Interpretation of ‘applicant’ by International Protection Appeals Tribunal was an unconstitutional breach of fair procedures

MacMenamin J (nem diss): Asylum and immigration - recommendation that refugee status be refused - failure to file notice of appeal within time - deportation order - refusal of International Protection Appeals Tribunal to entertain appeals lodged out of time - whether 'applicants' within meaning of the International Protection Act 2015 - section 2(2) of Act - cessation of status as 'applicant' - procedure under Act - types of appeal - whether time limit on appeal was breach of EU law - whether IPAT erred in interpretation of Act - whether section 2(2) was unconstitutional - whether other remedies available - duty to act in accordance with the Constitution - presumption of constitutionality - interests of the State.

"I also agree with the learned trial judge’s conclusion that the setting of reasonable time limits by national lawcannot be seen as inconsistent with either the principles of legal certainty, or the denial of an effective remedy. State parties are entitled to set time limits. While I accept that an arguable case can be made on legal certainty, I am not persuaded s.47(5) can be seen as actually violating EU law, at least insofar as the facts of the appellants’ cases are concerned."

"The core of the respondents’ case is that s.2simply provides a definition of the term “applicant”, and it follows that s.47(5)(b) must be seen as being an “operative” section. But what the learned High Court judge actually decided was revealing. He held that, by virtue of s.2(2) of the Act of 2015, one effect of the Minister’s “s.47 decision” was to render the appellants ineligible to appeal. The judge was correct in conjoining the effect of the two provisions. But this undermines the proposition that s.2(2) and s.47(5)(b)(ii) can, as it were, be segregated."

"In the course of the hearing of this appeal, a member of this Court put matters well when she observed that, in seeking a declaration that s.2(2) violated the Constitution, the appellants were, in fact, “utilising a very large hammer to crack a very small nut”. I respectfully agree. This case is not about unconstitutionality, but, rather, about interpreting provisions of the Act and the Regulations in a constitutional fashion."

"This case is not about unconstitutionality, per se,but, rather, an interpretation of the legislation leading topotential unconstitutionality, where a constitutional interpretation is available which does not run counter to the statutory meaning. I am driven to the conclusion that, in deciding otherwise in the appellants’ cases, IPAT acted ultra vires. IPAT is not permitted in law to interpret and apply the two provisions such as to make such applications impossible. I would, therefore, quash the decisions as ultra vires."

Judgment also by Charleton J.