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European Migration Network

Summary of Irish Immigration and Asylum Case Law


1985 –2004

By
Emma Quinn
The Economic and Social Research Institute
Burlington Road, Dublin 4, Ireland

June, 2004
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LIST OF CONTENTS

Page
List of abbreviations used 4
I. INTRODUCTION 5
II. CONSTITUTIONAL ISSUES 6
i. Family, (Including Irish Born Children) 6
ii. The Illegal Immigrants (Trafficking) Bill, 1999 13
iii: The 1935 Alien’s Act 14
iv. Detention 17
v. Other Constitutional Issues 20
III. CHANGES IN THE LAW 22
IV. TIME LIMITS 26
V. THE APPEAL STAGE 29
VI. MANIFESTLY UNFOUNDED ISSUES 36
VII. CRITERIA TO BE MET TO ATTAIN REFUGEE STATUS 38
VIII. SERVICE PROVISION AND ERRORS 44
IX. DUBLIN CONVENTION/ DUBLIN II REGULATION 48
X. THE EUROPEAN CONVENTION ON HUMAN RIGHTS AND ASSOCIATION
AGREEMENTS 52
XI. OTHER ISSUES 54
Appendix - List of Cases 56

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List of Abbreviations Used

Anor Another
ECJ European Court of Justice
ICLMD Irish Current Law Monthly Digest
IEHC Ireland High Court
IESC Ireland Supreme Court
ILRM Irish Law Reports Monthly
IR Irish Reports
Ors Others
ORAC Office of the Refugee Applications Commissioner
RAT Refugee Appeals Tribunal
SI Statutory Instrument

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I. INTRODUCTION

This report contains summaries of cases relevant to immigration and asylum law in Ireland.
The document has been compiled by the Irish Contact Point of the European Migration
Network (EMN). The EMN is a Network established to provide the EU Commission and
Member States with objective, reliable and comparable information on migration and asylum
in the European Union. The Economic and Social Research Institute (ESRI) has been
designated as the Irish Contact Point and like other Contact Points across Europe has been
engaged in gathering information that will facilitate an overall view of the migration and
asylum situation across the Community and its Member States. At a later stage, when the
Network is fully operational, it is intended that the information will be made available to the
public. The initiative is being jointly funded by the EU Commission and Justice Ministries in
individual Member States.
Recent years have seen an increase in the number of asylum related cases in Irish courts.
The Office of the Refugee Applications Commissioner and the Refugee Appeals Tribunal are
the bodies responsible for processing asylum applications in Ireland. These are statutorily
independent entities established under the 1996 Refugee Act. Asylum applicants may also
appeal to the High Court and on occasion the Supreme Court – the two highest courts in
Ireland. Thus far, most case law in Ireland relates to asylum rather than immigration issues.
One particularly relevant case from the European Court of Justice is also included.
This report is not intended as an exhaustive inventory of Irish case law but rather an attempt
to document cases which have impacted on the formation of immigration and asylum policy
in Ireland in the last two decades. The Summary of Irish Immigration and Asylum Case Law
is structured around ten thematic categories. Frequently cases will touch on a number of
issues but they will only appear once here. Within these categories, the cases are presented
chronologically in reverse order.
The sources that have used to compile the report are manifold, however the most significant
have been British and Irish Legal Information Institute (www.bailii.org); Westlaw
(www.westlaw.ie, part of the Roundhall, Sweet and Maxwell Group); the Refugee Appeals
Tribunal; the Department of Justice; and the research publication: Kenny, C. (2003) Asylum
In Ireland, The Appeal Stage: A Report on the Fairness and Sustainability of Refugee
Determination at Appeal Stage, Irish Refugee Council, Dublin.
Citations are included for all reported cases within the document. Where a case is marked
‘unreported’ this means that it was not included in any of the publications at the time of
writing. For the purposes of this document a summary was therefore drawn from the original
court judgment and/or press reports. Citations are used to indicate where a report of the case
may be found. In the process of compiling the current document a number of sources may
have been used within the summary of a single case, however, usually only one citation is
supplied here. In the majority of cases the citation should be read as follows. (The name of
the case should precede the citation in italics). Square brackets indicate the year of
publication. Where applicable a volume number of the relevant publication is then supplied.
This is followed by an abbreviation of the source publication, see list of abbreviations for the
publications used here. Finally the page number is given. (Example: Lobe & Osayande v
Minister for Justice, Equality and Law Reform [2003] 3 ICLMD 57.) In regard to the European
Court of Justice the citation is simply a representation of the case number followed by the
year (200-02).
The abbreviations IESC and IEHC indicate a new development in citation. These are vendor
neutral and medium neutral. This means that rather than directing the user to one specific
location the identifier is attached to the case instead and applies regardless of where the
case is reproduced. This type of system has not been fully implemented in Ireland and IESC
and IEHC citations do not have full official recognition. Where possible therefore preference
is given in this report to the tradition citation system described above.

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II. CONSTITUTIONAL ISSUES
i. Family, (Including Irish Born Children)

Man Lavette Chen & Kunqian Catherine Zhu v Secretary of State for the Home Office
(UK)

European Court of Justice (ECJ) Opinion, 18/05/2004


C-200/02
Description
Ms. Chen, a Chinese national travelled to Belfast in order to give birth to her daughter
Catherine on the island of Ireland (i.e. in Northern Ireland or the Republic). The child was
immediately registered as an Irish citizen as provided for under the Irish Constitution as it
then stood. Ms. Chen and her husband resided and worked in China up to the birth of
Catherine who was their second child. Her birth represented contravention of China’s one
child policy. The family wished to reside in the UK but was refused permission to do so by
the Home Office. To the Chinese government the child is an Irish national. As a foreigner she
may apply to stay in the country of her parents for not more than 30 days at a time and then
only with the permission of the authorities. The expulsion of Ms. Chen from the UK would
therefore lead to the separation of mother and daughter.
It was found that denying Ms. Chen the right to reside in the UK to be with her daughter, who
enjoys such a right, would be "manifestly" contrary to her daughter's interests and would be
contrary to Article 8 of the European Convention on Human Rights on the right to respect for
family life. Ms. Chen must be able to invoke a right of residence deriving from that of her
young child because the contrary would result in entirely depriving her daughter's right to
reside in the UK of any effectiveness. An important dimension to this case is that Ms. Chen
was in the EU legally at the time of her child’s birth. Another significant point is that the family
is financially independent and will not rely on the UK welfare system.
The timing of this Opinion is significant, coming less than a month before a referendum to
change the Irish Constitution on 11th June 2004. The referendum has cleared the way to
altering the manner in which Irish citizenship is granted by linking it to the nationality of the
parents. It is likely this Opinion partly explains the strength of support for the Constitutional
amendment (79% voted ‘yes’ in the referendum). The ECJ may uphold or overturn this
Opinion in Autumn 2004. Despite the fact that the Constitution has now been changed the
future ECJ finding is still significant. There are approximately 11,000 families with Irish citizen
children threatened with expulsion from Ireland (see Lobe v Minister for Justice below) who,
according to this Opinion, could assert a right to live anywhere else in the EU1.

Short Description
Ms. Chen, a Chinese national traveled to Belfast in order to give birth to her daughter
Catherine on the island of Ireland. The child was registered as an Irish citizen as provided for
under the Irish Constitution as it then stood. The family was refused permission to reside in
the UK. The ECJ Opinion found that denying Ms. Chen the right to reside in the UK to be
with her daughter, who enjoys such a right, would be contrary to Article 8 of the European
Convention on Human Rights on the right to respect for family life. The Opinion came only
three weeks before a referendum was held on the question of changing the manner in which
Irish citizenship is granted. It was passed by 79% of voters.

1
Migration Policy Group (June 2004), Migration News Sheet, Brussels.

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Caldaras & Anor v Minister for Justice, Equality and Law Reform

High Court: 09/12/2003


[2003] IEHC 89
Description
The applicants, Romanian citizens, applied for refugee status and were refused. Deportation
orders were subsequently issued. The applicants challenged these orders arguing that in
determining whether or not to make the orders the Minister failed to have regard to "the
family circumstances" of each of the applicants as he is bound to do by the Immigration Act,
1999. (This Act authorises the Minister to make a deportation order but obliges the Minister
to consider inter alia the family circumstances of the intended deportee. "Family" is not
defined in the Act of 1999).
The applicants arrived in Ireland with their son and daughter-in-law. Two grandsons were
then born to their son and his wife, and permission to remain was granted to this couple as
the parents of an Irish citizen. The applicants argued that they, together with their son, his
wife and their two Irish born grandsons, form part of a close knit family unit comprising three
generations. They argued that their two Irish born grandchildren and their parents now have
a right to live in the State and this unit will be spilt if the Minister's deportation order is put into
effect.
It was submitted that the Minister had not considered the family and domestic circumstances
of the applicants. The Judge refused this argument. It was also argued that after the
Supreme Court judgments in O & L (Osayande & Lobe, [2003] 3 ICLMD 57) the concept of
"family" must now be extended to include grandparents, and in particular that the principle
that the rights of the family not to be deported can only be infringed by the Minister for grave
and substantial reasons or reasons which are proportionate.
The Judge failed to find anything in the O & L litigation that warranted extending the concept
of "family" as considered in those judgments to include grandparents within the concept of
"family". It was further submitted by the applicants that the word "family" has been held to
include grandparents in the jurisprudence of the European Court of Human Rights. The
Judge held that the Convention on Human Rights was not yet part of Irish domestic law and
therefore this argument was not valid2. The relief sought was refused.
Short Description
The applicants were disputing deportation orders on the ground that inter alia their Irish born
grandchildren, and the children's parents had been allowed leave to remain. The Judge failed
to see any reason to extend the concept of "family" to include grandparents. The Judge also
held that the Convention on Human Rights was not yet part of Irish domestic law. Therefore,
the argument that the word "family" has been held to include grandparents in the
jurisprudence of the European Court of Human Right was not valid.

2
The European Convention on Human Rights Act (2003), which incorporated the Convention into Irish domestic
law, came into force on December 31st 2003.

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Lobe & Osayande v Minister for Justice, Equality and Law Reform

Supreme Court, 23/01/2003


[2003] 3 ICLMD 57
Description
In the case of Lobe & Osayande v Minister for Justice the applicants were non-nationals and
the parents of Irish born children. The Refugee Applications Commissioner and the Refugee
Appeals Tribunal originally refused asylum on Dublin Convention grounds and a deportation
order was issued. The applicant then issued judicial review proceedings against the
deportation order. The Minister gave an undertaking not to deport the applicant pending the
determination of the proceedings, during which time a child was born in Ireland. The
applicant raised constitutional issues as grounds of judicial review. In respect of the Irish
born child it was argued that, pursuant to Article 2 and Article 40.3.1 of the Constitution,
amongst the personal rights of the citizen is the right to reside in Ireland with his or her
parents. It was also argued that it was a constitutionally recognised family which had rights
under Article 41.1.1, Article 41.2 and Article 42 of the Constitution.
The court refused judicial review and held that there were grave and substantial reasons
associated with the common good that required that the residence of parents of the Irish-
born child within the State should be terminated, even though that in order to remain a family
unit, the child would also have to leave the State. These reasons considered by the Minister
in ordering the deportation of the applicant included the insufficient length of time the family
had been in the State and the duty to apply the Dublin Convention to which Ireland was a
party. The court held that the ruling of Fajujonu v Minister for Justice ([1990] 10 ILRM 234)
did not mean that the Minister had no power to deport the parents of an Irish born child.
Short Description
The applicants had made an unsuccessful asylum application. The applicants then claimed a
constitutional right to reside in Ireland with their Irish born child. The court refused judicial
review and held that the Minister's reasons in ordering the deportation were grave and
substantial reasons associated with the common good. The court held that the ruling of
Fajujonu v Minister for Justice ([1990] 10 ILRM 234) did not mean that the Minister had no
power to deport the parents of an Irish born child.

Nastase v Minister for Justice, Equality and Law Reform

High Court, 24/07/2002


[2002] 10 ICLMD 64
Description
The applicants, Romanian nationals, challenged a deportation order made against them.
After the order was issued the applicants had sought to withdraw their asylum application
and to notify the Minister of the birth of their Irish-born child. The applicants submitted, inter
alia, that the Minister had to consider the interest of the family unit and the rights of the child.
The court refused the relief sought, and held that an asylum seeker who married an Irish
citizen, or who was the parent of a Irish-born child did not acquire an automatic right to
remain in Ireland. The court noted that the applicants had not been in the State for an
appreciable period of time and that neither the rights of the family, nor of children, were
considered as absolute rights. Referring to Fajujonu v Minister for Justice ([1990] 10 ILRM
234) the court interpreted that judgment as an indication of the standard of consideration that
would be accepted in law by the courts, and not a limitation on the Minister's discretion in this

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regard. The court held that the deportation order was therefore valid but the Minister had to
consider representations made in respect of their residency application.
Short Description
The applicants submitted, inter alia, that the Minister had to consider the interest of the family
unit and the rights of their Irish born child in deciding to make a deportation order that would
affect the family unit. The court held that the deportation order was valid but the Minister had
to consider representations made in respect of the residency application.

Ayeni v Minister for Justice, Equality and Law Reform

High Court, 18/07/2002


[2002] 10 ICLMD 61
Description
The issue was whether the Minister was entitled to deport a person who was married to an
Irish citizen. The court rejected the applicant’s challenge to the deportation order. The court
held that an Irish citizen had constitutional rights but these were not absolute. The State has
an obligation to protect with special care the institution of marriage against attack. However,
it was held that this could not be invoked to limit the Minister's discretion in relation to an
individual applicant, whose application for asylum had been refused.
Short Description
The issue was whether the Minister was entitled to deport a person who was married to an
Irish citizen. The court rejected this challenge to the deportation order and held that an Irish
citizen’s constitutional rights were not absolute. The State has an obligation to protect the
institution of marriage. However this could not be invoked to limit the Minister's discretion in
relation to an individual failed asylum seeker.

Mokrane v Minister for Justice, Equality and Law Reform

High Court, 28/06/2002


[2002] 8 ICLMD 90
Description
The applicant challenged the deportation order on the basis that he was the parent of an Irish
born child and that he intended to marry the mother of the child. The applicant contended
that his deportation would be in breach of Article 41 of the Constitution and would breach the
constitutional rights of the Irish born child. The court held that the family envisaged in Article
41 of the Constitution was that founded on marriage and, as a result, the applicant was not
entitled to its protection. It was also noted by the court that the Constitution did not confer an
absolute right on an Irish-born child to exercise rights to the company, care and parentage of
her parents within a family unit.
Short Description
The applicant challenged the deportation order on the basis that he was the parent of an Irish
born child and that he intended to marry the mother of the child. The court held that the
family envisaged in Article 41 of the Constitution was that founded on marriage and, as a
result, the applicant was not entitled to its protection.

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O. (A Minor suing by Mother & Next Friend I.A.O.) and Another v Minister for Justice,
Equality and Law Reform

Supreme Court, 06/06/2002


[2003] 1 ILRM 241
Description
In the case of O. v Minister for Justice, Equality and Law Reform the second named
applicant was pregnant and sought a judicial review of her deportation order on various
grounds. It was argued that the unborn child had a legal personality with rights under the
Constitution to include the right to birthright under Article 2 of the Constitution. The court held
that entitlement to birthright under that article was an entitlement of a person born in Ireland.
It was also argued that the deportation would infringe on the right to life of the unborn in that,
inter alia, there was no stable system of antenatal care in the country to which the applicant
would be deported. The court held that this issue was irrelevant to the legality of the
deportation.
The court also rejected the argument that fair procedures required that the deportation order
should specify the reasons for holding that the prohibition on non-refoulement did not apply
to an asylum applicant3. The court held that the reasons in the deportation order had been
sufficient. The Supreme Court dismissed the appeal.
Short Description
In the case of O. (A Minor suing by Mother and Next Friend I.A.O.) v Minister for Justice,
Equality and Law Reform the second named applicant was pregnant and sought a judicial
review of a deportation order on various grounds. It was argued that the unborn child had a
legal personality with rights under the Constitution. Among other issues it was also argued
that the deportation would infringe on the right to life of the unborn in that there was no stable
system of antenatal care in the country to which the applicant would be deported. The
Supreme Court dismissed the appeal. The court also found that deportation orders did not
need to specify the reasons for holding that the prohibition on non-refoulement did not apply
to a particular applicant.

Ayinde v Minister for Justice, Equality and Law Reform

High Court, 11/03/2002


[2002] 6 ICLMD 107
Description
The Minister made a deportation order stating that the criminal convictions and conduct of
the applicant outweighed the right of the second named applicant (an Irish born child) to the
care and company of his father. The Minister had refused the applicant’s application for leave
to remain within the jurisdiction on the grounds that he had been convicted of fraud in both
Ireland and the United Kingdom and that he had failed to comply with bail conditions laid
down by the High Court. The court held that these reasons for depriving the Irish child of the
company of the applicant were sufficient and adequate to meet the interests of the common
good. The deportation order was, therefore, upheld.

3
The principle of non-refoulement is one fundamental to refugee protection whereby a person will not be returned
to a place where their life or liberty may be threatened

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Short Description
The Minister made a deportation order stating that the criminal convictions and conduct of
the applicant outweighed the right of the second named applicant to the care and company
of his father. The court held that these reasons for depriving the Irish child of the company of
the applicant were sufficient and adequate to meet the interests of the common good. The
deportation order was, therefore, upheld.

Meta v Minister for Justice, Equality and Law Reform

High Court, 08/03/2002


[2002] 5 ICLMD 117
Description
The applicants sought an extension of time and leave to apply for judicial review of a
deportation order. The first named applicant had made unsuccessful applications for refugee
status as a Kosovan national, and for leave to remain in the State on humanitarian grounds.
The applicant then married an Irish citizen, but was subsequently deported. The couple
submitted, inter alia, that the deportation deprived the Irish woman from asserting her
constitutional rights to the company of her husband.
The court dismissed the application, claiming that in considering an extension of time the
overall merits of the application had to be taken into consideration (see G.K. v. Minister for
Justice, Equality and Law Reform, [2002] 1 ILRM 401). It was stated that the deportation took
place for legitimate reasons and it was a reasonable and permissible decision of the Minister.
The court added that the applicants’ delay in bringing these proceedings was not
satisfactorily explained.
Short Description
The first named applicant married an Irish citizen (the second named applicant). The issue
concerned whether the deportation of the non-national partner constituted an attack on the
constitutional status of the family. The court held that the decision of Minister was reasonable
and that legitimate policy decisions permitted the decision of the Minister.

Fajujonu v Minister for Justice, Ireland and the Attorney General

Supreme Court, 08/12/1989


[1990] 10 ILRM 234
Description
In the case of Fajujonu v Minister for Justice two of the appellants were a non-national
husband and wife who came to Ireland from London in 1981. They failed to report to an
immigration officer as required and stayed longer than a month without the permission of the
Minister. In 1983 their child was born in Ireland. In 1984 their situation came to the attention
of the Department of Justice and the husband was requested to leave although no
deportation order was made. The appellants started proceedings and sought to restrain the
Minister from issuing a deportation order on the ground inter alia that the child was a citizen
of Ireland and was entitled to the protection of constitutional rights under Articles 40, 41 and
42 of the Constitution which included a right to remain resident in the State and to be
parented by his or her parents within the State.

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The Supreme Court dismissed the appeal but held that where a non-national had resided for
an appreciable time and become a family unit within the State with children who were Irish
citizens, then such Irish citizens had a constitutional right to the company, care and
parentage of their parents within the family unit. The Judge stated that before making a
deportation order, the Minister would have to be satisfied that the interests of the common
good and the protection of the State and its society are so overwhelming in the
circumstances of the case as to justify the breaking up of the family. The matter was remitted
to the Minister for reconsideration of the decision to deport. The family was given the right to
apply to the High Court concerning a permit to remain in the state.
Short Description
The appellants sought to prevent the issuing of a deportation order on the grounds inter alia
that their child was a citizen of Ireland and was entitled to the protection of its constitutional
rights. The Supreme Court dismissed the appeal but held that the Irish-born child had a
constitutional right to the company, care and parentage of parents within the family unit and
therefore granted the family the right to apply to the High Court concerning a permit to
remain in the state.

Osheku v Ireland

[1986] IR 733
Description
In the case of Osheku & Others v Ireland the plaintiffs were a husband and wife and their
infant son. The husband was born in Nigeria and was not an Irish citizen, his wife and their
child were. Mr. Osheku arrived in Ireland in 1979 claiming he had come on holiday, he
remained in Ireland up to the time of the hearing in the High Court in 1986, having married
his Irish wife in 1981. Mr. Osheku was asked to leave the country on a number of occasions
and in 1983 was told he could no longer remain in Ireland unless he supplied proof that he
could support himself and his dependents. Mr. Osheku did not provide this proof and
instituted proceedings to obtain an order preventing his deportation. He claimed
constitutional rights and challenged the validity under the Constitution of the Aliens Act 1935
and of statutory orders thereunder and of the Irish Nationality and Citizenship Act 1956.
The Judge refused to grant the order and held that deportation would not infringe on the
constitutional rights of any of the plaintiffs. He held inter alia that the right to reside in a place
of the individual’s choice is not a fundamental or constitutional right of a citizen and that the
Plaintiff's marriage does not confer immunity from the sanctions of law regarding his
continuous breach of the laws of the State.
Short Description
In Osheku & Others v Ireland. The plaintiffs, a Nigerian man and his Irish wife and child,
claimed a constitutional right to remain together in Ireland. The Judge held that a deportation
order on Mr. Osheku would not infringe on the constitutional rights of any of the plaintiffs.

Pok Sun Shun v Ireland

[1986] ILRM 593


Description
In Pok Sun Shun & Others v Ireland & Others. The plaintiff was a native of China who arrived
in Ireland in 1978 and worked in a restaurant. As a result of what was described as a
"serious incident" in 1979 he was informed by the Department of Justice that he would have

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to leave the country. Later that year he married the second named plaintiff: they had three
children and, at the time of the hearing in the High Court, his wife was expecting a fourth
child. No steps were taken by the authorities on foot of the earlier indication that he should
leave the country and, on the contrary, he was given permits by the Department of Labour
allowing him to continue to work. However, when in 1981 he applied to the Minister for a
certificate of naturalisation, and made an application for permission to carry on business as a
self employed person, both applications were refused. He was informed that he would have
to leave the country, but a stay of a further three months was allowed for him to prepare for
departure.
In the proceedings, a number of declarations were claimed on behalf of the plaintiffs,
including declarations that the plaintiff's wife had a right under Article 41 to have her family
unit protected and in particular to be allowed to cohabit with her husband and to reside within
the State. A declaration was also sought that the plaintiff, as the lawful spouse of the second
named plaintiff and father of the third and fourth named plaintiffs (the children), was entitled
to the protection of the Constitution and in particular the provisions of Articles 9, 40, 41 and
42.
The court held that the plaintiffs were not entitled to the declarations sought, and said: "I do
not think that the rights given to the 'family' are absolute, in the sense that they are not
subject to some restrictions by the State and, as [counsel for the State] has pointed out,
restrictions are, in fact, permitted by law, when husbands are imprisoned and parents of
families are imprisoned and, undoubtedly, whilst protected under the Constitution, these are
restrictions permitted for the common good on the exercise of its rights".
Short Description
The plaintiff, a Chinese national came to work in Ireland and the next year as a result of a
serious incident he was told he would have to leave. Later that year he married an Irish
woman and they had three children. No action was taken against the man and he continued
to receive work permits. However when he applied for naturalisation he was refused and told
he would have to leave the country. The family took the case on Constitutional grounds and it
was refused.

ii. The Illegal Immigrants (Trafficking) Bill, 1999

Article 26 and The Illegal Immigrants (Trafficking) Bill 1999

Supreme Court, 28/08/2000


[2000] 2 IR 360
Description
The President of Ireland referred to the Supreme Court the matter of the Illegal Immigrants
(Trafficking) Bill 1999 (enacted 2000) for judgment on the question of sections 5 and 10
being unconstitutional4. Regarding section 5 of the Act the court held that the time limit for
judicial review is 14 days not 14 working days and that it is immune from constitutional
challenge. The possibility of an extension of time provided for under section 5(2)(a) was 'wide
and ample enough to avoid injustice where an applicant has been unable through no fault of

4
The President of Ireland performs the last step in the Irish legislative process by signing Bills into law. If s/he has
concerns about the constitutionality of a Bill the President may refer it to the Supreme Court before signing.
Before making such a referral the President must first consult the Council of State - a group comprising former
prime ministers, deputy prime ministers, presidents and others. The constitutionality of any Bill signed following
this type of referral may not be subsequently challenged in the courts.

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his or hers, or for other good and sufficient reason, to bring the application within the fourteen
day period'.
The Supreme Court also upheld the legality of section 10 of the Bill, which provides for
detention on the basis that the safeguards that existed in the Bill were adequate to meet the
requirements of the Constitution. The validity of the provisions of section 10(c) of the Bill was
upheld. The Supreme Court held that the interpretation of the phrase 'substantial grounds'
which was to the effect that grounds must be 'reasonable, arguable, and weighty' and not
'trivial or tenuous' was appropriate.
Short Description
The President of Ireland referred to the Supreme Court the matter of the Illegal Immigrants
(Trafficking) Bill 1999 (enacted 2000) for judgment on the question of sections 5 (relating to
time limits for judicial review) and 10 (detention) being unconstitutional. The court upheld the
legality of both.

iii. The 1935 Alien’s Act

Leontjava and Chang v. Minister for Justice, Equality and Law Reform

Supreme Court, 24/06/2004


High Court, 22/01/2004
Description
In the case of Leontjava and Chang v. Minister for Justice, Equality and Law Reform the
court found provisions of the Aliens Order 1946, Section 5.1.h of the Aliens Act 1935, and
Section 2 of the 1999 Immigration Act unconstitutional. Much of the High Court decision was
overturned on appeal to the Supreme Court but in the interim the Immigration Act 2004 was
hurriedly introduced.
The background to this case is as follows. Until 1999 the Aliens Act (1935) had been the
primary legislation governing the operation of the State’s immigration controls. Orders made
under section 5 of that Act (principally the Aliens Order (1946) as amended by an extensive
series of later Orders) set out a detailed scheme for controlling the entry of non-nationals into
the State, granting permission to be in the State, the requirement to register periodically with
the Garda Síochána (police), to produce passports or identification, and the deportation of
non-nationals from the State.
In 1999, in the case of Laurentiu v Minister for Justice, Equality and Law Reform ([2000] 1
ILRM) the Supreme Court found that the manner in which the 1935 Act gave the Minister the
power to make secondary legislation (Aliens Orders) in relation to deportation was
inconsistent with the Constitution. In response the Oireachtas enacted the Immigration Act
1999 which, as well as putting the deportation process in the form of a primary statute,
provided that: "Every order made before the passing of this Act under section 5 of the Aliens
Act 1935 . . . shall have statutory effect as if it were an Act of the Oireachtas" (Section 2).
In the case of Leontjava and Chang (2004), the court found that this Section 2 of the 1999
Act was an unconstitutional method of giving secondary legislation the effect of primary
statute. The Judge noted that neither Articles 5.6 or 15 of the Aliens Order 1946 nor any
other provisions of the Aliens Orders referred to in Section 2.1 of the 1999 Act could have
been referred to the President5. The Supreme Court overturned this finding on appeal noting

5
See note 4.

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that the Irish Constitution afforded a large degree of flexibility with regard to legislative
methods.
The High Court also held that the provisions of the Aliens Orders that allowed a permission
to stay in the State to be qualified by a condition on the duration of that stay were ultra vires
(beyond) section 5 of the 1935 Act. This was upheld by the Supreme Court on appeal.
Finally the High Court found that the provision for the making of orders requiring a non-
national to produce identification and registration documents was inconsistent with the
Constitution. Broadly it was found that the Minister has been given too much discretion to
make specific determinations in a way that was incongruent with the Irish Constitution. Again
this finding was overturned on appeal to the Supreme Court.
In light of her findings, the High Court Judge granted orders restraining the prosecution of a
Chinese man for failing to produce identification to a Garda representative when requested to
do so and a Latvian woman charged with remaining within the State in contravention of the
Aliens Order 1946. The Supreme Court overturned both these orders
Short Description
In this case the High Court found provisions of the Aliens Order 1946, Section 5.1.h of the
Aliens Act 1935, and Section 2 of the 1999 Immigration Act unconstitutional. This finding
fundamentally undermined Irish immigration controls and resulted in the enactment of the
Immigration Act (2004). The Supreme Court then overturned a great deal of the judgment on
appeal.

Naomitsu Kanaya v Minister for Justice, Equality and Law Reform

High Court: 21/03/2000


[2000] 2 ILRM 503
Description
The applicant, a Japanese national, was refused leave to land in the State owing to the fact
that he couldn't prove that the purpose of his visit was to study English for three months.
Although the applicant had been accepted on a course he was not registered as a student.
The immigration officer in question issued notices refusing the applicant leave to land, as
well as a detention order pending the applicant's removal from the state. The basis for such
orders is contained in the Aliens Order (1946) whereby an immigration officer may refuse
leave to land to an non-national where he believes that the non-national is not in a position to
support himself, or is not in possession of a valid permit of employment and accordingly may
be detained pending deportation.
The applicant instituted proceedings by way of judicial review in which he sought a number of
reliefs. These included an order of certiorari quashing the decisions of the immigration
officer, on the grounds that the officer had acted in excess of jurisdiction, and that his
decisions were unreasonable and constituted an error of law. The applicant also argued that
the powers conferred pursuant to article 5 of the Aliens Order 1946 constituted an
unconstitutional delegation of legislative power in breach of the Constitution. Therefore, it
was alleged, this delegation of power to the immigration officer was ultra vires (beyond) the
minister's power. It was argued that the minister was given the power to determine policies
around the exclusion of aliens from the State by regulation when they should only be
determined by legislation.
The court held that the applicant did not have a course of study pre-booked and therefore the
immigration officer did not act unreasonably in refusing the applicant leave to land. Due to
the fact that the principles and policies which are to be given effect to by the 1946 Order are
not set out in the 1935 Act itself section 5(1)(a) of the 1935 Act constituted an

15
unconstitutional delegation of legislative power. The court referred back to Laurentiu v.
Minister for Justice [2000] 1 ILRM 1 (see below). This was conceded to by the Minister. The
court further found that the delegation of power to the immigration officer was not ultra vires
the power of the minister and that the sovereign power of the State to deport aliens is an
executive power which can be exercised in the absence of legislation.
Short Description
The applicant was refused leave to land owing to the fact that he couldn't prove that the
purpose of his visit was to study English for three months. The applicant argued that the
minister was given the power to determine policies around the exclusion of non-nationals
from the State by regulation (1946 Order) when they should only be determined by legislation
(1935 Act). The court referred to Laurentiu v. Minister for Justice [2000] 1 ILRM 1 and upheld
this relief. This was conceded to by the Minister.

Laurentiu v Minister for Justice, Equality and Law Reform

Supreme Court, 20/05/1999


[2000] 1 ILRM 1
Description
This is an appeal by the State against the decision of the High Court that Section 5 l e of the
Aliens Act, 1935 was inconsistent with Article 15.2 of the Constitution of Ireland and does not
form part of Irish law. The High Court also found that Article 13 (1) of the Aliens Order, 1946
and therefore the deportation order in this case were invalid. The Supreme Court upheld the
finding that section 5 of the Aliens Act 1935 was unconstitutional. The Judge stated that the
Minister could not have a legislative power in relation to deportation unless some provision
was made in the parent Act. The court also held that Article 13(1) of the Aliens Order 1946
was beyond the powers of the Act of 19356, and also contrary to the Constitution because it
purported to confer a power to make deportation orders on the Minister. The Immigration Act
of 1999 now provides a power to deport for the Minister. It was introduced to remedy this
legislative and constitutional gap.
Short Description
In the case of Laurentiu v Minister for Justice Equality and Law Reform the court held that
the Aliens Act of 1935 was unconstitutional in the manner in which it gave the Minister for
Justice the power to deport. The Immigration Act of 1999 was introduced to remedy this
legislative and constitutional gap.

6
This issue was raised previously in Tang v Minister for Justice ([1996] 2 ILRM 46) where the Supreme Court
found Article 13(1) of the Aliens Order 1946 to be within the powers of the Act of 1935 but on different grounds.

16
iv. Detention

Sunny Okoroafor v. The Governor of Cloverhill Prison, The Minister for Justice,
Equality and Law Reform, and the Commissioner of an Garda Siochána

High Court, 30/09/03


Unreported
Description
Mr. Okoroafor was being detained pending the making of arrangements for his removal from
the State, pursuant to the provisions of the Immigration Act, 1999 (Deportation) Regulations
2002. He claimed that his detention was unlawful for a number of reasons. Mr. Okoroafor
had previously made an unsuccessful asylum application in Ireland and had subsequently
been deported. He returned and attempted to make a further application under section 17.7
of the Refugee Act, 1996. Under that section a person who wants to make a second asylum
application must have the permission of the Minster to do so. The Ministerial Decisions Unit
decided the new claim was not sufficiently different to the last to warrant further investigation.
Mr. Okoroafor argued that his arrest occurred whilst his second application was under
consideration and without a concluded intention to deport him and was therefore illegal. The
Court refused this argument pointing out that the original deportation order required him “to
remain thereafter out of the State”. It was concluded that a person, who in breach of a
deportation order, re-enters the State does not secure any right to remain in the State by
making an Application pursuant to the provisions of Section 17.7 of the Refugee Act, 1996.
Short Description
Mr. Okoroafor claimed that his detention was unlawful for a number of reasons. Having
previously been deported he returned and attempted to make a second asylum application.
The Ministerial Decisions Unit decided the new claim was not sufficiently different to the last
to warrant further investigation. Mr. Okoroafor argued that his arrest occurred whilst his
second application was under consideration and without a concluded intention to deport him
and was therefore illegal. The Court refused this argument pointing out that the original
deportation order required him “to remain thereafter out of the State”.

Bola Funmi Ojo v The Governor of Dóchas Centre

High Court, 08/05/2003


[2003] 8 ICLMD 118
Description
In the case of Bola Funmi Ojo the applicant was applying for leave to judicially review inter
alia the decision by the Minister to refuse an application for residency based on her
parentage of an Irish born child. The proceedings also dealt with an Article 40 Inquiry7
concerning the applicant's detention at Mountyjoy women's prison in Dublin.
The applicant was a Nigerian national who arrived in Ireland with her four year old child. She
applied for asylum and while her application was pending the applicant moved from the

7
Article 40 of the Irish Constitution concerns personal rights; Article 40.4 deals specifically with detention.

17
reception centre at Mosney to stay with a friend. The applicant later moved again and
neglected to inform the Minister of her new address, as she is required to do under the 1996
Refugee Act. The applicant gave birth to an Irish born child in December 2002 and with
assistance from the Refugee Legal Aid Service applied for residency based on her Irish born
child. On 27th January 2003 the applicant presented herself and her son at Waterford Garda
(Police) Station to supply her new address. She was arrested and transferred with her child
to prison in Dublin. The arresting Garda (policeman) stated that the applicant was on record
as having a deportation order issued against her and had failed to present herself for
deportation.
In regard to the Article 40 inquiry the High Court found that due to the pending decision on
the Irish born child issue the applicant could not have been deported from the state. The
court also found that the power of detention under the Immigration Act of 1999 is exercisable
only for the purpose of ensuring deportation. The Minister claimed that it was permissible to
detain a person on whom there existed a deportation order even if there was further decision
pending so that the person would be available "in the event that the person does not revoke
the deportation order"8. The court concluded that there must be a "final or concluded
intention to deport" an individual before they could be detained and therefore ordered the
release of the applicant.
In regard to the application for leave to apply for judicial review the court also found in the
applicant's favour and ordered a certiorari (quashing order) of the Minister's decision to
refuse the applicant's application for residency. The court found that the procedure by which
that decision was taken could not objectively be considered to have been fair. The court
based this conclusion inter alia on the fact that the applicant had made the application under
the administrative system in force before the Lobe & Osayande v Minister for Justice case9.
Therefore, she had been deprived of a chance to make representations in light of that
important new development, partly because she had been imprisoned.
Short Description
The applicant, against whom a deportation order had been issued, applied for an Article 40
inquiry into the lawfulness of her detention and judicial review of the Minister's decision to
refuse her permission to reside in the country on the basis of having an Irish-born child. The
court found that there must be a "final or concluded intention to deport" as a precondition for
detention (in this case impossible due to the pending Irish born child issue) and ordered the
applicant's release. The court also granted the judicial review application on the grounds that
the applicant had been deprived of fair procedures.

Okebiorun v Minister for Justice, Equality and Law Reform

[2002] 10 ICLMD 60
High Court, 09/07/2002
Description
This case raised the issue of whether the detention of the applicant for the purpose of
executing the deportation order had an effect on the criminal proceedings. The applicant, a

8
The respondents claimed that sections 3(1)(a) and 5(1) of the Immigration Act of 1999 could be separated in
that the former section limits the power of detention to ensuring deportation while in the latter section there is an
absence of such express wording. The Court refused this argument.
9
Lobe & Osayande and Others v Minister for Justice, Equality and Law Reform case ([2003] 3 ICLMD 57). The
applicants in that case claimed a constitutional right to reside in Ireland with their Irish born child. The court held
that the Minister's reasons in ordering their deportation were grave and substantial reasons associated with the
common good. The Court held that the ruling of Fajujonu v Minister for Justice ([1990] 10 ILRM 234) did not mean
that the Minister had no power to deport the parents of an Irish born child. This case effectively ended an
administrative system that had allowed parents of Irish born children to reside in Ireland.

18
failed asylum seeker, sought judicial review of his detention for deportation because there
were criminal proceedings against him in the District Court. The applicant claimed that once
begun, the judicial process had to be allowed to run its course. The court refused the
application for judicial review stating that the deportation order was not in any way a reaction
to the District Court proceedings, but was the result of a separate and parallel process. The
Judge stated that it could not have been the intention of the legislature when enacting the
Immigration Act (1999) that an applicant could benefit from having committed a crime in this
way. The applicant could not be denied his constitutional right of access to the courts
because such was a right only to initiate litigation.
Short Description
The question arose whether the detention of the applicant for the purpose of executing the
deportation order had an effect on the criminal proceedings. The court held that it did not
concern any of the criminal matters before the District Court.

Ji Yoa Lau v Minister for Justice

High Court, 29/07/1991


[1993] ILRM 64
Description
The applicant was a Chinese national who had attempted to enter Ireland illegally with a
false passport. He was refused leave to land and was detained pending his removal. The
applicant then lodged an application for asylum and was transferred to the training unit of
Mountjoy Prison pending the determination of his status. He brought proceedings alleging
that his detention was unlawful. The court held that under article 5(4) of the Aliens Order
(1946), the powers conferred on the immigration officer to direct the detention of a non-
national who has been refused leave to land, are exercisable only until such time as he is
removed from the State under article 7 of the Aliens Order. Due to the fact that there was an
asylum application pending this could not have been the case. In addition the maximum time
permissible for detention pursuant to an order made under article 5(4) of the Aliens Order
1946 is two months. The court directed that the detention was unlawful and the applicant was
released.
Short Description
The applicant had attempted to enter Ireland illegally with a false passport. He was refused
leave to land and was detained pending his removal. The applicant then lodged an
application for asylum and was transferred to Mountjoy Prison pending the determination of
his status. He brought proceedings alleging that his detention was unlawful which the court
upheld. The applicant was released pending the determination of his asylum claim.

The State (Kugan and Elamkumaran) v Minister for Justice

High Court, 01/07/1985


[1986] ILRM. 95
Description
The prosecutors, citizens of Sri Lanka arrived in Dublin without a valid Irish visa. The
immigration officer refused them leave to land and they were detained in Fitzgibbon Street
Garda Station pending their removal from the State. The prosecutors (Kugan and

19
Elamkumaran) sought orders of habeas corpus10. In reply, the immigration officer averred
that the prosecutors had been booked to study and had paid fees to language schools to
study English. They also noted in the affidavit that neither of the prosecutors was likely to
benefit from such a course of study as they understood very little English and the courses
would be inadequate to give them any useful command of the language.
The court held that the detention of the prosecutors was unlawful and ordered their release.
The Minister had suggested that the remedy of habeas corpus might not properly be sought
because the prosecutors were not Irish citizens; the Judge refused this argument and held
that the Constitution guaranteed this relief to 'any person'. The Minister also claimed that
relief by way of habeas corpus is not available unless the procedure has been so flawed by
basic defect, as to render the detention one which is not ‘in accordance with law’. Again this
contention was refused. In addition the Judge noted that although it was clear that the 1975
Order gave a discretion to the immigration officer in deciding whether or not to refuse leave
to land the reason given (an opinion that the detainees had a poor knowledge of the English
language) was not adequate.
Short Description
The prosecutors arrived without a valid Irish visa. The immigration officer refused them leave
to land and they were detained pending their removal from the State. The court held that the
detention of the prosecutors was unlawful and noted that although it was clear that the 1975
order gave a discretion to the immigration officer in deciding whether or not to refuse leave to
land the reason given in this case was not adequate.

See Also
Sinik v Minister for Justice, Equality and Law Reform

v. Other Constitutional Issues

Vicovich v Minister for Justice

High Court, 10/09/2002


[2003] 1 ICLMD 68
Description
The applicant applied for an order preventing the minister from deporting her until the
determination of her appeal against the refusal of the High Court to grant leave to apply for
judicial review. The applicant had not applied to the High Court for certification that the
decision involved a point of law of exceptional public importance, as provided for in the Illegal
Immigrants (Trafficking) Act 200011. Instead she had submitted that a certificate was not
necessary. The applicant sought to rely on s.5(3)(b) of the Act, which provided that the
restriction on the appeal "...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

10
One of a variety of writs that may be issued to bring a party before a court or Judge, having as its function the
release of the party from unlawful restraint.
11
Section 5 of the Illegal Immigrants (Trafficking) Act (2000) introduced stricter requirements for the processing of
judicial review applications in asylum and immigration matters than the normal requirements. Certain key
decisions or actions taken in the asylum and deportation process may only be appealed to the High Court by way
of judicial review. It also reduces the time limit for seeking leave to apply for judicial review to 14 days, with the
proviso that the High Court may extend that time limit where there are “good and sufficient” reasons for so doing.
The applicant must also show “substantial grounds” as to why the application should be granted and the decision
of the High Court may not be appealed to the Supreme Court, except in cases where the court is convinced that
the issue in question is one of “exceptional public importance”.

20
Constitution." The court found that there was no constitutional issue involved, which would
allow the applicant to rely on section 5 (3)(b), and refused the application.
Short Description
The applicant applied for an order preventing the minister from deporting her until the
determination of her appeal against the refusal of the High Court to grant leave to apply for
judicial review. She was appealing against a refusal of leave to appeal arguing that that the
proposed appeal fell outside the terms of section 5(3)(a) of the Illegal Immigrants
(Trafficking) Act 2000. The court held that there was no constitutional issue involved, which
would allow the applicant to forego the need to prove that the issue concerned was one of
exceptional public importance.

Jonathan v Ireland

High Court, 31/05/2002


[2002] 7 ICLMD 82
Description
The issue was whether section 19 of the Refugee Act, 1996 regarding the protection of the
identity of the applicant, was unconstitutional. The plaintiff wished to attract the maximum
publicity for her case and she objected to the requirement in Section 19 that she obtain the
consent of the Minister before any matter which is likely to lead members of the public to
identify her as an asylum applicant under the Act may be published.
The court held that the Minister had granted his consent so the case was moot. In addition,
because section 19 does not affect the Plaintiff's right to freely express herself in her own
name in private or in public - it is the media who must obtain her consent and that of the
Minister before publishing - there was no evidence of a limitation of freedom of speech or
evidence of prejudice to the media. The court held that the declarations sought could not be
addressed as no injury was shown.
Short Description
The issue was whether section 19 of the Refugee Act, 1996 regarding the protection of the
identity of the applicant, was unconstitutional. The court held that there was no evidence of a
limitation of freedom of speech or evidence of prejudice to the media. The declarations
sought could not be addressed as no injury was shown.

21
III. CHANGES IN THE LAW

Ikeje v Minister for Justice, Equality and Law Reform

High Court, 09/07/2002


[2002] 10 ICLMD 59
Description
In the case of Ikeje v Minister for Justice it was argued that section 3(1) of the Immigration
Act, 1999:
'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 in the order and to
remain thereafter out of the State.'
...vis-à-vis section 5 of the Refugee Act 1996:
'(1) A person shall not be expelled from the State or returned in any manner
whatsoever to the frontiers of territories where, in the opinion of the Minister, the life
or freedom of that person would be threatened on account of his or her race, religion,
nationality, membership of a particular social group or political opinion.
(2) Without prejudice to the generality of subsection (1), a person's freedom shall be
regarded as being threatened if, inter alia, in the opinion of the Minister, the person is
likely to be subject to a serious assault (including a serious assault of a sexual
nature).'
...offends the maxim that the law suffers no fractions and divisions of statutes.
The court held that statutory language is not to be read in isolation and that it is perfectly
permissible for statutory provisions to be related by reference to the provisions of another
statute.
Short Description
It was argued that section 3(1) of the Immigration Act, 1999 vis-à-vis section 5 of the
Refugee Act 1996, offends the maxim that the law suffers no fractions and divisions of
statutes. The court held that statutory language is not to be read in isolation and that it is
perfectly permissible for statutory provisions to be related by reference to the provisions of
another statute.

O.J. v Minister for Justice, Equality and Law Reform

High Court, 15/01/2001


[2002] 5 ICLMD 110
Description
In the case of O.J. v Minister for Justice the Nigerian applicant's application for asylum was
deemed to be manifestly unfounded under the Hope Hanlon procedures12. The applicant

12
The Hope Hanlan procedure is set out in a letter sent in December 1997 from the Department of Justice,
Equality and Law Reform to Ms. Hope Hanlan, who was the UNHCR representative at the time. This letter set out
the procedures to be followed when deciding applications for refugee status (replacing the previous von Arnim

22
then appealed to the Refugee Appeals Tribunal under the Refugee Act of 1996. The
applicant sought an extension of time to review the decisions of the Refugee Applications
Commissioner and of the Refugee Appeals Tribunal. The extension was sought on the basis
that the application was made under the Hope Hanlan procedure and the procedure was
then put on a statutory footing with the 1996 Act. The court held that the Minister need not
reconsider an entire application under the Hope Hanlan procedure where the procedure has
been superceded by a statutory scheme.
Short Description
The applicant sought an extension of time to review the decisions of the Refugee
Applications Commissioner and of the Refugee Appeals Tribunal. The extension was sought
on the basis that the application was made under the Hope Hanlan procedure and the
procedure was then put on a statutory footing with the 1996 Act. The court held that the
Minister need not reconsider an entire application under the Hope Hanlan procedure where
the procedure has been superceded by a statutory scheme.

P. L. B. v Minister for Justice, Equality and Law Reform

High Court, 02/01/2001


Supreme Court, 30/07/2001
[2001] 9 ICLMD
Description
In these cases the applicants P. B. and L. sought leave to institute judicial review
proceedings in respect of deportation orders. They argued that the Minister for Justice had
failed to comply with the section 3(3)(a) of the Immigration Act 1999 by failing to give a
reason for his proposed deportations. The applicants also argued inter alia that the letter of
notice was inadequate in giving reasons, not readily understandable and deficient in failing to
explain public policy and the common good. They also argued that to consider the common
good as a reason reflected on the good name and reputation of the applicant.
The High Court refused the relief sought to all but one of the applicants13 and deemed it
desirable that an appeal be taken to the Supreme Court since the decision involved points of
law of exceptional public importance. The Supreme Court dismissed the appeals holding that
in the case of administrative decisions, the decision maker is not bound to provide a
discursive judgment as a result of its deliberations. In addition the court held that the use of
the phrase 'the common good' does not require or imply any opinion derogatory of the
individual whose case is being considered.
Short Description
The applicants sought leave to institute judicial review proceedings in respect of deportation
orders. They argued that the Minister for Justice had failed to comply with the section 3(3)(a)
of the Immigration Act 1999 by failing to give a reason for his proposed deportations. The
High Court refused the relief sought to all but one of the applicants and deemed it desirable
that an appeal be taken to the Supreme Court since the decision involved points of law of
exceptional public importance. The Supreme Court dismissed the appeals.

procedures which were deemed to be insufficient to cope with increasing numbers of applications) and for the first
time mentioned accelerated procedures for dealing with ‘manifestly unfounded’ asylum applications.
13
In respect of B. the High Court granted leave to apply for judicial review on the ground that the provisions of
section 3(3)(a) of the 1999 Immigration Act ("...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.") were mandatory, to be complied with literally. This was upheld by the Supreme Court.

23
Dascalu v Minister for Justice, Equality and Law Reform

High Court, 04/11/1999


[2000] 1 ICLMD 5
Description
The Romanian applicant had been informed on behalf of the Minister that his application for
refugee status was manifestly unfounded and was therefore refused. There was, however,
no provision for finding a claim manifestly unfounded under the von Arnim procedure14 that
was in force at the time of Mr. Dascalu's application. The von Arnim procedure had since
been replaced by the Hope Hanlan15 procedure which provided for a finding that an
application was manifestly unfounded.
The court held that the Minister was entitled to change procedures and was entitled to do so
in respect of applications that had been made under the old procedures. However the
Minister was required to inform the applicant individually that his application was now being
dealt with under new procedures which provided for the possibility of finding the claim to be
manifestly unfounded. The applicant was granted judicial review because it was held that the
Minister for Justice was at fault in not notifying the applicant individually of this fact.
Short Description
The applicant's application for refugee status had been found manifestly unfounded. The
process was started, however, under the von Arnim procedure not the Hope Hanlon
procedure which provides for such a 'manifestly unfounded' decision. The deportation order
was quashed on the basis that the Minister for Justice was at fault in not notifying the
applicant of that fact.

Gutrani v Minister for Justice

Supreme Court
[1993] 2 IR 427
Description
The case of Gutrani v Minister for Justice is notable because it resulted in the von Arnim
letter being upheld as creating a binding obligation upon the Minister of Justice by the
Supreme Court. The von Arnim letter was written in December 1985, on behalf of the
Minister for Justice, to the then representative of the UNHCR, Mr. R. von Arnim. It set out an
agreed procedure for the determination of refugee status in Ireland. The Judge commented
'Having established such a scheme, however informally, he [the Minister] would appear to be
bound to apply it to appropriate cases and his decision would be subject to judicial review.'
Short Description
In Gutrani v Minister for Justice the Supreme Court held that the von Arnim letter, written in
December 1985 on behalf of the Minister for Justice to the then representative of the
UNHCR, Mr. R. von Arnim was binding on the Minister. This letter set out an agreed
procedure for the determination of refugee status in Ireland.

14
Takes its name from a letter written in December 1985 on behalf of the Minister for Justice to the then
representative of the UNHCR, Mr. R. von Arnim, setting out an agreed procedure for the determination of refugee
status in Ireland.
15
See note 12.

24
See Also:
Leontjava and Chang v. Minister for Justice, Equality and Law Reform
Simi v Minister for Justice, Equality and Law Reform
Laurentiu v Minister for Justice, Equality and Law Reform
Article 26 and The Illegal Immigrants (Trafficking) Bill 1999
B. v Minister for Justice, Equality and Law Reform
Chen v Secretary of State for the Home Office (UK)

25
IV. TIME LIMITS

Kallie v Minister for Justice, Equality and Law Reform

High Court, 03/10/2002


[2003] 1 ICLMD 73
Description
The applicant sought leave for judicial review proceedings. The Minister had refused to
consider a letter written on behalf of the applicant for the purposes of representation
pursuant to the Immigration Act 1999 s. 3. The Minister stated that it could not be considered
after the deportation order had been issued. The applicant contended that the contents of the
letter were relevant in assessing whether he should be granted leave to remain. The court
held that was not correct to state that the letter could not be considered because the Minister
could amend or revoke the order. Leave to apply for judicial review was granted.
Short Description
The applicant sought leave for judicial review proceedings because the Minister stated that a
letter written on behalf of the applicant, could not be considered after the deportation order
had been issued. The court held that was not correct to state that the letter could not be
considered because the Minister could amend or revoke the order. Leave to apply for judicial
review was granted.

Saalim v Minister for Justice, Equality and Law Reform

Supreme Court, 05/03/2002


[2002] 6 ICLMD106
Description
In the case of Saalim v Minister for Justice the applicant appealed against the High Court’s
refusal to extend time for leave to apply for judicial review. The High Court found that
although the fault had been the solicitor's rather than the applicant's, this was not sufficient
reason. The Supreme Court in allowing the appeal held that there were “good and sufficient
reason”(s) for extending the time for the application for judicial review. The applicant had an
arguable case, the extent of the delay was short, the case straddled a time of transition in the
law, the reasons for the delay were largely the culpability of legal advisors, and the State was
not prejudiced by the delay.
Short Description
In the case of Saalim v Minister for Justice in respect of one applicant, the Supreme Court
allowed an appeal against a High Court refusal to extend time for leave to apply for judicial
review. It was held there were “good and sufficient reason”(s) including that the applicant
had an arguable case, the extent of the delay was short, the case straddled a time of
transition in the law, the reasons for the delay were largely the culpability of legal advisors
and the State was not prejudiced by the delay.

26
B. v Minister for Justice, Equality and Law Reform

High Court, 02/04/2001


Supreme Court, 30/01/2002 and 05/03/2002
[2002] IESC 13, [2002] ICLMD 104
Description
In the case of B. v Minister for Justice, Equality and Law Reform the applicant brought an
appeal against the determination of the High Court not to extend time for initiating
proceedings for judicial review under s 5 (2) (a) of the Illegal Immigrants (Trafficking) Act
2000.16 The Supreme Court ruled that leave of the High Court was not required to appeal
against a High Court decision to refuse to extend time. The court held that a refusal of an
extension of time was not a determination by the High Court of an application to apply for
judicial review. The court also warned that the strength of the case might not always be
relevant at the application for an extension of time.

Further to that decision by the Supreme Court (whereby in cases the High Court refuses to
extend time under section 5 (2)(a) of the 2000 Act there is no requirement to seek the leave
of the High Court to appeal) the appeal took place on 30th January 2002. It was argued that
the notification requirements of the statutory provisions of the Illegal Immigrants (Trafficking)
Act 2000 were not complied with. The appellant made his original asylum application at a
Dublin address. He later moved to Dundalk and registered there with the Gardai. The
deportation notice was sent to the Dublin address. The appellant argued that since the Act of
2000 came into force, the notice of deportation should have been given to him at the address
he notified in September 2000 to the Immigration Officer at Dundalk Garda Station. Without
that, he alleged, the deportation order was never notified to him. The court rejected his
argument and the appeal was dismissed.
Short Description
The applicant was appealing against the determination of the High Court not to extend time.
In B. v Minister for Justice it was decided that the refusal by the High Court of an extension of
time was appealable to the Supreme Court even without leave of the High Court. The
Supreme Court appeal was dismissed.

G.K v Minister for Justice, Equality and Law Reform

High Court, 06/03/2001


Supreme Court, 7/12/2001
[2002] 1 ILRM 401; (High Court [2002] 1 ILRM 81)
Description
In the case of G.K. v Minister for Justice, Equality and Law Reform the High Court had
granted an extension of time to the applicants to judicially review a refusal of asylum by the
appeals authority, and a decision of Minister to make a deportation order. The Judge listed
the factors he considered relevant in determining applications of this nature:
- The period of the delay;
- Whether the delay was inexcusable and if so, whether the balance of justice was in favour
of or against granting an extension;

16
See note 11.

27
- The prima facie (at first sight) strength of the applicant’s case;
- The complexity of the legal issues;
- Language difficulties and difficulties obtaining an interpreter; and
- Any other personal circumstances affecting the applicant.
The respondents (the State) then obtained an order to appeal the decision of the High Court
to the Supreme Court and the appeal was allowed.
The Supreme Court refused the extension of time. The court held that the applicant had
delayed for a period of nearly a year, during most of which time the applicant was legally
represented and no reason was provided for the delay. The court found that the time limits
could only be extended where the High Court considers that there is good and sufficient
reason for extending the period and where the substantive claim is arguable. In this case the
applicant’s ground for seeking the relief was that the minister did not consider
representations for leave to remain in the State. It was held that they could show no arguable
case in relation to this ground. The Supreme Court held that no extension of time would be
granted to the applicant.
Short Description
In the case of G.K. v Minister for Justice the High court had granted an extension of time to
judicially review a refusal of asylum by the appeals authority and a decision of Minister to
make a deportation order. The State then obtained a certificate to appeal the decision of the
High Court and the appeal was allowed. No extension of time would be granted to the
applicant.

See Also:
Duba v Refugee Appeals Tribunal
Article 26 and The Illegal Immigrants (Trafficking) Bill 1999
Gabrel v Minister for Justice, Equality and Law Reform
B. v Governor of the Training Unit Glengariff Parade
Meta v Minister for Justice, Equality and Law Reform

28
V. THE APPEAL STAGE

Hippolitus Iwuala v. Minister for Justice, Equality and Law Reform

Supreme Court, 14/07/2003


[2004] 1 ILRM 27
Description
The appellant had applied to the High Court for inter alia, an order of certiorari quashing the
decision of the Minister to refuse her refugee status. She also sought declarations that
section 16 (regarding appeals to the appeal board) and 17.1 (regarding the declaration that
person is a refugee) of the Refugee Act 1996 were repugnant to the Constitution.
The High Court refused to grant the reliefs sought but certified that its decision involved a
point of law of exceptional public importance. It was held therefore that it was desirable that
an appeal should be taken to the Supreme Court. The United Nations High Commissioner for
Refugees (‘the UNHCR’) applied to the Supreme Court for leave to appear as amicus
curiae17 in the appeal. This was the first time the UNHCR had taken such a step. The
Supreme Court agreed that an issue of public law had arisen and the UNHCR might be in a
position to assist the court by making written and oral submissions on the question of law
certified by the High Court provided the UNHCR bore its own costs.
Short Description
This judgment deals with an application made by the UNHCR for leave to appear as amicus
curiae18 in the appeal. This was the first time the UNHCR had taken such a step. The
Supreme Court agreed that an issue of public law had arisen and the UNHCR might be in a
position to assist the court by making written and oral submissions on the question of law
certified by the High Court provided the UNHCR bore its own costs.

Satarov v Minister for Justice, Equality and Law Reform and Refugee Appeals Tribunal

High Court, 04/10/2002


[2003] 1 ICLMD 84
Description
This was an application for leave to apply for judicial review. The applicant claimed that the
Refugee Appeals Tribunal failed to allow sufficient time for the hearing of the appeal; failed to
allow the applicant to adduce corroborative evidence at the hearing; failed to have regard to
the corroborative evidence; and concluded that the applicant had fabricated his evidence
without recording any reasonable grounds for the conclusion. Leave to apply for judicial
review was granted on the basis that justice and fair procedures must never be sacrificed for
administrative efficiency. The court also held that the hearing before the Tribunal must be
conducted with sufficient informality that will allow the appellant to tell his/her story.
Short Description
This was an application for leave to apply for judicial review. The applicant claimed that the
Refugee Appeals Tribunal acted in contravention of natural justice by inter alia failing to allow
sufficient time for the hearing. He claimed that it was also concluded by the Tribunal that the

17
Amicus curiae refers to a ‘friend of the court’, a person who is not a direct party to an action but who is
permitted to make submissions.
18
See note 17.

29
applicant had fabricated his evidence without recording any reasonable grounds. Leave to
apply for judicial review was granted on the basis that justice and fair procedures must never
be sacrificed for administrative efficiency.

Okafu v Refugee Appeals Tribunal

High Court, 04/10/2002


[2003] 1 ICLMD 83
Description
The applicant, a Nigerian national, claimed that the Refugee Applications Commissioner
member who conducted his initial interview misunderstood his evidence. The applicant
sought leave to apply for judicial review on the ground that the Refugee Applications Tribunal
should have explained a decision not to call the Refugee Applications Commissioner
member responsible for the reports.
The court held that a reasoned ruling or judgment on why the Refugee Applications
Commissioner member was not called should have been given. Leave to apply for judicial
review was granted. The Judge stated that there may be cases of exceptional circumstances
where it is preferable to allow an interviewer to be cross examined. He also highlighted the
fact that it is within the Tribunal’s discretion to refuse such a request but not without offering
a ‘reasoned judgment’ on such a decision.
Short Description
The applicant claimed that the Refugee Applications Tribunal should have made a reasoned
ruling on the decision not to call the Refugee Applications Commissioner member who the
applicant claimed misunderstood his evidence. The court held that a reasoned ruling or
judgment on why the Refugee Applications Commissioner member was not called should
have been given and leave to apply for judicial review was granted.

Yacef v Minister for Justice, Equality and Law Reform

High Court, 04/10/2002


[2003] 2 ICLMD 76
Description
In the case of Yacef v Minister for Justice, Equality and Law Reform the applicant sought
leave to apply for judicial review of a negative decision on refugee status. An order of
certiorari (quashing order) on the resulting deportation order was also sought. At the Refugee
Applications Commissioner interview stage it was considered that the applicant's description
of events was “not possible”; subsequently the Appeals Authority took the view that it was
“not credible”. The applicant contended, inter alia, that the hearing before the Authority was
de novo, yet it had relied on evidence not properly before it in concluding that the description
of disembarkation was incredible.
Leave to apply for judicial review was refused. The inquisitorial nature of the appeal was
emphasised in the judgment. The court held that the Tribunal is empowered to conduct an
independent investigation of the applicant’s claim for refugee status as if it had been made to
the Tribunal in the first instance. The Judge also commented generally on the nature of an
appeal hearing, in the context of its function in the asylum process. ‘The appeal is not limited
to or by what has gone before in terms of evidence or decision, neither is it to ignore such,
much less is it obliged to ignore what has gone before.’

30
Short Description
In this case the Judge commented generally on the nature of an appeal hearing, in the
context of its function in the asylum process stating: 'The appeal is not limited to or by what
has gone before in terms of evidence or decision, neither is it to ignore such, much less is it
obliged to ignore what has gone before.'

Nicolaev v Refugee Appeals Tribunal and Minister for Justice, Equality and Law
Reform

High Court, 08/07/2002


[2002] 8 ICLMD 91
Description
The applicant applied for leave to challenge by way of judicial review the decision of the
Refugee Appeals Tribunal to refuse him refugee status. He argued that the Refugee Appeals
Tribunal did not properly consider his case and reached conclusions unsupported by
evidence. He wanted the original interviewer to be compelled to attend the appeal hearing as
a witness.
The court held that the Tribunal could not be compelled to call the interviewer and that there
was no lack of fair procedures. The Judge stated: “There is no injustice to an applicant, who,
prior to the appeal hearing, has all the appropriate documentation which his application has
generated, including the S.11 (2) and S.13 (1) reports and recommendation, in not having an
opportunity to cross-examine extended to the extent of a total burden.” The court held that
the appeal hearing was an independent de novo investigative process and it was for the
member of the Tribunal to make his own assessment no matter what view the original
interviewer may have formed.
Short Description
The applicant claimed a lack of fair procedures in not being afforded an opportunity to cross-
examine the original interviewer from the Refugee Applications Commissioner at his appeal.
The court held that there was no lack of fair procedures and that the appeal hearing was an
independent de novo investigative process.

Mihalescu v Refugee Appeals Tribunal

High Court, 25/06/2002


[2002] 10 ICLMD 57
Description
At issue in Mihalescu v Refugee Appeals Tribunal was the contention by the applicant that it
is the responsibility of the Refugee Appeals Tribunal to have the documents that were
submitted for an appeal translated. In addition the applicant’s duty when seeking an
adjournment from the Tribunal was discussed.
The Judge stated:‘ While applicants before the Tribunal must always be dealt with fairly, it
cannot be that the applicants can delay the course of consideration of an application for what
may be objectively be perceived as ‘strategic reasons’ or without providing some reasonable
indication as to a probable date of readiness to proceed. ' Regarding the translation of
documents it was held that the obligation on the Refugee Appeals Tribunal could not be
extended to the extent of a total burden.

31
Short Description
At issue was the contention by the applicant that it is the responsibility of the Refugee
Appeals Tribunal to have the documents that were submitted for an appeal translated. In
addition the applicant’s duty when seeking an adjournment from the Tribunal was discussed.
Regarding the translation of documents it was held that the obligation on the Refugee
Appeals Tribunal could not be extended to the extent of a total burden.

Cartis v Refugee Appeals Tribunal and Minister for Justice, Equality and Law Reform

High Court, 24/06/2002


[2002] 8 ICLMD 87
Description
The applicant, a Romanian asylum seeker, sought leave to apply for judicial review of a
negative decision from the Refugee Appeals Tribunal. The applicant's point was that the
Refugee Appeals Tribunal had accepted that the first asylum application interview (at the
Office of the Refugee Commissioner) had been conducted in an adversarial manner.
The court held that the view of the Tribunal as to the conduct of the Office of the Refugee
Commissioner interview did not require the setting aside of the Refugee Commissioner's
recommendation. The Refugee Appeals Tribunal had an independent investigative role in
decision-making and was not bound to accept or reject the Commissioner’s
recommendation. Permission for judicial review was refused.
Short Description
The applicant sought leave to apply for judicial review on the basis that the Refugee Appeals
Tribunal had accepted that some aspects of his first instance interview were unsatisfactory.
The court refused permission and held that the view of the Tribunal as to the conduct of the
Office of the Refugee Commissioner interview was not relevant. The court held that the RAT
had an independent investigative role in decision-making.

Raiu v Refugee Appeals Tribunal and Minister for Justice, Equality and Law Reform

High Court, 25/04/2002


[2002] 7 ICLMD 79
Description
In the case of Raiu & Ors v. Refugee Appeals Tribunal & Ors, the applicants had their
application for refugee status refused at first instance and appealed the decision to the
Tribunal. They argued that their right to fair procedures was infringed by the refusal of the
Refugee Appeals Tribunal to grant them access to previous decisions. An injunction was
sought restraining the Tribunal from proceeding with the hearing of the applicants' appeals
until previous decisions of the Refugee Appeals Tribunal were furnished to the applicants.
Such access had been refused on the ground, inter alia, of the constraints imposed by
section 16(4) ('An oral hearing under this section shall be held in private') and section 19
(regarding the protection of the identity of applicants) of the Refugee Act of 1996. The
applicants submitted that the Constitution Art 40.1, guaranteeing equality before the law,
necessitated the publication of decisions.
The court held that the refusal to make available judgments of the Tribunal in cases other
than the applicant’s was not unlawful and in particular was not in breach of the applicant’s
right of access to the courts and was not in breach of the principles of natural justice.

32
Short Description
An injunction was sought restraining the Refugee Appeals Tribunal from proceeding with the
hearing of the applicants appeals until previous decisions of the Refugee Appeals Tribunal
were furnished to the applicants. The court held that the decision of the Refugee Appeals
Tribunal not to furnish its decisions was not invalid and the injunction was denied.

Bozsa v Refugee Applications Commissioner

High Court, 25/04/2002


[2002] 7 ICLMD 78
Description
In the case of Bozsa v Refugee Applications Commissioner the applicant sought leave to
apply for judicial review of a decision of the Refugee Appeals Tribunal refusing her asylum.
This case raised the issue of the cross-examination of the Commissioner at the Refugee
Appeals Tribunal. The applicant contended that the Tribunal failed to call the Refugee
Applications Commissioner or his representative, or to facilitate them being questioned by
her.
In this case Justice Smyth granted leave for judicial review stating: “Even if the
Commissioner or his/her representative did not tender any evidence, an applicant or his or
her representative may request the Tribunal to be allowed to question the Commissioner – in
which event the Tribunal must allow such questioning. In such event the Tribunal before
permitting such questioning may reasonably enquire what is the purpose of such intended
questioning to be satisfied as to its relevance and admissibility.”
Short Description
The case of Bozsa v Refugee Applications Commissioner raised the issue of the cross-
examination of the Commissioner at the Refugee Appeals Tribunal. This case confirmed that
the Commissioner or a representative should be available for questioning by an applicant or
their representative but that the Tribunal could enquire in advance about purpose of such
intended questioning to be satisfied as to its relevance and admissibility.

Hoti v Refugee Appeals Tribunal

High Court, 24/04/2002


[2002] 7 ICLMD 77
Description
In the case of Hoti v. Refugee Appeals Tribunal the applicant alleged that there had been
frequent and unnecessary interruptions by the Refugee Appeals Tribunal Judge. He alleged
that the Judge ‘persistently interjected to ask questions...[and] dominated the appeal
hearing’. The applicant exhibited a note from his solicitor at the appeal hearing showing that
the Refugee Appeals Tribunal Judge had asked the applicant more questions than the
applicant’s own lawyer had in direct examination.
The court in refusing the application for leave to apply for judicial review the court pointed in
particular to the inquisitorial nature of the appeal hearing. “It [the hearing] is not a lis inter
partes, much less a criminal trial – it is an inquiry or official investigation and its function is to
inquire or search into matters, in that sense, it is properly referred to as an inquisition”. The
court added that not only must justice be done, it must also be seen to be done. In this case
the Judge noted that the question to be asked was, “would the conduct of the Tribunal

33
reasonably give rise in the mind of an unprejudiced observer the suspicion that justice was
not seen to be done, even if it actually were done?”
Short Description
The applicant alleged that there had been frequent and unnecessary interruptions by the
Refugee Appeals Tribunal Judge and that he had been deprived of a fair hearing as a result.
The court found that the appeal was an investigation and inquiry and that justice was done
and seen to be done. The application for leave to apply for judicial review was refused.

Mohsen v Minister for Justice, Equality and Law Reform and Refugee Appeals
Authority

High Court, 12/03/2002


[2002] 5 ICLMD 118
Description
The case, Mohsen v Minister for Justice and The Refugee Appeals Authority, was about the
legal principles applicable in determining whether a decision of the Refugee Appeals
Authority (the precursor to the Refugee Appeals Tribunal), was unreasonable and whether
the decision making body was entitled to curial deference19. In this case the High Court
clarified the treatment of the Appeals Authority as a body of particular expertise and
experience, and therefore entitled to curial deference. It explained that the court would have
‘due and proper regard and appreciation’ for the expertise of the Refugee Appeals Authority
but would not accord it ‘undue deference’.
Short Description
The case, Mohsen v Minister for Justice and Refugee Appeals Authority, was about the legal
principles applicable in determining whether a decision of the Appeals Authority was
unreasonable. The High Court clarified the treatment of the Appeals Authority as a body of
particular expertise and experience, and therefore entitled to ‘curial deference’.

Camara v Minister of Justice, Equality and Law Reform

High Court, 26/07/2000


[2000] 9 ICLMD 5
Description
Camara v Minister of Justice, Equality and Law Reform is a leading case dealing with
'reasonableness' in terms of grounds for judicial review. The applicant, a national of Guinea,
was refused refugee status at first instance. He appealed that decision to the Appeals
Authority (the precursor of the Refugee Appeals Tribunal) which upheld the first instance
decision. The applicant argued that the decision made by the Refugee Appeals Authority was
unreasonable and the standard of proof required to be satisfied by an applicant to attain
refugee status was inconsistent.
The court held, in dismissing the application, that the issue of the applicant's credibility was
undoubtedly a relevant matter to be considered by the Authority. It was held that the
applicant had not made out a sufficient case to warrant him being granted refugee status.
Commentators have since criticised the decisions in Camara v Minister for Justice

19
Curial deference refers to the tendency of courts to defer to the judgment of certain expert administrative
tribunals, in this case the Refugee Appeals Authority.

34
advocating a more generous standard of review in relation to decisions on asylum. In relation
to this case one leading Irish lawyer questioned whether the Appeals Authority is in fact a
body with specialist expertise and therefore entitled to curial deference20. (Curial deference
refers to the tendency of courts to defer to the judgment of certain expert administrative
tribunals, in this case the Refugee Appeals Tribunal).
Short Description
The applicant argued that the decision made by the Refugee Appeals Authority the precursor
of the Refugee Appeals Tribunal was unreasonable and the standard of proof required to be
satisfied by an applicant to attain refugee status was inconsistent. The court found that the
decision was not unreasonable and dismissed the application.

See Also:
F.A. v Minister for Justice, Equality and Law Reform and Appeals Authority
Simi v Minister for Justice, Equality and Law Reform
Zgnat'ev v Minister for Justice, Equality and Law Reform
Iqbal v Refugee Applications Commissioner
Said v Minister for Justice, Equality and Law Reform and Refugee Applications Authority

20
Hogan, Gerard. ‘Judicial Review, the Doctrine of Reasonableness and the Immigration Process’. The Bar
Review. April 2001, pp 331,332.

35
VI. MANIFESTLY UNFOUNDED ISSUES

Simi v Minister for Justice, Equality and Law Reform

High Court, 04/10/2002


[2003] 2 ICLMD 75
Description
The applicant, a Nigerian national and failed asylum seeker, sought judicial review of a
'manifestly unfounded' decision of the Appeals Authority. The appeal was dealt with under
the Hope Hanlan21 procedures because the first instance decision was notified before the
appeals procedures established under the Refugee Act 1996 had commenced. The applicant
argued, inter alia, that the Authority appointed by the Minister had no right to refuse the
applicant an oral hearing or to find her application to be 'manifestly unfounded' because there
was no statutory basis for doing so. She also claimed that the procedures were unfair in that,
inter alia, the Minister had appointed the members of the Appeals Authority.
The court refused the application and held that the provisions of the Refugee Act 1996
generally, and in particular those establishing the offices of the Commissioner and Appeals
Tribunal had not been brought into force when the decisions on the application were made.
There was no denial of fair procedures and the principle of 'nemo iudex in causa sua'
(nobody a judge in his own case) was not applicable in circumstances where the
appointments of the decision-makers were, by necessity, made by the Minister.
Short Description
The applicant sought judicial review of a manifestly unfounded' decision of the Appeals
Authority. The applicant argued that the Authority appointed by the Minister had no right to
find her application to be 'manifestly unfounded' because there was no statutory basis for
doing so before the commencement of the provisions under the Refugee Act 1996. The court
refused the application.

Z. v Minister for Justice, Equality and Law Reform

Supreme Court, 01/03/2002


[2002] 5 ICLMD 115
Description
In the case of Z. v Minister for Justice, Equality and Law Reform the appellant's case was
deemed to be manifestly unfounded. The appellant appealed against the High Court
judgment and deportation order on a number of grounds. These included that the
accelerated procedure for asylum applications considered manifestly unfounded was unfair
because there was no provision for an oral hearing.
It was held that in view of the procedures for manifestly unfounded claims, which exist, and
the fact that the procedure exists for claims without foundation, the absence of a provision for
an oral hearing is not unfair. The court held that the lack of oral hearing does not infringe the
right of an asylum applicant to natural and constitutional justice.

21
See note 12.

36
Short Description
In the case of Z. v Minister for Justice, Equality and Law Reform the appellant appealed
against the High Court judgment and deportation order on a number of grounds. These
included that the accelerated procedure for asylum applications considered manifestly
unfounded was unfair because there was no provision for an oral hearing. The court held that
this fact does not infringe the right of an asylum applicant to natural and constitutional justice.

Iqbal v Refugee Applications Commissioner

High Court, 01/12/2001


[2002] 5 ICLMD 103
Description
The applicant, a Pakistani asylum seeker, sought leave to apply for judicial review of a
recommendation by the Refugee Applications Commissioner that his claim for refugee status
was manifestly unfounded, and a decision of the Refugee Appeals Tribunal to dismiss his
appeal. The applicant claimed inter alia that he should have been allowed an oral hearing at
his appeal.
The court held that the lack of an oral hearing does not necessarily mean the denial of
natural justice. In this case the applicant claimed there were ambiguities or distortions of
reportage in the documentation on which the application was based. The court held that
these could have been satisfactorily addressed in writing at the time of the appeal but no
attempt was made to do that, despite the fact that the applicant had legal advice when the
appeal was taking place.
Short Description
In Iqbal v Refugee Applications Commissioner the applicant argued that an oral hearing
should have been held and that the Office of the Refugee Commissioner and RAT made
unreasonable decisions. The court held that the lack of an oral hearing does not necessarily
mean the denial of natural justice.

See Also:
Majokolason v Refugee Appeals Tribunal
Dascalu v Minister for Justice, Equality and Law Reform
O.J. v Minister for Justice, Equality and Law Reform

37
VII. CRITERIA TO BE MET TO ATTAIN REFUGEE STATUS

Lelimo v Minister for Justice, Equality and Law Reform

High Court: 12/11/2003


[2003] IEHC 78
Description
This was an application for leave to challenge a deportation order. These proceedings were
initiated nine days out of time and an extension to the time limit was granted on the grounds
that the error was on the part of the Refugee Legal Service and not the applicant’s, and that
the period was short. The applicant came from South Africa where she had been attacked.
There followed a period of intimidation and violence from the family of her attacker, which
escalated after he was convicted of that attack, and the murder of his fiancé. The police took
her reports but were unable to protect her.
The Refugee Appeals Tribunal believed her story but refused to recommend that she be
accorded refugee status because they found that the assault did not amount to persecution
for any reason set out in s. 2 of the Refugee Act 1996. The submissions of the applicant can
be summarised as follows:
(1) The applicant argued that she is a member of a "particular social group" comprising all
women who are raped in South Africa, by reason of which membership she has a well
founded fear of being persecuted and is therefore entitled to refugee status. The Judge
refused this argument.
(2) The applicant also argued that in making the deportation order the Minister had weighed
her rights as protected under the Convention of Human Rights against the common good of
maintaining the integrity of the asylum and immigration system, and took the view that the
latter outweighed the former. The Judge found that the Convention was not yet part of
domestic law and that the Supreme Court has held that the Minister is entitled to take into
account the policy of the State in relation to the control or admission of non-nationals22.
(3) The final ground upon which leave was sought was on the basis that there was no
consideration of s. 4 of the Criminal Justice (United Nations Convention Against Torture) Act
2000. The section prohibits refoulement where the deportee would be in danger of being
subjected to torture. The Judge found that the failure of the respondent to implement the
provisions of s. 4 of the Criminal Justice Act 2002, in reaching his decision to deport the
applicant renders that decision invalid. The applicant was granted leave to apply for judicial
review seeking to challenge the validity of the deportation order
Short Description
This is an application for leave to challenge a deportation order. The Refugee Appeals
Tribunal refused to recommend refugee status because they found that the assault the
applicant had suffered did not amount to persecution under the Refugee Act 1996. The
Judge found that the failure of the Minister to implement the provisions the Criminal Justice
Act 2002, in reaching his decision to deport the applicant renders that decision invalid. The
applicant was granted leave to apply for judicial review.

22
See P., L., and B. v. The Minister for Justice Equality and Law Reform (Unreported: 30th July, 2001) and
Osayande, Lobe and Ors. v. Minister for Justice, Equality and Law Reform (23rd January, 2003).

38
Majokolason v Refugee Appeals Tribunal

High Court, 04/10/2002


[2003] 1 ICLMD 82
Description
In the case of Majokolason v. the Refugee Appeals Tribunal the applicant applied for leave to
judicially review the decision by a member of the Refugee Appeals Tribunal upholding a
declaration that the applicant’s claim for refugee status was manifestly unfounded. The court
held that the applicant had to demonstrate a 'current well-founded fear of persecution for a
Convention reason' to be declared as a refugee. The court referred to the UK case Adan v.
Secretary of State for the Home Office which found that an 'historic fear' was not sufficient for
recognition as a refugee. ([1998] 2 W.L.R. 702). Leave to apply for judicial review was
refused.
Short Description
In the case of Majokolason v. the Refugee Appeals Tribunal the applicant applied for leave to
judicially review a decision by the Refugee Appeals Tribunal upholding a manifestly
unfounded finding. The court held that the applicant had to demonstrate a 'current well-
founded fear of persecution for a Convention reason' to be declared a refugee and that an
'historic fear' was not sufficient.

Akinyemi v Minister for Justice, Equality and Law Reform

High Court, 02/10/2002, 16/10/2002


[2003] 2 ICLMD 66
Description
The applicant, a Nigerian national sought leave to apply for judicial review of a deportation
order. The applicant made an unsuccessful application for leave to remain under the
Immigration Act 1999 s.3(3), withholding information about the poor health of two of her
children. The applicant then made a further submission giving a truthful account of her
circumstances. The Minister let the deportation order stand. The applicant contended that the
deportation order had been made without all the representations having been taken into
account and that the health care available in Nigeria would be much poorer than that in
Ireland. She contended that the Minister was, therefore in contravention of the European
Convention of Human Rights and that a deportation would also be in breach of the
applicant's rights under the Constitution.
The court refused leave to apply for judicial review and held that credibility was a crucial
factor in an asylum application. At each stage of the process, an applicant was required to
provide such information as would enable the deciding authority to make a fully informed
decision. In addition it was held that the European Convention on Human Rights was not yet
part of the domestic law23.
Short Description
The applicant sought leave to apply for judicial review of a decision by the respondent to
deport her. The applicant made an unsuccessful application for leave to remain withholding
information about the health of two of her children. The applicant then made a submission

23
See note 2.

39
giving a truthful account of her circumstances. The Minister let the deportation order stand.
The court refused leave to apply for judicial review and held that credibility was a crucial
factor in an asylum application.

Benderare v Minister for Justice, Equality and Law Reform

High Court, 02/10/2002


[2003] 2 ICLMD 68
Description
The applicant applied for leave to apply for judicial review of a decision by the Refugee
Appeals Tribunal. The Tribunal has upheld a decision that the applicant was not a refugee
within the meaning of the Refugee Act 1996 s.2 as it could find no evidence to advance such
a contention. The applicant had contended that he was a member of a particular social group
within the meaning of the UN Convention on the Status of Refugees and Stateless Persons,
1951.
The court refused leave to apply for judicial review and held that there was sufficient
evidence before the decision maker to hold that the applicant’s claim for refugee status did
not come within the UN Convention . The court made the observation that the function of the
courts in judicial review proceedings was to ascertain whether there was evidence before the
Tribunal to enable it to have fairly and reasonably to come to the decision it had. Judicial
review could not be used as a means to challenge part of a first instance decision when the
appeal procedure had been pursued.
Short Description
The applicant applied for leave to apply for judicial review of a decision by the Refugee
Appeals Tribunal to uphold a decision that the applicant was not a refugee within the
meaning of the Refugee Act 1996 as it could find no evidence to advance such a contention.
The court refused leave to apply for judicial review and held that there was sufficient
evidence. The court also observed that judicial review could not be used as a means to
challenge part of a first instance decision when the appeal procedure had been pursued.

Cyprian v Refugee Applications Commissioner

High Court, 02/10/2002


[2003] 2 ICLMD 70
Description
The applicant applied for leave to apply for judicial review of a decision to refuse to grant him
refugee status. The High Court refused leave to apply for judicial review, and held that there
was no good or sufficient reason for extending the period provided for under the Illegal
Immigrants (Trafficking) Act 2000 s.5(2)(a) . The court held that the Refugee Appeals
Tribunal had come to a lawful conclusion regarding whether or not the applicant had a well-
founded fear of persecution. State protection had not been sought by the applicant and he
had not advanced a case for seeking it. The fact that such state protection was unavailable
and the applicant may not have had much faith in its efficiency were deemed not to be
relevant.
The court cited the judgment of the UK Court of Appeal in Svazas in particular: 'the
application of the surrogacy principle rests upon the assumption that, just as the substitute

40
cannot achieve complete protection against isolated and random attacks so also complete
protection against such attacks is not be to be expected of the home state. The standard to
be applied is therefore, not that which would eliminate all risk and would then amount to a
guarantee of protection in the home State. Rather is it a practical standard which takes
proper account of the duty which the State owes to all its own nationals'. (Svazas v.
Secretary of State of the Home Department [2002] 1 WLR 1891.)
Short Description
The High Court refused leave to apply for judicial review of a negative decision on refugee
status, and held that there was no good or sufficient reason for extending the time limit for
appeal. The court held that the Refugee Appeals Tribunal had come to a lawful conclusion
regarding whether or not the applicant had a well-founded fear of persecution. State
protection had not been sought by the applicant and he had not advanced a case for seeking
it.

Khamis v Minister for Justice, Equality and Law Reform and Refugee Applications
Commissioner

High Court, 24/06/2002


[2002] 8 ICLMD 89
Description
The applicant claimed that there was an error on the face of the record because the Appeals
Commissioner stated in the recommendation that the applicant was not a refugee. The court
held that there was no error, which could give rise to an order of certiorari (quashing of the
deportation order). The Judge quoted from the Refugee Appeals Tribunal decision which was
the subject of the review on the issue of persecution: “the term 'persecution' has not been
defined by the Convention...A fear of persecution is well founded when it can be reasonably
anticipated that remaining in the country of origin may result in a form of serious harm which
government cannot or will not prevent. Persecution may also consist of failure or inability of
the government effectively to protect the basic human rights of its people.”
Short Description
The applicant claimed that there was an error on the face of the record because the Appeals
Commissioner stated in the recommendation that the applicant was not a refugee. The court
held that there was no error, which could give rise to an order of certiorari (quashing of the
deportation order).

Said v Minister for Justice, Equality and Law Reform and Refugee Applications
Authority

[2002] 5 ICLMD 124


High Court, 11/04/2002
Description
The applicant sought leave for judicial review of a refusal to grant him refugee status on the
basis that he had been deprived of a fair hearing. The Refugee Applications Commissioner
interviewer had noted problems in relation to the applicant's credibility, including the fact that
the applicant lacked knowledge of the Somali language. The applicant contended that the
Refugee Appeals Tribunal had treated the issue of language as determining rather than

41
merely an indication of credibility. He also contended that the rules of evidence had not been
followed and his nationality unfairly ascertained.
The court dismissed the application for leave to apply for judicial review, and held that
although the language issue had prominence in the decision making process it was not the
solely determining issue. The question of the applicant's credibility had ranged over several
other matters given in evidence. The court was satisfied that the Tribunal analysed and
considered the evidence and that there was no failure of due process or evidence of
institutional bias. The court also held that the languages that the applicant spoke and could
write was relevant to the credibility of the applicant, and that the rules of evidence cannot be
relaxed in such hearings.
Short Description
The applicant sought leave for judicial review claiming that it was unfair that the fact that he
could not speak a language had been used as a determination of his credibility. The court
dismissed the application and held that although the language issue had prominence in the
decision making process it was not the solely determining issue. The court also held that the
languages that the applicant spoke and could write, was relevant.

T.A v Minister for Justice, Equality and Law Reform

High Court, 15/01/2002


[2002] 5 ICLMD 111
Description
The applicant, a Libyan national, sought judicial review of a refusal of refugee status. This
case, T.A. v Minister for Justice, deals with the test for determining whether a person is a
refugee. The applicant claimed that the Appeals Authority had recommended that the
application be refused because it only focused on whether the applicant had left the country
for a Convention24 reason. The applicant was Libyan and was refused asylum at first
instance by the Appeals Authority. The decision of the Refugee Appeals Authority included a
paragraph to the following effect: “It is clear that the situation in Libya poses great difficulties
and opposition groups and the tribe to which he stated he belonged is closely scrutinised by
the authorities. The appellant appeared tense and anxious at the hearing and I can
appreciate his reluctance to return to Libya at the present, however I cannot find that he left
the country for a convention reason.”
The applicant argued that there was a misapplication of the test for determining if a person is
a refugee which is set out in section 2 of the Refugee Act of 1996. The applicant argued that
the test is whether there is a current well-founded fear of persecution and historic factors
were not determinative. The High Court held that the decision of the Tribunal was unhappily
worded but that the Appeals Authority had considered all the evidence and had appreciated
the concern, fear or reluctance of the applicant to be returned to Libya. The application for
judicial review was dismissed.
Short Description
The applicant applied for judicial review of both the recommendation of the Refugee Appeals
Authority and the subsequent decision of the respondent Minister to refuse the applicant
refugee status. He claimed that the Appeals Authority had recommended that the application
be refused because it only focused on whether the applicant had left his country for a
convention reason. The contention was rejected by the court.

24
United Nations Convention on the Status of Refugees and Stateless Persons 1951

42
F.A. v Minister for Justice, Equality and Law Reform and Appeals Authority

High Court, 21/12/2001


[2002] 5 ICLMD 108
Description
In the case F.A. v Minister for Justice and Appeals Authority the issue was raised of whether
an applicant for refugee status must show a real likelihood of persecution or a reasonable
degree of likelihood of persecution. In addition the applicant, a Sierra Leonean national,
alleged that the Appeal Authority was biased in its adjudication and was not independent of
the Minister.
The court held that the relevant paragraph 42 of the UNHCR handbook had been correctly
applied in the applicant's case and that no essential difference existed between the standard
as applied in the U.S., Australia or England. The court found that the Minister had applied the
correct standard of proof in assessing whether the applicant had a established on the
balance of probabilities a “reasonable likelihood” of persecution if returned to his or her own
country. The court held that there was no breach of the principle of 'nemo iudex in causa sua'
(nobody should judge in his own case) i.e. there was no bias in the decision made as the
Minister had no particular interest in the outcome of the process.
Short Description
In the case F.A. v Minister for Justice and Appeals Authority the issue was raised of whether
an applicant for refugee status must show a real likelihood of persecution or a reasonable
degree of likelihood of persecution. The applicant also alleged that the Appeal Authority was
biased in its adjudication. The court held that the Appeal Authority in applying its test was
correct and there was no bias in the decision made as the Minister had no particular interest
in the outcome of the process.

See Also: Camara v Minister of Justice, Equality and Law Reform

43
VIII. SERVICE PROVISION AND ERRORS

Duba v Refugee Appeals Tribunal

High Court, 22/01/2003


[2003] 3 ICLMD 56
Description
The applicant applied for judicial review in relation to the decisions of the Minister for Justice,
Equality and Law Reform to refuse her refugee status and to deport her. The Refugee
Commissioner had recommended that her application be refused. The applicant had been
informed that she could appeal within 15 working days. She met with the representative of a
local asylum seekers’ support group but there was a misunderstanding and the applicant
averred that it was her belief that the notice of appeal had been lodged on her behalf.
The court granted the application acknowledging that the applicant had done everything that
could be expected of her. The court noted that the applicant had in no sense contributed to
the appeal being out of time, and had consequently suffered an injustice. In this case the
applicant had been failed by a person whose role amounted to that of legal advisor. The
court noted in addition that the statutory provisions governing the powers of the Refugee
Appeals Tribunal and the Minister must, insofar as possible, be interpreted as being intended
to accord with the principles of constitutional justice. This included the right to fair
procedures.
Short Description
The applicant applied for judicial review in relation to the decisions of the Minister for Justice,
Equality and Law Reform to refuse her refugee status and to deport her. She had missed the
deadline for lodging an appeal with the Refugee Appeals Tribunal but through no fault of her
own. The court granted the application acknowledging that the applicant had done everything
that could be expected of her.

Munteanu v Minister for Justice, Equality and Law Reform

High Court, 30/07/2002


[2002] 10 ICLMD 51
Description
The applicant, a Moldovan national, applied for judicial review of her deportation order. She
had failed to attend an interview with the Refugee Applications Commissioner after three
requests were sent to the address she had supplied. Shortly after arrival in Ireland she and
her companion, who she later married, were transferred to a different address by the
Reception and Integration Agency. Her husband-to-be had notified the authorities of his
change of address and his asylum application was progressed. The applicant did not. She
argued that there was no necessity on her part to notify the Department of a change of
address, in circumstances where the Department had provided the applicant with a new
address and directed her to go there.
The court refused the application for judicial review and held that there was a clear obligation
on the applicant pursuant to the Immigration Act 1999 s.6 to notify the Minister of a change of
address. The Judge observed that in the absence of a detention policy the notification of a
change of address was the method by which applicants could participate in the asylum
process while having some freedom of movement. The Reception and Integration Agency
was a separate and distinct entity from that of the Refugee Applications Commissioner or the

44
Minister. In addition the marriage of the applicant and her partner was deemed to be not
relevant in the circumstances.
Short Description
The applicant argued that there was no necessity on her part to notify the Department of a
change of address in circumstances where the Department had provided the applicant with a
new address and directed the applicant to go there. The court held that there is an obligation
on the applicant to notify the Respondent of a change of address and this she did not do.

J. (B.O.) v Minister for Justice, Equality and Law Reform

High Court, 05/12/2001


[2001] IEHC 173
Description
The applicant argued that she had informed the Minister for Justice of her change of address
but had not received any correspondence. The court held that the applicant was properly
deemed to have abandoned an application for asylum after the applicant failed to appear for
interview. The applicant also failed to respond to the Minister’s various correspondences sent
pursuant to the Hope Hanlon25 procedures and the relevant statutes. The court found that the
applicant had moved address and had not informed the respondent of her change of
address. The court refused to find the deemed service provisions to be contrary to fair
procedures.
Short Description
The applicant claimed that she had been denied her right to fair procedures having informed
the Minister for Justice of a change of address but had not received any correspondence.
The court held that the applicant was properly deemed to have abandoned an application for
asylum after the applicant failed to appear for interview, and failed to respond to various
correspondences. The court refused to find the deemed service provisions to be contrary to
fair procedures.

B. - M. (A.) v Minister for Justice, Equality and Law Reform

High Court, 23/07/2001


[2001] IEHC 110
Description
In B. - M. (A.) v Minister for Justice, Equality and Law Reform the applicant succeeded in
securing judicial review on the ground that there was a fundamental error on the face of the
record of the recommendation of the Appeals Authority in that the applicant was referred to
as being from the D.R. of Congo and in the text as being a native of Zaire. He was in fact a
native of the Republic of Congo as evidenced in his application.
The Minister had argued that the admitted error was an error of fact, which had not produced
an error of law, and did not go to the jurisdiction of the respondent. The court stated that this
was 'a mistake of fact which is so basic that it deprives the adjudicator of jurisdiction to make
the adjudication, in which event the decision is susceptible to review by way of judicial
review'.

25
See note 12.

45
Short Description
In B.- M. (A.) v Minister for justice it was argued that an error in the description of the
applicant’s origins was an error on the face of the record. The court held that the
recommendation and decision proceeded on the wrong basis, so the decisions could not
have been made within jurisdiction. Therefore the decision was quashed.

Stefan v Minister for Justice, Equality and Law Reform

High Court, 08/06/2000


Supreme Court, 13/11/2001
[2002] 1 ICLMD 5
Description
In the case of S. v Minister for Justice, the applicant was refused asylum at first instance.
However, the material used in reaching this decision was defective in that the English
translation of the Romanian questionnaire form omitted a portion of the answer to Question
84. This question provides the applicant with an opportunity to set out the basis of his claim.
The applicant appealed to the Appeals Authority, and this appeal was still pending when the
matter came on for judicial review. The court held that the defect rendered the decision at
first instance either ultra vires (beyond) or in breach of fair procedures. The court also
rejected the argument that the appeal to the Appeals Authority constituted an adequate
alternative remedy to that of judicial review, on the basis that “an insufficiency of fair
procedures at first instance is not cured by a sufficiency on appeal”.
The matter was remitted for fresh consideration to the Commissioner with costs to the
applicant. The Minister appealed in S. v Minister for Justice. The Supreme Court refused the
appeal and held that certiorari (quashing order) would lie against the decision at first instance
given that the Hope Hanlon procedure involved two separate decisions, one by the person
authorised by the Minister and the other by the Appeals Authority.
Short Description
In relation to an error (whereby the English translation of the Romanian asylum application
questionnaire form omitted a portion of an answer) the High Court held that the defect
rendered the decision of the Commissioner either ultra vires or in breach of fair procedures.
The court rejected the argument that the information omitted was of so little relevance that
certiorari (quashing order) should not be ordered.

Gabrel v Minister for Justice, Equality and Law Reform

High Court, 15/03/2001


[2001] 6 ICLMD 55
Description
In Gabrel v Minister for Justice, the court refused an extension of time for applying for judicial
review where the applicant had been represented at all stages. It was argued that the
applicant did not apply for judicial review due to the lack of diligence of her legal advisors.
The court held that a litigant is vicariously liable for the default of his legal advisors (with
some exceptions) and that in this case there was no good reason for extending time. The
applicant was however granted judicial review because the deportation order with which she
was served was defective and null and void by reason of its failure to state date of the

46
proposed deportation and the country to which she was to be deported.
Short Description
It was argued that the applicant did not apply for judicial review due to the lack of diligence of
her legal advisors. The court held that a litigant is vicariously liable for the default of his legal
advisors (with some exceptions) and that in this case there was no good reason for
extending time.

See Also:
Dascalu v Minister for Justice, Equality and Law Reform
P. L. B. v Minister for Justice, Equality and Law Reform

47
IX. DUBLIN CONVENTION/ DUBLIN II REGULATION

Y. (D.) v. Minister for Justice, Equality and Law Reform & Ors

Supreme Court
[2003] IESC 54
01/12/2003
Description
Article 10(1)(e) of the Dublin Convention provides inter alia that Member States are obliged
to take back an applicant who has withdrawn their application and lodged an application in
another Member State and a non-national whose application it has rejected and who is
illegally in another Member State.
Mr. Y applied for asylum status in Ireland. He had previously been refused asylum status in
Germany and the ORAC determined he should be returned to Germany. The applicant
appealed the decision to the RAT who dismissed the appeal. The applicant applied for relief
by way of judicial review against both decisions. The High Court granted the relief sought on
the grounds that the decisions of the ORAC and RAT were predicated upon a request made
to Germany that was ultra vires (beyond) the powers of the ORAC and RAT. The Court found
that the request had been made pursuant to a provision of the Dublin Convention which had
not been implemented in Ireland, i.e. article 10(1)(e).
The High Court certified that its decision involved points of law of exceptional public
importance and that it was desirable in the public interest that an appeal should be taken to
the Supreme Court. The points deemed to be of exceptional public importance were (i)
whether or not Article 10.1.e of the Dublin Convention had been incorporated into the law of
the State and (ii) whether the ORAC or RAT had jurisdiction to make or uphold a decision
that Germany be requested to take back the applicant. The Supreme Court dismissed the
appeal and upheld the jurisdiction of the RAT and ORAC in this regard.
Short Description
Mr. Y had previously been refused asylum status in Germany and the ORAC determined he
should be returned to Germany. The applicant appealed the decision unsuccessfully to the
RAT. The High Court granted judicial review on the grounds that the decisions of the ORAC
and RAT were predicated upon a request made to Germany that was ultra vires (beyond) the
powers of the ORAC and RAT. The High Court certified that its decision involved points of
law of exceptional public importance. The Supreme Court dismissed the appeal and upheld
the jurisdiction of the RAT and ORAC in this regard.

Spatariu v Refugee Appeals Tribunal

High Court, 04/10/2002


[2003] 1 ICLMD 85
Description
In the case of Spatariu v. Refugee Appeals Tribunal & ors, the applicant was a Romanian
national who was to be transferred from Ireland to Germany under the Dublin Convention.
The applicant appealed and the Tribunal upheld the decision to transfer her application. She
then applied for leave to apply for judicial review, which was refused. In this case however
the court, made clear that “the position is that the judicial review proceedings must be

48
regarded as suspensory” i.e. no transfer could take place before the conclusion of the
proceedings.
Short Description
In Spatariu v. Refugee Appeals Tribunal & ors, the applicant was to be transferred from
Ireland to Germany under the Dublin Convention. The applicant appealed unsuccessfully to
the Refugee Appeals Tribunal and then applied for leave to apply for judicial review. Leave
was refused. In this case, however, the court made clear that “the position is that the judicial
review proceedings must be regarded as suspensory”.

Demeter v Minister for Justice, Equality and Law Reform

High Court, 26/07/2002


[2002] 10 ICLMD 50
Description
The applicants applied for leave to judicially review the decisions of the Refugee Appeals
Tribunal and the Refugee Commissioner to transfer their application for asylum to Belgium
under the Dublin Convention (Implementation) Order 2000 art.3(1)(c) . The applicants, Czech
nationals, had previously applied for and been refused asylum in Belgium. The applicants
contended that the Order did not authorise transfer to Belgium. They submitted that
applications of persons who had completed the asylum process in another State might,
where no new circumstances existed, be deemed to be manifestly unfounded under the
Refugee Act 1996. Where new circumstances did exist, a new and distinct application was
involved and the Dublin Convention did not apply.
The court refused the application and held that a decision as to the venue for examination of
an asylum application should be considered prior to any consideration of an application
under the manifestly unfounded or substantive procedures of the Refugee Act 1996. The
Refugee Commissioner was not obliged to come to the conclusion that an application was
manifestly unfounded under the Refugee Act 1996 where there was no material change in
circumstances. Moreover the Minister may make Regulations to give effect to the Convention
requiring that an application not be investigated by the Commissioner until he had decided
whether a Convention country was responsible for its examination.
Short Description
The applicants applied for leave to judicially review the decision to transfer their application
for asylum to Belgium under the Dublin Convention. The applicants contended that the Order
did not authorise transfer to Belgium where they had previously been refused asylum. They
submitted that applications of persons who had completed the asylum process in another
State might, where no new circumstances existed, be deemed to be manifestly unfounded
under the Refugee Act 1996. The court refused the application.

49
Rostas v Minister for Justice, Equality and Law Reform and Refugee Appeals Tribunal

High Court, 09/05/2002


[2002] 8 ICLMD 85
Description
The applicants sought judicial review of a decision to transfer their application for asylum to
the U.K. One of the applicants had previously applied for asylum in the U.K. and his appeal
there remained undetermined. The applicants had withdrawn their application for asylum in
Ireland on the basis of parentage of an Irish child, and submitted that the Dublin Convention
did not apply to them as they were no longer seeking asylum.
The applicants contended that the provisions of the Dublin Convention Implementation Order
2000, (which gives effect to the State's obligations as a party to the Dublin Convention) cut
across the provisions of section 8 of the Refugee Act, (which is concerned with asylum
seekers right to declare themselves as asylum seekers on arrival in Ireland) in an
unconstitutional manner. The court rejected this contention and refused leave to apply for
judicial review stating that at no stage were the applicants not allowed to apply for refugee
status in the State.
Short Description
This case considered whether the provisions of the Dublin Convention Implementation Order
2000 cut across the provisions of section 8 of the Refugee Act, (which is concerned with
asylum seekers right to declare themselves as asylum seekers on arrival in Ireland) in an
unconstitutional manner. The court rejected this contention.

Savin v Minister for Justice, Equality and Law Reform

High Court, 07/05/2002


[2002] 8 ICLMD 84
Description
The applicant had a visa for entry into Germany and came to Ireland and applied for asylum.
It was decided by the Refugee Applications Commissioner that the provisions of the Dublin
Convention applied. The applicant raised a number of issues. The applicant claimed that the
Refugee Applications Commissioner should have conducted an interview prior to deciding
that the Convention applied, rather than deciding on the basis of the questionnaire. The
decision also concerned the issue of family unity when making decisions under the
Convention as the applicant's husband was having his case assessed in Ireland.
The court held that there was no obligation on the Commissioner to hold an interview
because there was no inhibition on the applicant presenting whatever evidence she
considered relevant to the Commissioner. The court also held that there is no necessary
inhibition in the applicant being returned to Germany to have her application considered
there while her husband’s application is determined in this State. In addition it was stated that
the decision of the Refugee Appeals Tribunal does not have to be discursive.
Short Description
The applicant had a visa for entry into Germany and came to Ireland and applied for asylum.
It was decided by the Refugee Applications Commissioner that the Dublin Convention
applied. The applicant claimed an interview should have been conducted prior to deciding
that the Convention applied. In addition the applicant's husband was having his case
assessed in Ireland and she wanted to stay with him. The court refused both arguments.

50
R. and K. v Minister for Justice, Equality and Law Reform

High Court, 19/03/2002


Unreported
Description
The case concerned the applicability of Article 5 of the Dublin Convention. This Article
concerns the situation whereby the applicant for asylum is in possession of a valid residence
permit/visa and the resulting obligations of the Member State which issued the permit/visa to
examine the application for asylum. One applicant claimed that he had a valid visa to enter
Belgium but because he never actually did so, the provisions of the Convention did not apply.
The court held that an applicant with an unexpired visa, who could have availed of it to
actually enter the territory of a Member State, could be returned to the country that issued
the expired visa to have his asylum application determined.
Short Description
The case concerned the applicability of Article 5 of the Dublin Convention. One applicant
claimed that he had a valid visa to enter Belgium which he had never used. The court held
that an applicant with an unexpired visa, who could have availed of it, could be returned to
the country that issued the expired visa.

51
X. THE EUROPEAN CONVENTION ON HUMAN RIGHTS AND ASSOCIATION
AGREEMENTS

Goncescu and others v Minister for Justice, Equality and Law Reform

High Court, 24/06/2002


Supreme Court, 30/07/2003
[2003] IESC 44, (High Court, [2002] 8 ICLMD 88)
Description
The Romanian and Czech applicants sought to quash deportation orders made against them
on the grounds that the orders were contrary to their rights of establishment under European
law. The applicants contended that they had effective rights of establishment under
European Association Agreements between the European Union and candidate countries
seeking membership of the Union26.
The High Court refused to quash the deportation orders. The court held that it could not be
the law that a person entering a State on one basis could, when plans don't work out, seek to
convert a non-existent right to remain in the State into such a right, by invocation of
European Agreements. The High Court held that the right of establishment was
circumscribed by the European Agreement, which entitled Member States to apply their rules
regarding entry and stay in the Member States. Although leave to apply for judicial review
was refused the High Court certified that the case involved points of law of exceptional public
importance and an appeal was heard and refused at the Supreme Court in July 2003.
The Supreme Court upheld the High Court findings and held that the system of prior control
of applications for establishment by non-nationals by Member States is compatible with the
Europe Agreements. It was held that the appellants had no right to remain in the state,
having been made the subject of deportation orders, for the purpose of seeking to make an
application for establishment under those agreements. They are, however, entitled, as they
always were, to make such applications from their home states. The court drew attention to
the fact that at the time when all the appellants notified the Minister of their wish to exercise
establishment rights under the European Agreements their applications for asylum had been
terminated and they therefore at that point had no lawful entitlement to remain physically in
the State.
Short Description
The Romanian and Czech applicants argued that they could exercise a right of establishment
in Ireland under European Association Agreements between the European Union and
candidate countries seeking membership of the Union. The court held that the Europe
Agreement does not confer a right of access to the labour market of the EU States and that
Member States were entitled to apply their rules regarding entry and stay in States. The case
was appealed to the Supreme Court and the decision upheld.

26
The European Communities and their Member States entered into a number of Association Agreements also
described as Europe Agreements with a number of countries. These Agreements have the objective of promoting
closer relations between those countries and the European Communities and with a view to the eventual
integration of the former in the latter as new member states. The provisions of the Czech and Romanian
Agreements which are relevant to these proceedings are identical. These agreements, and similar agreements
made between the European Communities and other states, are variously referred to as Europe Agreements or
Association Agreements.

52
Toma Adam and Others v Minister for Justice, Equality and Law Reform, Ireland and
the Attorney General

Supreme Court, 05/04/2001


[2001] 2 ILRM 452
Description
In Toma Adam and Ors v Minster for Justice, Equality and Law Reform and Ors two groups
of Romanian nationals were separately granted leave to apply for judicial review of their
deportation orders. The second group was granted leave to apply for, inter alia, an order
compelling the State to institute proceedings against Romania under the European
Convention on Human Rights. (High Court 16/11/00 and 30/01/2001). In both cases the High
Court held that the Convention was not part of Irish domestic law and that the Minister for
Justice was not obliged to take account of it. The appeals by the two groups were held
together. The Supreme Court upheld decisions of the High Court and rejected the suggestion
that, when considering the applications for asylum, the respondents were obliged to take into
account the Convention on the ground that same was not part of Irish domestic law and the
Irish Courts had no part in its enforcement27.
Short Description
In the case of Toma Adam and Ors v Minster for Justice, Equality and Law Reform and Ors
the Supreme Court upheld decisions of the High Court and rejected the suggestion that,
when considering the applications for asylum, the respondents were obliged to take into
account the European Convention on Human Rights on the ground that it was not part of
Irish domestic law and the Irish courts had no part in its enforcement.

See Also:
Caladras v Minister for Justice, Equality and Law Reform
Akinyemi v Minister for Justice, Equality and Law Reform
Chen v Secretary of State for the Home Office (UK) (ECJ)

27
See note 2.

53
XI. OTHER ISSUES

Sinik v Minister for Justice, Equality and Law Reform

High Court, 19/07/2002


[2002] 10 ICLMD 63
Description
The applicants, Croatian nationals, sought leave to apply for judicial review of deportation
orders in respect of the father and son of the family who sought leave to remain pending the
determination of the applications of the mother and daughter of the family.
The court held that the State’s obligation to protect marriage cannot limit the Minister’s
discretion in relation to a person whose application for asylum has been refused. The
Minister was not made aware of presence of the wife and daughter until the deportation order
was made. The court held that a person claiming that a decision-making authority had
ignored representations that it had received, had to produce some evidence before he could
be said to have an arguable case. The Minister was deemed to have considered all relevant
matters and the application for leave was refused.
Short Description
The applicants, Croatian nationals, sought leave to apply for judicial review of the
respondent's deportation orders in respect of the father and son of the family. They sought
permission to remain in Ireland pending the determination of the applications of the mother
and daughter of the family. The application for leave was refused.

Emekobum v Minister for Justice, Equality and Law Reform

[2002] 10 ICLMD 62
High Court, 18/07/2002
Description
At issue in the case of Emekobum v Minister for Justice was whether the refusal of refugee
status to a parent extended to the children. This case also addressed whether it was
necessary that minors who enter the State without entitlement have their asylum applications
considered separately and are the subject of separate decisions. The court held that the
mother in this case intended that her application for refugee status would ‘carry the children’
and that the application by the mother always had the entitlements of the children included.
The court found that the representations were properly considered by the Minister and
refused to extend the period within which the applicants could apply for judicial review.
Short Description
At issue in this case was whether the refusal of refugee status of a parent affected the
children. Also addressed was whether it was necessary that minors who enter the State
without entitlement have their asylum applications considered separately. The court held that
the application by the mother always had the entitlements of the children included. The court
found that the representations were properly considered by the Minister.

54
Matthew, Kelly Ikoroje v Minister for Justice, Equality and Law Reform

High Court, 15/01/2002


Unreported
Description
The applicant argued that the failure to achieve refugee status should not be taken into
account when making a decision on humanitarian leave to remain. The court held that the
Minister was entitled to take this into account and consequently there had been no error in
the deportation order.
Short Description
The applicant argued that the failure to achieve refugee status should not be taken into
account when making a decision on humanitarian leave. The court held that the Minister was
entitled to take this into account and consequently there had been no error in the deportation
order.

Kweder v Minister for Justice

High Court, 11/10/1994


[1996] 1 IR 381
Description
This case concerned the refusal of a visa to a Syrian national, married to a UK national but
who was the subject of a deportation order. The case makes it clear that it is considered to
be in the interests of public policy to safeguard the existence of the common travel area with
Britain. The Judge observed: “I accept that the common travel area arrangements as
between Ireland and the UK have been and are perceived by the public to be of great
advantage to this state. I, therefore, accept the submissions made on behalf of the Minister
that this public policy is not merely legitimate but also fundamental. Provided proper regard is
had to European Community Law such a public policy is not in any way incompatible with
that law.”
Short Description
This case concerned the refusal of a visa to a Syrian national, married to a UK national but
who was the subject of a deportation order. The case makes it clear that it is considered to
be in the interests of public policy to safe guard the existence of the common travel area with
Britain.

55
Appendix 1 - List of Cases
Page
Akinyemi V Minister for Justice, Equality and Law Reform 39
Article 26 and The Illegal Immigrants (Trafficking) Bill 1999 13
Ayeni V Minister for Justice, Equality and Law Reform 9
Ayinde V Minister for Justice, Equality and Law Reform 10
B. V Minister for Justice, Equality and Law Reform 27
B. - M. (A.) V Minister for Justice, Equality and Law Reform 45
Benderare V Minister for Justice, Equality and Law Reform 40
Bola Funmi Ojo V The Governor of Dóchas Centre 17
Bozsa V Refugee Applications Commissioner 33
Caldaras & Anor v Minister for Justice Equality and Law Reform 7
Camara V Minister of Justice, Equality and Law Reform 34
Cartis V Refugee Appeals Tribunal and Minister for Justice, Equality and Law Reform 32
Chen v Secretary of State for the Home Office (UK) (ECJ) 6
Cyprian V Refugee Applications Commissioner 40
Dascalu V Minister for Justice, Equality and Law Reform 24
Demeter V Minister for Justice, Equality and Law Reform 49
Duba V Refugee Appeals Tribunal 44
Emekobum V Minister for Justice, Equality and Law Reform 54
F.A. V Minister for Justice, Equality and Law Reform and Appeals Authority 43
Fajujonu V Minister for Justice; Ireland and; the Attorney General 11
G.K V Minister for Justice, Equality and Law Reform 27
Gabrel V Minister for Justice, Equality and Law Reform 46
Goncescu and others V Minister for Justice, Equality and Law Reform 52
Gutrani V Minister for Justice 24
Hoti V Refugee Appeals Tribunal 33
Ikeje V Minister for Justice, Equality and Law Reform 22
Iqbal V Refugee Applications Commissioner 37
J. (B.O.) V Minister for Justice, Equality and Law Reform 45
Ji Yoa Lau v Minister for Justice 19
Jonathan V Ireland 21
Kallie V Minister for Justice, Equality and Law Reform 26
Khamis V Minister for Justice, Equality and Law Reform and Refugee Applications
Commissioner 41
Kweder V Minister for Justice 55
Laurentiu V Minister for Justice, Equality and Law Reform 16
Lelimo v Minister for Justice, Equality and Law Reform 38

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Leontjava and Chang v. Minister for Justice, Equality and Law Reform 14
Lobe & Osayande V Minister for Justice, Equality and Law Reform 8
Majokolason V Refugee Appeals Tribunal 39
Matthew, Kelly Ikoroje V Minister for Justice, Equality and Law Reform 55
Meta V Minister for Justice, Equality and Law Reform 11
Mihalescu V Refugee Appeals Tribunal 31
Mohsen V Minister for Justice, Equality and Law Reform and Refugee Appeals Tribunal 34
Mokrane V Minister for Justice, Equality and Law Reform 9
Munteanu V Minister for Justice, Equality and Law Reform 44
Naomitsu Kanaya v Minister for Justice Equality and Law Reform 15
Nastase V Minister for Justice, Equality and Law Reform 8
Nicolaev V Refugee Appeals Tribunal Minister for Justice, Equality and Law Reform 31
O. (A Minor suing by Mother and Next Friend I.A.O.) V Minister for Justice, Equality and Law
Reform 10
O.J. V Minister for Justice, Equality and Law Reform 22
Okafu V Refugee Appeals Tribunal 30
Okebiorun V Minister for Justice, Equality and Law Reform 18
Okoroafor v. The Governor of Cloverhill Prison, The Minister for Justice, Equality and Law
Reform, and the Commissioner of an Garda Siochána 17
Osheku V Ireland 12
P. L. B. V Minister for Justice, Equality and Law Reform 23
Pok Sun Shun V Ireland 12
R. and K. V Minister for Justice, Equality and Law Reform 51
Raiu V Refugee Appeals Tribunal and Minister for Justice, Equality and Law Reform 32
Rostas V Minister for Justice, Equality and Law Reform and Refugee Appeals Tribunal 50
Saalim V Minister for Justice, Equality and Law Reform 26
Said V Minister for Justice, Equality and Law Reform and Refugee Applications Authority 41
Satarov V Minister for Justice, Equality and Law Reform and Refugee Appeals Tribunal 29
Savin V Minister for Justice, Equality and Law Reform 50
Simi V Minister for Justice, Equality and Law Reform 36
Sinik V Minister for Justice, Equality and Law Reform 54
Spatariu V Refugee Appeals Tribunal 48
Stefan V Minister for Justice, Equality and Law Reform 46
The State (Kugan and Elamkumaran) v Minister for Justice 19
T.A V Minister for Justice, Equality and Law Reform 42
Toma Adam and Others V Minister for Justice, Equality and Law Reform; Ireland and; the
Attorney General 53
Vicovich V Minister for Justice 20

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Yacef V Minister for Justice, Equality and Law Reform 30
Z. V Minister for Justice, Equality and Law Reform 36

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