Supreme Court: Placing deportation notice on file was not ‘service by registered post’

About this case:

• Judgment:
  External link

Criticising the applicant’s “reprehensible behaviour” for evading any engagement with the immigration process, Mr Justice Donal O’Donnell said he could not agree with the finding of the High Court that either a literal or purposive interpretation could lead to a conclusion that there had been effective service in accordance with the statutory requirements.

Background

In September 2015, the applicant in this case, SE, arrived in Ireland illegally, and was entitled to remain as a refugee. Under the Refugee Act 1996, he was entitled to remain pending the determination of his application for asylum.

SE was brought to the Office of the Refugee Appeals Commissioner, and then placed in a taxi for the accommodation centre at Balseskin Reception Centre. The Court heard that instead of attempting to engage further with the process of applying for asylum, SE left the centre and was not heard of again until he presented at a Garda station in relation to an “atypical working scheme” involving fishing.

In the intervening period a deportation order had been made against him, under the Immigration Act 1999. All letters in relation to this, were placed on file with the heading “registered post”, but had not been sent to him due to the fact that he failed to provide an address.

SE sought leave to challenge the deportation order in this case on the grounds that the statutory procedure had not been complied with.

The specific argument was that the s.3(3)(a) proposal to make the deportation order and the notification of the making of the order pursuant to s.3(3)(b)(ii) of the Immigration Act 1999, were not lawfully served upon the applicant and were thereby unlawful.

High Court

In the High Court, Justice Humphreys refused the application for leave to seek judicial review, stating that the grounds had not been made out to “argue that a total failure to engage with the system entitles an applicant to challenge the resultant decision on judicial review”.

Justice Humphreys considered that failure to provide an address was itself an offence, and that if an initial address was given and an applicant moved without notifying a change of address, the Minister could proceed in the absence of actual notice because service on the last known address would be deemed good. On a literal interpretation, a more significant breach of the Act by failing to give an address, and being able to evade the machinery for deportation, had beneficial consequences for the applicant.

On a literal interpretation, Justice Humphreys was prepared to hold that “there had been compliance with s.6 in that the relevant notifications had been sent by post in a prepaid registered letter addressed to the address most recently furnished by him or by her, being in this case, none”.

In the alternative, Justice Humphreys considered that the consequences that would flow from acceptance of SE’s argument was the sort of absurdity contemplated by s.5 of the Interpretation Act 2005.

Accordingly, even if such an interpretation was not within a literal reading, it was one which would avoid absurdity and provide for the orderly implementation of immigration law.

Supreme Court

When the case was heard by the Supreme Court, the deportation order had been withdrawn and the case was moot, however Justice O’Donnell said it raised issues of general importance.

The Minister for Justice and Equality did not offer any opposition to the contention that the notice of intention to deport was not lawfully served upon SE, and the Minister could not logically therefore place reliance on any steps taken following on from that point.

Justice O’Donnell pointed out that the application for refugee status was “not pursued in even a rudimentary fashion” and that SE now sought to rely on this conduct of absenting himself from the system to frustrate the proper functioning of the immigration system.

Justice O’Donnell described SE’s behaviour as reprehensible, but said that he could not agree with the High Court that either a literal or purposive interpretation pursuant to s.5 could lead to a conclusion that there had been effective service in accordance with the statutory requirements.

It was important to note that the date of service of s.3 notices fixed the commencement point of the short time period permitted for judicial review in immigration matters under s.5 of the Illegal Immigrants (Trafficking) Act 2000 (as amended by the Employment Permits (Amendment) Act 2014).

Two methods of service are permitted by s.6; either personal service or by prepaid registered post. Justice O’Donnell said there was “nothing intrinsically absurd or creating impossibility in an interpretation of the section which finds that placing a letter on a file is not service by registered post at the last known address”.

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, Justice O’Donnell said that there was perhaps a lacuna in the Act.

Justice O’Donnell allowed the appeal and made the costs orders agreed between the parties. In the circumstances where the deportation order had been revoked in unrelated factual circumstances, it was unnecessary to grant the appellant leave to apply by way of judicial review.