JUDICIAL REVIEW OF
ASYLUM AND IMMIGRATION MATTERS
What is Judicial Review?
Judicial review is the classic public law remedy through which the High Court (and
the Supreme Court on appeal) can exercise its supervisory jurisdiction over both
lower Courts and administrative and quasi-judicial bodies. It is essentially a
procedural remedy and not address substantive merits or the outcome of the decision
under challenge. In the classic words of Brightman L J “Judicial review is
concerned, not with the decision, but with the decision making process…… it is not an
appeal from a decision, but a review of the manner in which the decision is made”
(Chief Constable of North Wales Police v Evans  1 WLR 1155.)
In general the type of legal issues raised on judicial review pose the following
Did the decision maker act ultra vires?
Is the legislation under which the decision was made unconstitutional or
otherwise invalid, e.g. were regulations made ultra vires the statute authorising
them? (Laurentiu v Minister for Justice  4 IR 42).
Was the decision unreasonable – was there evidence available to the decision
maker to support the conclusions reached? (O’Keeffe v An Bord Pleanala
 1 IR 39). Query: whether a higher test of “anxious scrutiny” should
be applied to judicial review of asylum cases.
Did the decision maker take into account irrelevant material or exclude from
consideration relevant material in reaching the decision?
Did the decision maker make an error of law in reaching the decision? (e.g.
Was there a breach of natural justice or a lack of fair procedures in the process
by which the decision was reached?
Relief available by way of Judicial Review:
Certiorari: An order quashing the decision under challenge, usually with the
consequence that the matter is remitted back to the decision maker for the
purpose of making the decision again in accordance with the principles
identified by the High Court. In general the High Court will not substitute its
own decision for the decision which has been quashed although there may be
exceptional cases in which the rationale of the Judgment permits of only one
Prohibition: An order which prevents a decision being made or a decision
making process being embarked upon or continued.
Mandamus: An order which requires that a decision be made, usually issued
in circumstances where there has been unwarranted delay in making a decision
or occasionally where there is a dispute as to who is the appropriate decision
maker (Edobar v Ryan  2 ILRM 113).
Injunction: An order restraining (or occasionally requiring) the doing of
something – e.g. restraining a deportation. While injunctive relief may be
granted as a final relief it is frequently sought as an interlocutory relief at the
time at which leave to apply for judicial review is applied for.
Declaration: An order declaring or stating the law. Usually granted in
circumstances where the High Court is making a finding as to rights or
obligations or, alternatively, finding statutory provisions to be unconstitutional
or regulatory provisions to be ultra vires (Atanasov v Refugee Appeals
Tribunal unreported, MacMenamin J 7th July 2005).
Habeus Corpus: (Also Article 40 inquiry). The procedure used to challenge
the legality of a detention and the order made if the challenge is successful.
In the case of asylum and immigration matters it will usually a challenge to a
detention under Section 9 of the Refugee Act or Section 5 of the
What is covered by “Asylum and Immigration” matters?
For the purposes of this Seminar a broad approach has been adopted as to what is
encompassed within “asylum and immigration” matters to include all decisions made
(including procedural decisions) under the Refugee Act, 1996, as amended; the
Immigration Act, 1999, as amended: the Irish Nationality & Citizenship Acts,
1956-2001 and the Aliens Acts and Orders. However, the phrase is frequently used
as a shorthand to refer to the types of decisions which are subject to the statutory
procedure for judicial review under Section 5 of the Illegal Immigrants Trafficking
Act, 2000. In general a practice has developed in the High Court of listing all matters
of this nature (i.e. those within the broader definition) in what is termed the “Asylum
List” despite the fact that many of the cases in this list will not relate specifically to
asylum or to decisions made under the Refugee Act.
Although the type of case dealt with in the Asylum List can be extremely varied it
may be useful to look briefly at the two statutory schemes under which most of the
decisions challenged by way of judicial review in this list are reached.
Asylum: As asylum seeker who enters the State may make an application for asylum
under Section 8 of the Refugee Act, 1996 as amended. Under Section 9 a person
who has made a claim for asylum is entitled to be granted leave to enter or remain in
the State until the determination of (or transfer of) of that application. An asylum
application is investigated by the Refugee Applications Commissioner (ORAC) under
Section 11 of the Act of 1996 and a report on that investigation and a
recommendation as to asylum status is made under Section 13. An asylum seeker in
respect of whom a negative recommendation is made has a right of appeal to the
Refugee Appeals Tribunal under Section 16 and the RAT may affirm or set aside the
recommendation of the ORAC. The actual declaration as to asylum status is made by
the Minister for Justice under Section 17 which provides that the Minister must make
a declaration that the Applicant is a refugee in the case of a positive recommendation
and may otherwise refuse to make such declaration (i.e. the Minister is bound by a
positive recommendation but not necessarily by a negative recommendation).
Deportation: A failed asylum seeker will be eligible for deportation under Section 3
of the Immigration Act, 1999. The entitlement of the Minister for Justice to deport
persons under Section 3 also extends to a range of other categories of persons who are
not and may never have been asylum seekers – e.g. persons refused leave to land in
the State, persons who overstay or otherwise breach the terms of their visas etc.
When the Minister intends to deport an individual he must serve that individual with a
notice of the proposal to deport (stating the reasons therefore) under Section 3(3).
The individual concerned has an opportunity to make submissions as to why a
deportation order should not be made. In cases where the Minister decides not to
exercise his power to deport the individual in question he will generally grant a
temporary right to remain in the State, colloquially known as “humanitarian leave to
remain”. However, in circumstances where the Minister does not grant the individual
leave to remain he may proceed to make the deportation order having considered the
matters set out at Section 3(6) of the Act of 1999. Unless the individual agrees to
leave the State voluntarily, execution of a deportation order is carried out by the
Garda National Immigration Bureau whose members are conferred with certain
powers of arrest and detention under the relevant Immigration Acts for the purpose
of effecting deportation.
Applications for judicial review can be and are made at the various procedural stages
of the schemes outlined above. Most commonly an Applicant will seek to judicially
review the decision of the RAC or of the RAT recommending that he or she be
refused asylum and/or the decision of the Minister to make a deportation order
Order 84 of the Rules of the Superior Courts:
The general procedure under which applications for judicial review are made is that
contained in Order 84 of the Rules of the Superior Courts (full text of O84 R18 to
R26 contained in Appendix 1).
Because of the public law nature of the remedy and the deference generally felt to be
due by the Courts to the procedures and decisions of public bodies, applications for
judicial review are subject to a filter mechanism which requires an Applicant to obtain
the leave of the High Court to institute proceedings. Under O84 R20(2) an
application for leave to apply for judicial review is made ex parte to the High Court
and is grounded on a a Statement of Grounds which must be supported by an
Affidavit verifying the facts relied on. Additional affidavits may also be sworn. In
order to be granted leave to apply for judicial review the Applicant must establish (1)
that he or she has a sufficient interest in the matter to which the application relates
(O84 R20(4)) – invariably accepted to be the case in asylum and immigration matters;
(2) that the application has been made promptly and in any event within the time
limits set out in O84 R21 unless the High Court is satisfied that there are good
grounds for extending these time limits; (3) that the Applicant has established
arguable grounds for contending that he or she is entitled to the relief sought (see G v
DPP  1 IR 374) and that the facts averred to in the grounding Affidavit would
be sufficient, if proved, to support those grounds for the reliefs sought. Generally
speaking it is accepted that the “arguable grounds” threshold established by the
Supreme Court in G v DPP is a relatively low threshold so that unless the grounds
advanced are manifestly weak or unsustainable or the Applicant fails to meet any of
the other criteria outlined above, the general expectation is that leave applied for on ex
parte basis will be granted. In granting leave to apply for judicial review the High
Court may direct that the grant of leave is to operate as a stay on the challenged
proceedings and/or may grant interim relief such as injunction (O84 R20(7)).
Having been granted leave the Applicant must serve the proceedings and a Notice of
Motion on the Respondent within the period specified by the High Court. Under O84
R22(4) a Respondent who intends to oppose the application for judicial review is
required to file a Statement of Opposition and Affidavit verifying any facts relied
upon within seven days of receipt of the Notice of Motion or such other period as the
Court may direct. In fact Opposition Papers are almost never filed within the time
specified in O84R 22(4). Instead in practise, on granting leave to apply for judicial
review the High Court will nominate a return date for the Motion and on that date the
Respondent will attend in Court and seek an adjournment for a period of time
sufficient to allow filing of Opposition Papers.
It is clear from the provisions of O84 that the Rules envisage that judicial review
proceedings will normally proceed by way of Affidavit evidence, although O84
R22(1) allows the High Court to direct a plenary trial of the judicial review in which
oral evidence may be called by both parties. Alternatively, under O40 R1 an
application may be made to the High Court to direct the attendance of any person who
has sworn an Affidavit in the proceedings for the purposes of cross-examination.
Notwithstanding these provisions it is very unusual for oral evidence to be heard in
any judicial review proceedings.
Under O84 R20(3) the High Court on hearing an application for leave to apply for
judicial review may allow the Applicant’s Statement of Grounds to be amended under
O84 R23(2) on the hearing of the substantive application the High Court may allow
either the Applicant or Respondent to amend their Statements and, if necessary, to file
further Affidavits to deal with new matters arising out of such amendments. Under
O84R 22(6) the High Court may direct the joinder of any person who was, in the
opinion of the High Court to have been served with proceedings.
Statutory Judicial review procedure:
Section 5 of the Illegal Immigrants Trafficking Act, 2000 (full text contained in
Appendix 2) provides that certain asylum and immigration decisions can only be
challenged by way of judicial review and sets out a statutory scheme applicable to
such judicial reviews.
In this regard Section 5 of the 2000 Act reflects a growing trend on the part of the
Legislature to make certain types of judicial review subject to more stringent statutory
criteria than those applicable to regular judicial review applications made under O84
of the RSC. A statutory scheme of this nature was first introduced to the Local
Government (Planning & Development) Act, 1963 by way of amendment in 1992
and has since been introduced in respect of a range of challenges to decisions made
under specialised administrative and quasi-judicial schemes. Whilst the contents of
such statutory judicial review procedures are not identical in all cases, they tend to
share a number of similar features including the requirement that the application for
leave to apply for judicial review be made on notice to the Respondent, the imposition
of a shorter time limit than that applicable under O84 R21 quite frequently with a
restricted basis upon which such time limit can be extended; the imposition of
“substantial grounds” as a threshold by reference to which the leave application must
be determined and the restriction of the right of appeal from the decision of the High
The Supreme Court has recognised, on the planning side, that the legislative purpose
of such statutory judicial review schemes “is very firmly and strictly to confine the
possibility of judicial review in challenging of impugning a [planning] decision” and
that “it is clear that the intention of the legislature was greatly to confine the
opportunity of persons to impugn by way of judicial review decisions made by
[planning authority]” (KSK Enterprises v An Bord Pleanana  2 IR 128).
However, there has been considerable academic debate as to whether statutory
schemes of this nature actually achieve that objective. It might also be noted that the
statutory scheme under Section 5 of the 2000 Act in respect of asylum and
immigration matters is even more restrictive, especially in terms of time limits, than
that currently applying under Section 50 of the Planning & Development Act 2000 –
a factor which may have influenced the reference by the President of Section 5 of the
Illegal Immigrants (Trafficking) Bill, 1999 to the Supreme Court under Article 26
of the Constitution (see Re Art 26 and the Illegal Immigrants (Trafficking) Bill,
1999  2 IR 360) whereas the equivalent provisions of Section 50 of the
Planning & Development Bill, 1999 were not referred.
In upholding the constitutionality of what is now Section 5 of the Illegal Immigrants
(Trafficking) Act, 2000 the Supreme Court held that Section 5 did not constitute a
denial or a restriction of any person’s constitutional right of access to the Courts
(recognising that non-nationals had such constitutional right) and that the requirement
to proceed by way of judicial review within a limited period served the legitimate
public policy objective of establishing, with legal certainty, as an early stage the
validity or otherwise of administrative decisions. The potentially onerous 14 day time
limit for the institution of proceedings was not unreasonable in circumstances where
the High Court had a broad discretion to extend the time period for good and
sufficient reason and the requirement that an Applicant show “substantial grounds”
was not so onerous as to infringe the constitutional right of access to the Courts.
The following are the main points of difference between the statutory scheme for
judicial review under Section 5 of the Act of 2000 and the non-statutory scheme
otherwise applicable under O84 of the RSC.
The application for leave to apply for judicial review must be made on
notice to the Minister and any other person specified for that purpose by the
High Court. Where a decision of the ORAC or the RAT is challenged it is
usual to include the relevant decision maker as a Respondent to the
proceedings from the point of their initiation and failure to do so will almost
invariably result in the High Court directing that they be put on notice.
Obviously, the requirement that the Respondent be put on notice of the
application for leave carries with it an (implied) entitlement on the part of the
Respondent to participate in the leave hearing. However, it does not follow
in all cases that the Respondent will necessarily oppose the application for
leave and, frequently the Respondent will be prepared to concede leave on
some or all of the grounds advanced by the Applicant. Even where leave is
conceded the statutory requirement is that the High Court be satisfied that
there are substantial grounds for contending that the decision ought to be
quashed and, consequently, it will be necessary to open the application to the
Fourteen day time limit for the institution of proceedings. In practice the 14
day time limit has proved sufficiently short to necessitate a large number of
applications for extensions of time to be made in conjunction with
applications for leave to apply for judicial review. This can be contrasted
with the position under Section 50 of the Planning & Development Act
2000 where the invocation of the extension of time provision in respect of an
8 week period to institute judicial review proceedings is very much the
exception rather than the rule. The Supreme Court has pointed out that the
statutory requirement that there be “good and sufficient reason” relates to
extending the period rather than to a reason for the delay per se (although this
will obviously be a significant factor). The criteria by reference to which
applications for extensions of time will be granted have been considered by
the High and Supreme Courts on a number of occasions (G.K. v Minister
for Justice  1 I.L.R.M. 401, S v Minister for Justice  2 I.R.
163) and may be briefly summarised as follows:-
1. Length of the delay.
2. The explanation offered for the delay
3. When the intention to appeal was formed.
4. Whether the delay was attributable to a default on the part of the
Applicant or, alternatively, a default on the part of his legal advisors.
5. The strength of the Applicant’s case (i.e. whether the substantive claim
6. Whether the State is prejudiced by the delay.
Amendment of pleadings out of time. It follows from the requirement
that an application for judicial review be made within a certain statutory
time period that where proceedings are instituted and an Applicant
subsequently seeks to amend those proceedings that he or she must apply
for an extension of time within which to make the amendment and it is
entirely possible that even where leave is granted on the original grounds it
will be refused in respect of the proposed amendments by reason of delay.
(See Muresan v Minister for Justice 2004 2 I.L.R.M. 364 (affirmed by
Supreme Court unreported).
Substantial grounds. The classic judicial formulation of what is meant by
“substantial grounds” is that adopted by Carroll J in McNamara v An
Bord Pleanala  2 ILRM 129.
“In order for a ground to be substantial it must be reasonable, it must
be arguable, it must be weighty. It must not be trivial or tenuous.
However, I am not concerned in trying to ascertain what the eventual
result would be. I believe I should go no further than satisfying myself
that the grounds are “substantial”. A ground that does not stand any
chance of being sustained (for example, where the point has been
decided in another case) could not be said to be substantial. I draw a
distinction between the grounds and the arguments put forward in
support of those grounds. I do not think I should evaluate each
argument and say whether I consider it sound or not. If I consider a
ground, as such, to be substantial, I do not also have to say that the
Applicant is confined in this argument at the next stage to those which
I believe may have some merit.”
This formulation was adopted and approved by the Supreme Court in the
Article 26 reference of the Illegal Immigrants Trafficking Bill, 1999
(above). Despite the fact that the phrase used in Section 5 of the 2000 Act is
identical to that which has been used in the statutory scheme applicable to
planning cases since 1992 of late there has been a distinct divergence in the
approach of the High Court to the application of that standard as between
asylum and immigration cases on the one hand and planning and other
related cases on the other with the application of the standard remaining
consistently strict in the latter cases but having softened considerably in the
Quaere: The status of leave judgements and whether there is any benefit in
delivering a reserved judgement granting leave (Mulholland v An Bord
Pleanala Kelly J 4th October 2005)
Certificate of leave to appeal. Leave to appeal to the Supreme Court can
only be granted if the intending appellant satisfies the High Court as to the
cumulative statutory criteria in Section 5(3)(a) – i.e. that the decision of the
High Court involves a point of law of exceptional public importance and that
it is in the public interest that an appeal be taken to the Supreme Court.
These criteria were considered in detail in Raiu v RAT (Unreported Finlay
Geoghegan J 26th February 2003) which approved the High Courts analysis
of an equivalent requirement under the planning acts (Kenny v An Bord
Pleanala (No.2)  1 IR 704. The requirement that the point of law be
“exceptional” necessarily means that very few points of law will be certified
– not all points which have been accepted as “substantial” for the purpose of
granting leave will meet the additional threshold of “exceptionality”. It is
questionable whether points in respect of which leave has been refused (i.e.
found not to be substantial) could at the same time be of exceptional public
importance. The High Court Jin deciding whether to grant a certificate
should not have regard to whether the decision from which it is sought to
appeal is correct or the strength of the grounds of appeal. The requirement
that the High Court grant a certificate of leave to appeal does not apply in
respect of a decision of the High Court as regards the constitutional validity
of any law (Section 5(3)(b)). Note that this does not exclude all
constitutional questions. Allegations of unconstitutionality in the application
of any law - such as a breach of constitutional rights or a failure of natural
and constitutional justice - which do not involve an attack on the
constitutionality of the underlying legislation will require a certificate of
leave to appeal.
NUALA BUTLER S.C.
16 October 2005
JUDICIAL REVIEW AND ORDERS AFFECTING PERSONAL LIBERTY.
1. (1) Orders of habeas corpus, orders of certiorari, orders of mandamus, orders
of prohibition and orders of attachment shall be witnessed in the name of the Chief
Justice or, if the office of Chief Justice be vacant, in the name of the President of the
High Court, sealed with the seal of the High Court and bearing date of the day of
(2) The expression "order of habeas corpus" does not include an order made
pursuant to Article 40 section 4 of the Constitution.
(3) Every order referred to in this rule shall be served personally on the person
to whom it is directed, unless the Court otherwise directs.
V. Judicial review.
18. (1) An application for an order of certiorari, mandamus, prohibition or quo
warranto shall be made by way of an application for judicial review in accordance
with the provisions of this Order.
(2) An application for a declaration or an injunction may be made by way of
an application for judicial review, and on such an application the Court may grant the
declaration or injunction claimed if it considers that, having regard to -
( a ) the nature of the matters in respect of which relief may be
granted by way of an order of mandamus, prohibition, certiorari, or quo warranto,
(b) the nature of the persons and bodies against whom relief may
be granted by way of such order, and
( c ) all the circumstances of the case,
it would be just and convenient for the declaration or injunction to be granted on an
application for judicial review.
19. On an application for judicial review any relief mentioned in rule 18 (1) or (2)
may be claimed as an alternative or in addition to any other relief so mentioned if it
arises out of or relates to or is connected with the same matter and in any event the
Court may grant any relief mentioned in rules 18 (1) or (2) which it considers
appropriate notwithstanding that it has not been specifically claimed.
20. (1) No application for judicial review shall be made unless the leave of the
Court has been obtained in accordance with this rule.
(2) An application for such leave shall be made by motion ex parte grounded
( a ) a notice in Form No.13 in Appendix T containing a statement of:
(i) the name, address and description of the applicant,
(ii) the relief sought and the grounds upon which it is sought,
(iii) the name and registered place of business of the applicant's
solicitors (if any), and
(iv) the applicant's address for service within the jurisdiction (if
acting in person); and
(b) an affidavit which verifies the facts relied on.
Such affidavit shall be entitled:-
THE HIGH COURT
(3) The Court hearing an application for leave may allow the applicant's
statement to be amended, whether by specifying different or additional grounds of
relief or otherwise, on such terms, if any, as it thinks fit.
(4) The Court shall not grant leave unless it considers that the applicant has a
sufficient interest in the matter to which the application relates.
(5) Where leave is sought to apply for an order of certiorari to remove for the
purpose of its being quashed any judgment, order, conviction or other proceeding
which is subject to appeal and a time is limited for the bringing of the appeal, the
Court may adjourn the application for leave until the appeal is determined or the time
for appealing has expired.
(6) If the Court grants leave, it may impose such terms as to costs as it thinks
fit and may require an undertaking as to damages.
(7) Where leave to apply for judicial review is granted then-
(a) if the relief sought is an order of prohibition or certiorari and the Court
so directs, the grant shall operate as a stay of the proceedings to which the
application relates until the determination of the application or until the Court
(b) if any other relief is sought, the Court may at any time grant in the
proceedings such interim relief as could be granted in an action begun by
21. (1) An application for leave to apply for judicial review shall be made
promptly and in any event within three months from the date when grounds for the
application first arose, or six months where the relief sought is certiorari, unless the
Court considers that there is good reason for extending the period within which the
application shall be made.
(2) Where the relief sought is an order of certiorari in respect of any judgment,
order, conviction or other proceeding, the date when grounds for the application first
arose shall be taken to be the date of that judgment, order, conviction or proceeding.
(3) The preceding paragraphs are without prejudice to any statutory provision
which has the effect of limiting the time within which an application for judicial
review may be made.
22. (1) An application for judicial review shall be made by originating notice of
motion unless the Court directs that it shall be made by plenary summons.
(2) The notice of motion or summons must be served on all persons directly
affected and where it relates to any proceedings in or before a Court and the object of
the application is either to compel the Court or an officer of the Court to do any act in
relation to the proceedings or to quash them or any order made therein, the notice or
summons must also be served on the Clerk or Registrar of the Court and, where any
objection to the conduct of the Judge is to be made, on the Clerk or Registrar on
behalf of the Judge.
(3) A notice of motion or summons, as the case may be, must be served within
14 days after the grant of leave, or within such other period as the Court may direct.
In default of service within the said time the stay of proceedings referred to in rule 20
(7) shall lapse. In the case of a motion on notice it shall be returnable for the first
available motion day after the expiry of 10 days from the date of service thereof,
unless the Court otherwise directs.
(4) Any respondent who intends to oppose the application for judicial review
by way of motion on notice shall file in the Central Office a statement setting out
concisely the grounds for such opposition and, if any facts are relied on therein, an
affidavit verifying such facts. Such respondent shall serve a copy of such statement
and affidavit (if any) on all parties not later than seven days from the date of service
of the notice of motion or such other period as the Court may direct. The statement
shall include the name and registered place of business of the respondent's solicitor (if
(5) An affidavit giving the names and addresses of, and the places and dates of
service on, all persons who have been served with the notice of motion or summons
must be filed before the motion or summons is heard and, if any person who ought to
be served under this rule has not been served, the affidavit must state that fact and the
reason for it; and the affidavit shall be before the Court on the hearing of the motion
(6) If on the hearing of the motion or summons the Court is of opinion that any
person who ought, whether under this rule or otherwise, to have been served has not
been served, the Court may adjourn the hearing on such terms (if any) as it may direct
in order that the notice or summons may be served on that person.
23. (1) A copy of the statement in support of an application for leave under rule
20, together with a copy of the verifying affidavit must be served with the notice of
motion or summons and, subject to paragraph (2), no grounds shall be relied upon or
any relief sought at the hearing except the grounds and relief set out in the statement.
(2) The Court may, on the hearing of the motion or summons, allow the
applicant or the respondent to amend his statement, whether by specifying different or
additional grounds of relief or opposition or otherwise, on such terms, if any, as it
thinks fit and may allow further affidavits to be used if they deal with new matters
arising out of an affidavit of any other party to the application.
(3) Where the applicant or respondent intends to apply for leave to amend his
statement, or to use further affidavits he shall give notice of his intention and of any
proposed amendment to every other party.
24. (1) On an application for judicial review the Court may, subject to paragraph
(2), award damages to the applicant if -
(a) he has included in the statement in support of his application
for leave under rule 3 a claim for damages arising from any matter to which the
application relates, and
(b) the Court is satisfied that, if the claim had been made in a civil
action against any respondent or respondents begun by the applicant at the time of
making his application, he would have been awarded damages.
(2) Order 19, rules 5 and 7, shall apply to a statement relating to a claim for
damages as it applies to a pleading.
25. (1) Any interlocutory application may be made to the Court in proceedings on
an application for judicial review. In this rule "interlocutory application" includes an
application for an order under Order 31, or Order 39, rule 1, or for an order dismissing
the proceedings by consent of the parties.
(2) Where the relief sought is or includes an order of mandamus, the practice
and procedure provided for in Order 57 shall be applicable so far as the nature of the
case will admit.
26. (1) On the hearing of any motion or summons under rule 22, any person who
desires to be heard in opposition to the motion or summons, and appears to the Court
to be a proper person to be heard, shall be heard, notwithstanding that he has not been
served with notice of the motion or the summons.
(2) Where the relief sought is or includes an order of certiorari to remove any
proceedings for the purpose of quashing them, the applicant may not question the
validity of any order, warrant, committal, conviction, inquisition or record, unless
before the hearing of the motion or summons he has lodged in the High Court a copy
thereof verified by affidavit or accounts for his failure to do so to the satisfaction of
the Court hearing the motion or summons. If necessary, the court may order that the
person against whom an order of certiorari is to be directed do make a record of the
judgment, conviction or decision complained of.
(3) Where an order of certiorari is made in any such case as is referred to in
paragraph (2), the order shall, subject to paragraph (4), direct that the proceedings
shall be quashed forthwith on their removal into the High Court.
(4) Where the relief sought is an order of certiorari and the Court is satisfied
that there are grounds for quashing the decision to which the application relates, the
Court may, in addition to quashing it, remit the matter to the Court, tribunal or
authority concerned with a direction to reconsider it and reach a decision in
accordance with the findings of the Court.
(5) Where the relief sought is a declaration, an injunction or damages and the
Court considers that it should not be granted on an application for judicial review but
might have been granted if it had been sought in a civil action against any respondent
or respondents begun by plenary summons by the applicant at the time of making his
application, the Court may, instead of refusing the application, order the proceedings
to continue as if they had been begun by plenary summons.
(6) Where the relief sought is or includes an order of mandamus, the
proceedings shall not abate by reason of the death, resignation or removal from office
of the respondent but they may, by order of the Court, be continued and carried on in
his name or in the name of the successor in office or right of that person.
(7) At any stage in proceedings in prohibition, or in the nature of quo
warranto, the Court on the application of any party or of its own motion may direct a
plenary hearing with such directions as to pleadings, discovery, or otherwise as may
be appropriate, and thereupon all further proceedings shall be conducted as in an
action originated by plenary summons and the Court may give such judgement and
make such order as if the trial were the hearing of an application to make absolute a
conditional order to show cause.
27. The forms in Appendix T shall be used in all proceedings under this Order.
Section 5 of the Illegal Immigrants (Trafficking) Act 2000
5.—(1) A person shall not question the validity of—
(a) a notification under section 3(3)(a) of the Immigration Act, 1999,
(b) a notification under section 3(3)(b)(ii) of the Immigration Act, 1999,
(c) a deportation order under section 3(1) of the Immigration Act, 1999,
(d) a refusal under Article 5 of the Aliens Order, 1946 (S.R.O. 395 of 1946),
(e) an exclusion order under section 4 of the Immigration Act, 1999,
(f) a decision by or on behalf of the Minister to refuse an application for refugee status
or a recommendation of an Appeal Authority referred to in paragraph 13 of the
document entitled “Procedures for Processing Asylum Claims in Ireland” which, as
amended, was laid by the Minister for Justice, Equality and Law Reform before the
Houses of the Oireachtas in March 1998,
(g) a recommendation under section 12 (as amended by section 11(1)(h) of the
Immigration Act, 1999) of the Refugee Act, 1996,
(h) a recommendation of the Refugee Applications Commissioner under section 13
(as amended by section 11(1)(i) of the Immigration Act, 1999) of the Refugee Act,
(i) a decision of the Refugee Appeals Tribunal under section 16 (as amended by
section 11(1)(k) of the Immigration Act, 1999) of the Refugee Act, 1996,
(j) a determination of the Commissioner or a decision of the Refugee Appeals
Tribunal under section 22 (as amended by section 11(1)(p) of the Immigration Act,
1999) of the Refugee Act, 1996,
(k) a refusal under section 17 (as amended by section 11(1)(l) of the Immigration Act,
1999) of the Refugee Act, 1996,
(l) a determination of an officer appointed under section 22(4)(a) of the Refugee Act,
(m) a decision of an officer appointed under section 22(4)(b) of the Refugee Act,
(n) a decision under section 21 (as amended by section 11(1)(o) of the Immigration
Act, 1999) of the Refugee Act, 1996,
otherwise than by way of an application for judicial review under Order 84 of the
Rules of the Superior Courts (S.I. No. 15 of 1986) (hereafter in this section referred to
as “the Order”).
(2) An application for leave to apply for judicial review under the Order in respect of
any of the matters referred to in subsection (1) shall—
(a) be made within the period of 14 days commencing on the date on which the person
was notified of the decision, determination, recommendation, refusal or making of the
Order concerned unless the High Court considers that there is good and sufficient
reason for extending the period within which the application shall be made, and
(b) be made by motion on notice (grounded in the manner specified in the Order in
respect of an ex parte motion for leave) to the Minister and any other person specified
for that purpose by order of the High Court, and such leave shall not be granted unless
the High Court is satisfied that there are substantial grounds for contending that the
decision, determination, recommendation, refusal or order is invalid or ought to be
(3) (a) The determination of the High Court of an application for leave to apply for
judicial review as aforesaid or of an application for such judicial review shall be final
and no appeal shall lie from the decision of the High Court to the Supreme Court in
either case except with the leave of the High Court which leave shall only be granted
where the High Court certifies that its decision involves a point of law of exceptional
public importance and that it is desirable in the public interest that an appeal should
be taken to the Supreme Court.
(b) This subsection shall not apply to a determination of the High Court in so far as it
involves a question as to the validity of any law having regard to the provisions of the
(4) The High Court shall give such priority as it reasonably can, having regard to all
the circumstances, to the disposal of proceedings in that Court under this section.
(5) The Superior Court Rules Committee may make rules to facilitate the giving of
effect to subsection (4).
(6) References in this section to the Order shall be construed as including references
to the Order as amended or re-enacted (with or without modification) by rules of
THE LAW OF IMMIGRATION IN IRELAND
Recent case law developments
1. Olayinka Esther Winifred Adebayo and The Minister for Justice,
Equality and Law Reform, unreported, High Court, 2004, vol. 1, page 35.
Under appeal to the Supreme Court.
Ratio decidendi of Peart J: A Minister’s decision to refuse a declaration of
refugee status to the applicant is not ultra vires where it takes into account the
possibility of internal relocation of the applicant.
In a nutshell, the applicant in this case was a member of the Christian Union
Church based in Lagos, a group involved in spreading the word of God in all
parts of Nigeria. As part of its work, the applicant travelled with twenty-five
members of the Church to the northern part of Nigeria and, in particular, an
area known as Kaduna which is governed under Muslim Sharia law. There
was a history of violent clashes between Muslim and Christian groups in the
northern area of Nigeria and it appears that five women from the group were
abducted by five men, one of whom was the applicant. They were mistreated
and taken to a police station where they were beaten. They were never told
why they were being detained and, two days later, were informed that they
were being charged with disturbing the peace of the State. Her mother was
able to arrange for her release from the police station by payment of some
money, so that she could be medically treated at the hospital. On the
following day, she returned to Lagos, a journey of seventeen hours by road,
where she entered a private clinic. On the following day, she left and began
her journey via France to Ireland, where she arrived on 26th September, 2000.
She also gave evidence that, when she was back in Lagos, some people told
her that people had been looking for her. It was her belief that the police in
Kaduna may have contacted the police in Lagos concerning her “escape” from
the police in Kaduna. She didn’t feel it safe to return to Lagos because people
had been asking her whereabouts.
Peart J. held that her well-founded fear of persecution resulted from her
experiences in the northern part of Nigeria with her Church. He felt that there
was sufficient material and information to conclude that, while the applicant
was entitled to have a well-founded fear of persecution in relation to being in
the northern state of Kano, that persecution could be avoided by the applicant
living in Lagos, from where she travelled, and where she was born and reared
and where her family reside.
In holding that the tribunal was entitled to take into account the option of
internal relocation or internal flight, he referred to a decision of his colleague,
Gilligan J. in Pantsulaya -v- The Minister for Justice, Equality and Law
Reform, 21st October, 2003. In that decision, Gilligan J. examined the origins
of the concept of internal relocation and traced them back to paragraph 91 of
the UNHCR Handbook on Procedures and Criteria for Determining Refugee
Status which states
“The fear of being persecuted need not always extend to the whole territory of
the refugees country of nationality. Thus, in ethnic clashes or in cases of
grave disturbances involving civil war conditions, persecution of a specific
ethnic or national group may occur in only one part of the country. In such
conditions, a person will not be excluded from refugee status merely because
he could have sought refuge in another part of the same country, if under all
the circumstances it would not have been reasonable to expect him to do so.”
It was the last part of this provision which Peart J. used to hold that he could
see no basis for considering it to be unreasonable that the applicant should
have gone back to Lagos where she was born and reared and where neither she
nor her family had experienced any difficulty previously, and which was
seventeen hours by road from Kaduna and which had a population of ten
In the Pantsulaya decision, at page 25 of his judgement, Gilligan J. held that
the standard of proof in such cases is:
”Whether it would be ‘unduly harsh’ to require an asylum seeker who has fled
a well founded risk of persecution in one part of the state of origin to return to
another part of the state of origin where the risk did not extend.”
Gilligan J. then referred to a decision of Lord Woolf in R -v- Secretary of State
for the Home Department, ex parte Robinson 1998, QB, 929, where, at pages
939-940, various factors and circumstances which ought to be taken into
account when considering the reasonableness of internal relocation were set
out. Lord Woolf stated:
“In determining whether it would not be reasonable to expect the claimant to
relocate internally, a decision maker will have to consider all the
circumstances of the case, against the backcloth that the issue is whether the
claimant is entitled to the status of refugee. Various tests have been
suggested. For example:-
(a) if, as a practical matter (whether for financial, logistical or other good
reason), the ‘safe’ part of the country is not reasonably accessible;
(b) if the claimant is required to encounter great physical danger in travelling
there or staying there;
(c) if he or she is required to undergo undue hardship in travelling there or
(d) if the quality of the internal protection fails to meet basic norms of civil,
political and socio-economic human rights.
So far as the last of these considerations is concerned, the preamble to the
convention shows that the contracting parties were concerned to uphold the
principle that human beings should enjoy fundamental rights and freedoms
In the Thirunavukkarasu case, 109 DLR, Linden J.A., giving the judgement
of the Federal Court of Canada, said:
“Stated another way for clarity … would it be unduly harsh to expect this
person, who is persecuted in one part of his country, to move to another, less
hostile, part of his country before seeking refugee status abroad?”
He went on to observe that, while claimants should not be compelled to cross
battle lines or hide out in an isolated region of their country, like a cave in the
mountains, a desert or jungle, it will not be enough for them to say that they do
not like the weather in a safe area, or that they have no friends or relatives
there, or that they may not be able to find suitable work there.
2. Victoria Idiakheua and The Minister for Justice, Equality and Law
Reform and the Refugee Appeals Tribunal, unreported, High Court,
Although this judgement was given in a leave application as opposed to a full
judicial review hearing, its significance is profound and far reaching as far as
examining the duties imposed on a tribunal, whether it be a Refugee
Applications Commissioner’s decision or that of a member of the Refugee
Appeals Tribunal. In this case, the applicant was Nigerian and had come to
Ireland in July, 2002. She deposed that, when she was about thirteen years
old, her father gave her to the chief of her village to marriage, where she
stayed with the chief for five years. When she was approximately eighteen
years of age, she ran away from the chief’s compound, but was caught and
brought back by the chief’s bodyguards. She was beaten and locked up in a
small room for a number of days. When she was released, she fled to another
village but was caught after two weeks and brought back to the chief’s house,
where she was kept in a room, blindfolded, for a further period. The chief’s
bodyguards came and told her that the chief had told them to cut off her legs
so that she couldn’t run away. She was blindfolded again, and she felt sharp
pains over the legs and they were cut badly. Over the following two year
period, she was treated with traditional medicine. However, in 1998, she was
helped by a pastor in escaping to Lagos, where she was being treated. She
stayed with the pastor and his family in Lagos, where she had an operation on
her leg. In 2002, while in Lagos, she met a woman from her village in the
marketplace and this woman said to her “You are here and the chief will come
for you”, or words to that effect. She stated that, in her view, the fact that her
whereabouts was now known by the chief was likely to lead to the chief
coming to take her to her village. She also deposed that she didn’t report any
of this to the police because the police cannot arrest a chief by virtue of his
position. She also stated that the pastor did report what had happened to her,
but that the police did nothing. Her claim failed before the Refugee Appeals
Commissioner, primarily because the officer concerned doubted the voracity
of the applicant’s case, on the basis that it was possible that the true reason for
the applicant coming to Ireland was for medical treatment. He also suggested
that it was unlikely that the chief would be still looking for the applicant four
years after her final departure and that, even if the chief’s bodyguards did
come looking for her, there was no reason why she couldn’t go to the
authorities for help.
In the applicant’s appeal to the RAT, the RAT came to the view that it was not
satisfied that the applicant had a well founded fear of persecution for one of
the reasons set out in section 2 of the 1996 Act. The reasons were stated as
”The applicant said that she suffered a serious assault after being sold as a
child bride. After the assault, she went to Lagos where she lived without any
difficulty for a period of four years. She decided not to make any complaint to
the police concerning the assault on her. It would appear that state protection
is available to the applicant. Paragraph 100 of the UNHCR Handbook states
“Whenever the protection of the country of nationality is available,
and there is no ground based on a well grounded fear for refusing it,
the person concerned is not in need of protection and is not a
I also refer to the case of Hawa Baba Ahmed. This person was a child bride.
She escaped from the man she had been sold to. When captured, he amputated
one of her legs. This man was tried and convicted. Whilst he only received a
prison term, the fact that he was brought before a court confirms that state
protection is available in these circumstances.
Secondly, the applicant’s fear must be well founded. The fact that the
applicant was able to live quite openly in Lagos for four years without any
harm coming to her does not indicate to me that her fear is well founded.”
Clarke J. held that “It might be inferred that the reference in the operative part
of the decision as quoted above to certain aspects of that evidence supports
the view that the applicant’s evidence was accepted. On the other hand, it
might be inferred from the final paragraph that the decision make was not
satisfied with the entirety of that evidence. I should comment that it would be
preferable if determinations of the RAT set out the facts (or at least the
important facts) of which the Tribunal is satisfied. Clearly, in a case where the
Tribunal is satisfied as to all of the evidence given by an applicant, that matter
can be simply stated. If, however, the Tribunal is not satisfied as to the
voracity of any or all of the evidence given by or on behalf of the applicant,
then that fact should be set out together with the reasoning of the Tribunal as
to why that evidence is not accepted.”
Clarke J. gave a similar view in relation to a Tribunal member’s duty to give
reasons where adverse findings on credibility were made in the case of
Zhuchkova -v- The Refugee Appeals Tribunal, (unreported) High Court, 26th
November, 2004. This was also a leave application in which the applicants
had deposed that they had not given evidence as to various incidents of anti-
Semitism that had happened to them while still in Russia. The reasons given
by the husband applicant were that the interviewer had hurried him along,
while the wife applicant stated that incidents which happened before her
husband left Russia were not relevant to her claim and that she should focus
on incidents which occurred while she remained there on her own. The
Tribunal rejected these explanations and concluded that the applicants’
evidence generally was not credible and that therefore their credibility had
been undermined. Consequently, the Tribunal member did not accept their
evidence in relation to past persecution.
Clarke J. stated “I am not suggesting that it is arguable that a Tribunal
member has to give detailed reasons for each and every minor aspect of a
determination, but, where the entire determination does, as it did in these
cases, turn on one matter, then it seems to me at least arguable that the
Tribunal member must give a more detailed analysis justifying a conclusion
Clarke J.’s decision in Idiakheua also echoed his view in Zhuchkova that
reliance upon a selective quotation from a report, the overall conclusions of
which do not favour the establishment of adequate State protection, amounts
to a legally incorrect decision. In his view, for the purposes of a leave
application, it was “arguable that such higher scrutiny is required”. He held
so, even on the basis that the principles in O’Keeffe - An Bord Pleanala (1993
IR) are applicable.
Clarke J. also held that the process before the RAT is an inquisitorial one, in
which a joint obligation is placed on the applicant and the decision maker to
discover the true facts.
He stated “It seems to be that an inquisitorial body is under an obligation to
bring to the attention of any person whose rights may be affected by a decision
of such a body any matter of substance or importance which that inquisitorial
body may regard as having the potential to affect its judgement. In that
regard, an inquisitorial body may, in many cases, be in a different position to
a body which is simply required to adjudicate upon the contending positions of
two competing parties in an adversarial process. In the latter case, the
adjudicator simply decides the issues on the basis of the case made, whether
by evidence or by argument by the competing parties. However, the principles
which have been developed by the courts since the decision of the Supreme
Court in Re Haughey 1971 IR are equally applicable, in principle, to
inquisitorial bodies. The precise way in which those principles may be
applied may, of course, differ. However, the substantial obligation to afford a
party whose rights may be affected an opportunity to know the case against
them remains. In those circumstances, it seems to me that whatever process
or procedures may be engaged in by an inquisitorial body, they must be such
as afford any person who may be affected by the decision of such bodies a
reasonable opportunity to know the matters which may be likely to affect the
judgement of that body against their interest. In the course of argument in this
case, it was suggested on behalf of the RAT that it would be inappropriate for
the Tribunal either to direct the line of questioning which should be adopted
on behalf of the Commissioner, or to engage in questioning itself (on the
grounds that such questioning might give rise to an appearance of bias). I am
afraid I cannot agree.
If a matter is likely to be important to the determination of the RAT then that
matter must be fairly put to the applicant so that the applicant will have an
opportunity to answer it. If that means the matter being put by the Tribunal
itself then an obligation so to do rests upon the Tribunal. Even if, subsequent
to a hearing, while the Tribunal member is considering his or her
determination an issue which was not raised, or raised to any significant
extent, or sufficient at the hearing appears to the Tribunal member to be of
significant importance to the termination of the Tribunal then there remains
an obligation on the part of the Tribunal to bring that matter to the attention
of the applicant so as to afford the applicant an opportunity to deal with it.
This remains the case whether the issue is one concerning facts given in
evidence by the applicant, questions concerning country of origin information
which might be addressed either by the applicant or by the applicant’s
advisors or, indeed, legal issues which might be likely only to be addressed by
the applicant’s advisors.”
Clarke J.’s views in relation to there being a joint obligation placed on the
applicant and decision maker in matters before the RAT ties in with Peart J.’s
view in AO v The Refugee Appeals Tribunal (unreported) High Court, 26th
May, 2004, of the notion of “shared burden of proof”, i.e. that the Tribunal
was under an obligation to investigate and consider all possible bases on
which the application for a declaration was being made, even if not fully
articulated by the applicant.
3. PPA, MNF and MAO -v- The Refugee Appeals Tribunal, Chairman of
the Refugee Appeals Tribunal and Minister for Justice, Equality and Law
Reform, 7th July, 2005.
This decision of Mr Justice John MacMenamin is currently under appeal to the
Supreme Court and deals with the entitlement of applicants to the records of
previous decisions of the Refugee Appeals Tribunal as a matter of fair
procedures. In a nutshell, the failure to provide applicants with decisions
which are relevant to such applicants, i.e. where they deal with a substantial
issue of legal principle, is contrary to the principles of fair procedures and
MEL CHRISTLE S.C.
16 October 2005