ITEMID: 001-103904
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF KIYUTIN v. RUSSIA
IMPORTANCE: 1
CONCLUSION: Violation of Art. 14+8;Remainder inadmissible;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;Julia Laffranque;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 6. The applicant was born in the Uzbek Soviet Socialist Republic (SSR) of the Soviet Union in 1971 and acquired citizenship of Uzbekistan following the collapse of the Union of Soviet Socialist Republics (USSR).
7. In October 2002 his brother bought a house with a plot of land in the village of Lesnoy in the Oryol Region of Russia. In 2003 the applicant, his half-brother and their mother came from Uzbekistan to live there.
8. On 18 July 2003 the applicant married a Russian national and they had a daughter in January 2004.
9. In the meantime, in August 2003 the applicant applied for a residence permit. He was required to undergo a medical examination during which he tested positive for HIV. On account of that circumstance, his application for a residence permit was refused. The refusal was upheld at final instance by the Oryol Regional Court on 13 October 2004.
10. In April 2009 the applicant filed a new application for a temporary residence permit. Following his application, on 6 May 2009 the Federal Migration Service determined that he had been unlawfully resident in Russia (an offence under Article 18.8 § 1 of the Code of Administrative Offences) and imposed a fine of 2,500 Russian roubles.
11. By a decision of 26 June 2009, the Federal Migration Service of the Oryol Region rejected his application for a residence permit by reference to section 7(1)(13) of the Foreign Nationals Act, which restricted the issue of residence permits to foreign nationals who could not show their HIVnegative status. The decision indicated that the applicant was to leave Russia within three days or be subject to deportation. The applicant challenged the refusal in court.
12. On 13 August 2009 the Severniy District Court of the Oryol Region rejected his complaint, finding as follows:
“Taking into account that Mr V.V. Kiyutin is HIV-positive, the court considers that his application for temporary residence in the Russian Federation was lawfully rejected.”
13. The applicant lodged an appeal, relying on the Constitutional Court’s decision of 12 May 2006 (see paragraph 24 below) and the relevant United Nations documents on Aids prevention. On 16 September 2009 the Oryol Regional Court rejected his appeal in a summary fashion.
14. On 20 October 2009 the applicant underwent a medical examination at the Oryol Regional Centre for Aids Prevention. He was diagnosed with the progressive phase of HIV, and hepatitis B and C, and was prescribed “highly active antiretroviral therapy” (HAART) for life-saving indications.
15. On 25 November 2009 the Oryol Regional Court refused to institute supervisory-review proceedings and upheld the previous judgments as lawful and justified, finding:
“In his application for supervisory review, Mr Kiyutin argued that the courts did not take into account his family situation and state of health when deciding on his application for a residence permit, which was at variance with the Constitutional Court’s decision of 12 May 2006. This argument is not a ground for quashing the judicial decisions.
The applicable laws governing the entry and residence of foreign nationals in Russia do not require the law-enforcement authorities or the courts to determine the state of health of HIV-infected foreign nationals or the clinical stage of their disease for the purpose of deciding whether a residence permit may be issued.
When deciding on the issue of temporary residence for an HIV-positive individual, the courts may, but are not obliged, to take into account the factual circumstances of a specific case on the basis of humanitarian considerations.
In addition, a foreign national who applies for a residence permit in Russia must produce a certificate showing his HIV-negative status; if his status is HIV-positive, the law prohibits the said permit from being issued.”
16. The relevant parts of the Preamble to the HIV Prevention Act read as follows:
“Recognising that the chronic disease caused by the human immunodeficiency virus (HIV)
– is spread widely throughout the world,
– has grave socio-economic and demographic consequences for the Russian Federation,
– poses a threat to personal, public and national security, and a threat to the existence of humankind,
– calls for the protection of the rights and lawful interests of the population ...”
17. Pursuant to section 4(1) of the Act, the State guarantees free medical assistance to Russian nationals who are HIV-positive.
18. Section 11(2) provides that foreign nationals and stateless persons who are in the Russian territory are to be deported once it is discovered that they are HIV-positive.
19. Section 5 of the Foreign Nationals Act provides that foreign nationals who do not require a visa to enter the Russian Federation may stay in Russia for a period not exceeding ninety days and must leave Russia upon expiry of that period.
20. Section 6(3)(4) and (6.2) establishes that an alien who is married to a Russian national or who has a Russian child is eligible for a three-year residence permit, independently of the professional quotas determined by the Government.
21. Section 6(8) and Government Resolution no. 789 of 1 November 2002 define the list of documents that must be enclosed with an alien’s application for a residence permit. Among other documents, an applicant must produce a medical certificate showing that he or she is not HIV-positive.
22. Section 7 contains the list of grounds for refusing a temporary residence permit or annulling a previously issued residence permit. In particular, an application for a residence permit will be refused if the foreigner is a drug abuser or is unable to produce a certificate showing that he or she is not HIV-positive (section 7(1)(13)).
23. According to paragraph 3 of the Rules on the Provision of Medical Assistance to Foreign Nationals in the Russian Territory (Government Resolution no. 546 of 1 September 2005), only emergency treatment may be provided to foreign nationals free of charge. Paragraph 4 stipulates that other medical assistance may be provided on a fee basis
24. On 12 May 2006 the Constitutional Court rejected a constitutional complaint introduced by a Ukrainian national, Mr X., who was HIV-positive and lived in Russia with his Russian wife and daughter (decision no. 155O). Mr X. complained that section 11(2) of the HIV Prevention Act and section 7(1)(13) of the Foreign Nationals Act violated his right to respect for his family life and his right to medical assistance and were also discriminatory.
25. The Constitutional Court held that the contested provisions were compatible with the Russian Constitution as the restriction on temporary residence of HIV-positive foreign nationals had been imposed by the legislature for the protection of constitutional values, the principal one being the right to State protection of public health (see paragraph 3.3 of the Constitutional Court’s judgment).
26. Referring to the United Nations Declaration of Commitment on HIV/Aids of 27 June 2001, the resolutions of the United Nations Commission on Human Rights and other international instruments prohibiting HIV-related discrimination, as well as this Court’s case-law on the expulsion of foreign nationals in general and HIV-positive foreigners in particular, the Constitutional Court emphasised the principle of proportionality in respect of the measures adopted in pursuance of constitutional aims and noted:
“It follows that, confronted with a conflict between equally protected constitutional values, the law-enforcement authorities and courts may take into account, on the basis of humanitarian considerations, the factual circumstances of a specific case in determining whether an HIV-positive individual is eligible for temporary residence in the Russian Federation.
Thus, the provisions of section 11(2) of the HIV Prevention Act and section 7(13) of the Foreign Nationals Act do not exclude the possibility that the law-enforcement authorities and courts may – on the basis of humanitarian considerations – take into account the family situation, the state of health of the HIV-positive foreign national or stateless person, and other exceptional but meritorious circumstances in determining whether the person should be deported from the Russian Federation and whether he or she should be admitted for temporary residence in the Russian territory. In any event, the individual concerned should comply with the obligation to respect the legally imposed preventive measures aimed at curtailing the spread of HIV.” (See paragraph 4.2 of the Constitutional Court’s judgment.)
27. Article 122 of the Criminal Code provides for criminal liability for knowingly infecting another person with HIV or for knowingly exposing someone to the risk of HIV infection. These acts are punishable by deprivation of liberty of up to one year.
28. On 27 June 2001 the United Nationals General Assembly adopted the Declaration of Commitment on HIV/Aids (Resolution S-26/2) which provides, in particular:
“1. We, Heads of State and Government and representatives of States and Governments, assembled at the United Nations ... to review and address the problem of HIV/Aids in all its aspects, as well as to secure a global commitment to enhancing coordination and intensification of national, regional and international efforts to combat it in a comprehensive manner;
...
13. Noting further that stigma, silence, discrimination and denial, as well as a lack of confidentiality, undermine prevention, care and treatment efforts and increase the impact of the epidemic on individuals, families, communities and nations and must also be addressed;
...
16. Recognising that the full realisation of human rights and fundamental freedoms for all is an essential element in a global response to the HIV/Aids pandemic, including in the areas of prevention, care, support and treatment, and that it reduces vulnerability to HIV/Aids and prevents stigma and related discrimination against people living with or at risk of HIV/Aids;
...
31. Affirming the key role played by the family in prevention, care, support and treatment of persons affected and infected by HIV/Aids, bearing in mind that in different cultural, social and political systems various forms of the family exist;
...
...
58. By 2003, enact, strengthen or enforce, as appropriate, legislation, regulations and other measures to eliminate all forms of discrimination against and to ensure the full enjoyment of all human rights and fundamental freedoms by people living with HIV/Aids and members of vulnerable groups, in particular to ensure their access to, inter alia, education, inheritance, employment, health care, social and health services, prevention, support and treatment, information and legal protection, while respecting their privacy and confidentiality; and develop strategies to combat stigma and social exclusion connected with the epidemic;
...”
29. The United Nations Commission on Human Rights first spoke out against HIV/Aids-related discrimination and stigma in its Resolution no. 1995/44 on the protection of human rights in the context of human immunodeficiency virus (HIV) and acquired immunodeficiency syndrome (Aids), which was adopted at its 53rd meeting on 3 March 1995. The relevant parts of the resolution read as follows:
“1. Confirms that discrimination on the basis of Aids or HIV status, actual or presumed, is prohibited by existing international human rights standards, and that the term ‘or other status’ in non-discrimination provisions in international human rights texts can be interpreted to cover health status, including HIV/Aids;
2. Calls upon all States to ensure, where necessary, that their laws, policies and practices, including those introduced in the context of HIV/Aids, respect human rights standards, including the right to privacy and integrity of people living with HIV/Aids, prohibit HIV/Aids-related discrimination and do not have the effect of inhibiting programmes for the prevention of HIV/Aids and for the care of persons infected with HIV/Aids;
...”
The United Nations Commission on Human Rights upheld its stance against discrimination in the context of HIV/Aids in its subsequent Resolution no. 2005/84, adopted at its 61st meeting on 21 April 2005.
30. Article 2 § 2 of the United Nations International Covenant on Economic, Social and Cultural Rights guarantees that the rights recognised therein “will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. In its General Comment no. 20 of 2 July 2009 on non-discrimination in economic, social and cultural rights, the United Nations Committee on Economic, Social and Cultural Rights expressly included health status and specifically HIV status, among “other status” grounds referred to in Article 2 § 2 of the Covenant:
“33. Health status refers to a person’s physical or mental health. States Parties should ensure that a person’s actual or perceived health status is not a barrier to realising the rights under the Covenant. The protection of public health is often cited by States as a basis for restricting human rights in the context of a person’s health status. However, many such restrictions are discriminatory, for example, when HIV status is used as the basis for differential treatment with regard to access to education, employment, health care, travel, social security, housing and asylum. ...”
31. The Parliamentary Assembly of the Council of Europe has touched upon the subject of HIV/Aids in a number of documents. Recommendation 1116 (1989) on Aids and human rights emphasised the following points:
“3. Noting that, although the Council of Europe has been concerned with prevention ever since 1983, the ethical aspects have been touched upon only cursorily;
4. Considering nevertheless that it is essential to ensure that human rights and fundamental freedoms are not jeopardised on account of the fear aroused by Aids;
5. Concerned in particular at the discrimination to which some Aids victims and even seropositive persons are being subjected;
...
8. Recommends that the Committee of Ministers:
A. instruct the Steering Committee for Human Rights to give priority to reinforcing the non-discrimination clause in Article 14 of the European Convention on Human Rights, either by adding health to the prohibited grounds of discrimination or by drawing up a general clause on equality of treatment before the law;
...
D. invite the member States of the Council of Europe:
...
3. not to refuse the right of asylum on the sole ground that the asylum-seeker is contaminated by the HIV virus or suffers from Aids;
...”
Resolution 1536 (2007) on HIV/Aids in Europe reaffirmed the Parliamentary Assembly’s commitment to combating all forms of discrimination against people living with HIV/Aids:
“9. While emphasising that the HIV/Aids pandemic is an emergency at the medical, social and economic level, the Assembly calls upon parliaments and governments of the Council of Europe to:
9.1. ensure that their laws, policies and practices respect human rights in the context of HIV/Aids, in particular the right to education, work, privacy, protection and access to prevention, treatment, care and support;
9.2. protect people living with HIV/Aids from all forms of discrimination in both the public and private sectors ...”
32. The United Nations Convention on the Rights of Persons with Disabilities, which entered into force on 3 May 2008 and which Russia signed but has not ratified, provides, in particular:
“2. States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds. ...”
“1. States Parties shall recognise the rights of persons with disabilities to liberty of movement, to freedom to choose their residence and to a nationality, on an equal basis with others, including by ensuring that persons with disabilities:
...
(b) are not deprived, on the basis of disability, of their ability to obtain, possess and utilise documentation of their nationality or other documentation of identification, or to utilise relevant processes such as immigration proceedings, that may be needed to facilitate exercise of the right to liberty of movement;
...”
“1. States Parties shall take effective and appropriate measures to eliminate discrimination against persons with disabilities in all matters relating to marriage, family, parenthood and relationships, on an equal basis with others ...”
33. The UNAIDS/IOM (Joint United Nations Programme on HIV/Aids/International Organization for Migration) statement on HIV/Aids-related travel restrictions of June 2004 contained the following recommendations:
“1. HIV/Aids should not be considered to be a condition that poses a threat to public health in relation to travel because, although it is infectious, the human immunodeficiency virus cannot be transmitted by the mere presence of a person with HIV in a country or by casual contact (through the air, or from common vehicles such as food or water). HIV is transmitted through specific behaviours which are almost always private. Prevention thus requires voluntary acts and cannot be imposed. Restrictive measures can in fact run counter to public health interests, since exclusion of HIV-infected non-nationals adds to the climate of stigma and discrimination against people living with HIV and Aids, and may thus deter nationals and non-nationals alike from coming forward to utilise HIV prevention and care services. Moreover, restrictions against non-nationals living with HIV may create the misleading public impression that HIV/Aids is a ‘foreign’ problem that can be controlled through measures such as border controls, rather than through sound public health education and other prevention methods.
...
3. Restrictions against entry or stay that are based on health conditions, including HIV/Aids, should be implemented in such a way that human rights obligations are met, including the principle of non-discrimination, non-refoulement of refugees, the right to privacy, protection of the family, protection of the rights of migrants, and protection of the best interests of the child. Compelling humanitarian needs should also be given due weight.
4. Any health-related travel restriction should only be imposed on the basis of an individual interview/examination. In case of exclusion, persons should be informed orally and in writing of the reasons for the exclusion.
5. Comparable health conditions should be treated alike in terms of concerns about potential economic costs relating to the person with the condition. Those living with HIV/Aids who seek entry for short-term or long-term stays should not be singled out for exclusion on this financial basis.
6. Exclusion on the basis of possible costs to health care and social assistance related to a health condition should only be considered where it is shown, through individual assessment, that the person requires such health and social assistance; is likely in fact to use it in the relatively near future; and has no other means of meeting such costs (e.g. through private or employment-based insurance, private resources, support from community groups); and that these costs will not be offset through benefits that exceed them, such as specific skills, talents, contribution to the labour force, payment of taxes, contribution to cultural diversity, and the capacity for revenue or job creation.
7. If a person living with HIV/Aids is subject to expulsion (deportation), such expulsion (deportation) should be consistent with international legal obligations including entitlement to due process of law and access to the appropriate means to challenge the expulsion. Consideration should be given to compelling reasons of a humanitarian nature justifying authorisation for the person to remain. ...
...”
34. The relevant parts of the International Guidelines on HIV/Aids and Human Rights (2006 consolidated version), published by the United Nations Office of the High Commissioner for Human Rights and UNAIDS, read as follows:
“102. The key human rights principles which are essential to effective State responses to HIV are to be found in existing international instruments ... Among the human rights principles relevant to HIV/Aids are, inter alia:
– the right to non-discrimination, equal protection and equality before the law;
...
– the right to freedom of movement;
...
104. Under international human rights law, States may impose restrictions on some rights, in narrowly defined circumstances, if such restrictions are necessary to achieve overriding goals, such as public health, the rights of others, morality, public order, the general welfare in a democratic society and national security. ...
105. Public health is most often cited by States as a basis for restricting human rights in the context of HIV. Many such restrictions, however, infringe on the principle of non-discrimination, for example when HIV status is used as the basis for differential treatment with regard to access to education, employment, health care, travel, social security, housing and asylum. ...
...
127. There is no public health rationale for restricting liberty of movement or choice of residence on the grounds of HIV status. According to current international health regulations, the only disease which requires a certificate for international travel is yellow fever [footnote omitted]. Therefore, any restrictions on these rights based on suspected or real HIV status alone, including HIV screening of international travellers, are discriminatory and cannot be justified by public-health concerns.
128. Where States prohibit people living with HIV from longer-term residency due to concerns about economic costs, States should not single out HIV/Aids, as opposed to comparable conditions, for such treatment and should establish that such costs would indeed be incurred in the case of the individual alien seeking residency. In considering entry applications, humanitarian concerns, such as family reunification and the need for asylum, should outweigh economic considerations.”
35. The report of the International Task Team on HIV-related Travel Restrictions, convened by UNAIDS in 2008, contained the following findings:
“The Task Team confirmed that HIV-specific restrictions on entry, stay and residence based on HIV status are discriminatory, do not protect the public health and do not rationally identify those who may cause an undue burden on public funds. In particular, the Task Team made the following findings:
– The Task Team found no evidence that HIV-related restrictions on entry, stay and residence protect the public health and was concerned that they may in fact impede efforts to protect the public health.
...
– Restrictions on entry, stay and residence that specify HIV, as opposed to comparable conditions, and/or are based on HIV status alone are discriminatory.
– Exclusion or deportation of HIV-positive people to avoid potential costs of treatment and support should be based on an individual assessment of the actual costs that are likely to be incurred, should not single out HIV, and should not override human rights considerations or humanitarian claims.”
36. In May 2009 UNAIDS published the survey “Mapping of restrictions on the entry, stay and residence of people living with HIV”. The latest version of the survey, updated in May 2010, is available on its website.
37. According to the survey, 124 countries, territories and areas worldwide have no HIV-specific restrictions on entry, stay or residence. The other 52 countries, territories or areas impose some form of restriction on the entry, stay and residence of people living with HIV based on their HIV status. The latter category includes seven Council of Europe member States.
38. None of the Council of Europe member States refuses to issue a visa or allow entry for a short-term stay on account of the individual’s HIV status. Three States (Armenia, Moldova and Russia) may deport individuals once their HIVpositive status is discovered. Those States and three others (Andorra, Cyprus and Slovakia) require the person applying for a residence permit to show that he or she is HIV-negative. Finally, Lithuania requires a declaration as to whether the individual has a “disease posing a threat to public health”.
VIOLATED_ARTICLES: 14
8


ITEMID: 001-121176
LANGUAGEISOCODE: ENG
RESPONDENT: ARM
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: MELTEX LTD v. ARMENIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra;Nona Tsotsoria
TEXT: 1. The applicant, Meltex Ltd, is a private Armenian broadcasting company (“the applicant company”), that was set up in 1995 and has its registered office in Yerevan. The applicant company was represented before the Court by Mr A. Ghazaryan and Mr A. Zeynalyan, lawyers practising in Yerevan.
2.
3. Between June and December 2003 the National Television and Radio Commission (“the NTRC”), which was entrusted with regulating the licensing and monitoring the activities of private television and radio companies, put out calls to tender for band 25, bands 31, 39 and 51, bands 3 and 63, and band 56. The applicant company submitted bids for all of the above bands.
4. The NTRC awarded all of the licences to other bidders.
5. The applicant company instituted proceedings in the Commercial Court against the NTRC, contesting the results of the tenders. All the claims were dismissed in the final instance by the Court of Cassation on 27 February and 23 April 2004 respectively.
6. On 27 August 2004 the applicant company and its chairman, Mr Mesrop Movsesyan, lodged an application with the Court (application no. 32283/04) against the Republic of Armenia under Article 34 of the Convention. The applicants alleged that the refusal of the state authorities to award a broadcasting licence amounted to a violation of their freedom of expression under Article 10 of the Convention. In particular they submitted that the NTRC was obliged by law to inform them of the reasons for denying the applicant company a licence. The mere presence of the applicant company’s representative during the presentation of competitive bids and a points-based vote which, moreover, indicated only a total score, did not constitute proper provision of a reasoned decision. The NTRC’s letters announcing the outcome of the calls to tender could not be considered as notification of reasons either, since they simply announced the relevant decisions without stating the grounds for them. According to the applicants this rendered the licensing process arbitrary and not as prescribed by law.
7. The application was considered by the Court, which gave judgment on 17 June 2008 (Meltex Ltd and Movsesyan v. Armenia, no. 32283/04, 17 June 2008). The Court first considered that the application, in so far as it concerned the second applicant, was incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3, and therefore limited its examination of the complaints raised in the application to those which concerned the applicant company. In that respect, the Court held that there had been a breach of Article 10 of the Convention as the interferences with the applicant company’s freedom to impart information and ideas did not meet the Convention requirement of lawfulness. The Court noted in particular that a procedure which did not require a licensing body to justify its decisions did not provide adequate protection against arbitrary interference by a public authority with the fundamental right to freedom of expression (ibid., § 83).
8. As to the application of Article 41 of the Convention, the Court awarded the applicant company EUR 20,000 for non-pecuniary damages together with EUR 10,000 in legal costs and expenses for the proceedings before the Court (ibid., §§ 103-108).
9. On 17 December 2008, on the basis of the Court’s judgment, the applicant company applied to the Court of Cassation for the final two judgments given at domestic level to be reviewed on the basis of a new circumstance.
10. In its two decisions of 19 February 2009 the Court of Cassation dismissed the applications to reopen the proceedings. It held in particular that:
“The complaint of the [applicant] Company to the European Court was about the failure of the NTRC to give reasons for not recognising the [applicant] Company as a winner in the competitions held by the NTRC, and the European Court merely considered and found that the lack of such reasoning was in conflict with the requirements of Article 10 of the Convention. Whereas, in [this] appeal the applicant [company] requested that the decisions recognising other companies as winners be declared void and a new competition be opened. The [applicant] Company based the above-mentioned requests on the principle of “restitutio in integrum”.
The above principle implies restoration of the situation existing before the breach, that is, restoration of everything the person had prior to the violation of his right. However, the complaints raised in the [applicant] Company’s requests, namely about declaring null and void the decisions on recognising other companies as winners in the competition, recognising [the applicant company] as a winner and granting it a licence cannot be deemed a restoration of the situation existing before the violation, since the judgment of the European Court solely provided that the NTRC had failed to reason its decision on not recognising the [applicant] Company as a winner. The failure to reason the refusal does not automatically mean that the decision in respect of the winning company should be declared void and a new competition opened since the rights of the [applicant] Company (Article 10 of the Convention) were violated as a result of the failure to provide reasons for not recognising it as the winner and not as a result of recognising the other company as the winner in the competition ...
... it is not always possible to repair the consequences of violations established by the European Court by providing compensation, and the respondent state may be required to adopt individual or general measures in respect of the applicant. In particular, the European Court may require a new examination of the case, as it did in the case of Barbera, Messeque and Jabardo v. Spain of 6 December 1998.
Meanwhile ... it is necessary to mention that the application of such measures becomes binding only when the European Court directly requires the application of such measures. The judgment of the European Court in this case, besides the obligation to provide compensation, only mentioned that the unreasoned decisions of the Commission were unacceptable. The Court of Cassation therefore finds that the claims of the applicant, such as annulment of the decision on recognising the other company as the winner and granting a licence are not in line with the logic of the judgment of the European Court...”
11. On 19 August 2009 the applicant company lodged an application with the Constitutional Court seeking to annul Article 20428 of the Code of Civil Procedure applied in its case by the Court of Cassation.
12. By its decision of 23 February 2010 no. DCC-866 the Constitutional Court terminated the proceedings. In doing so it held in particular that Article 20428 of the Code of Civil Procedure had already been recognised as unconstitutional in its decision no. DCC-755 and no law had been adopted to bring it into conformity with the Constitution.
13. Relying on the decision of the Constitutional Court, the applicant company lodged two appeals with the Court of Cassation seeking the reopening of the cases on the ground of new circumstance, namely the decision of the Constitutional Court of 23 February 2010 (see above § 12).
14. On 13 August 2010 the Court of Cassation adopted two decisions dismissing the applicant’s appeals. In doing so, the Court of Cassation in particular stated:
“... relying on the decision no. DCC-866 of the Constitutional Court ... the Court of Cassation notes that its decision of 19 February 2009 is to be reviewed.
At the same time the Court of Cassation states that Article 20428 sets out the types of decisions to be taken by the court in the event of revision based on new circumstances, which means that the decision ... no. DCC-866 relates [solely] to the procedural norm applied by the Court of Cassation in its decision of 19 February 2009 and does not concern the reasons for dismissing the claims of the [applicant] Company from a legal point of view ...”
15. The Court’s judgment of 17 June 2008 became final on 17 September 2008.
16. In a letter dated 20 May 2009 the applicant company informed the Directorate General of Human Rights and Rule of Law (“DGI”) of the Council of Europe about the refusal of the Court of Cassation to review the final judgments in its case.
17. In a letter dated 1 February 2010 the applicant company informed DGI about application no. 45199/09 lodged with the Court, raising an issue of a continuing violation of Article 10.
18. In a letter dated 10 February 2011 the applicant company informed DGI about the second refusal of the Court of Cassation to review its case. By the same letter DGI was informed that a new call to tender had taken place in December 2010. The applicant company alleged that it had submitted a competitive bid but in the results of the NTRC’s point-based voting another company had been announced as the winner of the tender.
19. The Committee of Ministers of the Council of Europe concluded its examination of application no. 32283/04 on 8 June 2011 by adopting Resolution CM/ResDH(2011)39, the relevant parts of which read:
“... Having regard to the judgment transmitted by the Court to the Committee once it had become final;
Recalling that the violation of the Convention found by the Court in this case concerns the applicant company’s right to freedom of expression on account of the refusal by the National Television and Radio Commission (NTRC), on seven occasions in 2002 and 2003, to deliver to the applicant a broadcasting licence without giving reasons for its decisions (violation of Article 10) (see details in Appendix); ...
Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;
Having satisfied itself that, within the time-limit set, the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix),
Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:
- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and
- of general measures preventing similar violations;
Having taken note that the applicant company had participated in a tender in December 2010, that it received a reasoned decision from the NTRC and that it has the possibility to contest the results of the licensing tender in the courts of the Republic of Armenia;
Having taken note of the authorities’ commitment that the NTRC will fully and properly substantiate and reason its decisions, “both in respect of winners of competitions as well as other participants”; ...
DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and
DECIDES to close the examination of this case.
Appendix to Resolution CM/ResDH(2011)39: Information about the measures to comply with the judgment in the case of
Meltex and Mesrop Movsesyan against Armenia
Introductory case summary
The case concerns a violation of the applicant company’s freedom of expression on account of the refusal by the National Television and Radio Commission (NTRC), on seven occasions in 2002 and 2003, to deliver to the applicant a broadcasting licence (violation of Article 10).
The European Court concluded that there had been interference with the applicant company’s freedom to impart information and ideas and that this interference had not met the requirement of lawfulness under the European Convention. The Court noted in particular that a procedure which did not require a licensing body to justify its decisions did not provide adequate protection against arbitrary interference by a public authority with the fundamental right to freedom of expression.
I. Payment of just satisfaction and individual measures
a) Details of just satisfaction
Non-pecuniary damage - 20000 EUR
Costs and expenses - 10000 EUR
Total - 30000 EUR
Paid on 27/11/2008
b) Individual measures
A call for new licensing tenders for digital broadcasting on 25 national and local frequencies was announced on 20 July 2010. The applicant company took part in a tender for one frequency (competition No. 11). The results of the licensing tender “On winners in the 11th competition” are set out in Decree No. 96A of the National Television and Radio Commission, dated 16 December 2010. The applicant company did not win the tender. Nothing prevents it from contesting the results of the licensing tender in the courts of the Republic of Armenia.
II. General measures
The Law on Amendments and Additions to the Television and Radio Broadcasting Act was adopted on 10 June 2010.
The provision of the TV and Radio Broadcasting Act concerning reasoning of decisions of the NTRC, Article 49(3), reads as follows “The National Commission shall decide the winner of the competition on the basis of the results of the point-based vote. The decision of the National Commission shall be properly substantiated and reasoned”.
In order to alleviate any misunderstanding of the obligation on the NTRC to reason all types of decisions, the Government Agent made the following official statement : “Article 49(3) of the TV and Radio Broadcasting Act should be interpreted in accordance with Article 10 of the Convention, and in the light of the Meltex judgment, in a way that a single decision of the Commission provides a full and proper substantiation and reasoning of the results of the points-based vote, including both in respect of the winner of the competition, as well as of all of its other participants”...
It is therefore expected that any future decision of the NTRC will be taken in conformity with the European Convention of Human Rights and the case-law of the European Court of Human Rights.
III. Conclusions of the respondent state
The government considers that the measures adopted have fully remedied the consequences for the applicant of the violation of the Convention found by the European Court in this case, that these measures will prevent similar violations and that Armenia has thus complied with its obligations under Article 46, paragraph 1, of the Convention.”
20. The relevant provisions of the Code of Civil Procedure, as in force at the material time, read as follows:
“Article 20420 The grounds of revision of judicial acts based on new circumstances
1. Judicial acts can be reviewed on the ground of the following:
...
2) a final decision or judgment of an international court ... which substantiates a violation of human rights provided by an international agreement of the Republic of Armenia;
...
2. Final judicial acts of first instance courts, the Court of Appeal and the Court of Cassation can be subject to appeal on the basis of new circumstances.
Article 20428 The power of the court in the event of revision
In the event of revision of the judicial act on the basis of new circumstances the court is empowered:
1) not to grant the appeal and leave the previous judicial act in force;
2) to change the judicial act fully or partially;
3) to terminate the proceedings fully or partially.”


ITEMID: 001-105079
LANGUAGEISOCODE: ENG
RESPONDENT: IRL
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: ADIO v. IRELAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre
TEXT: The first applicant is a Nigerian national born in 1968. She is the mother of a child born in 1997, which child currently lives in Nigeria. She is also the mother of the second applicant (a Nigerian national born in Nigeria in 2001) and of the third applicant (born in Ireland in 2003 and, therefore, a citizen of Ireland). The three applicants all currently live in Ireland and are represented before the Court by Mr Mulvihill, a solicitor practising in Cork.
On 17 March 2003 the first and second applicants arrived in Ireland. Ten days later the first applicant gave birth to the third applicant. The latter became an Irish citizen by virtue of his birth in Ireland at that time.
On 18 March 2003 the first applicant applied for refugee status under the Refugee Act 1996, as amended (“the 1996 Act”) by completing the statutory questionnaire. She requested that the second applicant be included in her application and she reported that the whereabouts of her husband were unknown. She was called for an interview on 6 November 2003 but did not attend. Since she did not attend or explain her absence, by letter dated 13 November 2003 she was notified that the Refugee Applications Commissioner was recommending to the Minister for Justice, Equality and Law Reform (“the Minister”) that she should not be declared a refugee. The applicant did not pursue her request for refugee status any further.
In December 2004 as well as in January and March 2005 the Minister announced the establishment and details of a scheme known as the “IBC05 Scheme”. It was designed to deal with pending parental applications for leave to remain as regards children born in Ireland before 1 January 2005. Applications were to be received from 15 January to 31 March 2005.
On 26 April 2005 the first applicant applied for leave to remain under the IBC05 Scheme. The application was received by the Minister on 5 May 2005. By letter dated 29 November 2005 the first applicant was informed that her application could not be considered under the IBC05 Scheme as she had applied after the closing date. Following a re-submission of the application in December 2005, on 19 December 2005 the Minister confirmed the position regarding the expiry of the relevant time-limit and enclosed a copy of his letter of 29 November 2005.
On 13 February 2006 the applicants were granted leave to apply for judicial review seeking two reliefs.
In the first place they requested an order of certiorari quashing the decision of the Minister refusing to consider the first applicant’s application, under the IBC05 Scheme, for leave to remain in Ireland. They submitted that the Minister’s decision was unlawful in that it was taken without any consideration of the personal rights of the Irish citizen child guaranteed by Article 40.3 of the Constitution and by Article 8 of the Convention. Secondly, they requested an order of mandamus directing the Minister to consider the application of the first applicant to reside in the State. The High Court judgment later summarised the Minister’s response:
“The essence of the submission made in response on behalf of the respondent was that having regard to the time limit specified in IBC/05 the respondent was not under any obligation to consider the rights of the Irish citizen child either by reason of Article 40.3 of the Constitution or article 8 of the Convention. It was further submitted that the second application made by Ms. Adio’s solicitors on her behalf on 15th December, 2005 should properly be construed as simply a repeat of her application under the revised arrangements on IBC/05 and should not be considered as a separate or a “free-standing” application for permission to remain in the State or residency.”
The hearing before the High Court took place at the same time as the hearings in a number of other judicial review applications, all concerning the Minister’s rejection of, or refusal to consider, applications by parents of Irish born children for leave to remain under the IBC05 Scheme.
On 7 November 2006 the High Court delivered its lead judgment in those cases finding that the Minister’s decision to refuse the parent’s application under the IBC05 Scheme was unlawful because it was taken in breach of the citizen child’s rights under Article 40.3 of the Constitution and in breach of the Minister’s obligations under section 3(1) of the European Convention on Human Rights Act 2003.
Although that decision meant that there was an outstanding application under the IBC05 Scheme to be considered, the High Court nevertheless examined Mr Bode’s request for an order of mandamus. Following the rejection of his application under the IBC05 Scheme, Mr Bode had made a further application for leave to remain to the Minister which, apart from being acknowledged, had not been responded to by the time leave to apply for judicial review had been granted (30 January 2006).
The High Court found that, while there was no legislative provision enabling the parent of an Irish born child to apply for residency or leave to remain outside of a proposal to deport is made under s. 3 of the Act of 1999, it was “undisputed that [the Minister] as part of the executive power of the State has an inherent right and power to exercise a discretion to consider and determine and grant if he considers it appropriate residency to the parent of an Irish born child. ... such discretion must be exercised in accordance with the Constitution which includes having regard to the State guarantee of the personal rights of the citizen child under Article 40.3.1.” Accordingly, and having regard to the guarantee of the personal rights of the Irish citizen child in Article 40.3 (including the right to live in Ireland and the welfare rights set out in G. v. An Bord Uchtála ([1980] I.R. 32)), it was not open to the Minister either to fail to deal in a substantive way with the application or to refuse, without considering the relevant facts and rights of the citizen child, to consider the application.
On 26 November 2006 the High Court applied the principles established in the lead Bode judgment to the present applicants’ request for an order of certiorari concerning the rejection of their IBC05 application. The High Court found that the decision to refuse to consider the first named applicant’s application under the IBC05 Scheme, without considering the constitutionally protected personal rights of the Irish citizen child under Article 40.3 as well as that child’s rights under Article 8 of the Convention, was invalid. The High Court therefore quashed the decision of 29 November 2005 as confirmed in the re-issued letter of 19 December 2005. The Minister appealed.
On 20 December 2007 the Supreme Court delivered its judgment in the appeal in the lead Bode case.
As regards the executive power of the Government to operate immigration controls, the Supreme Court noted as follows:
‘‘In every State, of whatever model, the State has the power to control the entry, the residency, and the exit, of foreign nationals. This power is an aspect of the executive power to protect the integrity of the State. It has long been recognised that in Ireland this executive power is exercised by the Minister on behalf of the State. This was described by Costello J. in Pok Sun Shun v. Ireland [1986] I.L.R.M. 593 at 599 as:
“In relation to the permission to remain in the State, it seems to me that the State, through its Ministry for Justice, must have very wide powers in the interest of the common good to control aliens, their entry into the State, their departure and their activities within the State.’
The special role of the State in the control of foreign nationals was described by Gannon J. in Osheku v. Ireland [1986] I.R. 733 at 746. He stated at p.746:—
‘‘That it is in the interests of the common good of a State that it should have control of the entry of aliens, their departure and their activities and duration of stay within the State is and has been recognised universally and from earliest times. There are fundamental rights of the State itself as well as fundamental rights of the individual citizen, and the protection of the former may involve restrictions in circumstances of necessity on the latter. The integrity of the State constituted as it is for the collective body of its citizens within the national territory must be defended and vindicated by the organs of the State and by the citizens so that there may be true social order within the territory and concord maintained with other nations in accordance with the objectives declared in the preamble to the Constitution.’
I would affirm and adopt this description. While steps taken by a State are often restrictive of the movement of foreign nationals, the State may also exercise its powers so as to take actions in a particular situation where it has been determined that the common good is served by giving benefits of residency to a category of foreign nationals — as a gift, in effect.”
As regards the request for an order of certiorari (to quash the Minister’s refusal to consider their application under the IBC05 Scheme), the Supreme Court summarised its conclusions as follows:
“The application [by the Bode family to the High Court] was misconceived. The IBC 05 Scheme was a scheme established by the Minister, exercising executive power, to deal administratively with a unique group of foreign nationals in a generous manner, on general principles. The parameters of the scheme were set out clearly ... .
At no stage was it intended that within the ambit of the scheme the Minister would consider, or did the Minister consider, Constitutional or Convention rights of the applicants. Thus the terms of the pleadings and of the appeal relating to the Constitutional and Convention rights of the applicants were misconceived and premature. Applicants who were not successful in their application under the IBC 05 Scheme remain in the same position as they had been before their application.
The Oireachtas has established a statutory scheme providing that the Minister, in considering the situation of foreign nationals, shall have regard to a wide range of issues when making a decision under s.3 of the Immigration Act, 1999, as amended. Constitutional and Convention rights are appropriately considered at that stage. If there is a change of circumstances then an application may be made to the Minister to consider further matters under s.3(11) Immigration Act, 1999, as amended.
Consequently, I would allow the appeal and reverse the decision of the High Court. Constitutional and Convention rights of the applicants have yet to be considered by the Minister. Such consideration may arise in the future in the statutory process under s.3 of the Immigration Act, 1999, as amended. If necessary, further matters may be considered at a later date under s.3(11) Immigration Act, 1999, as amended.”
As regards their request for an order of mandamus (to order the Minister to consider Mr Bode’s free-standing application for leave to remain), the Supreme Court found that:
“The High Court found it unnecessary to make an order of mandamus to require the Minister to consider [Mr Bode’s] stand alone application to remain in the State, per letter dated 6th December, 2005. However, the High Court then went on to consider the Minister’s legal obligation to consider stand alone applications.
This is not now relevant in view of my decision on the nature of the IBC 05 Scheme, and the consequences, and the applicability of the s.3 procedure under the Act of 1999. However, I consider it important to state my opinion, to clarify the consequences of the decision.
The appropriate process within which to consider Constitutional or Convention rights of applicants is on the process under s.3 of the Act of 1999. This is the relevant statutory scheme.
In addition, within the statutory scheme there is provision to revoke a deportation order, see s.3(11) of the Act of 1999 ...
Thus, a person, such as [Mr Bode], could notify the Minister of any altered circumstances since the making of a deportation order, such as the birth of an Irish born child. On such notification the Minister would have a duty to consider the new information to determine whether to revoke a deportation order. As the statutory scheme makes this provision for such an application, there is no need to seek a further process for a right to apply. The integrity of the system should be maintained, as long as it protects the rights of the applicants, which it does in this case.
Consequently, it is my view that there is no free standing right of [Mr Bode] to apply to the Minister. The appropriate procedure is under s.3 of the Act of 1999, as amended, with the potential right to apply under s.3(11) in the future if the need to make such an application should arise.”
On 20 December 2007 the Supreme Court applied, to the present applicants’ appeal, the principles it had established in its judgment on the appeal in the lead Bode case. It concluded as follows:
“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 in a generous way, on the criteria of the scheme. The parameters of the scheme were clearly set out and included time limits for applications. The scheme was administered by the Minister within the criteria of the scheme.
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.”
The applicants continue to reside in Ireland. They do not refer to any change in their immigration status or submit that there has been any indication of an intention to deport them.
Article 2 of the Constitution provides:
“It is the entitlement and birthright of every person born in the island of Ireland, ..., to be part of the Irish Nation....”
Article 40(3)(1) provides:
“The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.”
Article 41(1)(1) provides:
“The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.”
Section 17 of the 1996 Act is entitled “Declaration that person is a refugee” and subsection 6 provides as follows:
“The Minister may, at his or her discretion, grant permission in writing to a person who has withdrawn his or her application or to whom the Minister has refused to give a declaration to remain in the State for such period and subject to such conditions as the Minister may specify in writing.”
Section 3 of the 1999 Act confers on the Minister the power to make deportation orders in respect of certain categories of persons (Article 3(2) of the 1999 Act) having satisfied himself or herself that the deportation would not breach the prohibition of refoulement (section 5 of the 1996 Act) and having had regard to the “humanitarian” factors listed in Article 3(6) of the 1999 Act. Section 3, in so far as relevant, provides as follows:
3.—(1) Subject to the provisions of section 5 (prohibition of refoulement) of the Refugee Act, 1996 , and the subsequent provisions of this section, the Minister may by order (in this Act referred to as “a deportation order”) require any non-national specified in the order to leave the State within such period as may be specified in the order and to remain thereafter out of the State.
...
(3) (a) Subject to subsection (5), where the Minister proposes to make a deportation order, he or she shall notify the person concerned in writing of his or her proposal and of the reasons for it and, where necessary and possible, the person shall be given a copy of the notification in a language that he or she understands.
(b) A person who has been notified of a proposal under paragraph (a) may, within 15 working days of the sending of the notification, make representations in writing to the Minister and the Minister shall—
(i) before deciding the matter, take into consideration any representations duly made to him or her under this paragraph in relation to the proposal, and
(ii) notify the person in writing of his or her decision and of the reasons for it and, where necessary and possible, the person shall be given a copy of the notification in a language that the person understands.
...
(6) In determining whether to make a deportation order in relation to a person, the Minister shall have regard to—
(a) the age of the person;
(b) the duration of residence in the State of the person;
(c) the family and domestic circumstances of the person;
(d) the nature of the person’s connection with the State, if any;
(e) the employment (including self-employment) record of the person;
(f) the employment (including self-employment) prospects of the person;
(g) the character and conduct of the person both within and (where relevant and ascertainable) outside the State (including any criminal convictions);
(h) humanitarian considerations;
(i) any representations duly made by or on behalf of the person;
(j) the common good; and
(k) considerations of national security and public policy,
so far as they appear or are known to the Minister.
...
(11) The Minister may by order amend or revoke an order made under this section including an order under this subsection.”
Section 3 of this Act is entitled “Performance of certain functions in a manner compatible with Convention provisions” and, in so far as relevant, provides as follows:
“3(1) Subject to any statutory provision (other than this Act) or rule of law, every organ of the State shall perform its functions in a manner compatible with the State’s obligations under the Convention provisions.
(2) A person who has suffered injury, loss or damage as a result of a contravention of subsection (1), may, if no other remedy in damages is available, institute proceedings to recover damages in respect of the contravention in the High Court (or, subject to subsection (3), in the Circuit Court) and the Court may award to the person such damages (if any) as it considers appropriate. ...”
Section 6(1) of the Nationality and Citizenship Act 1956 provided that every person born in Ireland was an Irish citizen from birth. An Irish citizen was considered immune from deportation (as distinct from extradition). Further to the judgment of the Supreme Court in Fajujonu v. the Minister for Justice, Equality and Law Reform ([1990] 2IR 151 and see below), it became the general practice of the Minister to grant leave to remain in the State to non-national parents of Irish born children. Between 1996 and 2003 the Minister granted leave to approximately 10,500 non-national parents on this basis. The Minister also had the power to refuse to grant leave when he deemed that such leave would not be in the “common good” (for example, criminal conviction). There was no prescribed procedure for applying for such leave to remain or for the Minister’s examination of such requests.
On 23 January 2003 the Irish Supreme Court found that a foreign national parent of an Irish born child did not have an automatic entitlement to remain in the State with the child (A.O. and D.L. v. the Minister for Justice, Equality and Law Reform [2003] 1 I.R. 1). The Minister was entitled to order the deportation of parents if he was satisfied for good and sufficient reason that the common good required the residence of the parents in the State to be terminated, even if an Irish born child had, in consequence, to leave the State in order to remain in the care of his parents and within the family unit.
Accordingly, from 19 February 2003 the Minister discontinued the practice of granting, as a matter of course, leave to remain in the State based solely on parentage of an Irish born child. According to the Supreme Court (Bode and Others v. Minister for Justice, Equality & Law Reform, cited above), approximately 11,000 such applications were pending before the Minister at that point.
In 2004 the Constitution was amended (the 27th amendment) by referendum and the new Article 9(2) reads as follows:
“(1) Notwithstanding any other provision of this Constitution, a person born in the island of Ireland ... who does not have, at the time of the birth of that person, at least one parent who is an Irish citizen or entitled to be an Irish citizen is not entitled to Irish citizenship or nationality, unless provided for by law.
(2) This section shall not apply to persons born before the date of the enactment of this section.”
Legislative effect was given to this new Constitutional provision by the Irish Nationality and Citizenship Act 2004 (“2004 Act”) which came into force on 1 January 2005. This constitutional provision and legislation excludes the automatic grant of Irish nationality and citizenship to a child born after the date of enactment of the 2004 Act to parents neither of whom was entitled to be an Irish citizen at the time of birth.
While the 2004 Act reduced the number of pregnant foreign nationals arriving in Ireland, the Minister set about managing the applications for leave to remain of parents of children born before 1 January 2005 which were, by then, pending. On 14 December 2004 the Minister announced (in national newspapers and on the Minister’s website) the establishment and details of the IBC05 Scheme. It was a Scheme designed specifically to deal with pending parental applications for leave to remain as regards children born in Ireland before 1 January 2005 in a “decent, pragmatic and common sense way”. Applications were to be received from 15 January to 31 March 2005. The examination would not touch upon the merits of each individual case, but the Scheme fixed broad qualifying criteria:
- criminal activity would weigh against the granting of leave, as would not being part of the family unit and not taking a role in the upbringing of the child;
- presence in the State for some time would lean in favour of granting leave and a demonstrated continuous residence in the State since the birth of the child was a pre-condition for inclusion in the Scheme.
Details of the proofs/evidence required were outlined. A two-year leave to remain was to be initially granted, renewable at the Minister’s discretion. Such a grant was subject to certain conditions, on which an applicant would have to make a formal declaration including obeying the laws of the State, not becoming involved in criminal activity and making every effort to become economically viable.
The Scheme was again announced on 15 January 2005, with all application details including an application form (which stated the closing date), advice as to the evidence required and a stipulation as to the necessity to explain if a relevant evidentiary document was missing. A reminder notice was also published on 18 March 2005. Almost 18,000 applications were received and leave to remain was granted to all but 1119 which were found not to qualify. In this latter respect, approximately 560 did not prove continuous residence since the birth of the child. Applications lodged after the expiry of the time-limit were not considered.
Mr and Mrs Fajujonu were Nigerian and Moroccan citizens, respectively who moved to Ireland in the early 1980s. Their three children were born in Ireland and were therefore Irish citizens. When Mr. Fajujonu applied for a work permit, the Minister for Labour refused to grant it and the Department of Justice asked him to make arrangements to leave the country.
It was this request, and a fear that a deportation order would be made, which led the plaintiffs to issue proceedings seeking an order restraining the Minister from deporting the plaintiffs; a declaration that the plaintiffs were entitled to reside within the State; a declaration that such provisions of the Aliens Act 1935 as purported to empower the Minister to deport them were inconsistent with the Constitution/not carried over as laws by Article 50 of the Constitution; and, if necessary, an order directing the Minister to grant to the first and second plaintiffs a visa entitling them to remain in the State as long as they were members of the family.
The plaintiffs were unsuccessful in the High and Supreme Courts, where their action was dismissed on its merits, although the latter found that the Minister should consider the case afresh. The Supreme Court held that that, where non-national parents had resided for an appreciable time and had become a family unit within the State and had children who were Irish citizens, those children had the constitutional right to the company, care and parentage of their parents within the State. However, the Minister was entitled to exercise his powers to exclude such non-national parents from the State after due and proper consideration and full recognition of the fundamental nature of the constitutional rights of the family, where he was satisfied that their exclusion was necessitated by the requirements of the common good and where the consequences of this exercise would not be disproportionate to the requirements of the common good.
The plaintiffs were a husband (non-national) as well as his wife and their child (both citizens of Ireland). The Minister indicated that leave to remain would not be given to the husband unless he produced proof of his ability to maintain himself and any dependants from his own resources. The husband feared deportation (no deportation order had issued) and the plaintiffs issued proceedings in the High Court seeking a declaration that, inter alia, the Aliens Act 1935 was unconstitutional and an order restraining the Minister from deporting the husband. This challenge was rejected by the High Court on its merits, that court finding, inter alia, that the Aliens Act 1935 not inconsistent with the Constitution.
It sets out a legislative framework for the management of inward migration to Ireland and lays down principles governing the presence in the State of foreign nationals, including the obligation on a foreign national who is unlawfully in the State to leave. The executive power and responsibility of the Government to make immigration polices being currently supplemented by, inter alia, the Aliens Act 1935, the 1999 Act as well as the Immigration Acts of 2003 and 2004, the 2010 Bill proposes to repeal and replace those statutory provisions. The 2010 Bill also proposes to integrate into a unified process all procedures for claiming protection and otherwise for requesting leave to remain and it therefore repeals and replaces the relevant provisions of, inter alia, the 1996 Act. The 2010 Bill also includes provision allowing non-nationals to obtain long-term residence permits and it sets out the rights attaching thereto.
The applicant was refused refugee status and requested leave to remain under section 3 of the 1999 Act. The Minister issued a deportation order which the applicant challenged by way of a request for leave to apply for judicial review. The High Court refused leave but it certified that its decision involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Supreme Court (section 5(3)(a) of the Illegal Immigrants (Trafficking) Act 2000). The point of law so certified was as follows:
“In determining the reasonableness of an administrative decision which affects or concerns the constitutional rights or fundamental rights, is it correct to apply the standards set out in O’Keeffe v. An Bord Pleanala [1993] 1 I.R. 39?”
The Supreme Court allowed the appeal (Chief Justice Murray, Mrs Justice Denham and Mr Justice Fennelly in the majority, with Mr Justice Kearns and Mr Justice Hardiman dissenting). As noted by the Chief Justice, the primary and contemporary reference points for the approach which the courts had to adopt when judicially reviewing such administrative decisions were the decisions of the Supreme Court in The State (Keegan) v. The Stardust Victims Compensation Tribunal ([1986] I.R. 642) and the above-cited case of O’Keeffe v. An Bord Pleanala.
As regards the nature and standard of judicial review of administrative decisions including decisions encroaching on fundamental rights, Mr Justice Nial Fennelly opined as follows:
“The question is whether these considerations should lead to a modification of the Keegan or O’Keeffe test. The Minister strongly opposes the adoption of an entirely new threshold of review, whether that of “anxious scrutiny”, “most anxious scrutiny” or otherwise, for some administrative decisions. He submits that the adoption of such a test would significantly alter the role of the Courts in judicial review and would effectively constitute the Courts as the ultimate appellate tribunal from a vast range of administrative decisions.
67. At one level all this is no more than semantics: what is irrational or unreasonable depends on the subject-matter and the context. ... The appellant’s written submissions advance the principle of proportionality, in particular the notion of least intrusive interference with constitutional rights, saying that this principle can operate within the confines of the Keegan or O’Keeffe test. I do not consider it necessary to change the test. Properly understood, it is capable of according an appropriate level of protection of fundamental rights. The test as enunciated by Henchy J [in Keegan] and as explained by Finlay C.J. in O’Keeffe lays down a correct rule for the relationship between the courts and administrative bodies. Properly interpreted and applied, it is sufficiently flexible to provide an appropriate level of judicial review of all types of decision. The proposition of the [Minister], is a restatement, without using the word, of the principle of proportionality. The courts have always examined decisions in context against their surrounding circumstances.
68. Where decisions encroach upon fundamental rights guaranteed by the Constitution, it is the duty of the decision-maker to take account of and to give due consideration to those rights. There is nothing new about this. ... Where a right is not considered at all or is misdescribed or misunderstood by the decision-maker, the decision will be vulnerable to attack on the grounds of a mistake of law or failure to respect the rules of natural justice. In such cases, it may not be necessary to establish that it is unreasonable. It may, however, affect fundamental rights to such a disproportionate degree, having regard to the public objectives it seeks to achieve, as to cross a threshold, and to be justifiably labelled as so unreasonable that no reasonable decision-maker could justifiably have made it. To use the language of Henchy J [in Keegan], it may “plainly and unambiguously fl[y] in the face of fundamental reason and common sense.”
69. Where unreasonableness is alleged, the applicant will ask the court to examine the decision to see whether the decision-maker has complied with the duty to take account of and to give due consideration to any relevant rights or interests. There is an infinitely broad spectrum of decisions and of contexts and an infinite gradation of rights. There are constitutional rights, statutory and other legal rights, rights guaranteed by the Convention. In the last case, it is relevant that section 3 of the European Convention of Human Rights Act, 2003 places an obligation on every organ of the State to perform its functions in a manner compatible with the State’s obligations under the provisions of the Convention. In the Convention context, we must be conscious that the Court of Human Rights is influenced by the effectiveness of legal remedies against administrative decisions, when it considers the effectiveness of a national remedy pursuant to Article 13.
70. If we were to adopt the criterion of “anxious scrutiny,” it would follow that different standards of review would apply depending on whether the case was concerned with the protection of different types of right. That is the English “sliding scale” of review. In my view, it is neither appropriate nor necessary to have a different standard of review for cases involving an interference with fundamental, constitutional or other personal rights. ... It seems to me that the principle of proportionality, more fully developed in the judgments which have been delivered by the Chief Justice and of Denham J, can provide a sufficient and more consistent standard of review, without resort to vaguer notions of anxious scrutiny. The underlying facts and circumstances of cases can and do vary infinitely. The single standard of review laid down in Keegan and O’Keeffe is sufficiently responsive to the needs of any particular case.
71. I prefer to explain the proposition laid down in the Keegan and O’Keeffe cases, retaining the essence of the formulation of Henchy J in the former case. I would say that a court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied, on the basis of evidence produced by the applicant, that the decision is unreasonable in the sense that it plainly and unambiguously flies in the face of fundamental reason and common sense. I use the word, “substantive,” to distinguish it from procedural grounds and not to imply that the courts have jurisdiction to trespass on the administrative preserve of the decision-maker. This test, properly applied, permits the person challenging the decision to complain of the extent to which the decision encroaches on rights or interests of those affected. In those cases, the courts will consider whether the applicant shows that the encroachment is not justified. Justification will be commensurate with the extent of the encroachment. The burden of proof remains on the applicant to satisfy the court that the decision is unreasonable in the sense of the language of Henchy J [in Keegan]. The applicant must discharge that burden by producing relevant and cogent evidence.
72. This does not involve a modification of the existing test as properly understood. Rather it is an explanation of principles that were already implicit in our law.”
Mrs Justice Denham considered that the O’Keeffe decision has been construed “too narrowly” and judicial review should be an effective remedy especially where, as in asylum cases, access to the courts has been curtailed by law. Where fundamental rights were factors in a review, they are relevant in analysing the reasonableness of a decision and proportionality was inherent in any analysis of reasonableness.