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

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

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 Irishborn 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.

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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
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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 nonnational 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

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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.

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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.

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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
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 8

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.

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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 nonnational 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
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. 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”.
11 10

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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.

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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

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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. 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.
13

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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.

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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)

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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.

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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.

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- 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

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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.

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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.’

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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 crossexamine 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 crossexamination 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.

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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

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

20

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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.

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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

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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.

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).

22

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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 wellfounded 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.

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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 wellfounded 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

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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

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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

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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

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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.

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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

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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

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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.

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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.

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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.

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.

26

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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.

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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.

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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.

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

Khamis V Minister for Justice, Equality and Law Reform and Refugee Applications Commissioner 41 Kweder V Minister for Justice Laurentiu V Minister for Justice, Equality and Law Reform Lelimo v Minister for Justice, Equality and Law Reform 55 16 38

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Leontjava and Chang v. Minister for Justice, Equality and Law Reform Lobe & Osayande V Minister for Justice, Equality and Law Reform Majokolason V Refugee Appeals Tribunal Matthew, Kelly Ikoroje V Minister for Justice, Equality and Law Reform Meta V Minister for Justice, Equality and Law Reform Mihalescu V Refugee Appeals Tribunal Mokrane V Minister for Justice, Equality and Law Reform Munteanu V Minister for Justice, Equality and Law Reform Naomitsu Kanaya v Minister for Justice Equality and Law Reform Nastase V Minister for Justice, Equality and Law Reform Nicolaev V Refugee Appeals Tribunal Minister for Justice, Equality and Law Reform

14 8 39 55 11 31 9 44 15 8 31

Mohsen V Minister for Justice, Equality and Law Reform and Refugee Appeals Tribunal 34

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 Okafu V Refugee Appeals Tribunal Okebiorun V Minister for Justice, Equality and Law Reform 22 30 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 P. L. B. V Minister for Justice, Equality and Law Reform Pok Sun Shun V Ireland R. and K. V Minister for Justice, Equality and Law Reform Raiu V Refugee Appeals Tribunal and Minister for Justice, Equality and Law Reform Rostas V Minister for Justice, Equality and Law Reform and Refugee Appeals Tribunal Saalim V Minister for Justice, Equality and Law Reform 12 23 12 51 32 50 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 Simi V Minister for Justice, Equality and Law Reform Sinik V Minister for Justice, Equality and Law Reform Spatariu V Refugee Appeals Tribunal Stefan V Minister for Justice, Equality and Law Reform The State (Kugan and Elamkumaran) v Minister for Justice T.A V Minister for Justice, Equality and Law Reform 50 36 54 48 46 19 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 Z. V Minister for Justice, Equality and Law Reform

30 36

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