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Supreme Court of Ireland Decisions
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Cite as:  IESC 66
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Judgment Title: Oviawe & Ors -v- Minister for Justice, Equality & Law Reform & Ors
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: 480/2006]
Mercy Oviawe, Marrian Oviawe,
Emmanueal Oviawe (suing through his mother and next friend Mercy Oviawe), Michael Oviawe (suing through his mother and next friend Mercy Oviawe), Lucky Oviawe (suing through his mother and next friend Mercy Oviawe), Peace Oviawe (suing through her mother and next friend Mercy Oviawe), Faith Oviawe (suing through her mother and next friend Mercy Oviawe), Unity Oviawe (suing through his mother and next friend Mercy Oviawe),
The Minister for Justice, Equality and Law Reform
The Human Rights Commission
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
7. High Court Proceedings
8. High Court Order
2. Does the fact of Mrs. Oviawe's criminal conviction alter the entitlement of her twin citizen children to have their personal rights within the meaning of Article 40.3 of the Constitution or right to respect for their private life within the meaning of article 8 of the Convention considered and taken into account by the Minister in determining their mother's application under IBC/05."
High Court Judgment
1. The decision taken by the [Minister] on the IBC/05 application of the first named applicant as communicated in the letter of 16th November, 2005 is unlawful as it was taken in breach of the seventh and eighth named applicants’ rights under Article 40.3 of the Constitution.
2. The decision of the [Minister] on the IBC/05 application of the first named applicant communicated in the letter of 16th November, 2005 is unlawful as it was in breach of the [Minister's] obligations under s. 3(1) of the European Convention on Human Rights Act, 2003 as it was not taken in a manner of which is compatible with the State’s obligations under article 8 of the Convention to respect the right to private life of the seventh and eighth named applicants as citizens of the State."
The application was misconceived. The IBC 05 Scheme was an administrative scheme established by the Minister exercising executive power to deal with a unique group of foreign nationals. The parameters of the scheme were clearly stated. These requirements included "not been involved in criminal activity". The scheme was administered by the Minister, according to the terms of the scheme. There was evidence that the first named applicant had been convicted of a criminal offence and the Minister was entitled to reach the decision he did on the evidence.
At no time was it intended, within the ambit of the scheme, that the Minister would consider Constitutional or Convention rights of the applicants. Thus this aspect of the application, the High Court order, and the appeal are misconceived and premature. Applicants who are unsuccessful in their application under the IBC 05 Scheme remain in the same position as they had been prior to the making of the application. Constitutional and Convention rights are a matter for consideration in other processes, for example under s.3 of the Immigration Act, 1999 as amended.
It is clear that the first named applicant did not come within the criteria of the IBC 05 Scheme, and the Minister was entitled to so hold. Consequently, I would reverse the decision of the High Court, and allow the appeal.