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Supreme Court of Ireland Decisions
You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Adio & Ors -v- Minisiter for Justice, Equality & Law Reform  IESC 63 (20 December 2007)
Cite as:  3 IR 664,  IESC 63
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Judgment Title: Adio & Ors -v- Minisiter for Justice, Equality & Law Reform
Composition of Court: Murray C.J., Denham J., Fennelly J., Kearns J., Finnegan J.
Judgment by: Denham J.
Status of Judgment: Approved
THE SUPREME COURT
[S.C. No: 481/2006]
Folashade Olubunmi Adio,Fuod Adio (a minor suing by his mother and next friend Folashade Olubunmi Adio)
Farouq Adio (a minor suing by his motherand next friend Folashade Olubunmi Adio
The Minister for Justice, Equality and Law Reform
Judgment delivered the 20th day of December, 2007, by Denham J.
At the core of the case is the refusal by the Minister of the first named applicant's application under the IBC 05 Scheme.
2. Eight Cases
3. These related cases are:
(ii) Oguekwe v. The Minister, Appeal No. 489/2006
(iii) Dimbo v. The Minister, Appeal No. 484/2006
(iv) Fares v. The Minister, Appeal No. 483/2006
(v) Oviawe v. The Minister, Appeal No. 480/2006
(vi) Duman v. The Minister, Appeal No. 482/2006
(vii) Adio v. The Minister, Appeal No. 481/2006
(viii) Edet v. The Minister, Appeal No. 005/2007
4. The general facts and law relating to the Minister's decision in the administrative scheme in the seven cases are set out in the Bode judgment. The particular facts, law, and decision of this case are set out herein.
6. Particular Facts
The learned High Court judge found that the first named applicant submitted an application form to the IBC 05 Scheme on the 26th April, 2005, which was received by the Minister on the 5th May, 2005.
The decision of the Minister was given by letter dated 29th November, 2005, in the following terms:-
As stated on the application form, and in the Minister's announcement, the closing date for the submission of applications for consideration under the revised arrangements was 31st March 2005. Your application, which was received by this Department on 5th May, 2005, was too late for consideration. Accordingly, I am to inform you that an application from you cannot be considered under the revised arrangements. The IBC/05 application form and your original supporting documents are returned herewith."
7. High Court Proceedings
2. An order of mandamus by way of an application for judicial review directing the [Minister] to consider the application of the first named applicant to reside in the State with the second and third named applicants."
The learned High Court judge noted that as in many of the other applications in the related proceedings the primary submission made was that each of the decisions, of the 29th November, 2005, and 19th December, 2005, was unlawful or invalid in that they were taken without any consideration of the personal rights of the Irish citizen child guaranteed by Article 40.3 of the Constitution and in breach of the citizen child's right to respect for his private life under Article 8 of the European Convention on Human Rights as implemented in the State. As in the related cases, the Minister submitted that he was not required to consider the Constitutional or Convention rights in making decisions under the scheme.
The High Court held, having considered issues of Constitutional and Convention rights:-
No submission was made that any interest of the common good required the respondent to refuse to consider an application on IBC/05 submitted after the 31st March, 2005, without considering the constitutionally protected rights of the citizen child. Submissions were made as to the necessity for a time limit but not for a time limit which automatically excluded consideration of a late application where the vindication of the citizen child’s constitutional right to live in Ireland so required.
Accordingly, I have concluded that the decisions made herein to refuse to consider the applications of the first named applicant for permission to remain in the State were invalid as they did not consider the personal rights of the citizen child and were taken in breach of the third named applicant’s rights under Article 40.3 of the Constitution."
At no time was it intended, within the ambit of the scheme, that the Minister would consider Constitutional or Convention rights of applicants. The grounds of the application and the appeal relating to Constitutional or Convention rights were misconceived, and premature. Applicants who are unsuccessful on an application to the IBC 05 Scheme are in the same position after the application as they were prior to the application. Constitutional and Convention rights await consideration.
It was a requirement of the scheme that applications be made within a specified time. The first named applicant did not make his application within the time required in the scheme. The Minister consequently acted correctly within the scheme in refusing to consider the application.
Bearing in mind the analysis of the IBC 05 Scheme in Bode, and the extent of judicial review of such an administrative scheme, I would allow the Minister's appeal on this matter, and reverse the decision of the High Court.
The Constitutional and Convention rights of the applicants remain to be considered in another, appropriate, process.