Court upholds ministerial delegation to officials for deportation decisions under the Carltona principle.

An Chúirt Uachtarach

The Supreme Court

Record number: 2011/796JR

Appeal number: 440/2011

Hardiman J

MacMenamin J

Laffoy J

Dunne J

Charleton J

BETWEEN:

W A T, A F T (A MINOR SUING BY HER FATHER AND NEXT FRIEND W T), B T G AND

M F T (A MINOR SUING BY HER MOTHER AND NEXT FRIEND B G)

APPELLANTS

AND

MINISTER FOR JUSTICE & EQUALITY, THE ATTORNEY GENERAL AND IRELAND

RESPONDENTS

Judgment of Mr Justice Charleton delivered on Friday the 31st day of July 2015

1. I agree that the judgment of Hogan J should be upheld and with the judgment of MacMenamin J. The principle of the delegation of

powers by ministers of Government to their officials was part of the administrative system inherited by the State under Article 50 of

the Constitution. As Hamilton CJ stated in Devanney v Shields [1998] 1 IR 230 at 254, the delegation of decision-making from a

minister to his or her officials is “a common law constitutional power, but one which is capable of being negatived or confined by

express statutory provision.” When any issue arises as to whether any such delegation has been rendered impermissible by statute,

as Denham J states at page 261 of Devanney, the task of a court becomes “a matter of construing the relevant legislation.”

2. Any such delegated power, though exercised by an official, remains the responsibility of the minister; the decision, though made by

an official in the name of the minister, is that of the minister. As Denham J put the matter at page 261 of Devanney:

The core of the Carltona principle is that as a matter of statutory construction responsible officials may exercise some of

the statutory posers of a minister. The officials would not consult him but may yet recite words such as “I am directed by

the minister”. They are the alter ego of the minister. They exercise devolved power.

3. In referencing such power as being devolved by the minister to his or her officials, it should not be thought that what is involved is

the transmission of decision-making by a minister to officials without recourse to the ultimate source of power. For the correctness or

incorrectness of decisions, when subject to judicial review, it is always the minister who is the respondent. Were any legal defect in

administration to result in a decision being overturned, the responsibility there is that of the minister. Hence, while it may be seen as

merely a quibble over words, it seems preferable to regard the exercise of power through officials as being delegated: the minister

continues to carry responsibility, enjoys an entitlement at any time to personally exercise the relevant power, and may see it as part

of the good administration of his or her department to engage in periodic discussions with officials as to their approach. Resort by

officials to their minister, through the proper channels and in appropriate cases, is part of the balance in this delegation of powers. In

that regard, it is not for the courts to interfere with the way in which such administration is structured. Particular instances are the

only material ever available to courts and these do not, of themselves, necessarily demonstrate the efficiency of any administrative

system.

4. Where migrants come to Ireland and claim that they are being persecuted in their country of origin and that they are thus entitled

to refugee status, elaborate machinery responds to their claims. Such migrants have a duty to fully and truthfully cooperate with that

system. At least three occasions are presented to them to unfold their case. Firstly, having been interviewed and having filled out

answers to precise questions, a hearing is enabled before the Refugee Applications Commissioner. Where the result is not to

recommend to the minister that an applicant migrant be given refugee status, applicants may appeal to the Refugee Appeals Tribunal.

Save in exceptional cases, this involves a further hearing and amounts to an effective rehearing of the case made on the points

appealed. Where, again, a recommendation is not made, the minister writes what is known as the ‘three options letter’ as part of the

consideration of deportation. Included in that letter is a further opportunity to make representations as to subsidiary protection. This

concept arises not from a fear of persecution but enables migrants to represent that their country of origin is in such a state that it is

not safe for them to return there. While, in the past, various courts have commented on the length of time that these steps take, no

reasonable view is open that the machinery of government has not given to migrants, through legislation in setting up these bodies

and through administration, ample opportunity to responsibly make a case. Experience shows that resort to this transparently fair

process can be used by migrants to delay an ultimate decision.

5. While the Refugee Applications Commissioner is independent of any ministerial supervision, save as to broad policy and other

matters that in no way trammel decision-making powers, and so is the Refugee Appeals Tribunal, the final step of deciding on the

deportation of migrants is with the minister. I agree with the judgment of MacMenamin J that nothing in the legislation requires that

the minister take such decisions personally. I would also comment that by the stage of deportation there will exist an abundance of

material showing the credibility, background and motivation of the migrants involved. The approach of each minister may be different,

as indeed this case demonstrates. The principle of delegation with responsibility resting with the minister involved means that an

otherwise impossible task is fulfilled within a very busy department. Such delegation does not mean that the minister’s responsibility is

removed. How the interplay of minister and officials is managed is not for a court to decide, though the fact that there is access

between ministers and officials can be a comfort.