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.



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.


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).



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.


What role do the courts have where a member of the Oireachtas breaches a citizen’s constitutional rights?

The Supreme Court will hear oral submissions this week (Thursday, 8th March) in two appeals relating to the remedies available through the courts–if any–to a private citizen, where a member of the Oireachtas has breached their constitutional rights.

The cases are Kerins v Deputy McGuinness & Ors and O’Brien v Clerk of Dáil Éireann. Both cases come direct from the High Court. The High Court held that both Kerins and O’Brien had suffered damage as a result of utterances by members of the Oireachtas. And although the Constitution guarantees to vindicate the personal rights of every person, the High Court held that the Constitution’s provision of privilege to the utterances made within the Houses of the Oireachtas and the constitutional principle of the separation of powers meant that it could not offer either claimant a legal remedy.

Article 15.12

All official reports and publications of the Oireachtas or of either House thereof and utterances made in either House wherever published shall be privileged.

Article 40.3

1° The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

2° The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.


Kerins v Deputy McGuinness & Ors

Ms Kerins voluntarily attended a hearing of the Public Accounts Committee in the Dail. She was not accompanied by lawyers and was given no notification of the nature of much of the questioning. Much that the deputies put to her and said about her was damaging to her reputation, both personally and professionally.

The Divisional High Court (3 judges) accepted that Kerins had suffered damage due to the PAC’s actions. But the court held that it was powerless to intervene.

Granting leave for a leapfrog appeal, the Court stated:

28. The issues raised include, as a matter of general public importance, the legal safeguards available to witnesses who appear before PAC in a voluntary capacity. The role, if any, which the Court has in protecting such witnesses, in circumstances where there are the important issues of freedom of speech in the Legislature, the separation of powers, and the extent to which the Court may intervene in the affairs of the Legislature. Inter related is the issue as to whether or not the Divisional Court overruled In Re Haughey and Ardagh v Maguire.

29. The interests of justice are engaged also as the Divisional Court ruled against the applicant, while finding that she had been damaged professionally and personally by the actions of the PAC, but that there was no legal remedy for the wrongs perpetuated.

30. The Constitution guarantees to vindicate the personal rights of citizens, and to protect citizens against unjust attack. In the circumstances, the issue of safeguarding such rights meets the criteria of the interests of justice in this application.


O’Brien v Clerk of Dáil Éireann

In April 2015, the High Court granted O’Brien an interlocutory injunction against RTE revealing details of his banking information in a documentary on the Irish Bank Resolution Corporation. Subsequently, two TDs, Paul Murphy and Catherine Murphy, revealed in the chamber of Dáil Éireann the information which was the subject of the injunction.

O’Brien made a complaint regarding the two TDs to the Dáil Committee on Procedure and Privileges. The Committee determined that the TDs had not breached the relevant Dáil Standing Order. O’Brien issued High Court proceedings seeking judicial review of the Committee’s decision.

In the High Court, Ní Raifeartaigh J held that:

… the utterances rendered the court proceedings almost entirely moot; that damage was undoubtedly done to the plaintiff; and that the release of the information appears to have been done in a deliberate and considered manner by the Deputies in question. This was as far from an accidental slip of the tongue on the floor of the House as one could imagine.

However, Ní Raifeartaigh J held that the Committee’s decision was not justiciable and dismissed proceedings. She also held that the legal issue was not sufficiently novel to warrant a departure from the general rule that costs follow the event and awarded the State its costs against O’Brien.

O’Brien applied to the Supreme Court for leave for a leapfrog appeal. The Court determined that:

… the case meets the criteria of general public importance and/or the interests of justice. … the matter is suitable for a direct appeal in that any clarification of the existing authorities (if clarification is required) should come from this Court. Further, it seems that the case concerns a single issue of law and its parameters would therefore be unlikely to be reduced by further analysis in the Court of Appeal.

The Court granted leave on the issues O’Brien raised: the justiciability of decisions by the Dáil Committee on Procedure and Privileges; and costs.

CAB v Murphy: Proceedings under Proceeds of Crime Act 1996 cannot correctly be defined as in rem

In this judgment, Criminal Assets Bureau v Murphy, the Supreme Court held that assets seized under the Proceeds of Crime Act 1996 cannot correctly be defined as evidence; and proceedings for the seizure of such property cannot correctly be defined as in rem (against property).

Where an asset is seized for forfeiture under the 1996 Act in a manner alleged to be in breach of an individual’s constitutional rights, the issue for the court is not exclusion under the exclusionary rule. The question is whether a breach of rights has occurred which warrants that the court refuse an order for forfeiture.

133. Where the issue is raised, the Bureau must bear the burden of establishing on the balance of probabilities that (i) the asset was not seized in circumstances of unconstitutionality, or (ii) that, if it was, it is appropriate nonetheless to make the order sought. In the latter case it is for the Bureau to explain the basis upon which it contends that the order should be made, and to establish any facts necessary to justify such conclusion.



In 2009, Gardai searched Murphy’s home on foot of a warrant issued by a Garda Chief Superintendent under s 29 of the Offences Against the State Act 1939. £6,625 Sterling and €9,000 cash was recovered. CAB claims the cash is the proceeds of crime and sought an order for forfeiture under the 1996 Act. Murphy’s father, Murphy Snr, claims ownership of the Sterling.

In 2011, the Supreme Court held that s 29 of the 1939 Act was unconstitutional as it provided for the issuance of warrants without judicial oversight.

In the High Court Murphy Snr argued that, as the warrant was legally defective, CAB’s application should be dismissed under the exclusionary rule (evidence recovered in breach of constitutional rights is inadmissible in court). Granting CAB’s order, the trial judge rejected that argument holding that the proceedings were in rem, relating to the legal status of property rather than the guilt of an accused, and the exclusionary rule does not apply to proceedings in rem.

The Court of Appeal rejected Murphy Snr’s appeal on grounds that the exclusionary rule is not relevant where the cash is not being deployed as evidence in a criminal trial.


Supreme Court

The Supreme Court granted Murphy Snr leave to appeal on three questions:

Where a dwelling is entered other than in accordance with law, and that dwelling is not that of a person seeking to assert a constitutional right to the inviolability thereof, may evidence be excluded in proceedings concerning a person not dwelling therein?

Is there any rule of law requiring that evidence obtained in consequence of illegal entry into a dwelling should be excluded from civil proceedings, including proceedings in rem under the Proceeds of Crime Act 1996, as amended?

Is there any rule of law requiring the exclusion of evidence in civil proceedings obtained in consequence of a deliberate illegality, or a mistake amounting to an illegality, or in consequence of the deliberate and conscious violation of the rights of one of the parties?


Murphy Snr argued that the distinction between proceedings in rem and in personam provided no basis for different rules of evidence, and that the Court’s decision in DPP v JC is authority that the exclusionary rule is applicable to both criminal and civil cases.

CAB submitted that the exclusionary rule has no application to proceedings under the 1996 Act which are civil, in rem and sui generis; and that the cash is not evidence.

O’Malley J wrote the judgment for a unanimous five judge panel. She completed an extensive review of the case law on the development and application of the exclusionary rule. She concluded that its purpose is to protect important constitutional rights and values: the integrity of the administration of justice; to encourage State organs to comply with the law; and to protect and vindicate personal rights.

O’Malley J concluded that the exclusionary rule is not applicable to these proceedings under the 1996 Act, but the courts must protect the same constitutional values identified. And in some cases the breach of a third party’s rights may be so egregious as to justify the dismissal of proceedings under the 1996 Act.

O’Malley J outlined the applicable test where it is alleged that an asset was seized in unconstitutional circumstances:

133. Where the issue is raised, the Bureau must bear the burden of establishing on the balance of probabilities that (i) the asset was not seized in circumstances of unconstitutionality, or (ii) that, if it was, it is appropriate nonetheless to make the order sought. In the latter case it is for the Bureau to explain the basis upon which it contends that the order should be made, and to establish any facts necessary to justify such conclusion.


In the circumstances, O’Malley J allowed Murphy Snr’s appeal and remitted the case for rehearing in the High Court in light of the judgment in this case.


DPP v Solowiow: Trial judge must assess defendant’s lies in time, nature and circumstances of offence when directing jury

In this case, Director of Public Prosecutions v Solowiow, the Supreme Court held that the trial judge had given the jury adequate warning on the inferences they could draw from Solowiow’s original false accounts of events. That he did not direct the jury that Solowios’s lies were not evidence of guilt of murder rather than manslaughter did not cause an injustice.



In May 2012, Solowiow murdered his girlfriend Mary Ryan by fracturing her larynx and causing her blunt force trauma. When first interviewed by gardai, Solowiow stated that Ryan’s injuries were caused by three men who assaulted her on the street. Later he admitted to causing Ryan’s death while in a fit of rage. But he alleged that he did not mean to harm her.

The DPP prosecuted Solowiow for murder; he argued a partial defence of provocation, which, if accepted by a jury, reduces the offence of murder to manslaughter. In October 2013, the Central Criminal Court convicted Solowiow of murder. Solowiow appealed that decision to the Court of Appeal on a number of grounds, all arguing that the trial judge failed to direct the jury correctly.

In April 2016, the Court of Appeal (here) dismissed Solowiow’s appeal. That judgment quotes extensively from the trial judge’s direction to the jury. [22 – 29] dealt with the trial judge’s direction to the jury on how they should consider Solowiow initially lying to gardai. Solowiow sought leave of the Supreme Court for a further appeal on that one issue.

In granting leave to appeal, the Supreme Court summarised Solowiow’s argument on the trial judge’s direction to the jury relating to his early denial of causing Ryan’s injuries:

It is said that it requires to be made clear to the jury in the judge’s charge that such evidence is not evidence of guilt of murder as such but rather is evidence which may go to the credibility of the accused and, to the extent that it may lead to a legitimate questioning of that credibility, may be taken into account by the jury in conjunction with all of the evidence on provocation which may be given at the trial. It is said that the charge in this case does not do so, that there is no Irish authority on the question and that the question of whether a charge should so do raised an issue which meets the constitutional threshold.

However, the Court also allowed the DPP to argue that it was not open to Solowiow to appeal on the grounds raised, as he did not make a requisition to the trial judge to amend his jury direction on that issue.


Supreme Court

MacMenamin J wrote the judgment for the unanimous five judge panel. He outlined the law in relation to direction of a jury where a defendant had given a false account of their involvement, known as the “Lucas Warning”:

35. Standing back from the facts of this case, it is clear that the core principle in R v Lucas [1981] QB 720, is that, where an accused’s lies are capable of constituting corroboration, the jury must be instructed that there are many possible reasons why people lie, and that, before relying on the lie in question, it must be satisfied that the motivation behind the lie was a realisation of guilt, and a fear of the truth.


That test was later refined in England and Wales for cases where the defence of provocation is raised: R v Richens [1994] 98 Cr App Rep 43. MacMenamin J outlined the relevant facts:

41. Richens was a case where the circumstances showed that not only could the partial defence of provocation arise, but have a close connection with the offence. The judgment concerned a 17 year old accused, who, the defence claimed, was enraged that the victim claimed that the defendant’s girlfriend, who he had raped, had actually consented to have sex. Both the defendant and the girl disposed of the body. The defendant maintained a false account of what occurred for a considerable period. Critically, the accused denied any involvement at all in the crime. He was arrested 17 days after the crime and on the following day admitted his involvement.


In this case, the trial judge had given a Lucas Warning, but Solowiow argued that the trial judge should have gone further and specifically directed the jury that his lies could not provide proof of his guilt of murder as opposed to manslaughter.

MacMenamin J approached this appeal from the question of the overall adequacy of the trial judge’s direction. Dismissing the appeal, he stated:

  1. The charge, as a whole, was detailed and fair. It is not to be parsed and analysed with a view to finding some small detail or omission which contains a flaw of no significance. One might rhetorically ask what more should the judge have said on the basis of the evidence before the jury? It is, theoretically, possible to criticise the charge on the basis that the omission of what I might characterise as a Richens warning. But this charge did contain a detailed warning in a case where the issue was entirely obvious: was the defendant guilty of murder or manslaughter? The judge took care to ensure that the jury were aware of the fact that the defendant accounted for his lies on the basis that he was afraid, and then “thought about telling the gardaí about the three guys.” He accounted for the fact that he told his friends the lies, on the basis that he did not know whether or not the deceased was going to die. The judge gave the essence of the Lucas warning. He gave illustrations of the application of the warning. And, by the time of the trial, what was in the lies was not in dispute, and was by then a secondary issue. It was clear that the defendant had committed a homicide, and did not dispute that. It was no longer the central issue.
  2. The question must be, how material was the omission of this one hypothetical sentence, which counsel for the defendant now suggests? Was the charge fundamentally flawed? In my view, it was not. No injustice was done in this case. One must assess the relationship of the lies both in time, and in their nature, to the circumstances of the offence. The jury might have paid regard to the lies, but this was not the central consideration when in the trial itself the vista had changed. This case does not concern theoretical possibilities. It must be anchored in its own facts. I do not consider the omission to be fatal to the charge or the subsequent conclusion.


On the second issue of whether Solowiow had a right to appeal at all, given that he had not made a requisition to the trial judge to amend his jury direction, MacMenamin J held for the DPP, citing Kearns J in Cronin (No 2) [2006] 4 IR 329:

Without some such limitations, cases will continue to occur where a trawl of a judge’s charge years after the event will be made to see if a point can be found which might have been argued or been the subject matter of a requisition at the end of the judge’s charge at the original trial, even though competent lawyers at the trial itself did not see fit to do so. It is an entirely artificial approach to a review of a trial and one totally disconnected from the reality of the trial itself. …

Minister for Justice v Lipinski: “trial” within the Framework Decision on European Arrest Warrants does not include proceedings to revoke suspension of a sentence

In this case, Minister for Justice & Equality v Lipinski, the Supreme Court held, following Court of Justice of the European Union (CJEU) precedent, that “trial” within Article 4a of the Framework Decision on European Arrest Warrants does not include a hearing where suspension of a sentence is revoked, unless the decision changes the nature or the level of the sentence imposed.



In 1998, a Polish court sentenced Lipinski to fifteen years imprisonment for offences comparable to the Irish offence of assault causing harm. That sentence was reduced on appeal to ten years. Lipinski was present at the trial and represented at the appeal.

In 2004, another court ordered the suspension of the remainder of Lipinski’s sentence on condition that he remain under the supervision of a probation officer.

In 2006, Lipinski moved to Ireland, breaching the terms of the suspension of his sentence. At a hearing later that year, a Polish court made an order quashing the suspension, making Lipinski liable to serve the rest of the sentence. The Polish authorities did not notify Lipinski of that hearing and he was not present.

In 2013 the State received a European Arrest warrant for Lipinski’s surrender to the Republic of Poland. That warrant was executed in 2014.

In the High Court, Lipinski argued that s 45 of the European Arrest Warrant Act 2003 (as amended) prohibited his surrender. S45 originally stated that a person should not be surrendered if they were not present at their trial, unless the issuing state guarantees a retrial. In 2012, s 45 was amended to state that a person should not be surrendered if they were not present at the “proceedings resulting in the sentence or detention order”. The High Court (here) ordered Lipinski’s surrender, but certified a question of law of exceptional public importance for determination by the Court of Appeal on whether s 45 as amended is engaged where the person was present at the trial for the offence but not present for the reactivation of the suspended sentence.

The Court of Appeal (here) held that the amendments were procedural rather than substantive, and if the legislature intended s 45 to extend to in absentia arrangements it would require clear wording. Lipinski sought leave of the Supreme Court to appeal that decision.


Supreme Court

Clarke J, writing for a five judge panel, held that s 45 must be interpreted in a manner consistent with the Framework Decision on European Arrest Warrants. Article 4a of the Framework Decision, the article which s 45 transposes into Irish law, provides for circumstances where an executing state will refuse surrender. That includes, where the subject of a warrant is sought to serve a sentence already imposed but was not present at the “trial”.

Clarke held that it is not acte clair whether trial in 4a must be interpreted narrowly to refer only to Lipinski’s original trial and sentencing (where Lipinski was present); or whether trial in 4a should be interpreted broadly to also include the proceedings where the suspension of the sentence was revoked (where Lipinski was not present).

The Supreme Court made a reference to the CJEU under Article 267 of the Treaty on the Functioning of the European Union on the correct interpretation of trial in Article 4a of the Framework Decision.

In December 2017, the CJEU issued judgment in another case which resolved the issue in his case: Samet Ardic (Case C-571/17 PPU). The CJEU held that:

Where a party has appeared in person in criminal proceedings that result in a judicial decision which definitively finds him guilty of an offence and, as a consequence, imposes a custodial sentence the execution of which is subsequently suspended in part, subject to certain conditions, the concept of ‘trial resulting in the decision’, as referred to in Article 4a(1) of Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, must be interpreted as not including subsequent proceedings in which that suspension is revoked on grounds of infringement of those conditions during the probationary period, provided that the revocation decision adopted at the end of those proceedings does not change the nature or the level of the sentence initially imposed.


Applying that interpretation to the facts of this case, Clarke CJ held that, as the sole consequence of the 2004 hearing was to revoke the remaining period of Lipinski’s sentence without variation, the Court must dismiss the appeal.

MM v Minister for Justice: Applicant for subsidiary protection had no right to an oral hearing

Following the second decision of the Court of Justice of the European Union in this case, MM v Minister for Justice and Equality, the Supreme Court overturned the High Court order quashing the Minister’s decision to refuse MM subsidiary protection. The Court held that the High Court erred in finding that MM had a right to an oral hearing in his application for subsidiary protection: a procedure based on written submissions is sufficient for the purposes of Council Directive 2004/83/EC.



MM made an unsuccessful application for refugee status. He then made an application for subsidiary protection as derived from EU law. The Minister refused that application also. MM sought judicial review of that decision on procedural grounds, claiming that the Minister ought to have informed him of the results of a negative assessment before a final decision, to allow him to make a submission on the negative findings. The High Court requested a preliminary ruling from the European Court of Justice (ECJ) on that issue. The ECJ held that there was no requirement on the Minister to inform an applicant of an adverse assessment and allow him to make a submission on that. However, the ECJ did state that an applicant for subsidiary protection has a right to be heard and make his views known as part of that application. The fact that he has been duly heard during the refugee application does not dispense with that procedural requirement.

On receipt of the ECJ decision, the High Court determined that the Minister failed to provide MM with an effective hearing, as he had relied completely on the Refugee Appeals Tribunal’s (Tribunal) findings and made no independent and separate adjudication on MM’s grounds for application. In its judgment, the High Court set the minimum criteria for MM’s subsidiary protection application: 1) MM to have an opportunity to comment on the Tribunal’s adverse findings; 2) to be given a fresh opportunity to revisit all matters relating to his claim for subsidiary protection; and, 3) to have a fresh assessment of his credibility.

The Minister appealed that decision to the Supreme Court claiming that the High Court erred in determining that his adjudication process was not compatible with the ECJ ruling. MM cross appealed claiming that the High Court erred in not finding that the right to be heard means a right to an oral hearing and to cross examine witnesses. The Court referred a question to the ECJ on that matter.


1. Does the “right to be heard” in European Union law require that an applicant for subsidiary protection, made pursuant to Council Directive 2004/83/EC, be accorded an oral hearing of that application, including the right to call or cross-examine witnesses, when the application is made in circumstances where the Member State concerned operates two separate procedures, one after the other, for examining applications for refugee status and applications for subsidiary protection, respectively?



In its second decision, the CJEU held that:

The right to be heard, as applicable in the context of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, does not require, as a rule, that, where national legislation, such as that at issue in the main proceedings, provides for two separate procedures, one after the other, for examining applications for refugee status and applications for subsidiary protection respectively, the applicant for subsidiary protection is to have the right to an interview relating to his application and the right to call or cross-examine witnesses when that interview takes place.

An interview must nonetheless be arranged where specific circumstances, relating to the elements available to the competent authority or to the personal or general circumstances in which the application for subsidiary protection has been made, render it necessary in order to examine that application with full knowledge of the facts, a matter which is for the referring court to establish.


Supreme Court

O’Donnell J wrote the judgment for a unanimous five judge panel. In it he outlined how “the difficulties of communication between different legal systems” [15] caused Hogan J in the High Court to equate the right to be heard in EU law (the right to present your side of the case) with the right to be heard under the Irish administrative law system [18] (the right to an oral hearing, etc).

On applying the decision of the CJEU to the facts of this case, O’Donnell J concluded:

in my view the outcome of the case is clear and straightforward. The decision of the European Court of Justice makes it clear that it in the Irish context which existed at the time of the decision here, and where the decision on subsidiary protection was a separate decision taken after the determination of the asylum process, it was permissible to make that decision on the basis of a written procedure, so long as the procedures adopted were sufficiently flexible to allow the applicant to make his case. That was plainly the case here. Exceptionally, it may be necessary to permit an oral interview. It cannot be contended here however that such an exceptional situation arose: the submission seeking subsidiary protection identified only those matters which had already been relied on in the claim for asylum. The decision of the ECJ also makes it clear that it is permissible to have regard to the information obtained in the asylum process, and the assessment of the decision-maker. There is in this case no basis for contending for an oral hearing, still less for an adversarial hearing. It was argued, faintly, that Irish law might require more in that procedure, but at this stage of the proceedings that argument is in my view as forlorn as a matter of procedure, as it is of substance. The appeal must be allowed and the order of certiorari made by the High Court must be set aside, and the application for judicial review dismissed.

New Appeal: Can the High Court appoint a receiver in equity over salary payments?

In this determination, ACC Loan Management v Rickard, the Supreme Court granted Rickard leave to appeal to question “the ambit of power of a Receiver by way of equitable execution over both equitable and legal interests”.



In 2011, on application from ACC, the High Court held that payments made under the Single Payment Scheme were not legally due but were payments which may become legally due in the future. As they were therefore not accessible under the legal process, Kelly J appointed a receiver in equity over future payments due to Rickard, for ACC’s benefit.

In 2015 the Department of Agriculture wrote to ACC to advise that the Single Payment Scheme was being replaced by the Basic Payment Scheme and an application to court was required to amend the ambit of the Receiver’s appointment, to continue in receipt of Rickard’s payments. ACC applied and the High Court granted the amendment.

Rickard appealed that decision to the Court of Appeal citing Flanagan v Crosby [2014] IEHC 59; [2014] 1 IR 576, where Hogan J held that he was constrained by law from appointing a receiver by way of equitable execution over salary payments. The Court of Appeal dismissed Rickard’s appeal citing MacLaine Watson & Company v ITC [1988] Ch 1. The Supreme Court summarised their findings as:

  • it is not part of the law that receivers could only be appointed over assets which were held on an equitable interest;
  • under the Supreme Court of Judicature Act 1877, there is no reason in principle why a receiver cannot be appointed over legal interests;
  • payments under the Basic Payment Scheme should not be equated with salaries; and,
  • there was no reason why the court should not appoint a receiver by way of equitable execution over future receipts from a defined asset.


Rickard applied to the Supreme Court for leave to appeal. Granting leave, the Court stated:

11. While the respondent contends that the question raised is a narrow issue of private contract only, the Court is of the view that, in fact, the issue which is raised here does involve a matter of wider and general public importance, that is to say, the proper identification of the law in the light of the fact that the question determined by the Court of Appeal had reversed prior authority on the question. While that is not, in itself, a matter of general public importance, the Court is of the view that the issues which are raised is the ambit of power of a Receiver by way of equitable execution over both equitable and legal interests is, in fact, a matter of general public importance which transcends the facts of this case, and requires determination. Further, the issue raised issues as to whether payments made under the Basic Payment Scheme, which is available to farmers, are in the nature of a salary. The decision of the Court of Appeal both reconsidered and distinguished principles which were established in the 19th and 20th Century.


Supreme Court refuses leave to appeal to set aside notice of discontinuance

In this determination, Allen v Minister for Education, the Supreme Court refused Allen leave to appeal against the High Court’s refusal to allow him withdraw his notice of discontinuance of proceedings against the State, as “having had the benefit of legal advice and representation, the applicant freely made a decision to discontinue his proceedings”.



In 2003, Allen issued proceedings against the State for sexual abuse suffered in a primary school run by Christian Brothers. It was one of a number of similar cases before the courts at the time, the most prominent being, Louise O’Keeffe v Leo Hickey. In 2008 the Supreme Court refused to overturn the High Court’s refusal to award O’Keeffe damages against the State.

The State proposed to the plaintiffs in the remaining cases that it would not pursue them for costs if they filed notices of discontinuance. Allen was one of many plaintiffs to file such notices. O’Keeffe took a case against the State to the European Court of Human Rights. The ECHR found that the State had breached O’Keeffe’s Art 3 and Art 13 rights.

After that, Allen, and a number of others, applied to the High Court seeking a motion to have his notice set aside. The High Court refused. The Court of Appeal rejected his appeal.

Allen applied to the Supreme Court for leave to appeal, arguing that as there were a number of similar cases, he met the constitutional threshold of being a matter of public importance. And secondly, Allen argued that an appeal was necessary in the interests of justice as the Court of Appeal decision had denied him a domestic remedy where his case comes within the decision of  O’Keeffe in the ECtHR.

Refusing leave, the Court stated:

  1. The point is made by the respondent that the applicant voluntarily chose to discontinue proceedings which he had issued. It is undoubtedly the case that having had the benefit of legal advice and representation, the applicant freely made a decision to discontinue his proceedings. The fact that Ms. O’Keeffe brought proceedings to the European Court of Human Rights and obtained a decision to the effect that there had been a violation by Ireland of the Convention does not change that. In other words, the subsequent decision of the European Court of Human Rights does not affect the basis of the decision of the Court of Appeal in relation to the setting aside of or withdrawal of the notice of discontinuance. The applicant had a domestic remedy through his proceedings and chose to discontinue those proceedings. While the Court acknowledges the difficult situation in which the applicant now finds himself, the applicant has been unable to meet the Constitutional threshold necessary to allow an appeal to this Court.

Supreme Court refuses leave to appeal against Circuit Court injunction against entry of unrated property

In this determination, Costello v Carney, the Supreme Court refused Carney’s application for leave to appeal from the High Court’s affirmation of the Circuit Court injunction against him entering a mortgaged property.

Following its recent decision in Permanent TSB v Langan, the Court rejected Carney’s argument that the Circuit Court does not have jurisdiction over unrated properties.

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