E v Minister for Justice: Placing a letter in an asylum seeker’s file does not constitute service

In this case, E v The Minister for Justice and Equality, the Supreme Court agreed that the placing of a letter on an applicant’s file does not constitute lawful service for the purposes of s 6(1) of the Illegal Immigrants Act 1999 (as amended by s 10(c) of the Illegal Immigrants (Trafficking) Act 2000).

 

Background

E arrived in the State in 2015 and immediately applied to ORAC (Office of the Refugees Application Commission) for asylum. ORAC accepted E’s application and placed him in accommodation for asylum seekers. E left that accommodation the same day. He did not return or leave a forwarding address. After SE missed any appointment with ORAC, it recommended to the Minister that SE’s application be refused.

As ORAC had no address for SE to send communications to, it placed a letter in his file inviting him to apply for subsidiary protection. ORAC later placed a letter in SE’s file proposing his deportation.

At a later stage, SE applied to the High Court for judicial review of the Minister’s decision to deport him on grounds that the Minister did not serve the letters in compliance with s 6(1) of the Illegal Immigrants Act 1999 (as amended by s 10(c) of the Illegal Immigrants (Trafficking) Act 2000). That provides that notice “shall be addressed to him or her”, and be “served or given” on one of two methods, either (a) “by delivering it to him”, or (b) “by sending it by post” [Det 8].

The High Court dismissed SE’s application. It held that the departure from the statutory requirements on service was justified where SE had not provided an address. The High Court refused to certify an appeal to the Court of Appeal.

 

Supreme Court

Granting leave to appeal, the Court determined that whether the High Court’s interpretation of the law was correct is a matter of general public importance.

In advance of the hearing, the State indicated that it would not be opposing E’s contention that its notice to deport him was not lawfully served. The Court accepted that this was the correct approach, as:

It is perhaps true that rather than an absurdity there is a lacuna in the Act, in that the Oireachtas did not contemplate the possibility of a person not providing an address at all and thus frustrating the capacity to effect service by registered post. On the other hand, even this conclusion is not beyond doubt. It may be that the Oireachtas considered that since service of the s.3 notices is an important matter, that it should be effected by one or other of the two specified routes [16].

Stating why it would not be appropriate for the Court to seek to interpret the 1999 Act in a manner that would take account of cases where an asylum applicant had not provided an address, O’Donnell J stated:

In truth, the Court would I think be obliged to construct an entirely new provision governing the situation such as that which arose in this case where no address was provided at all, and in doing so to offer a solution which the Oireachtas may or may not have adopted. In my view, this goes further than s.5 of the Interpretation Act 2005 permits [17].

O’Donnell J allowed K’s appeal.

 

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