Supreme Court: International protection appeal dismissed as judges disagree on statutory interpretation
The Supreme Court has dismissed the appeal of a man who was refused international protection and who was subject to a deportation order.
Delivering the judgment, Mr Justice William McKechnie added that he disagreed with the High Court judge’s views on statutory interpretation.
The man, known in the proceedings as A.W.K., arrived in Ireland in August 2015. He made an application for asylum because at that time the International Protection Act 2015 had not commenced. That application was rejected, and while his appeal was pending before the Refugee Applications Tribunal, the most significant provisions of the Act commenced. As a result, he made an application for international protection under its terms which was rejected at both first instance and on appeal.
After the initial decision, the Minister for Justice considered whether or not to grant him permission to remain in the state. He declined to do so. Subsequent to the appeal being dismissed, the Minister, on receipt of further information from A.W.K., reviewed that decision but saw no reason to amend it. That review was conducted under section 49(7) of the International Protection Act 2015.
Subject to the prohibition of refoulement, section 51 provides for the making of a deportation order. Where the Minister has decided to refuse to give an applicant permission to remain in the State under s.49(4)(b), he or she is then obliged to make a deportation order in respect of that individual by virtue of s.51(1)(c) of the Act.
If such an order is made, it is deemed to be a deportation order made under s.3(1) of the Immigration Act 1999, and accordingly, s.3(11) will apply. That entitles a person to make an application to have a deportation order revoked or amended.
Section 5(1) of the Illegal Immigrants (Trafficking) Act 2000, as substituted by s.34 of the Employment Permits (Amendment) Act 2014, and as subsequently amended by s.79 of the International Protection Act 2015, provides that a person shall not challenge the validity of any of the various measures outlined in that subsection, save in accordance with the procedures therein specified. Those measures apply to several different situations, such as notifications, refusals, decisions, determinations, recommendations and orders made under the Immigration Act 1999: included are deportation orders made under s. 3(1) of that Act, and also orders made under s.3(11) of the Act.
In the High Court, A.W.K. sought an order of certiorari seeking to set aside the “s.49(9) decision of 15 March 2018”, and the deportation order. An order of mandamus was sought to compel the Minister to consider the second review application.
Mr Justice Richard Humphreys found that the review must be associated with the original decision and like it, must therefore be regarded as being expressly captured by s.5(1)(i) of the 2000 Act. Consequently, it followed that the procedural requirements of that section had to be met.
He was satisfied that in the event of some ambiguity arising from the provisions in question, section 5 of the 2005 Act did apply as “a fortiori a deportation order in itself” was neither “penal” or a “sanction”. Such an order in his view was simply a civil consequence of a person’s illegal presence in the State. As a result therefore, the decision in question, whilst amenable to judicial review, was one captured by section 5(1)(oi) of the 2000 Act. In light of when the application was moved, it was clear in his view that it was out of time and therefore barred by virtue of the provision mentioned. He rejected the applicability of a US Supreme Court judgment on deportations.
A.W.K. appealed to the Supreme Court. The essential issue in the case was one of statutory construction. The Court was asked to consider whether the decision of the Minister to refuse permission to remain, taken on review, should be regarded as a decision within s.49(4)(b) of the Act, or whether it is a decision separate and distinct from that. If it was the former, then any challenge would be captured by s.5 of the 2000 Act, with the result that the proceedings were out of time. As no extension was sought or argued for, it would follow that the action must fail on this basis.
The Supreme Court was asked to decide whether that “review” should be regarded as a “decision” under s.49(4)(b) of the 2015 Act, for the purposes of the application of s.5 of the Illegal Immigrants (Trafficking) Act 2000, as amended.
It was submitted by A.W.K. that section 5 does not apply to a deportation order. It was argued that an order, even if not a sanction as such, must be regarded as akin to a penalty in that it constitutes a measure adverse to the subject person, in this case, the applicant. The dicta of Justice Elena Kagan in the US Supreme Court case Sessions v Dimaya 584 US  (17 April 2018,  U.S. Lexis 2497) was relied upon: “…To the contrary to this Court has reiterated that deportation is a particularly severe penalty”, which may be of greater concern to a convicted alien than “any potential jail sentence”.
Mr Justice William McKechnie noted that Mr Justice Humphreys advanced, in support of his interpretation of the relevant parts of s.49 of the 2015 Act, a further basis “unconnected to the 2005 Act, which is that a purposive interpretation ought to apply to any and every legal text”. The source of this assertion was the jurisprudential text co-authored by Henry Hart and Albert Sacks, The Legal Process: Basic Problems in the Making and Application of Law (Cambridge C.U.P 1958).
Mr Justice McKechnie commented that this proposition is “of an extremely wide-reaching nature”, noting that such comments were “overlooking to a large extent the well-established principles of statutory interpretation which apply in this jurisdiction, the most pivotal of which is to give a provision a literal meaning where possible”.
The judge said that while he was “immediately acknowledging that any attempt to gain a proper understanding of the theories advanced by Hart and Sacks is entirely outside the scope of this judgment”, he did not accept “that the theory which underlies the publication of the text in question can be said to have any over-arching authority on statutory interpretation which in principle remains governed by well-established rules”.
Mr Justice McKechnie said that regard must be had to the literal approach, and regard may be had to “the mischief rule” in Heydon’s Case (1584) 76 ER 637. The judge noted that since it has been established, it has always been accepted that a statute may be interpreted in light of its purpose. “What was the mischief that led to its enactment? Such approach is quite different from what the learned trial judge describes as ‘a purposive approach’, one that extends to achieving a result thought to be intended, even if the words do not lend themselves to such view.”
A court must identify the objective intention of the legislature as a whole, and not any subjective intention which it, or its members may have, as per The State (O’Connor) v. O’Caomhanaigh  I.R. 112, and Crilly v T&J Farrington Limited  3 I.R. 251). The most appropriate way to achieve this objective “is by reference to the words used by the Oireachtas itself: when given their ordinary and natural meaning, the outcome should best reflect the plain intention of that body”.
Having gone through the wording, Mr Justice McKechnie was satisfied that on a literal interpretation that the decision fell within section 49(4)(b) of the 2015 Act, and “a fortiori is captured by the provisions of s.5 of the 2000 Act”. He said that he was not in any way persuaded that this conclusion is disturbed by the decision of the US Supreme Court in Sessions. The appeal was denied.
© Irish Legal News Ltd 2020