About this case:

• Citation:
  [2020] IECA 64
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Ms Justice Caroline Costello

Background

A.J.K. came to Ireland as an unaccompanied minor in 2012 and secured subsidiary protection status in 2014, being granted permission to remain in the state for three years. In June 2017, he secured an extension of that three-year period with permission valid until June 2020.

In August 2015, A.J.K. unsuccessfully applied to join the General Service of the Defence Forces. In April 2016 he submitted a second application to join the General Service, and in May 2016 he applied to join the Naval Service. He was enlisted in the Naval Service in December 2016 and commenced training on 3 January 2017. He left the Naval Service on 19 January 2017, having purchased his discharge in accordance with law, as he was confident he would secure a place with the General Service which was his preference. He could not apply to the General Service if he was a member of the Naval Service.

He was selected for enlistment with the General Service and was invited to the Curragh Camp. There he was told that he was ineligible to enlist on the basis that he required a minimum of 12 years’ permission to reside in the State or his permission had to be open-ended.

A.J.K.’s solicitor subsequently engaged in correspondence with the military and the Minister for Defence, noting that he understood this to be a stated policy position of the Defence Forces. A.J.K. sought a review of the decision, viewing it as an “inflexible unpublished policy and therefore an illegality”.

Court proceedings

In the High Court, A.J.K. sought an order of certiorari quashing the decision of the Minister which A.J.K. maintained amounted to a refusal to permit him enlist in the Defence Forces in accordance with law. Ms Justice Miriam O’Regan refused his application, and also refused a declaration that as the holder of a declaration of subsidiary protection he was eligible to enlist with the Defence Forces.

He appealed to the Court of Appeal.

The Minister argued that s.53 of the Defence Act 1954 specifically required that a person had the ability to commit to a minimum 12-year term of enlistment because of their entitlement to reside in the State throughout that entire period. The Minister submitted that Irish citizens can commit to such period and that such a period is required under the Act.

Ms Justice Aileen Donnelly said that this argument was incorrect. The Statute Law Revision Act 2015 provides that qualified persons are to be treated like Irish citizens. As to whether the 1954 Act required an ability as a matter of law at the time of enlistment to commit to a 12-year period, she said: “I have held that it does not do so.” She cited Dodd in Statutory Interpretation in Ireland that:

She noted the countervailing maxim of generalia specialibus non derogant, which provides that where a provision deals with a particular situation in special or specific terms, and the language of a more general provision could be taken to apply to the same particular situation, the general provision will not be held to undermine, amend or abrogate the effect of the special words used to deal with the particular situation.

The Minister’s position was that the 1954 Act is specialist legislation and could not therefore be amended by the 2015 Act. The court found that the 2015 Act deals specifically with the employment rights of those entitled to subsidiary protection, and that s.53 of the 1954 Act must be construed in light of the provisions of s.53 of the 2015 Act.

Ms Justice Donnelly found that the Minister “constructed an argument and placed upon s.53 of the 1954 Act an interpretation that it does not bear”. Section 53 provides that those who enlist must sign up to a term of enlistment for a prescribed period of time. Those who are unwilling to sign up to such a period could not be enlisted under the Act. However, those who are willing to sign up and who are otherwise not disqualified by the recruiting regulations made under the Act are entitled to be enlisted.

“If, through lack of right of residence, and therefore permission to work, or through an act of deportation, they are no longer in a position to serve in the Defence Forces, they will be liable to discharge. Up until that point occurs, they are obliged to render service to the State in accordance with the terms of their enlistment.”

Conclusion

A.J.K. was entitled to employment in the same way as an Irish citizen would be. He could not be discriminated against because he was a person entitled to subsidiary protection. He had a statutory entitlement to be enlisted in the same way as an Irish citizen, and could not be prohibited from enlistment because of his status as a qualified person under the 2015 Act.

If the Minister has “a genuine concern about persons who have restricted or limited rights of residence he remains free, subject to the statutory provision, set out in s.53 of the 2015 Act, to amend the enlistment and recruiting regulations”, the judge said.

The court therefore allowed the appeal.