O’Sullivan v Sea Fisheries Protection Authority: Minister’s administrative scheme breached fair procedure

Here, O’Sullivan v Sea Fisheries Protection Authority & Anor (Minister for Agriculture Food and the Marine), the Supreme Court overturned the High Court’s decision in this case in part and upheld it in part.

The Court found that Council Regulation (EC) 1224/2009 severely straitjackets Member States’ policy decisions on applying points for breaches of fishing rules; it only leaves open the choice of mechanism for applying points to fishing licences. Therefore, the Minister had not acted beyond his powers in creating a stand-alone administrative system for the application of points under the European Union (Common Policy) (Points System) Regulations 2014.

The Court, however, upheld the High Court decision that the administrative regime introduced under the 2014 Regulations breached the standard of fair procedure required by the Constitution, and the Regulations were therefore invalid.

 

Background

O’Sullivan owns a fishing vessel, The Tea Rose. In April 2015, Sea Fisheries Protection Officers boarded the vessel as it returned to harbour. After inspection and weighing of the fish on board, a garda cautioned the Master of the vessel and brought him before Bantry District Court to be charged for under-recording his catch contrary to the Sea Fisheries Regulations 2011. The following day, O’Sullivan requested that the Sea Fisheries Protection Authority suspend the application of points to the vessel’s licence under the 2014 Regulations pending the outcome of the criminal proceedings. The Agency informed the O’Sullivan that it had no discretion to defer the assignment of points to a fishing licence once it is notified of a serious infringement.

2014 Regulations

Under the 2014 Regulations, the Officer in charge of an inspection of a vessel issues a report of any infringements to the Master of the vessel. The Master has the opportunity to submit comments to the Officer, who includes those in the report to the Authority. The Authority appoints a panel to review the seriousness of any infringements. Where the Authority finds that there has been a serious infringement it determines how many points to assign to the licence and notifies the Master (or licence holder) with information on the right to appeal that decision in writing within 21 days. An appeals officer (Ministerial appointment) may allow an appeal where it is proven on the balance of probability that an infringement did not occur. A licence holder may appeal to the High Court on a point of law. The High Court’s decision is final and conclusive. There is no provision to defer the appointment of points pending a High Court decision.

High Court

The High Court granted O’Sullivan an injunction preventing the Authority from applying points to his fishing licence, prior to a full hearing of his challenge to the 2014 Regulations. O’Sullivan argued that the 2014 Regulations breach a number of Articles of the Constitution: Art 15.2.1, which vests sole power to make laws in the Oireachtas; Art 34.4, which does not permit a minister to restrict the right of appeal from a decision of the High Court; and O’Sullivan argued that the 2014 Regulations went beyond the limited functions of a judicial nature which Art 37.1 permits an administrative body to perform.

O’Conor Tony J held that the 2014 Regulations were ultra vires s 3 of the European Communities Act 1972 and were, as a consequence, invalid having regard to the provisions of Art 15.2.1 of the Constitution.

The State sought leave to appeal directly to the Supreme Court. The Court granted leave to appeal on three issues (subject to refinement during case management):

(i) That the trial judge was incorrect to conclude that the Regulations contained measures which were not necessitated by Ireland’s membership of the European Union by virtue of those measures going beyond the principles and policies contained within relevant EU law;

(ii) That, consequently, the determination of the trial judge that the Regulations were ultra vires s.3 of the European Communities Act and thus invalid having regard to Art. 15 of the Constitution was incorrect; and

(iii) That the trial judge failed to have adequate regard to the requirement that it must be assumed that all procedures mandated by the Regulations will be operated fairly and in accordance with the principles of natural justice.

 

Supreme Court

O’Donnell J wrote the judgment for a unanimous five judge panel.

On review of Council Regulation (EC) 1224/2009, O’Donnell J found that it operated as a “regulatory straitjacket” on Member States, setting down uniform rules on the method of enforcement. Among other things, the Council Regulation set out the categories of transgressions attracting points; the number of points for each category of transgression; and the number of points which lead to the suspension of a licence [41].

Drawing a comparison between the facts of this case and Maher v Minister for Agriculture, O’Donnell J held that the matters dealt with in the 2014 Regulations were “incidental, supplemental and consequential” to the provisions of the Council Regulation, and the 2014 Regulations did not contravene Article 15.2.1 [43].

But on an overall assessment of the fairness of the procedures introducedthe requirement that the licence holder initiate proceedings and carry the burden of proof, the serious consequences for a licence holder of losing a licence, and the limitation on the right to appeal to the High Court on a point of lawO’Donnell J held that the High Court decision that the 2014 Regulations are invalid must be upheld on the narrow grounds of breaching fair procedure [44-52].

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Permanent TSB v Langan: Limited jurisdiction in Art 34.3.4 can mean limited by value or by category of case

In Permanent TSB plc v Langan & Anor [2017] IESC 71, the Supreme Court held:

  1. Article 34.3.4 of the Constitution’s requirement that the Circuit Court’s jurisdiction must be limited can mean limited by value or limited by category of case.
  2. The Circuit Court cannot become a surrogate court of unlimited jurisdiction, but this case did not necessitate that the Court define that threshold.
  3. At the level of principle, “all domestic residential possession actions” is sufficiently limited for the Óireachtas to confer jurisdiction on the Circuit Court for all such actions, without limitation on the value of affected properties.
  4. S 22(1) of the Courts (Supplemental Provisions) Act 1961 Circuit Court, which limits jurisdiction to properties with a rateable value not exceeding €253.95, does not restrict jurisdiction on properties with no rateable valuation.
  5. A plaintiff must establish jurisdiction by demonstrating that the property has a rateable valuation not exceeding €253.95 or that the property has no rateable valuation.

 

Background

Langan fell into arrears in his mortgage to Permanent over six properties. Permanent issued Circuit Court proceedings seeking possession of the six properties. The civil bills stated that the annual rateable value for each of the properties is below €235,95. In February 2015, the Circuit Court granted orders for possession for all six properties. Lanigan appealed to the High Court.

Section 22 of the Courts (Supplemental Provisions) Act 1961 (here) limits Circuit Court jurisdiction to properties below a defined rateable charge (currently €235.95). S 15 of the Valuation Act 2001 made residential properties un-rateable.

(The Land and Conveyance Law Reform Act 2013 confers the Circuit Court with jurisdiction in possession proceedings for all  principle private residential (PPR) properties mortgaged after 1 December 2009. None of the properties in this case were Langan’s PPR).

In May 2015, the High Court delivered judgment in Bank of Ireland v Finnegan (here). Murphy J held that the Circuit Court does not have jurisdiction to determine cases relating to un-rateable properties. However, in November 2015, Noonan J, in the High Court, held that the Circuit Court does have jurisdiction in such cases, Bank of Ireland v Hanley (here).

When Langan’s case came to hearing, he added grounds that the Circuit Court did not have jurisdiction in his case due to the 2001 Act. As there were conflicting High Court judgments on the issue, Baker J made a case stated to the Court of Appeal. She submitted five questions:

(1) If a property is not rateable by virtue of the Valuation Act 2001, or otherwise, is the Circuit Court’s jurisdiction under s. 22(1) of the Courts (Supplemental Provisions) Act 1961 excluded?

(2) In the alternative does the Circuit Court have jurisdiction by virtue of the property not having a rateable valuation that exceeds €253.95?

(3) Is the Circuit Court entitled to proceed to judgment, unless it is shown by evidence that there is a rateable valuation which exceeds €253.95?

(4) If there is no certificate of rateable valuation, how does the court exercise its power to estimate rateable valuation under s. 31 of the County Officers and Courts (Ireland) Act 1877?

(5) Is the plea in a Civil Bill taken together with evidence on affidavit of a provisional estimate of rateable valuation, sufficient “legal evidence” on which the court can make an estimate rateable valuation for the purposes of s. 31 of the County Officers and Courts (Ireland) Act 1877?

 

Court of Appeal

Hogan J (here) held that the Circuit Court does not have jurisdiction over properties that are un-rated.

Permanent sought leave to appeal to the Supreme Court.

 

Supreme Court

Clarke CJ wrote the judgment for a unanimous five judge panel.

Allowing Permanent’s appeal, he held that the literal interpretation of the 1961 Act confers a general jurisdiction on the Circuit Court, subject to an exclusion that applies only to properties having a rateable valuation exceeding €235.95 [5.3].

That interpretation would permit the Circuit Court to accept cases without limitation on the value of un-rated properties. But Clarke CJ found that “[t]here is no reason in principle why this Court should lean in favour of an interpretation which increases the costs of litigants by requiring “small” cases to go to the High Court over one which might permit some “big” cases to be heard in the Circuit Court” [6.6].

Clarke CJ then examined whether there is a constitutional prohibition on the Óireachtas conferring such a broad jurisdiction on a court of local and limited jurisdiction. He held that there is no “constitutional difficulty” in limiting the Circuit Court’s jurisdiction by category of case instead of by the value of a claim (such as in the Land and Conveyance Law Reform Act 2013) . Possession actions for residential properties is not an overbroad category [7.12].

 

Full judgment of the Supreme Court here.

 

 

New Appeal: Did the Superior Court Rules Committee act ultra vires in restricting time to apply for certiorari?

In this determination, O’S v Residential Institutions Redress Board & Ors, the Supreme Court granted O’S an extension of time to apply for leave and granted leave for a leapfrog appeal direct from the High Court. The two questions for appeal are:

1. Can a change in jurisprudence on s 8(2) of the Residential Institutions Redress Act 2002 (extending time to apply for redress) be grounds for an extension of time for leave to appeal?

2. Did the Superior Court Rules Committee act ultra vires, creating an impermissible restriction on the right of access to the Courts, by restricting the High Court’s discretion to extend time to apply for certiorari under Order 84 Rule 21(3)(b)(i) and (ii)?

 

Background

In 2008, O’S made an application to the Redress Board for treatment he received in an industrial school. Under s 8(1) of the 2002 Act, the statutory period to apply for redress expired in 2005. In 2012, the Board refused O’S’s application for an extension of time under s 8(2) of the 2002 Act. In 2014, O’S requested a consideration of that decision. Later that year, the Board replied that it had exhausted its statutory function. In 2015, O’S requested that the Board reconsider its decision in light of a Supreme Court decision on the Board’s overly narrow interpretation of s 8(2) of the 2002 Act.

In 2016, O’S applied to the High Court for judicial review of the Board’s 2012 decision to refuse an extension of time. In that application, O’S also sought a declaration against the Superior Courts Rules Committee and the Minister for Justice that Order 84 Rule 21(3)(b)(i) and (ii) are an impermissible restriction on the right of access to the Courts.

Order 84 Rule 21 states:

 

Notwithstanding sub-rule (1), the Court may, on an application for that purpose, extend the period within which an application for leave to apply for judicial review may be made, but the Court shall only extend such period if it is satisfied that:—
(3) (a) there is good and sufficient reason for doing so, and
(b) the circumstances that resulted in the failure to make the application for leave within the period mentioned in sub-rule (1) either—
(i) were outside the control of, or
(ii) could not reasonably have been anticipated by the applicant for such extension.
In 2017, the High Court (McDermott J) dismissed O’S’s application. O’S applied to the Supreme Court for leave for a leapfrog appeal.
Supreme Court
As there are ten similar cases which stand adjourned before the High Court, and as Order 84 has general application, the Court determined that O’S had met the constitutional requirement that an appeal raises a legal issue of general importance. And as the Redress Board is required to be dissolved once this case is finalised (plus the ten similar cases), and as an appeal to the Court of Appeal will not narrow the issues to be resolved, the case met the constitutional requirement of presenting exceptional circumstances warranting a leapfrog appeal from the High Court.

New Appeal: are decisions of the Dáil Committee on Procedure and Privileges justiciable?

In this determination (O’Brien v The Clerk of Dáil Éireann), the Supreme Court granted O’Brien leave for a leapfrog appeal from the High Court decision that decisions of the Dáil Committee on Procedure and Privileges are not justiciable.

 

Background

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 (here),  Ní Raifeartaigh J found 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. Ní Raifeartaigh J 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 to appeal directly to that court. 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: justiciability and costs. The Court stated that the case would be mentioned next along with Kerins v McGuiness (post) to determine whether the two cases should be heard together.

Supreme Court to revisit Gardaí’s power to handcuff suspected drink drivers

In these three determinations, DPP v Corrigan, Gannon and Pires, the Supreme Court granted the three appellants leave to appeal on two questions:

(a) Did the High Court and Court of Appeal correctly apply the scope and principles contained in s 2 of the Summary Jurisdiction Act 1851, as amended?

(b) Did the High Court and court of Appeal correctly apply the law as decided in DPP v Cullen?

 

Background

In DPP v Cullen (post) a three judge panel of the Supreme Court allowed Cullen’s appeal against his conviction for drink driving. The arresting garda had a policy of handcuffing all suspected drink drivers. Fennelly J held that the arresting garda acted unlawfully in handcuffing Cullen where he had not first formed the opinion that Cullen might resist arrest; therefore the evidence of intoxication retrieved afterwards was inadmissible (Hardiman J concurred and Clarke J dissented).

In these three cases the appellants raised the argument in the District Court that the arresting garda in each case had acted unlawfully in handcuffing them on arrest where they did not show signs of resisting arrest. In all three cases the arresting garda testified that the appellants were not agressive. But in the circumstances of the arrests they believed that handcuffing the appellants was necessary.

The District Court interpreted DPP v Cullen as authority that it is illegal to handcuff a suspected drink driver who did not resist arrest. And where that did occur the evidence recovered was inadmissible.

On appeal, the High Court reversed the trial judge’s decision on admissibility. Barrett J held that the trial judge had given insufficient latitude to the garda’s assessment of the necessity to use handcuffs in the circumstances of each case. The Court of Appeal upheld the High Court’s decision.

In seeking leave of the Supreme Court, the appellants argued that it was open to the trial judge to inquire into the objective reasonableness of the use of handcuffs. That the trial judge’s decisions were findings of fact, not a point of law. And an appeal from the District Court could only be made on a point of law. The Court determined that the appellants raised two issues of general public importance: the scope of an appeal under s 2 of the Summary Jurisdiction Act 1851, as amended; and the correct interpretation of DPP v Cullen—is the garda’s assessment of the necessity to use handcuffs an objective or subjective test?

New Appeal: Does the duty to make full disclosure when seeking leave for judicial review continue to have force as a legal principle?

In this determination, Shatter v Guerin, the Supreme Court granted Guerin leave to appeal the judgment of the Court of Appeal that he, Mr Seán Guerin SC, breached the then Minister Shatter’s right to fair procedure in the compilation of a report into handling of “allegations of grave deficiencies in the investigation and prosecution of crimes, in the County of Cavan and elsewhere, made by Sergeant Maurice McCabe”.

 

Background

In February 2014 the Government appointed Guerin to examine the handling of complaints by the Garda authorities and other public bodies, including the Department of Justice and Equality, of which Shatter was the minister. In May that year Guerin presented his report to the Taoiseach.

The report stated:

It is important to emphasise before embarking upon the review of individual incidents, that it is understood that the purpose of this review is not to make findings of fact or to determine any disputed question either of fact or law. Insofar as any views are expressed on factual matters, these are only facts as they appear from a review of the files that I have received. Any such expression is not an adjudication on any matter affecting the persons named or referred to in this report. It is possible that, with the benefit of an opportunity to interview or hear evidence from the individual members and officers of An Garda Síochána and civilians, including victims of crime, involved in these matters, a different view of the facts would emerge.

 

Later in the report, Guerin was critical of Shatter’s handling of Sergeant McCabe’s complaints.

On reading the report, the Taoiseach informed Shatter that he could no longer express confidence in him as minister. Shatter resigned.

In the High Court, Shatter instigated judicial review proceedings seeking any order of certiorari quashing Guerin’s findings relating to Shatter. One of Shatter’s grounds was a reasonable apprehension of bias: that Guerin “was a member of Professional Practice Committee which engaged in criticism of the applicant as Minister in respect of the Legal Services (Regulation) Bill 2011, which bill the applicant [Shatter] was centrally involved in promoting through the legislature”.

Dismissing Shatter’s application, Noonan J (here) stated:

158. It is clear from the evidence that the principle focus of these proceedings following their commencement was an attempt by the applicant to prevent the Commission investigating his role in relation to Sergeant McCabe’s complaints. That is now a fait accompli yet the applicant still seeks to curtail the statutory investigation by undermining the conclusions on which he says it is based. In that respect, I am of the view that the applicant seeks to mount a collateral attack on the Commission where a conscious decision was made not to join either the Commission or the Government in these proceedings. That cannot be permitted. It is a matter that goes to discretion as does the totally unwarranted allegation of bias publicly made against the respondent at the ex parte stage. Thus, even in the absence of the foregoing conclusions, I would exercise my discretion against granting relief.

 

The Court of Appeal agreed with the High Court’s finding that Shatter’s allegation of bias was unacceptable behaviour. But it allowed Shatter’s appeal (here, Ryan P) and upheld his complaint, stating:

103. My view, in summary, is that the appellant has established that he was a person whose constitutional rights were in jeopardy by reason of the conclusions that Mr. Guerin was proposing to include in his report, that the author was obliged to observe the rules of natural justice and in particular audi alteram partem, that there was in the circumstances breach of those rights because of the defective procedure that was adopted and that he is entitled to a declaration accordingly. I would therefore allow the appeal.

 

Supreme Court

Granting Guerin leave to appeal, the Supreme Court determined that he raised a point of law of public importance and that an appeal is in the public interest. The Court certified three questions:

a. Whether Mr. Shatter’s claim is justiciable in the circumstances in which and/or at the point in time at which, it was initiated.

b. The applicability and scope of fair procedures and constitutional issues to a task of the kind undertaken by Mr. Guerin, and the nature of requirements imposed thereby. Whether or not the judicial review amounted to a collateral attack on the decision to establish a Commission of Investigation, and, in particular, an attempt to have Mr. Shatter excluded from the Terms of Reference of such Commission.

c. Whether or not the duty to make full disclosure when seeking leave for judicial review continues to have force as a legal principle, and if so was it breached in this case by the allegation of bias against Mr Guerin.

New Appeal: Did the High Court reverse In Re Haughey and Maguire v Ardagh?

In this determination (Kerins v Deputy McGuinness & Ors), the Supreme Court granted Kerins leave to appeal directly from the decision of the Divisional High Court. Kerins argues that:

the Divisional Court in its decision, effectively reversed In Re Haughey and Maguire v Ardagh, holding that Article 15.13 extends to utterances in Committee as well as in the chambers of the Legislature.

 

Background

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 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.

New Appeal: Can ESB Chief Executive authorise company officers to perform statutory functions?

In this determination, Electricity Supply Board and Anor v Killross Properties Limited, the Supreme Court granted the ESB leave to appeal from the Court of Appeal’s decision in this case. The CoA held that the ESB Board unlawfully delegated its authority under s 9 of the Electricity (Supply) Act 1927 to its Chief Executive.

 

Background

The Electricity (Supply) Act 1927 states:

9. The Board may exercise any of the powers and perform any of the functions and duties (other than the making of orders) conferred and imposed on the Board by this Act through or by any of its officers or servants authorised by the Board in that behalf.

In 2012 the ESB contacted Killross seeking permission to enter its land to perform survey work. In 2013, after extensive communications between the parties, when permission was not forthcoming, an officer authorised by the Chief Executive issued a notice under s 53(3) of the Electricity (Supply) Act 1927 of its intention to enter Killross’s land.

The ESB also issued High Court proceedings seeking an order permitting entry to the land. Killross counterclaimed on grounds, among others, that the Chief Executive did not have legal authority to authorise the officer to issued the notice: that s 9 only permits the Board to authorise officers to issue such notices.

The High Court rejected Killross’s argument on grounds that it was not properly before the court and on its merits.

The Court of Appeal (here) overturned that decision, holding that s 9 did not permit the Board to confer power on the Chief Executive to authorise officers to perform statutory functions. That only the Board can authorise officers to perform statutory functions.

The Supreme Court determined that the case raised any issue of general public interest which any affect how other public bodies perform their functions. The Court certified two questions:

(a) whether s.9 of the Electricity (Supply) Act, 1927 and/or that Act as a whole permits the authorisation of the board of its chief executive to exercise its power under that section; and

(b) whether the issue raised at (a) above was properly before the High Court and/or the Court of Appeal.

And in a second determination (here), the Court granted Killross leave for a cross appeal on:

whether, in all the circumstances of the case and having regard to the evidence, the Electricity Supply Board was precluded from exercising its power under s 53 of the Electricity (Supply) Act 1927 as amended as a result of an infrastructure agreement with Eirgrid and having regard to the respective licences granted to both the Electricity Supply Board and Eirgrid by the Commission for Energy Regulation under s 14(1)(f) of the Electricity Regulation Act, 1999 as introduced by Art. 32 of the European Communities (Internal Market in Electricity) Regulation 2000 transposing the internal market in electricity directives.

New Appeal: Must the Minister consider Art 8 ECHR rights in decision to allow non EEA student to remain in the State?

In this determination, Luximon v Minister for Justice & Equality, the Supreme Court granted the Minister leave to appeal the High Court’s and Court of Appeal’s decisions that the Minister must consider constitutional family rights or Article 8 ECHR rights when deciding whether to allow a non-European Economic Area student to remain in the State.

 

Background

Luximon is a native of Mauritius. She entered the State in 2006 as a student. She was later joined by her two daughters. Her permission to remain in the State was renewed a number of times but expired in June 2012. At that time her solicitor applied for permission for her to remain in the State under s 4(7) of the Immigration Act 2004, which provides:

A permission under this section may be renewed or varied by the Minister or any Immigration Officer on his or her behalf on application therefor by a non-national concerned.

The Minister refused that application under the “student immigration rules” which allow a maximum stay of seven years.

The High Court, Barr J, quashed the Minister’s decision on grounds that Luximon’s rights under Article 8 ECHR were “capable of being engaged”; and holding that the Minister breached fair procedure in not publishing the criteria for consideration in an application for a change of immigration status. The Court of Appeal dismissed the Minister’s appeal.

Granting the Minister leave to appeal, the Supreme Court determined that, as there are many similar cases for determination by the Minister, the case raised a point of law of general importance:

Whether, under s 4(7) of the Immigration Act 2004, the Minister was under a duty to consider constitutional family rights or Article 8 ECHR rights, either generally, or in the circumstances of this case, in deciding such application?

NVH v Minister for Justice & Equality: Absolute ban on asylum seekers working is unconstitutional

Here, NVH v Minister for Justice & Equality, the Supreme Court held, in principle, that:

in circumstances where there is no temporal limit on the asylum process, then the absolute prohibition on seeking of employment contained in s.9(4) ( and re-enacted in s.16(3)(b) of the 2015 Act ) is contrary to the constitutional right to seek employment [21].

 

Background

*** The judgments of the High Court and the Court of Appeal refer to the plaintiff in this case as NHV, the Supreme Court as NVH.

S 9(4) of the Refugee Act 1996 prohibits an asylum applicant from seeking or entering employment (s 16(3)(b) of the International Protection Act 2015 contains an almost identical prohibition).

NVH arrived in Ireland in 2008, from his native Burma. He immediately applied for asylum. Twice, the deciding officer and the Refugee Appeals Tribunal rejected his applications. And both times those decisions were quashed, in 2013 by the High Court and in 2014 by consent.

In 2013, NVH applied to the Minister for permission to take up an offer of employment. The Minister refused permission on grounds that it was precluded by s 9(4). Thereafter, NVH instituted High Court proceedings seeking a declaration that s 9(4) is incompatible with the Constitution and the European Convention on Human Rights.

In the High Court, McDermott J (here) refused NVH’s application. The Court of Appeal (here) rejected his appeal, Ryan P and Finlay Geoghegan J, Hogan J dissenting.

The Supreme Court determined that this case raised questions of law of general interest and granted a further appeal on three questions:

Where a non-national comes to the State and seeks refugee status, or subsidiary protection status does section 9(4) of the Refugee Act 1996, or any other provision of law, prohibit the Minister for Justice and Equality from granting permission to the person to work?

If there is such prohibition, is it nonetheless within the scope of governmental power to nonetheless grant permission to work pending the resolution of such an application?

If there is not within the scope of governmental power to grant permission to work pending the resolution of such application and if section 9(4) of the Refugee Act 1996 prohibits the Minister for Justice and Equality from granting such permission, is that prohibition consistent with the Constitution?

 

Supreme Court

 

O’Donnell J, writing for a unanimous seven judge panel, distinguished between constitutional rights that are attached to citizenship, such as the right to vote, and rights that attach to people “as human persons”. He held that the unenumerated right to work was of the latter category and, therefore, could be enjoyed by non-citizens [11]. On the nature of that right, O’Donnell J stated that it “implies a negative obligation not to prevent the person from seeking or obtaining employment, at least without substantial justification” [12].

On s 9(4), O’Donnell J stated that it would be difficult, if not impossible, to justify the application of such restrictions to citizens [13].

On the value of employment, O’Donnell J acknowledged that often “work is drudgery, often the subject of complaint rather than celebration, and most often an economic necessity as a means to live a chosen life rather than an end in itself” [15]. But the “right to work at least in the sense of a freedom to work or seek employment is a part of the human personality and accordingly the Article 40.1 requirement that individuals as human persons are required be held equal before the law, means that those aspects of the right which are part of human personality cannot be withheld absolutely from non-citizens” [17].

The State argued that there were strong policy reasons why the Court should dismiss NVH’s appeal. Experience demonstrated that when asylum applicants had the right to work it lead to a significant upsurge in applicants for asylum. And the policy decisions around the regulation of asylum seekers right to work should be left to the Government and the Oireachtas, “even by reference to a proportionality standard” [18].

But the Court could not disregard the disproportionate nature of s 9(4):

In this case the applicant was in the system for more than eight years, and during that time was prohibited from seeking employment. In my view, the point has been reached when it cannot be said that the legitimate differences between an asylum seeker and a citizen can continue to justify the exclusion of an asylum seeker from the possibility of employment. The damage to the individual’s self worth, and sense of themselves, is exactly the damage which the constitutional right seeks to guard against. The affidavit evidence of depression, frustration and lack of self-belief bears that out [20].

In conclusion, the Court held that where there is no limit to the time an applicant can spend in the asylum process, s 9(4)’s absolute prohibition on seeking employment is contrary to the right to seek employment.

 

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