Court of Appeal dismisses appeal regarding statutory interpretation of appeal restrictions on deportation order revocation refusals.

COURT OF APPEAL

Neutral Citation Number: [2017] IECA 284

[2016 No. 377]

The President

Irvine J.

Hedigan J.

BETWEEN

KRA AND BMA (A MINOR)

APPELLANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

JUDGMENT of the President delivered on 27th October 2017

Introduction

1. Ms. KRA, the first named applicant, was born in Nigeria in 1975. She married there and had three children. In early 2008, she came

alone to Ireland while pregnant and sought asylum on 10th March of the same year. Her baby, the second named applicant, BMA, was

born four days later on 14th March 2008. The asylum application was rejected and in March 2009, Ms. KRA was notified by the

Minister of an intention to make deportation orders. Solicitors on her behalf applied for subsidiary protection, but on 9th November

2009, that also was rejected. On 18th November 2009, the Minister made deportation orders in respect of both applicants and Ms.

KRA was required to present herself to the Garda National Immigration Bureau on 8th December 2009. She did not do so, but instead

went into hiding from the authorities and remained underground for almost five years. Ultimately, she went to solicitors and through

them, on 23rd October 2014, she made an application for revocation of the deportation orders pursuant to s. 3 (11) of the

Immigration Act 1999. That gave rise to an arrest and an application to the High Court under Article 40 with which we are not

concerned. On 18th May 2015, the Minister refused to revoke the deportation order. On 3rd June 2015, the High Court (Faherty J.)

granted leave to the applicants to bring these judicial review proceedings in respect of the refusal.

2. Another relevant part of the chronology is that Article 42A of the Constitution came into force on 28th April, 2015, in the period

between the application for revocation under s. 3(11) and the Minister’s decision. This appeal is primarily concerned with s. 1 of

Article 42A which is as follows:

“The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by

its laws protect and vindicate those rights.”

3. The matter was heard by Humphreys J. who delivered judgment on 12th May 2016, in which he rejected the various grounds

challenging the Minister’s refusal. In another judgment in November 2016, the same judge granted a certificate permitting the

disappointed applicants to appeal to this Court against the judgment previously given and the order perfected in June 2016. Two

further judgments followed dealing with costs and a request by the Minister for leave. We are concerned in this case with the

judgment of 12th May 2016, and the orders made in consequence. The appellants’ leave to appeal was granted on two grounds, but

they added another two grounds in the notice of appeal, submissions and argument and it is accepted that grounds may be added

when leave has been given.

4. A question that arose in the High Court and which was debated on the appeal is whether the decision of the Minister to refuse a

revocation application under s. 3(11) required leave of the High Court before judicial review could be sought. Humphreys J. held that

the restrictive statutory regime under s. 5 of the Illegal Immigrants (Trafficking) Act 2000, as amended in 2014 did indeed apply to

such decisions, but the matter was not entirely clear. Although this appellant maintained her contention that the Minister’s refusal

could be appealed without leave, in light of the judgment of the High Court, she applied for leave to appeal and the judge granted it.

In the circumstances, the mother has had a full hearing in the High Court pursuant to the leave that she obtained to bring judicial

review proceedings. She obtained sanction from the court to bring her appeal to this Court so that from her perspective there is

nothing to be gained or lost in the discussion about entitlement to appeal from a Ministerial refusal to revoke a deportation order. The

question, nevertheless, has obvious importance for other cases and I propose to consider the matter, but this judgment should be

read subject to a reservation arising from the relatively academic nature of the argument on the point.

5. Another issue that is important from the Minister’s position, but is not central or even relevant to the appellant’s case is the

approach of this Court to the granting of an injunction restraining the deportation of a person or persons in the circumstances of the

mother and her daughter in this appeal. In the final episode of the tetralogy of litigation that came before Humphreys J, he considered

whether he should enjoin deportation pending the determination of the appeal from his judgment. Having heard the matter debated,

the judge refused an injunction and the matter in due course came to this Court.

6. This Court dealt with the appeal as a matter of urgency and decided on the basis of a pragmatic response to the situation to grant

an injunction until the appeal was determined. Thus, the question of an injunction is a live issue for the Minister, but in fact it is of

little more than academic interest for the appellants. In the circumstances, the court made it clear that nothing was to be taken from

the decision in the instant case to enjoin deportation pro tem and to leave further consideration of the matter over until judgment.

7. Irvine J addresses the injunction issue in her judgment with which I agree and have nothing to add.

The High Court

8. The essential case made on behalf of KRA and BMA was, first, that Article 42A.1 conferred on BMA constitutional rights, inter alia,

to education which fell to be put into the balance against the interests of the State. Her right to free primary education was a natural

and imprescriptible right under this Article which could not be defeated otherwise than by a careful balancing against the legitimate

interests of the State. Secondly, the decision under challenge required a separate consideration of the individual position of the

second appellant in circumstances where she was born in the State, was attending primary education, had never resided in the

country to which she was to be deported and there was evidence that her education would be impaired if she were deported. Thirdly,

the conclusion by the Minister that there was a functioning education system in Nigeria was irrational.

9. The appellants submitted on the procedural question of interpretation or construction of the statutory provision that s. 5(1)(m) of

the Act of 2000 does not apply to a refusal to revoke a Deportation Order and therefore that leave of the High Court is not required.

10. The judgment of the High Court was delivered by Humphreys J. on 12th May 2016, and the order was perfected on 29th June

2016, bearing Record Number [2016] IEHC 289. Humphreys J. held that the refusal to revoke the deportation order was not invalidated

by a failure to consider properly the child’s constitutional right to free primary education pursuant to Article 42A. The right existed

independent of that Article which imposed no new obligations on the Minister in respect of immigration control and which made no

significant difference to issues of deportation. The obligation to protect the natural and imprescriptible rights of all children applies to

immigration decisions. The right to education is one of such rights to be enjoyed by citizens and non-citizens alike. However,

entitlement to an education does not create an entitlement to remain in the State if a person is here unlawfully. Nor does the fact

that the destination country has an inferior education system prevent deportation. There was no logical reason why the second

applicant’s case had to be given separate consideration.

11. The court found that s. 3(11) did not give an applicant the right to reopen the whole deportation process afresh so that the

whole case had to be reconsidered. This applied particularly with regard to the claims to education because that case was available

to the applicants when they responded to the Minister’s notification of intention to make a deportation order pursuant to section 3.

The provision for application to the Minister for revocation gave a person whose deportation had been ordered an opportunity to

present to the Minister facts, circumstances and reasons why the order should not now be implemented. The judge said that there

was “a limitation on the use of s. 3 (11) in that it is confined to new circumstances, albeit that this test can be read broadly to

include new legal circumstances”. Otherwise, all deportation orders would be “up for permanent renegotiation” and the time limits

would be inoperative.

12. The court held that the appellants were not entitled to litigate an issue, namely, the right to primary education, which they could

have raised at the deportation order stage. A comparison of the adequacy of Irish and Nigerian education systems was available to

the appellants in 2009. The fact that the second appellant would commence education was foreseeable and could have been litigated

then. This was not a new point and in the absence of any significant difference in the legal position of the second appellant as result

of the enactment of Article 42A there was nothing new in the claim that deportation would interfere with her education.

13. The court also rejected the claim based on irrationality.

14. At para. 90 of his judgment, the trial judge provided a helpful summary of the principles which he had identified and applied in

refusing the application for judicial review of the Minister’s decision. We are not concerned with the first point dealing with a pleading

issue that arose in the trial:

“(ii) Section 5 of the Illegal Immigrants (Trafficking) Act 2000 applies to a decision refusing to revoke a deportation order

under s. 3(11) of the Immigration Act 1999;

(iii) an applicant is not entitled to relief by way of judicial review challenging a decision refusing to revoke a deportation

order on a ground which could have been available to him or her at the time the original order was made, in the absence

of a change of circumstances or of refoulement arising;

(iv) the right to education including to free primary education is a natural and imprescriptible right of the child to be

enjoyed without discrimination on grounds such as nationality, legal status or marital status of parents by any child within

the jurisdiction;

(v) such a right only applies while the child is present in the State and does not confer any right not to be removed, even

to a country with an inferior social or educational system;

(vi) the right of a non-national child to be or remain in the State is not a natural and imprescriptible right and therefore

does not fall within the scope of Article 42A.1;

(vii) insofar as it relates to social or educational rights (leaving aside family rights), Article 42A does not represent an

obstacle to deportation of a child and does not require express consideration by the Minister for Justice and Equality, and

insofar as it suggests otherwise, or implies a position which amounts to requiring more detailed consideration of the

deportation of a child on such grounds, the C.O.O. decision is in my view incorrect;

(viii) it is rationally open to the Minister to conclude that Nigeria has a functioning educational system;

(ix) there is no obligation on the Minister to consider the deportation of a child (or revocation of a deportation order)

separately from that of a parent: the C.O.O. decision in this regard is in my view incorrect.”

The Appeal

15. The notice of appeal lists the following grounds:

“(i) The Learned Trial judge erred in concluding that Section 5 (1) (m) of the 2000 Act applies to a refusal to revoke a

Deportation Order.

(i) The Learned Trial Judge erred in refusing to follow the Judgment of Eagar J in C.O.O. v The Minister for Justice [2015]

IEHC 139.

(ii) The Learned Trial Judge erred in concluding that Article 42A.1 of the Constitution did not make any, or any significant,

difference to the entitlement of the State to deport children who are unlawfully present in the State.

(iii) The finding of the respondent that there was a ‘functioning’ education system in Nigeria was irrational having regard

to the material before her and/or the provisions of Articles 42 and/or 42A of the Constitution.”

The Issues and Arguments

Appellants’ Submissions

16. The appellants contended that the High Court should have held that a child’s right to free primary education was a natural and

imprescriptible right under this Article which could not be defeated otherwise than by a careful balancing against the legitimate

interests of the State. Sivsivadze v. The Minister for Justice [2015] 2 ILRM 73 is authority that the courts have an obligation under

Article 42A.1 to consider the rights of children in the immigration context. In Dos Santos v. The Minister for Justice [2015] IECA 210,

this Court held that while non-citizen children did not have a constitutional right to reside in the State, they were entitled to other

rights including those relating to fair procedures. The terms “natural and imprescriptible” and “all children” make clear the non-

discriminatory character of Article 42A.1. Legal status does not exclude non-citizen children from fundamental human rights in the

Constitution.

17. The question then becomes whether these natural and imprescriptible rights include that of primary education. In Re Article 26

and the Adoption (No.2) Bill [1989] IR 656, the Supreme Court emphasised that the predecessor provision in Article 42.5 sought to

protect all of the personal rights of the child. Similarly, in JG & Ors v. Judge Staunton & Ors [2013] IR 390, Hogan J. noted that

violations of the personhood of a child, as understood through the lens of Article 40.3.2 of the Constitution, would amount to a

breach of their Article 42.5 rights.

18. The right to primary education is included in the personal rights of the child protected by Article 42A.1. This view, which does not

distinguish between citizen and non-citizen, is in line with the Article 28.1 of the UN Convention on the Rights of the Child which

dictates that States shall, inter alia, “[m]ake primary education compulsory and available free to all”. The right to primary education is

also expressed in near identical terms in Article 13 of the International Covenant on Economic, Social and Cultural Rights.

19. The appellant contends that the true interpretation of Article 42A.1 requires the Minister to consider the individual position of BMA

in immigration determinations so as to protect and vindicate the natural rights of the child. In C.O.O v. The Minister for Justice [2015]

IEHC 139, Eager J. highlighted that s. 3(6) of the Immigration Act 1999 required the individual consideration of circumstances of an

individual person in determining a deportation order. This was held to include non-citizen children. Eager J. also made obiter remarks

surrounding the pending referendum that would ultimately see the insertion of Article 42A into the Constitution. It was noted that if

passed, the Minister would have to give greater consideration to the welfare of the child in making deportation determinations.

20. It is accepted that BMA does not have as extensive a list of constitutional rights as that of a citizen child, but the methodology

for assessing whether they are upheld is the same. Oguekwe v. Minister for Justice [2008] 3 IR 795 held that the Minister is required

to “expressly” consider her rights in making a determination such as this. It is the duty of the Respondent to assess and have regard

to the “potential interference with rights of the appellant”, in this case that of primary education. It is submitted that the Minister

must take a number of factors into consideration including:

(i) The individual needs of the child in question;

(ii) the duration of that child’s engagement in the State’s education system;

(iii) the educational opportunities available to child in their position in their country of origin and

(iv) the rights of the State in matters of national security, public policy, and the integrity of its immigration system.

21. The Minister’s duty is essentially one of upholding the principles of fairness and justice in a manner that is reasonable and

proportionate to the circumstances. The appellants cite Meadows v. The Minister for Justice [2010] 2 IR 701.

22. Deportation of BMA to Nigeria would deprive her of a primary education. The trial judge held that this right was vindicated by

providing education during BMA’s time in the State. It is submitted that this limited reading of the right to primary education neglects

to appreciate the significance of the term: imprescriptible, as a hallmark of its importance to society as recognised by Hogan J. in

Staunton. The Minister should have had regard to the fact that BMA had been attending primary school since September 2012, and

according to her school Principal had integrated well, making a number of friends in the process. Additionally, the educational

opportunities available in Nigeria would be significantly less than those she was currently availing of. Moreover, BMA, while not a

citizen, had been born in the State and had never lived in Nigeria or any other country. The deportation order itself was based on her

being a “dependent child”. Where no reference or consideration was given to BMA’s natural and imprescriptible rights, the Appellant

submits that the Minister failed to fulfil her constitutional obligations.

Respondent’s Submissions

23. Article 42A.1 merely affirms the State’s accepted obligation to protect the natural and imprescriptible rights of all children, but

only insofar as practicable. It is accepted that, as per Walsh J. in Nicolau v. An Bord Uchtala [1964] IR 567, the natural rights of the

child include a right to “religious and moral, intellectual, physical and social education”. However, the appellants have not shown that

free primary education is a natural and imprescriptible right as the cited provision found in the UN Convention on the Rights of the

Child is one to be aspired to.

24. In the alternative, the respondent notes that the right to free primary education is not an absolute one and can be weighed

against the State’s right to control immigration. Moreover, the right to primary education point was never raised in their

representations to the Minister in support of their request to have the deportation order revoked. However, the Minister had notice

that BMA was attending primary school by virtue of information provided to her during this process. In Fitzpatrick v. Minister for

Justice [2005] IEHC 9, Ryan J. (as he then was) held that a specific consideration and the weight given to it need not be highlighted

in the reasoning for a deportation order.

25. It is sufficient for the respondent to say that due consideration was given to the impact that removing BMA from the State would

have on her education and was entitled to conclude that the balance lay with asserting the State’s entitlement to control

immigration. This case can be distinguished from Oguekwe as that case concerned the deportation of a non-national parent of a

citizen child and the rights which accrued were fundamentally different as a result.

26. The respondent argued that the right to free primary education did not preclude the deportation of a non-national child availing

herself of such education. The Minister was not required to determine whether such a right was outweighed by the interest of the

State. Without prejudice to the general traverse of this ground, the Minister submitted:

(iv) The request for revocation did not specifically assert a breach of constitutional rights, but rather alleged a reduction

in educational opportunities in Nigeria;

(v) this particular article of the Constitution is irrelevant because the right to education as claimed pre-existed the new

Article and the Minister was aware, when affirming the deportation order pursuant to section 3, of such rights on the part

of the second applicant and that the right to free primary education is a qualified right which has to yield to the State’s

right to control irregular migration and

(vi) representations about the impact of deportation on the education rights of the second applicant should have been

made under s. 3(3) of the Act of 1999 before the deportation order was made.

27. The scope of this appeal is limited by its nature as a review of the refusal to revoke deportation orders. It is not unusual for

reasons to be given in a single document and to consider both parent and child’s claims together. In Nwole v. Minister for Justice

[2008] 2 IR 48, the Supreme Court held this was lawful where the child was included in the parent’s claim. In Oladineji (A Minor) v.

Refugee Applications Commissioner [2009] IEHC 478, a parent’s earlier unsuccessful claim was a ground for rejecting a child’s claim

where no material difference was proffered. It is accepted that outside of these circumstances, individual consideration is required.

28. The executive power granted to the Minister by s. 3(11) of the 1999 Act to revoke or amend deportation orders carries with it

significant scope. No particular form or manifestation of that power is required and it is for the Minister to decide how to determine a

joint revocation request. The latter is not required to undergo the same analytic scrutiny as outlined in s. 3(6) of the 1999 Act.

Finally, the coming into force of Article 42A could have had no material impact on the Minister’s decisional calculus as the right

asserted predates its introduction and CI v. Minister for Justice [2007] IEHC 302 confirms that no additional weight is given to the

child’s interests in immigration matters.

Discussion

(i) Did Article 42A.1 confer on the second applicant constitutional rights inter alia to education which fell to be put into

the balance against the interests of the State?

(ii) Did the analysis on which the decision was made in require a separate consideration of the individual position of the

second appellant in light of her circumstances?

(iii) Was the conclusion that there was a functioning education system in Nigeria irrational?

(iv) Does section 5 (1) (m) of the Act of 2000 apply to a refusal to revoke a Deportation Order?

(v) There is in addition the question of the injunction: was it correct for the High Court to refuse to enjoin deportation

pending the determination of the appeal from his judgment and on what basis is it appropriate and just to make such a

decision?

29. Article 42.4 of the Constitution expresses the obligation of the State to provide for free primary education. The trial judge held

that the right of a child to such education is one of the natural and imprescriptible rights to be enjoyed under Articles 40.3, 41, 42

and 42A. The last mentioned provision is not specific to education or to immigration but applies generally in respect of rights and

children. It is not that it does not apply to those areas but rather that it is not particular to them. It is also clear that the new Article

is not restricted to citizen children.

30. The trial judge was firm in his view that children residing in the State are entitled to avail themselves of the right to education

specified in Article 42.4. He found it difficult to see how Article 42A made any material difference to that express provision. However,

accepting that the second appellant had a constitutional right to primary education that was not and could not be absolute.

Humphreys J. cited Saunders v. Mid-Western Health Board (Unreported, Supreme Court 11th May 1987); Sinnott v. Minister for

Education [2001] 2 IR 545 and Oguekwe.

31. The judge dissented from the prediction made obiter in C.O.O. (Nigeria) the Minister for Justice (No.1) [2015] IEHC 139 by Eagar

J. that the situation of immigrant children claimants would change remarkably for the better if Article 42A became law. It seems that

the judge in that case was referring to the best interest of the child test that is specified in the new Article for certain decisions

which do not include immigration, a point that is emphasised by this court in Dos Santos. These sympathetic observations in

anticipation of the enactment of a measure that had no relevance to the case under discussion do not amount nor I think were they

ever intended to be a legal interpretation of the impact of Article 42A in a particular future case. It is understandable of course why

the appellants should use them to support their contentions. I would respectfully adopt the views of Humphreys J. on this question.

32. In circumstances where there is a specific constitutional right dealing with the child’s entitlement or the entitlement of children

generally, it is not a reasonable inference that this general provision of protection of rights should be considered to have altered the

existing obligations of the State. But let us assume that Article 42A did impose some extra obligation. The question arises as to what

is the nature of the obligation. It might be argued that Article 42.4 is limited to citizen children or to children lawfully present in the

State. If that were the case, an argument could be made under the new provision that it would be unlawful to continue the exclusion

of children not lawfully present. But how can the new provision be construed as giving entitlement to a child to live in the State

simply for the purpose of education when he or she is not otherwise permitted to be here? There is not a freestanding right provided

by the Constitution to all children wherever located to be educated in Ireland if they can once come to reside here.

33. The real question is not whether the second applicant is entitled to free primary education in the State while she is living here,

but whether she is entitled to live here in order to avail herself of free primary education. The answer is that she is not.

34. In my view, the situation is clear. The trial judge was correct to hold that Article 42A does not amount to a bar to the

deportation of a child who is undergoing primary education in the State. The new Article does not give support to the claim made by

the second appellant and it does not actually make any material difference to her education rights. While she is undoubtedly entitled

to avail herself of the right to education while she is living here that does not mean that she has a right to live here in order to avail

herself of education.

35. Ultimately, the question is whether the educational rights that the second applicant is entitled to enjoy in the State represent a

barrier to deportation. I agree with the trial judge that they cannot do so. A contrary view would make the State’s immigration policy

impossible to implement. Any child who happened to be in the State whether legally or illegally would have the entitlement to have

individual evaluation of his or her claim to remain here. Secondly, the Minister would have to measure the educational opportunities in

the destination country against Irish provision. This would be irrespective of how the child came to be in Ireland. In the instant case,

it would also mean that the unlawful course adopted by the child’s mother redounded not only to the very great advantage of the

child but also by extension to her mother.

Individual Consideration

36. The appellants also rely on the decision of Eagar J. in C.O.O. for the contention that the Minister’s consideration of BMA’s case

was fatally flawed because it was carried out in conjunction with her mother’s application and was not performed as a discrete

exercise.

37. I do not consider that the circumstances of the two applicants had to be addressed separately and individually by the Minister.

Such an obligation does not arise in a consideration of a deportation order under s. 3(6). There are, of course, circumstances which

will necessitate individual assessment. One of those is in the case of a citizen child who because of citizenship has prima facie a right

to live in the State. My point is that there is not a general rule that says that any consideration of such a case as the present,

involving a mother and young daughter, necessarily demands individual assessment. The suggestion is that irrespective of any

criticism of the basis of evaluation of the cases or either of them, the mere fact of joint consideration invalidates the decision. Such a

view is in my judgment erroneous as a matter of law. Insofar as the decision in C.O.O. holds that it is fatal to a decision if there is

joint consideration, I think it is incorrect. Humphreys J. subjected the judgment to a detailed critique which it is unnecessary to

repeat here. In this case, I do not think there is any basis for invalidating the Minister’s consideration of the revocation application on

this ground. It is relevant that the application was put before the Minister on a joint basis comprising mother and daughter and it was

reasonable to consider them together. The fundamental point in rebuttal of this submission is that there was not any reason for

separate analyses in this case or these applications. I would accordingly hold that this ground cannot succeed. I think that a practice

of giving completely discrete examinations might well be itself open to objection but obviously that is obiter.

38. The trial judge was correct to point out that a decision by the Minister under s. 3(11) to refuse revocation is different from one

made under section 3(6) to make a deportation order. The approach of the court in an application for judicial review has to reflect the

distinction. Humanitarian considerations are to the forefront when an order is being considered, although even then the Minister has a

wide discretion. The question arises when a person resident in the State has been refused refugee status or subsidiary protection so

that he or she has no continuing entitlement to live here. The situation before a decision has been made on asylum is, of course,

entirely different because the applicant has a right to be and remain in the State pending determination of his or her claim for

international protection. Once that is decided, however, the person does not have any right but can of course make a humanitarian

case against a proposed deportation order. The Minister is obliged to consider the application in a manner that is consistent with fair

procedures. There are always some arguments why a person should be permitted to stay and the Minister has to balance those

against the national interest in preserving the integrity of the immigration system. Because the latter interest is necessarily public and

general, to use the expression that characterises legislation, and the matters to be balanced against it are immediate, personal, and

human the process of evaluating the claims is not an easy one. But when that is done, pursuant to s. 3(6), there is a certain finality

about the decision to make a deportation order. The jurisdiction under section 3(11) has been discussed by Clarke and MacMenamin

JJ. in decisions of the Supreme Court.

39. In Smith v. Minister for Justice and Equality & Ors [2013] IESC 4, Clarke J. noted:

“. . . a party cannot artificially create a new point by the simple expedient of making multiple applications for revocation

of a deportation order. It is, of course, the case that a party is entitled to invite the Minister to revoke a deportation

order at any time. Where, however, there has already being an application to revoke which has been refused and where

the refusal either has not been challenged or where any challenge to such refusal has failed in the courts, then legal

certainty requires that such refusal must be taken to represent a correct determination based on the facts and materials

as they stood at the time of that refusal

...

It is only . . . new facts, materials or circumstances that the Minister is required to consider save to the extent that the

Minister must, of course, if there truly are new facts, materials or circumstances which could be material to an overall

assessment of the position, take an overall view of all the circumstances including those new matters addressed.” [at

para.5.10]

40. In PO v. Minister for Justice [2015] IESC 64, MacMenamin J. held:

“[T]he Minister has two duties. She must consider carefully and fairly the reasons put forward for revocation. She must

also verify that there has been no change in circumstances since the making of the deportation order, either insofar as

concerns the applicants, or the situation in the country of origin, which would bring into play any of the statutory

prohibitions for the return of a failed asylum seeker to the country of origin. . ” [At paras.15-16]

Irrationality

41. The appellants merely assert that the Minister’s conclusion as to the educational system in Nigeria was “arbitrary, unfair and

based on irrational considerations”. In circumstances where the consideration addressed the issue in light of the material submitted by

the applicants, this bare contention cannot succeed.

42. My conclusions on these aspects of the appeal are therefore as follows. First, I do not think there is a right as claimed by the

appellants to have the child’s education in Ireland recognised and protected by the State. The Constitution does not confer any such

entitlement on the second appellant. Secondly, in light of that finding, I am in agreement with the trial judge that the new Article of

the Constitution does not represent an altered circumstance for this child such that a radical revaluation of the case is called for and

I think that the limited review envisaged by s. 3(11) was appropriate. Thirdly, the Minister was not obliged to make a comparison

between the educational opportunities in Ireland and Nigeria before making a decision. That question was, as the High Court noted, a

matter that was or could have been ventilated at the stage of consideration of the deportation order, pursuant to s. 3(6). Fourthly,

the applicants have not shown that the Minister’s conclusion as to the education system in Nigeria was irrational.

Section 5 of the Illegal Immigrants (Trafficking) Act 2000

Section 5(1)(m) of the Act of 2000

43. A new s. 5 of the Illegal Immigrants (Trafficking) Act 2000 was inserted by s. 34 of the Employment Permits (Amendment) Act

2014. The section imposes restrictions on the right of appeal that would otherwise be available in immigration cases. The question

that arises in this appeal is whether the new s. 5(1)(m) of the Act of 2000 applies to a refusal to revoke a deportation order? The

appellants’ notice of appeal accepted that a literal interpretation of the provision did not support their contention that it did not apply

to a refusal so that leave was not necessary for a challenge. However, the plain intention of the legislature could not be ascertained

from the Act as a whole and it followed that a restrictive interpretation curtailed the right of appeal otherwise provided by the

Constitution. It followed that it was not appropriate to rely upon s. 5 of the Interpretation Act 2005. The respondent traversed these

points and claimed that the appellants were not entitled to pursue this ground because they sought and obtained leave pursuant to

the provision. It is useful to set out not only the particular para. (m) but also the rest of the subsection.

“Judicial review

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

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

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

(c) a deportation order under section 3 (1) of the Immigration Act 1999 ,

(d) a refusal under Article 5 of the Aliens Order 1946 ( S.R. and O. No. 395 of 1946),

(e) a refusal under section 4 of the Immigration Act 2004 ,

(f) an exclusion order under section 4 of the Immigration Act 1999 ,

(g) a recommendation of the Refugee Applications Commissioner under section 13 (as amended by section 7 (h) of the

Immigration Act 2003 ) of the Refugee Act 1996 ,

(h) a decision of the Refugee Appeals Tribunal under section 16 (as amended by section 7 (i) of the Immigration Act 2003

) of the Refugee Act 1996 ,

(i) a refusal under section 17 (as amended by Regulation 34 of the European Union (Subsidiary Protection) Regulations

2013 ( S.I. No. 426 of 2013 )) of the Refugee Act 1996 ,

(j) a decision under section 21 (as amended by section 11 (1)(o) of the Immigration Act 1999 ) of the Refugee Act 1996 ,

(k) a removal order under Regulation 20(1) of the European Communities (Free Movement of Persons) (No. 2) Regulations

2006 ( S.I. No. 656 of 2006 ),

(l) an exclusion order under Regulation 23(1) of the European Communities (Free Movement of Persons) (No. 2)

Regulations 2006 ( S.I. No. 656 of 2006 ),

(m) an order under section 3(11) of the Immigration Act 1999 ,

(n) a recommendation of the Refugee Applications Commissioner referred to in Regulation 6(2)(b) of the European Union

(Subsidiary Protection) Regulations 2013 ( S.I. No. 426 of 2013 ),

(o) a decision of the Refugee Appeals Tribunal referred to in Regulation 8(22)(a) of the European Union (Subsidiary

Protection) Regulations 2013 (S.I. No. 426 of 2013), or

(p) such other decision, determination, recommendation, refusal or order as may be prescribed by the Minister under

subsection (9), made on or after the date on which section 34 of the Employment Permits (Amendment) Act 2014 comes

into operation, otherwise than by way of an application for judicial review under Order 84 of Rules of the Superior Courts (

S.I. No. 15 of 1986 ) (hereafter in this section referred to as ‘the Order’).”

Appellants’ Submissions

44. Under s. 5(1)(m) of the Illegal Immigrants (Trafficking) Act 2000, as amended by s. 34 of the Employment Permits (Amendment)

Act 2014, certain procedural restrictions are placed on an attempt by a litigant to challenge an order made under s. 3(11) of the 1999

Act. Where s. 5 of the 2000 Act is engaged, a litigant must seek leave to apply for judicial review. It is submitted that this procedure

does not apply to cases which seek to challenge a “refusal to revoke an order” rather than an order itself. The logic underpinning this

approach was articulated by Cooke J. in E.A.I. v. The Minister for Justice, Equality and Law Reform [2009] IEHC 334, noting “[n]o

such formality is required for a refusal to revoke because it changes nothing”.

45. It is argued that there is no clear authority on the scope of asylum and immigration decisions which are captured by s. 5 of the

2000 Act. Moreover, any attempts at judicial expansion should be rejected on the basis this Court’s inherent appellate jurisdiction

under the Constitution can only be restricted by legislation clearly intended to have such an effect. This position was upheld by

O’Higgins CJ in People (Attorney General) v. Conmey [1975] IR 341 [see also the comments of Hamilton CJ. in Hanafin v. The Minister

for Education [1996] 2 IR 321]. The Supreme Court, in A.B. v. The Minister for Justice [2002] IR 296 approved this approach in the

specific context of s. 5 of the 2000 Act. Keane CJ noted that the right to appeal can only be “removed or abridged by a statutory

provision which is clear and unambiguous”.

46. It is submitted the present case requires the court to apply the literal interpretation to clear wording of the 2000 Act [see NRA v.

Celtic Roads Group (Dundalk) [2011] IEHC 71]. The s. 5(1) of the Interpretation Act 2005 allows the courts to construe the intention

of the legislature where an Act is obscure, ambiguous, or if to do otherwise would lead to absurdity. There is nothing prima facie

ambiguous about the Act in question. In Kadri v. The Governor of Cloverhill Prison [2012] IESC 27, Clarke J. outlined a number of

factors which will be considered in the case of an alleged absurdity. Not only must there be a mistake which lead to the absurdity,

but true legislative intention must be capable of being uncovered. The appellants highlight that no clear policy rationale can be

derived from that would rectify the alleged absurdity. The mandate granted to the court is one of construction rather than rewriting,

even where there seems to be an omission. As Denham J. (as she then was) noted in Howard v. Commissioner of Public Works [1994]

IR 101:

“The correct conclusion to be drawn is that the plain language of the Act must not be extended beyond its natural

meaning so as to supply omissions or remedy defects. The court should neither misconstrue words so as amend defects in

the legislation nor legislate to fill gaps left by the legislature. If there is a plain intention expressed by the words of a

statute then the Court should not speculate, but rather construe the Act as enacted.”

Respondent’s Submissions

47. As the Supreme Court emphasised in Re the Illegal Immigrants (Trafficking) Bill [2000] 2 IR 360, the purpose of s. 5 of the 2000

Act was to ensure that appeals were made in a timely manner for the benefit of the system and individual alike. It is submitted that

the type of decisions that fall under s. 5(1) of the 2000 Act are likely to be negative in nature i.e. where an asylum seeker has failed

in their application. This was also recognised in TD v. The Minister for Justice [2014] 4 IR 277 considering the border control purpose

behind the 2000 Act.

48. It was the legislature’s intention that the procedural restrictions applied implicitly to the refusal to revoke a deportation order as

well as the making of the order itself. Such a reading is required to prevent absurdity, where that concept is understood in the legal

sense as being “out of harmony with reason or propriety” [Bennion on Statutory Interpretation]. The purpose of the 2000 Act was

made quite clear in Re the Illegal Immigrants (Trafficking) Bill vis-à-vis its regulation of challenges to negative immigration decisions. It

is submitted that it would be absurd if the decision to refuse to revoke a deportation order, one which reaffirms the initial negative

outcome was exempt from the procedural restrictions entailed in the 2000 Act. If the court were to accept the appellants’ view, it

would serve to defeat the intent of the legislature, thereby violating the principle in Nestor v. Murphy [1979] IR 326.

Discussion

49. The subsection specifies a number of different events that result from application of different parts of the immigration regime.

There is a notification, a deportation order, a refusal, an exclusion order, a recommendation, a removal order and a simple order. For

all of these events, the new restrictions apply. In respect of s. 3(11), the word used is “order”. We are dealing here with a refusal to

revoke the deportation order. Refusal also occurs and is expressly mentioned in para. (d) of the subsection. That might suggest as a

matter of interpretation that the legislature had it in mind to restrict an appeal only in the case of an order under s. 3(11) and not a

refusal. The Minister concedes that a literal reading suggests that the provision only applies to orders made under s. 3(11) and not to

decisions refusing revocation.

50. Humphreys J. held that the legislative purpose behind the new section 5 would be frustrated by a literal interpretation of s. 5(1)

(m). It would limit the application of the paragraph so that it would only apply to “the almost unheard-of situation of an amended

deportation order”. That is not consistent with the policy of the legislation generally or this particular measure.

51. I agree. I do not think that such an interpretation is legitimate. Under the subsection, the Minister has to make a decision which if

it is in favour of the application will not be a matter for judicial review. It is clearly a decision and the same must apply for a refusal.

Although para. (m) could have specified a refusal, it cannot be the case that a decision to refuse is somehow excluded as being

different. There is no logical basis for that interpretation.

52. The process of consideration of an application to revoke a deportation order comes to a conclusion in a decision by the Minister.

A decision under that subsection is specified in para. (m) so there is a clear statutory application of the restriction. It is, of course,

true that any limitation of the right of appeal from the High Court to this court or the Supreme Court has to be expressed in clear and

unambiguous terms, failing which the right continues to be available. Having said that, there is no room in this case in my view for any

doubt that the legislature intended to impose this restriction on a revocation application or that it actually achieved its purpose.

53. It is fair to say as mentioned above that this question was not in dispute or serious dispute between the parties in a manner that

could impact on the outcome of the appeal. The fact is that the High Court had authorised the appeal and so the issue was

academic. It was nevertheless argued so the court had the benefit of the submissions of each side. In my view, the position is clear

but I still think that this perhaps slight reservation should be entered.

The Test for an Injunction

54. As I stated above, I agree with the judgment of Irvine J on this matter.

Conclusion

55. Accordingly, and for all the reasons I have outlined above, I would dismiss the appeal.