of the practical consequences (adverse in this court's view) of that divided process are set out in Okunade.

However, the fact that a divided process may be far from ideal does not, of course, mean that such a process necessarily involves

any failure properly to transpose the qualification directive.

2.6 However, it does not seem to me that the real question of Union law which arises on this appeal is as to whether Ireland can

introduce a divided process. Rather the question is as to whether, having introduced a divided process, Ireland is entitled to require

persons who do not believe that they can meet the criteria for refugee status, to nonetheless apply for that status and go through at

least a sufficient part of the relevant process, sufficient to enable them to be refused refugee status, before initiating an application

for subsidiary protection.

2.7 The question which arises is as to whether that aspect of the Irish regime is compatible with the qualification directive. In my

view the answer to that question is not clear and this is not, therefore, a case where it can be said that the issue arising, which is

necessary for a determination of the appeal, is acte clair. It follows that I favoured the court's decision to make a reference in the

form annexed to the ECJ.

2.8 It is then necessary to turn to the issues which arise, as a matter of Irish law, in Mr. Nawaz's plenary proceedings.

3. The Plenary Proceedings - the Issues

3.1 As pointed out earlier the principal challenge in the plenary proceedings involves a contention that s. 3 of the 1999 Act is

inconsistent with the Constitution by failing to provide an opportunity for an immigrant who wishes to make bona fide representations

for humanitarian leave, to depart from the State without a deportation order in the event that those representations should be

rejected. It should be noted that the plenary proceedings also seek a declaration of incompatibility of s.3 with the European

Convention on Human Rights ("ECHR") on a similar basis.

3.2 Section 3 of the 1999 Act, in relevant part, is in the following terms:-

“(1) Subject to the provisions of section 5 (prohibition of refoulement) of the Refugee Act, 1996, and the subsequent

provisions of this section, the Minister may by order (in this Act referred to as “a deportation order”) require any non-

national specified in the order to leave the State within such period as may be specified the order and to remain

thereafter out of the State.”

Subsection (2) specifies the categories of persons against whom a deportation order may be made. Mr. Nawaz was deemed to fall into

category (i) “a person whose deportation would, in the opinion of the Minister, be conducive to the common good.” The section

continues:-

“(3) (a) Subject to subsection (5), where the Minister proposes to make a deportation order, he or she shall notify

the person concerned in writing of his or her proposal and of the reasons for it and, where necessary and possible,

the person shall be given a copy of the notification in a language that he or she understands.

(b) A person who has been notified of a proposal under paragraph (a) may, within 15 working days of the sending of

the notification, make representations in writing to the Minister and the Minister shall—

(i) before deciding the matter, take into consideration any representations duly made

to him or her under this paragraph in relation to the proposal, and

(ii) notify the person in writing of his or her decision and of the reasons for it and,

where necessary and possible, the person shall be given a copy of the notification in

a language that the person understands.

(4) A notification of a proposal of the Minister under subsection (3) shall include—

(a) a statement that the person concerned may make representations in writing to the Minister within 15 working

days of the sending to him or her of the notification,

(b) a statement that the person may leave the State before the Minister decides the matter and shall require the

person to so inform the Minister in writing and to furnish the Minister with information concerning his or her

arrangements for leaving,

(c) a statement that the person may consent to the making of the deportation order within 15 working days of the

sending to him or her of the notification and that the Minister shall thereupon arrange for the removal of the person

from the State as soon as practicable, and

(d) any other information which the Minister considers appropriate in the circumstances.”

However, as pointed out, this appeal is not concerned with the substance of the allegation that the relevant section is inconsistent

with the Constitution. Rather the appeal is brought by the State against the finding of Laffoy J. that s.5 of the 2000 Act does not

apply.

3.3 Section 5 of the 2000 Act, in relevant part, is in the following terms:-

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

(a) a notification under section 3(3)(a) of the Immigration Act, 1999 ,

(b) a notification under section 3(3)(b)(ii) of the Immigration Act, 1999 ,

(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.”

3.4 Some aspects of that section should immediately be noted. The first is that there is no express mention, in the list of the types of

measures specified as coming within the scope of s.5, of claims involving declarations of inconsistency with the Constitution. Rather

the section specifies a long list of separate types of measures which can be taken under the 1999 Act and certain other legislation. In

addition it needs to be noted that the underlying restriction contained in s.5 is against questioning the validity of the various specified

measures "otherwise than by way of an application for judicial review". In order for s.5 to be engaged it is necessary, therefore, that

it can be said that a person is questioning the validity of one or other of the types of measures listed in the section. If that test is

not met then it is clear that the section has no application and it follows that any procedure ordinarily available for seeking the relief

claimed can be maintained.

3.5 It seems to me, therefore, that the question which arises on this appeal comes down to a determination of whether an action of

the type brought by Mr. Nawaz in the plenary proceedings can be said to be one in which he is questioning the validity of any of the

listed measures set out in section 5. The only mention of s.3 of the 1999 Act in the list of measures set out in s.5 of the 2000 Act is

to be found in the first three specified measures as cited earlier. The first such specified measure is a "notification under s.3(3)(a) of

the" 1999 Act. Such a notification arises where the Minister proposes to make a deportation order. I do not read the proceedings

commenced by Mr. Nawaz as seeking to question the constitutionality of that provision or to contest the validity of the notification

given to him of the Minister's intention to deport him. Instead, it is what happens after such notification is received that forms the

focus of Mr. Nawaz's complaint.

3.6 The second matter specified in s.5 of the 2000 Act is a "notification under s. 3(3)(b)(ii) of the" 1999 Act, that is a notification of

the decision of the Minister, in a case after representations have made seeking humanitarian leave, on whether to make a deportation

order. The substance of Mr. Nawaz's claim in this case is that such a notification (if it immediately and automatically gives rise to a

deportation order) cannot constitutionally take place for in those circumstances he would not be given an opportunity to depart the

jurisdiction without the making of a deportation order. It does have to be said that in the course of the hearing before this court the

question did arise as to whether s. 3(3)(b)(ii) really does require that there be no gap between the notification mandated by that

subsection and the actual making of a deportation order. This hearing is not the place to resolve that question. However, if it were to

transpire to be the case that the section does permit such a gap, and if it were to be established that the Constitution required an

opportunity to be given to someone who had failed to persuade the Minister to grant humanitarian leave to depart voluntarily before a

deportation order was made, then it is possible that the resolution of such matters could be achieved by placing a constitutional

construction on s. 3(3)(b)(ii) such as required the Minister to afford a short gap between notifying a decision to deport

notwithstanding such representations as had been made and the making of a formal deportation order. In that eventuality the

relevant section would not, of course, be found to be inconsistent with the Constitution for there would be an interpretation which

could be placed on the section which would allow the section to meet any constitutional obligation which might be found to exist to

afford a person, who had failed in their application for humanitarian leave, an opportunity to depart without a formal deportation

order.

3.7 However, such matters are to be decided if and when a court comes to consider the substance of these issues. Suffice it to say

that Mr. Nawaz's case must clearly be to the effect that, in the event that the Minister is required by s.3(3((b)(ii) to make a

deportation order at the same time as notifying a refusal of an application for humanitarian leave, the legislation which requires the

Minister to so act is inconsistent with the Constitution. However, if that case were to be made out then it is clearly the making of the

deportation order at the same time as the notification which would be held to impinge Mr. Nawaz's rights. There could be nothing

wrong with the Minister being entitled to notify an applicant of a failed humanitarian leave representation as such. Even on Mr.

Nawaz's case the only constitutional infirmity stems from the fact that there is no gap between such a notification and the making of

the deportation order. It follows that it must be the making of a deportation order without affording the relevant applicant the

opportunity to leave voluntarily after notification of the failure of a humanitarian leave application that breaches the constitutional

entitlement asserted on behalf of Mr. Nawaz (assuming that such a constitutional entitlement is found to exist).

3.8 It is, of course, the case that a questioning of such a deportation order is the third category of measure specified in s. 5 of the

2000 Act which is required only to be sought by judicial review proceedings maintained in the manner mandated by the section.

3.9 It seems to me to follow from that analysis that the real question which arises on this appeal is as to whether, in the

circumstances of this case, a challenge to the validity of s.3, (focused as it must be, for the reasons set out, on an assertion that

the making of a deportation order without there being a gap after notification of a decision to refuse humanitarian leave, is

unconstitutional) is a challenge in which Mr. Nawaz can be said to "question the validity" of either or both of a notification or a

deportation order so as to engage s.5. In that context it is next necessary to turn to the High Court decision.

4. The High Court Decision

4.1 In the High Court, Laffoy J. considered two authorities relied on by the State in support of its contention that any challenge to s.

3 had to be initiated by judicial review and not by plenary proceedings. The first, Goonery v. Meath County Council [1999] IEHC 15,

concerned a planning dispute, in which the reliefs sought by the relevant applicant were held to be impermissible attempts to

circumvent a direct challenge to the validity of a planning permission contrary to s. 82(3A) of the Local Government (Planning and

Development) Act 1963 (as amended). Laffoy J. noted that the relevant finding of Kelly J. in Goonery has since been quoted with

approval in Lennon v. Cork City Council [2006] IEHC 438.

4.2 Laffoy J. also considered the dictum of Barrington J. in Riordan v. An Taoiseach (No. 2) [1999] 4 I.R. 343, where it was stated

that, in certain instances, where a challenge to an administrative decision develops into an attack on the constitutionality of the

underlying Act, the more correct means of challenge may be by plenary action. At p.350 of his judgment, Barrington J. stated:-

“This Court accepts that the system of judicial review referred to in O. 84 of the Rules of the Superior Courts, 1986,

is a very useful jurisdiction. It recognises also that an application for judicial review commencing with an attack on

a particular order or administrative decision, may, as the proceedings unfold, raise constitutional issues and develop

into an attack on a particular Act of the Oireachtas. Clearly the issue ought to be disposed of in the quickest way

possible and the quickest way to do this may be to decide it in the judicial review proceedings, see the comments

of Walsh J.in The State (Lynch) v. Cooney [1982] I.R. 337 at page 373. No rigid rule should be laid down on the

matter. But when the primary relief claimed by an applicant for judicial review is the validity of an Act or the

repugnancy of a Bill, having regard to the Constitution, this Court considers that the case is not an appropriate one

for judicial review, and that the applicant ought to be left to claim relief, if any, in a plenary action.”

4.3 However, Laffoy J. came to the view that Mr. Nawaz was not attempting to challenge the validity of the notification under s.3 of

the 1999 Act in a manner similar to the applicant in Goonery, but was rather questioning the validity of the 1999 Act, in that it

deprived him of the opportunity of leaving the State of his own volition without a deportation order being made against him, after he

has made representations to the Minister in accordance with s. 3(3)(b) of the Act of 1999. Following an analysis of s. 5 of the 2000

Act, Laffoy J. held that the relief sought by the applicant fell outside the scope of that section.

4.4 It would seem that the key finding of the trial judge is that which appears in the final sentence of para. 5.8 of her judgment. As

the trial judge correctly pointed out the only relief claimed in these proceedings is declaratory relief concerning the validity of s.3 of

the 1999 Act having regard to the Constitution and as to the consistency of that section with the ECHR. As Mr. Nawaz did not seek

any consequential orders, the trial judge came to the view that these proceedings were not caught by s.5. Laffoy J. placed particular

reliance on the fact that Mr. Nawaz did not seek any declarations which directly or indirectly sought to suggest that the making of a

deportation order or the giving of a notification in accordance with s.3(3)(b)(ii) of the 1999 Act were invalid on the facts of his case.

Rather his sole challenge was to the underlying statutory regime.

4.5 It is also instructive that Laffoy J. went on to consider locus standi. As the Minister had yet to make a deportation order (at the

time of the High Court hearing), counsel for the Minister contended that an attempt to challenge the constitutionality of s. 3 of the

Act 1999 was premature. It was said that it was only when a deportation order was actually made that it would be open to Mr.

Nawaz to challenge the legislation.

4.6 Relying on the judgment of Henchy J. in Cahill v. Sutton [1980] I.R. 269, as her starting point on this issue, Laffoy J. then turned

to the decision of Carroll J. in Curtis v. Attorney General [1985] I.R. 458, where the plaintiff was held to have locus standi where

there was an “imminent danger of a determination affecting his rights”. The trial judge also referred to Desmond v Glackin (No.2)

[1993] 3 I.R. 67, where the Supreme Court rejected a similar prematurity contention in relation to a challenge to s. 10(5) of the

Companies Act 1990.

4.7 On the basis of those authorities Laffoy J. held that Mr. Nawaz had sufficient locus standi to bring a claim of this nature, despite

the fact that a final determination had yet to be made by the Minister.

4.8 There is, of course, potentially a connection between the two issues. What would be the point, from Mr. Nawaz's perspective, in

a finding that s.3 was inconsistent with the Constitution if that finding were not to be used to achieve the practical gain of

preventing a deportation order being made. This is an issue to which it will be necessary to return.

4.9 It is next necessary to turn to the case law.

5. The Case Law

5.1 In addition to Goonery and Lennon, Counsel for the State before this court also placed reliance on K.S.K Enterprises Limited v. An

Bord Pleanála [1994] 2 I.R. 125. K.S.K Enterprises was referred to as authority for the proposition that it was legitimate, in order to

achieve finality, for the Oireachtas to lay down rigid requirements which govern the way in which a challenge to certain administrative

decisions can be made and that non-compliance with such conditions can amount to a bar on any other form of challenge. It was

submitted that a similar desire for finality in respect of immigration decisions underlies s. 5 of the 2000 Act.

5.2 In Goonery, the applicant sought declarations to the effect that the relevant planning authority had not properly determined a

planning application. However, he did not seek to challenge the validity of the planning permission as such. Having cited from K.S.K.,

Kelly J. looked to the ultimate intention behind the applicant’s approach, stating:-

“Whatever about the way in which these are worded, they plainly seek to impugn the validity of the decision to

grant permission. If these reliefs were granted, they would undoubtedly mean in practical terms that the decision of

the Meath County Council was invalid. This is particularly so in the case of relief No. (11). The mere fact that an

Order was not sought quashing the permission in question does not mean that the validity of the permission was not

being questioned. It was, and so the provisions of the section applied and were not complied with since the

application was moved before Budd J. ex parte and not on notice as the section requires.”

5.3 Lennon involved another attempt by stealth to undermine the validity of an administrative act. Section 82 of the Local

Government (Planning and Development) Act 1963 (as amended) was in force at the time of the relevant planning determination in

that case, which section provided that a challenge to such a decision of a planning authority had to be made by way of judicial

review taken within two months of the impugned decision. The planning authority had directed the plaintiff to publish a further public

notice of her application. A number of years later she sought to challenge this direction as incorrect and, as a consequence, asserted

an entitlement to default planning permission. Applying the approach of Kelly J. in Goonery, Smyth J. held that this amounted to an

impermissible challenge to the decision of the planning authority outside of the time limits set down in legislation. Thus it seems clear

that the analogous provisions to be found in planning legislation, which require challenges to a range of decisions made in the planning

context to be brought only by judicial review proceedings commenced within a strict time limit, have been interpreted consistently by

the High Court as extending to cases where declarations were sought as to the frailty of the decisions concerned without a formal

order quashing the relevant decision being sought or a formal declaration as to the invalidity of the measure concerned being claimed.

5.4 In response to the possible argument that Mr. Nawaz could have included any claim which he wished to make concerning the

constitutional validity of s.3 of the 1999 Act in appropriate judicial review proceedings, counsel for Mr. Nawaz referred to M.A.U v.

Minister for Justice, Equality and Law Reform (No.1) [2010] IEHC 492, in which the applicant sought to challenge a deportation order

on the basis that the Minister had adopted an inflexible policy rule of making deportation orders which banned applicants from re-

entering the State. The High Court ruled that the Minister had no discretion in the matter, as the legislation was clear in its meaning.

However, there was some suggestion by the trial judge that the underlying legislation may have been unconstitutional. The applicant

then sought to raise that constitutional issue but in M.A.U. v. Minister for Justice, Equality and Law Reform (No.2) [2011] IEHC 95,

the trial judge held that, at that late stage, he did not have jurisdiction to amend the proceedings. Counsel for Mr. Nawaz submits

that an application under s. 5 of the 2000 Act might well have been similarly dismissed as there was no suggestion that the

notification or the deportation order, itself, was unlawful.

5.5 On the question of prematurity or lack of locus standi reference was made to Desmond v Glackin (No.2) where the relevant

applicant was at risk of punishment “in a like manner as if he had been guilty of contempt”, if an inspector appointed under the

Companies Act 1990 certified a refusal of the applicant to attend before him, pursuant to s.10(5) of that Act. On that basis, this

Court held that he had locus standi as he had an immediate and direct interest in the constitutional validity of the section, even

though no such certificate had yet been issued.

5.6 Counsel for the State also relied on A.H.P. Manufacturing B.V. v. Director of Public Prosecutions [2008] 2 I.L.R.M. 344. In that

case, the applicant sought to challenge the constitutionality of certain sections of the Environmental Protection Act 1992 (as

amended), after it had been charged with a number of offences relating to the disposal of waste. Section 87(10) of the 1992 Act

restricted all challenges to the grant or refusal of a waste license to an eight week period beginning at the date of the decision in

question. The High Court (O’ Higgins J.) held that the applicant was:-

“precluded from bringing these proceedings as he is clearly many years outside the time limits set out in s. 87(10) of

the Environmental Protection Agency Act 1992 (as amended)”

Counsel contended that a similar situation applies to Mr. Nawaz, in that by failing to challenge the notification or the deportation

order in the manner prescribed by s. 5 of the 2000 Act, he has no locus standi to challenge the constitutionality of s. 3 of the Act of

1999.

5.7 In the context of the argument as to whether it was possible to separate a decision under s.3(3)(b)(ii) from a deportation order

counsel for the State relied on Lelimo v. Minister for Justice, Equality and Law Reform [2004] 2 I.R. 178, where Laffoy J. held that

the making of a deportation order cannot be challenged by impugning its execution. Execution was, it was pointed out, a purely

administrative act in which the Gardaí have no discretion. Similarly, counsel for the Minister submitted that the notification to deport

and the deportation order itself are inseparable as the deportation flows naturally from the notification.

6. Discussion

6.1 It seems to me to follow from that case law that the question of whether a provision such as that contained in s.5 of the 2000

Act is engaged is one to be looked at as a matter of substance rather than as a matter of form. As Kelly J. pointed out in Goonery

the reliefs sought in that case (which were declaratory in nature) "would undoubtedly mean in practical terms that the decision of

Meath County Council was invalid". It seems to me that the approach of Kelly J. in that case was correct. The question to be asked is

whether, if the relief is granted, it will amount to a determination to the effect that a particular type measure specified in the section

is invalid or, to use the words of s.5 itself, has had its validity successfully questioned.

6.2 The statutory purpose of provisions such as s. 5 and its equivalent provisions in planning legislation which were under

consideration in Goonery, is to ensure that there will be a timely and complete determination of any issues of any sort which might

have as their effect the invalidity or one of the types of measures specified in the legislation in question. It seems to me that an

action, brought in the context of the relevant process which is being applied to Mr Nawaz, which seeks a declaration of invalidity of

the underlying legislation under which the particular measure can be adopted, can be described as a challenge which has the potential

to question the validity of the relevant measure. The only purpose of Mr. Nawaz questioning the constitutionality of s.3 of the 1999

Act is so that any measures which might be adopted under that section will be regarded as invalid. If Mr. Nawaz were not exposed to

the risk of orders being made under s.3 then he would, of course, have no locus standi to challenge the constitutionality of the

section in the first place. It is only because he is exposed to such orders (dependent on the Minister's decision on humanitarian leave)

that he could have locus standi. However, that very fact seems to me to place Mr. Nawaz in a category where it can be said that the

only purpose of his constitutional challenge is to render any such measures as might be adopted by the Minister invalid. It is a pre-

emptive strike designed to prevent the Minister from making a deportation order at the same time as communicating a decision to

decline humanitarian leave (assuming that such be the Minister's decision). It seems to me that such a pre-emptive strike is clearly

one designed to question the validity of any order which might be made.

6.3 That overall view is, in my judgement, strengthened by a consideration of the fact that Mr. Nawaz did seek, in the plenary

proceedings, an interlocutory injunction restraining the Minister from issuing a deportation order. The notice of motion seeking this

relief was issued on the 20th May, 2011, five days prior to the delivery by Laffoy J. of the judgment under appeal and a written

judgment, Nawaz v. Minister for Justice, Equality and Law Reform [2011] IEHC 459, refusing the interlocutory injunction, was

delivered on the 7th July, 2011. As appears from that judgment, the basis for refusing an interlocutory injunction was the view of the

trial judge that the balance of convenience did not favour its grant. The trial judge held that a challenge to any deportation order

brought after such order was made would effectively protect Mr. Nawaz's interests. However, the very fact that an injunction to

restrain deportation was brought in proceedings which, so far as the relief claimed was concerned, sought only to question the

validity of the underlying relevant legislation, confirms that the only practical purpose for seeking a declaration of inconsistency with

the Constitution was to render invalid any order which the Minister might make for deportation under section 3.

6.4 I should, however, also record my agreement with the views expressed by Barrington J. in Riordan. In the absence of statutory

provision to the contrary, the normal procedure by which a case, in which the primary relief claimed concerns a declaration of

invalidity of an Act having regard to the Constitution, should be brought is by plenary proceedings rather than judicial review.

However, as was pointed out by Barrington J. in the passage from the judgment in Riordan already cited, there is no rigid rule to that

effect. In any event any such practice would have to yield to a contrary statutory requirement.

6.5 It is important to emphasise that s.5 of the 2000 Act clearly contemplates the possibility that challenges to the constitutionality

of statutes in the immigration field may be required to be brought by judicial review proceedings. Section 5(3) of the 2000 Act, which

limits the power of a party to appeal from the High Court to this court save on a certificate from the High Court, contains an express

exclusion in s. 5(3)(b) so that any question as to the validity of any law having regard to the provisions of the Constitution may be

raised as of right on an appeal. As was noted by the trial judge, the section, therefore, clearly contemplates the inclusion of

constitutional challenges within judicial review proceedings. As has already been noted there is no express reference to a

constitutional challenge to any particular measure in the list of matters whose validity cannot be questioned under s.5 save by judicial

review. Nonetheless the section as a whole clearly contemplates that questions of constitutional validity can arise in proceedings to

which the section applies. It clearly follows that the intention of the legislature was that a constitutional challenge, which would have

the effect of questioning the validity of one of the listed measures, would itself be caught by section 5. Otherwise there would be no

point in s.5(3)(b).

6.6 It is, of course, the case that the measure which is sought to be rendered invalid, on the facts of this case, is a measure which

had not yet been adopted at the time when Mr. Nawaz's challenge came before the High Court. At that time no deportation order had

been made and, indeed, no notification of the Minister's decision on the representations made, in respect of humanitarian leave, on

behalf of Mr. Nawaz had been communicated. In that sense what Mr. Nawaz sought to achieve was to render invalid a measure which

might be adopted in the future by the Minister (viewed from the time when the High Court action was heard) rather than to render

invalid a measure already adopted. The method sought to be invoked was the removal of the legal basis for the adoption of the

measure in the first place (as a result of the section which provides that legal basis being declared inconsistent with the

Constitution). However, it does not seem to me that proceedings intended to render invalid, in advance, a specific feared measure are

to be characterised, in substance, as being any different to almost identical proceedings which seek to render invalid the same type

of measure at a time after the measure has been adopted. Either the relevant measure is one which is caught by s.5 or it is not. If it

is caught by s.5 then any constitutional challenge which has as its natural and intended consequence the rendering invalid of such a

measure already adopted or such a measure should it be adopted is, in my view, caught by s.5.

6.7 It should be made clear, therefore, that whatever may be the merits or demerits of raising issues concerning the validity of a

statute having regard to the Constitution in judicial review as opposed to plenary proceedings in other types of litigation there is no

doubt but that challenges to the validity of statutory provisions which have as their aim and/or obvious effect, the questioning of the

validity of measures made or likely to be made which are captured by s.5 of the 2000 Act, must be brought by judicial review. Once,

however, leave is given, the court can direct, in accordance with O.84 r.22(1) of the Rules of the Superior Courts, that the formal

application for judicial review be made by plenary summons rather than by the default method of the application being by notice of

motion. It follows that, in an appropriate case, the court can direct that judicial review proceedings be brought by plenary summons.

However, it is important to emphasise that there is a difference between judicial review proceedings, for which leave has been

granted, being brought, by direction of the court, by plenary summons, on the one hand, and a party simply issuing a plenary

summons in the ordinary way and without any leave, on the other hand. What s.5 of the 2000 Act requires is that any application

caught by that section must be initiated as a judicial review application. It may be that, in an appropriate case, proceedings having

been so commenced, the court may direct that, once leave is given, the substantive application for judicial review should proceed by

plenary summons.

6.8 In addition I am not satisfied that M.A.U. has any real application to the facts of this case. It is true that, on the basis of the

case which Mr. Nawaz wishes to make, there is no challenge, in one sense, to the validity of a notification of a decision on

humanitarian leave or the making of a deportation order as such. It is not, it would appear, suggested that, assuming s.3 to be

consistent with the Constitution, the giving of the relevant notification or the making of a deportation order would necessarily be

otherwise invalid. However, that approach seems to me, in reality, to beg the question. The truth is that the substance of Mr.

Nawaz's claim is that the giving of the notification and the making of a deportation order at the same time, without giving him an

opportunity to leave voluntarily without the making of the deportation order, is an unconstitutional act. Those measures would,

therefore, be invalid (on the assumption that counsel for the State is correct in arguing, following Lelimo, that the two measures are

inseparable), in that the section requires (on that assumption) both to be made at the same time. If the section is invalid for the

reasons asserted by Mr. Nawaz then measures adopted under the section in a manner mandated by the section would themselves

necessarily be invalid.

6.9 I can see no reason why, on the facts of this case, a single challenge, brought by judicial review, to any of the measures adopted

or to be adopted under s.3 of the 1999 Act coupled with a challenge to the validity of that section could not have been brought. For

example a judicial review proceeding in which a declaration was sought that the Minister was obliged to provide for a suitable gap

between the notification of an adverse decision on humanitarian leave and the making of a deportation order could have been

brought. Such a proceeding could have sought a declaration that any deportation order made without providing for such a gap would

be invalid. The application could further have suggested that a constitutional construction of s.3 required that such a gap necessarily

be implied but that if, contrary to that assertion, the section mandated that no such gap be allowed, the section was inconsistent

with the Constitution. Variations on that theme could also, of course, have been contemplated.

6.10 In those circumstances it seems to me that two conclusions can be reached. First, the substance of the challenge to s.3

brought in these plenary proceedings does involve a questioning, albeit indirectly, of the validity of measures which were feared might

be taken in Mr. Nawaz's case which measures come within those listed in s.5 of the 2000 Act. The second consequence of that

analysis is that there was no reason in practice why appropriately constituted judicial review proceedings could not have been

maintained.

6.11 It follows that I respectfully disagree with the trial judge and would conclude that those aspects of the challenge brought in

these plenary proceedings which assert the constitutional invalidity of s.3 of the 1999 Act are caught by s. 5 of the 2000 Act and,

thus, cannot validly be brought by plenary summons. However, for reasons which I would hope to explore, it does not seem to me

that that is the end of the matter.

7. Some Further Considerations

7.1 In the course of the hearing the court was informed that, subsequent to the events which were under consideration by the High

Court in this case, the Minister decided not to afford Mr. Nawaz leave to remain in Ireland and made a deportation order against him.

The court was further given to understand that a judicial review challenge to that deportation order was brought in conformity with

the requirements set out in s.5 of the 2000 Act. It follows that there is an extant challenge to that deportation order.

7.2 The reason why I have concluded that the challenge to the constitutionality of s.3 of the 1999 Act contained within these

plenary proceedings cannot validly be maintained is, for the reasons already analysed, because s.5 requires any such challenge to be

brought by judicial review and in conformity with the other requirements set out in s.5 itself. It follows that there is no reason in

principle why the constitutional issues which Mr. Nawaz had sought to raise in the plenary proceedings could not have been added as

additional grounds of challenge in the judicial review proceedings brought to question the validity of the deportation order

subsequently made.

7.3 Counsel for Mr. Nawaz made the point that it was not considered appropriate to include such a challenge in those judicial review

proceedings because there was already in being, at that time, a separate constitutional challenge in the form of these very plenary

proceedings. That was, it seems to me, an entirely reasonable point for counsel to make. I should note that counsel also explained

that part of the reason why a plenary summons challenge had been brought to the constitutionality of s.3 (rather than judicial review

proceedings) was because of an interpretation placed on comments made by a judge of the High Court in separate proceedings in

which an issue was sought to be raised concerning the constitutionality of a legislative provision in a judicial review application in the

immigration field. For the reasons already set out I am not satisfied that there was any procedural difficulty with maintaining a

challenge to the validity of s.3 on the grounds asserted by Mr. Nawaz in judicial review proceedings.

7.4 However, it seems to me that there was a degree of understandable confusion about the proper procedure to be followed in this

case. It would not be in the interests of justice if Mr. Nawaz were to be shut out from arguing the constitutional points touched on in

this judgment because of that procedural confusion. In addition it is clear that, even before Mr. Nawaz initiated his judicial review

proceedings in relation to the deportation order actually now made, he had formed the intention of challenging the constitutionality of

s.3 of the 1999 Act in the manner outlined earlier and had put that intention into effect by the commencement of the plenary

proceedings.

7.5 In the light of all of those circumstances I can see no reason why an application could not be made to amend the judicial review

proceedings already in being, in which the relevant deportation order is challenged, by the addition of a head of relief seeking

declarations as to the inconsistency of s.3 of the 1999 Act with the Constitution and adding the grounds specified in the statement

of claim in the plenary proceedings as a basis for seeking such a declaration.

7.6 It is true that, ordinarily, an amendment to a judicial review application to which s.5 applies can only be allowed outside the time

for bringing such an application, where an extension of time for the raising of the new issues on a stand alone basis would itself have

been appropriate. However, given that proceedings challenging s.3 were already in being prior to the making of the deportation order

in this case, it seems to me that there would be more than adequate grounds for extending time in this case.

7.7 In those circumstances it seems to me that the solution to the procedural difficulties which have arisen in this case is met by, in

effect, these proceedings being grafted on to the already existing judicial review challenge to the deportation order made in respect

of Mr. Nawaz with all issues being determined within those proceedings. Such a course would allow Mr. Nawaz to raise the

constitutional issues which he has sought to raise in these proceedings but in a form which is consistent with s.5 of the 2000 Act.

There will, therefore, be no injustice to Mr. Nawaz. Likewise, proper respect will have been paid to the decision of the Oireachtas to

enact section 5.

8. Conclusions

8.1 In conclusion I would propose that the court makes the following orders:-

1. an order, in appeal 87/2011, of reference to the ECJ in the form annexed to this judgment;

2. an order, in appeal 83/2011, allowing the appeal of the State against the finding of the High Court that those aspects

of the challenge brought in the plenary proceedings which sought to question the validity of s.3 of the 1999 Act having

regard to the Constitution could proceed as not being prohibited by s.5 of the 2000 Act. In substitution for the decision of

the High Court I would strike out those aspects of the plenary proceedings which seek to question the validity of s.3 of

the 1999 Act on constitutional grounds on the basis that the plenary procedure adopted is not permitted by s.5 of the

2000 Act.

8.2 In addition I would wish to record my view that an application to amend the existing judicial review challenge to Mr. Nawaz's

deportation order so as to include a challenge to the consistency of s.3 of the 1999 Act with the Constitution in the same terms as

that specified in the plenary proceedings, should be made and I would also wish to state that I can see no reason why any such

application should not be allowed in all the circumstances of this case.

8.3 Finally, it is necessary to note, as already mentioned, that aspects of the plenary proceedings involved a claim for a declaration

that s.3 was inconsistent with the ECHR. It would not seem to me to accord with proper practise or the efficient use of court time

that two separate proceedings remain in being. In those circumstances it seems to me that it would not be unreasonable for the High

Court to impose, as a condition of allowing the amendment already touched on, which would bring the constitutional argument within

the scope of the judicial review proceedings already in being, a requirement that the claims brought by reference to the ECHR in the

plenary proceedings be also included by amendment in those same judicial review proceedings so that all issues between the parties

can be dealt with in one set of proceedings. A further consequence of such a condition would, of course, be that the plenary

proceedings would then, necessarily, have to be discontinued.

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