K v Minister for Justice: Minister not required to state the date by which the recipient must leave the State on face of deportation order

In this case, K v Minister for Justice & Equality, the Supreme Court held, in line with precedent, that s 3 of the Immigration Act 1999 does not require that the Minister specify on the face of a deportation order the date by which the recipient must leave the State. The Minister’s practice of notifying the recipient of that date by letter served with the order is sufficient.

 

The 1999 Act states:

3.—(1) 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.

 

Background

K is a Pakistani national. He entered the State in 2012 and sought asylum status. That application was refused, as was his application for subsidiary protection. In January 2017 the Minister issued a deportation order in the manner prescribed in the underlying regulation. The order was served along with a registered letter stating that K was required to leave the State by 3rd March 2017.

K sought judicial review seeking an order quashing the Minister’s order. He argued that s 3 of the 1999 Act required that the Minister state on the face of the order the date by which he was required to leave the State. The High Court refused K’s application, stating that the authorities on this issue are clear, and refused certification for an appeal to the Court of Appeal.

K applied to the Supreme Court for leave for a leapfrog appeal. He argued that the Supreme Court case that is accepted authority did not directly address the issue and should be reviewed. The Court granted K leave on the question:

Is a deportation order valid when it fails to specify on its face the date by which the subject must leave the State, and remain thereafter out of the State?

O’Donnell J, writing for a unanimous five judge panel dismissed K’s appeal on two grounds: the Mogul principle and the Barras principle.

Mogul principle

In Mogul of Ireland v Tipperary (NR) County Council [1976] 1 IR 260 the Supreme Court held that it would not overturn an earlier judgment just because a different Court would have reached a different decision It would only do so where the decision was clearly wrong or where justice required it.

Barras principle

This stems from a House of Lords decision that where a court has interpreted a section of a statute as having a specific meaning and the legislature re-enacts the same words in a similar context, it is presumed that the legislature has endorsed that interpretation.

The authority that K argued needed to be reviewed was FP v The Minister for Justice [2002] 1 IR 164 where Hardiman J rejected an argument that a deportation order should state the date of the effect of the order.

O’Donnell J noted that K’s strongest argument is that s 3 of the 1999 Act is open to two interpretations. But in FP the Court rejected the interpretation that K is proposing. And s 3 has been re-enacted in “essentially identical terms” by statutory instruments in 2005 and 2017. Therefore, under the Barras principle, there is a legal presumption that the legislature approved of the Court’s interpretation. And the Mogul principle prohibits the Court from overturning FP, as K had not shown that the decision in that case was clearly wrong or that justice required that it should be overturned.

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