BETWEEN

1. This appeal is brought pursuant to a certificate granted by the High Court (Gilligan J) under section 5(3)(a) of the Illegal Immigrants (Trafficking) Act, 2000 (“the 2000 Act”). The certified point of law is as follows:

“Whether or not in determining the reasonableness of an administrative decision which affects or concerns constitutional rights or fundamental rights it is correct to apply the standard set out in O’Keeffe v An Bord Pleanála [1993] 1 IR 39.”

2. The administrative decision mentioned in that certificate is that of the first-named respondent (whom I will call the Minister) to make a deportation order, following exhaustion of the usual asylum procedures, in relation to the appellant, a Nigerian national.

The facts and immigration procedures
3. The Appellant is a 26-year-old Nigerian national. She arrived in the State in December 1999 when she was seventeen years of age. She sought refugee status.

4. Her application was initially dealt with in accordance with the procedures applied by the State at that time, described as the “Hope Hanlon procedures”. Those procedures were subsequently replaced by the Refugee Act, 1996 (“the 1996 Act”) when that Act came into force in November 2000.

5. The Appellant claimed that she had been compelled to flee Nigeria following violent conflict between the Yoruba tribe (of which she was a member) and the Hausa tribe. She said she feared that, if returned to Nigeria, she would be killed by her father’s former business partner who, she said, had threatened that he would do so in revenge for the death of his son. The Appellant also claimed that, if returned to Nigeria, she would be forced into a marriage arranged by her father and would, as a result, be subjected to female genital mutilation (“FGM”). Her allegations in relation to this last matter, FGM, are central to the present appeal.

6. By letter dated 30th June, an official informed the Appellant on behalf of the Minister that she had not demonstrated a well-founded fear of prosecution for Convention reasons and that her application for refugee status was refused. She appealed to the Asylum Appeals Unit. Her appeal came before a member of the Appeal Tribunal on 3rd April 2001. The Tribunal heard evidence regarding the practice and prevalence of FGM in Nigeria.

7. The Refugee Appeals Tribunal on 12th June 2001 decided, pursuant to section 16(2)(a) of the Refugee Act 1996 as amended, that the appellant was not a refugee within the meaning of section 2 of the Act and affirmed the earlier decision. In dealing with the appellant’s fear of FGM, the Tribunal accepted without question that this was an abhorrent practice and that it amounted to torture. Having reviewed the facts of the appellant’s case, the Tribunal expressed the view that she had not established a credible connection between her circumstances, on the one hand, and forced marriage and FGM on the other. The Tribunal notified the appellant of the decision by letter dated 9th August 2001.

8. By letter dated 18th September 2001, the Minister notified the appellant that, following the investigation of her application for refugee status, in accordance with section 17(1)(b) of the Refugee Act, 1996, he was refusing to make a declaration granting her the status of a refugee and that her right to remain temporarily in the State in accordance with section 9(2) of that Act had expired. By the same letter, the Minister gave her notice that, as a result of the decision refusing her refugee status, he proposed to make a deportation order in respect of her pursuant to the power given to him by section 3 of the Immigration Act, 1999. He informed her of her right to make representations setting out any reasons why she should be allowed to remain temporarily in the State.

9. Solicitors for the appellant, in a lengthy letter dated 8th October 2001, made representations to the Minister. They had, in fact, already written to him on 10th September in advance of the Minister’s letter of 18th September. The letter claimed, inter alia, that removal of the appellant to her country of origin would contravene Article 3 of the European Convention on Human Rights, which prohibits the practice of “torture, inhuman and degrading treatment and punishment.” It repeated the appellant’s claims that she would be subjected to forced marriage followed by FGM. The letter claimed that the appellant would suffer further hardship by reason of the lack of family relationships, if returned to Nigeria. It also advanced more general humanitarian grounds relating to the present circumstances and future prospects of the appellant in the State. It appeared to set out all relevant factors which the Minister was being asked to take into account. It emphasised, in particular, the request to be permitted to submit expert evidence on the appellant’s country of origin. The overwhelming thrust of the representations related to the claimed likelihood of exposure of the appellant, on return to Nigeria, to forced marriage accompanied by subjection to FGM.

10. The Minister did not communicate further with the appellant or her solicitors prior to making his decision. The Minister’s decision to make a deportation order took the form of a formal order dated 12th July 2002 accompanied by a letter of the same date. The formal order recites the Minister’s powers. It states:

“AND WHEREAS the provisions of section 5 (prohibition of refoulement) of the Refugee Act 1996 and the provisions of the said section 3 [of the Immigration Act, 1999] are complied with in the case of [the appellant];

Now, I, [name and title of the Minister] in exercise of the powers conferred on me by the said subsection (1) of section 3, hereby require you the said [appellant] to leave the State within the period ending on the date specified in the notice served on or given to you under subsection 3(b)(ii) of the said section 3 pursuant to subsection (9)(a) of the said section 3 and to remain thereafter out of the State.”

“I am directed by the Minister for Justice, Equality and Law Reform to refer to your current position in the State and to inform you that the Minister has decided to make a deportation order in respect of you under section 3 of the Immigration Act, 1999. ……

In reaching this decision the Minister has satisfied himself that the provisions of section 5 (prohibition of refoulement) of the Refugee Act 1996 are complied with in your case.

The reasons for the Minister’s decision are that you are a person whose refugee status has been refused and, having had regard to the factors set out in section 3(6) of the Immigration Act, 1999, including the representations made on your behalf the Minister is satisfied that the interests of public policy and the common good in maintaining the integrity of the asylum and immigration systems outweigh such features of your case as might tend to support your being granted leave to remain in this state.”

13. Charles O’Connell, an Assistant Principal Officer in the Minister’s Department swore in his affidavit in the judicial review proceedings that the Minister had been provided with the entire file from the time of the appellant’s initial application for asylum and that this included considerable country-of-origin information and material from the United Nations Commission on Human Rights including extensive information relating, inter alia, to FGM. Mr O’Connell swore that the Minister had “ample information available to him to make decisions including any questions relating to abuse or risk of abuse of human rights and refoulement and humanitarian considerations.”

14. The prohibition of “refoulement” reflects Article 33 of the Geneva Convention of 1951 relating to the Status of Refugees. Section 5 of the Refugee Act, 1995 gives it effect as follows:

5.—(1) A person shall not be expelled from the State or returned in any manner whatsoever to the frontiers of territories where, in the opinion of the Minister, the life or freedom of that person would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion.

(2) Without prejudice to the generality of subsection (1), a person's freedom shall be regarded as being threatened if, inter alia, in the opinion of the Minister, the person is likely to be subject to a serious assault (including a serious assault of a sexual nature).

16. The appellant submitted to the Minister that she should not be deported from the State because of what she alleged was the risk that, if returned to Nigeria, she would be subjected to FGM. The executive officer’s recommendation which led to the Minister’s decision of 12th July 2002 contains, inter alia, the following:

• Although FGM is reputed to take place in Nigeria efforts have been made to stamp out its practice. The government has publicly opposed FGM and representatives in parliament have described the practice as ‘barbaric.’ …According to country of origin information, FGM is considered a ‘traditional practice’ and there is no support for the practice in Christianity or Islam. However, this does not stop some people from supporting the practice……”

• “traditional religious beliefs are widespread in Nigeria. Some of these are described as witchcraft or Ju-Ju. Nigerians are generally free to follow these traditional beliefs, but where these practices may have resulted in criminal activity, the Nigerian police have investigated them. As these practices are often secret and take a wide variety of forms, it is very difficult to obtain reliable information……”

• “Nigeria is not one of those countries to which failed asylum seekers cannot be returned according to the United Kingdom Home Office”

• attached information from the UK Home Office included the following: “FGM is practised by communities from all of Nigeria’s major ethnic groups and religions, although adherence is neither universal nor nationwide. A 1985-6 survey found that it was not practiced at all in 6 of the 19 states surveyed. Estimates about the proportion of women who have undergone [FGM] varies from between 50 to 90%. However, most experts agree that the number of girls now facing FGM is declining.”

• “[for] individuals who fear persecution…………….the option of internal flight is a real possibility in Nigeria, taking account of its size and population…”

18. I will postpone until I have considered the appropriate test to be applied any further account of the material which was before the Minister. It will be possible to give proper consideration to the question of whether leave should be granted to question the validity of the decision impugned in this case only after clarification of the correct standard of judicial review to be applied when considering the Minister’s decision.

The judicial review application
19. By notice of motion dated the 26th July 2002 returnable for 8th October, the appellant sought leave to apply for judicial review by way of certiorari and various declarations in relation to the deportation order.

20. The learned High Court judge also treated the appellant as having sought judicial review of the decision of the Minister of 18th September 2001, summarised at paragraph 8 above, notifying the appellant, in accordance with section 17(1)(b) of the Refugee Act, 1996, that he was refusing to give her a declaration that she was a refugee. Any application for judicial review in that respect—and no clear application for that relief had been made—was clearly out of time. The judge found that there was no good reason for the delay and refused to consider the application. There is no appeal in that respect. Thus, as the learned trial judge stated, the real thrust of the appellant’s case is her challenge to the deportation order.

21. The essence of the grounds advanced, at considerable length, in support of the application for judicial review was:

• There is a real risk that the appellant, if returned to Nigeria, will be subjected to FGM;

• The Minister did not pay any due regard to the appellant’s rights to be protected from torture, inhuman or degrading treatment or her right to bodily integrity in deciding to return her to a country where she was at risk of violation of her fundamental rights;

• The Minister failed, in his assessment of the facts to have regard to the appellant’s fundamental rights;

• In particular, the Minister failed properly to assess the evidence in deciding that the requirements of section 5 of the Refugee Act, 1996 had been complied with

• The decision of the Minister was flawed for unreasonableness and irrationality: the decision of the Supreme Court in O’Keeffe v An Bord Pleanála did not lay down a correct or appropriate test.

“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 quashed.”

24. He then reviewed extensively the authorities on the general legal standard of judicial review. He expressed himself satisfied that, as the law stands, and against the background where the appellant claims that her fundamental human rights will be violated if she is returned to Nigeria, the appropriate test was that laid down by Finlay C.J. in O’Keeffe v An Bórd Pleanála [1993] I.R. 39 (hereinafter “O’Keeffe”). The Chief Justice there brought together, at page 70, three dicta from the judgment of Henchy J in State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642 (hereinafter “Keegan”) to produce a statement to the effect that, for a decision to be impugned on the ground of unreasonableness or irrationality, it must be shown that:

1. It is fundamentally at variance with reason and common sense.

2. It is indefensible for being in the teeth of plain reason and common sense.

3. Because the court is satisfied that the decision-maker has breached his obligation whereby he 'must not flagrantly reject or disregard fundamental reason or common sense in reaching his decision'."

26. The appellant submits on the appeal that in cases of this nature courts should not confine themselves to a consideration of the test set out in Keegan and O'Keeffe, but should submit the decision in issue to “most anxious scrutiny.” The latter expression comes from a number of English judicial decisions commencing in the 1980’s. The appellant refers principally to: R v Minister for Defence, ex parte Smith [1996] QB 517, Re (Mahmood) v Secretary for State for the Home Department [2001] 1 WLR 840, and Regina v. Lord Saville of Newdigate and others [2000] 1WLR 1855 (The “Bloody Sunday Inquiry case”). There are other important cases.

27. The point certified by the learned trial judge asks whether the O’Keeffe test is sufficient in a case involving the judicial review of “the reasonableness of an administrative decision which affects or concerns constitutional rights or fundamental rights…”

28. I propose to consider the following:

a. The decisions of this Court in Keegan and O’Keeffe;

b. Other Irish decisions relating to the scope and quality of judicial review;

c. The English foundation case of Wednesbury;

d. English development of the notion of “anxious scrutiny;”

e. Decisions of the European Court of Human Rights concerning the adequacy of judicial review in English law;

f. The basic objects and limits of judicial review.

“I would myself consider that the test of unreasonableness or irrationality in judicial review lies in considering whether the impugned decision plainly and unambiguously flies in the face of fundamental reason and common sense. If it does, then the decision-maker should be held to have acted ultra vires , for the necessarily implied constitutional limitation of jurisdiction in all decision-making which affects rights or duties requires, inter alia , that the decision-maker must not flagrantly reject or disregard fundamental reason or common sense in reaching his decision.”

31. The Court was concerned to arrive at a viable definition of unreasonableness in the light of the intervening English decision in Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374, which was not found, by this Court, to provide a convincing development of Wednesbury. Henchy J was not persuaded by Lord Diplock’s references, at page 410, to “defiance of logic or of accepted moral standards” as tests of unreasonableness.

32. Finlay C.J. (see page 654) said that he was in “complete and precise agreement” with the test propounded by Henchy J. The Chief Justice, Henchy J and Griffin J took the principles laid down in Associated Provincial Picturehouses Limited v Wednesbury Corporation [1948] I K.B. 223 (“Wednesbury”), to which I will return, as their starting point.

33. Keegan concerned a decision of an administrative tribunal assessing damages for personal injury or loss. It raised no broad constitutional issues. It is important, therefore, to note that Henchy J, in the quoted passage, referred, even in the limited context of that case, to the “necessarily implied constitutional limitation of jurisdiction in all decision-making.” In addition, he expressed the view that:

“The ethical or moral postulates of our Constitution will, of course, make certain decisions invalid for being repugnant to the Constitution……”

“Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power . . . Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made.”

36. Finlay C.J. went on in O’Keeffe to stress “the circumstances in which the court cannot intervene,” notably that it would not suffice that the court would itself raise different inferences or conclusions from those of the administrative body or even that the case against the decision was much stronger that the case for it. He combined three formulations from the judgment of Henchy J in Keegan to produce the passage quoted by Gilligan J (see paragraph 24 ante). They amount in fact to a reiteration of the test whether the decision is “fundamentally at variance with reason and common sense.” Finlay C.J. concluded, at page 71, that:

“…the circumstances under which the court can intervene on the basis of irrationality with the decision-maker involved in an administrative function are limited and rare.”

38. The legislature has full power, subject to the constitutional limits explained in Cityview Press Ltd. v An Comhairle Oiliúna [1980] I.R. 381, to delegate tasks to administrative bodies which involve the making of administrative decisions. The modern state confers an enormous range of decision-making powers on a variety of bodies. Such bodies carry out and supervise vast areas of the work of government and of economic and social life. Their decisions routinely affect the lives of almost everyone. The powers they exercise in many cases affect the fundamental and constitutional rights of individuals.

Protection of rights: other Irish decisions
39. While respecting the limits of judicial power, the courts are under a fundamental obligation incumbent upon them by virtue of the Constitution to ensure the protection of the fundamental rights which it guarantees. It is equally a constant theme of our case-law that persons or bodies exercising executive power must, in their decisions, take due account of the constitutional rights of those affected. Most notably, Walsh J in his judgment in East Donegal Co-operative v Attorney General [1970]1 I.R., writing at page 344 about the powers conferred on a Minister, emphasised that:

“…they [were] powers which cast upon the Minister the duty of acting fairly and judicially in accordance with the principles of constitutional justice, and they do not give him an absolute or an unqualified or an arbitrary power to grant or refuse [a licence] at his will.”

“These, however, are objective determinations and obviously the fundamental rights of citizens to express freely their convictions and opinions cannot be curtailed or prevented on any irrational or capricious ground. It must be presumed that when the Oireachtas conferred these powers on the Minister it intended that they be exercised only in conformity with the Constitution.”

41. The same principle has been recognised in cases concerning the compulsory acquisition of property. In O’Brien v Bord na Móna [1983] I.R. 255, Keane J. stated:

“In each case, the person exercising the function is determining whether the constitutionally guaranteed rights of the citizen in respect of his private property should yield to the exigencies of the common good.”

43. Most recently, Geoghegan J, writing for a unanimous Supreme Court in Clinton v An Bórd Pleanála [2007] 4 I.R. 701 at 723, a case concerning compulsory acquisition of land said:

“It is axiomatic that the making and confirming of a compulsory purchase order (CPO) to acquire a person’s land entails an invasion of his constitutionally protected property rights. The power conferred on an administrative body such as a local authority or An Bord Pleanála to compulsorily acquire land must be exercised in accordance with the requirements of the Constitution, including respecting the property rights of the affected landowner (East Donegal Co-Operative v. The Attorney General [1970] I.R. 317). Any decisions of such bodies are subject to judicial review. It would insufficiently protect constitutional rights if the court, hearing the judicial review application, merely had to be satisfied that the decision was not irrational or was not contrary to fundamental reason and common sense.”

45. It is the second of these considerations, considered in the context of personal rights, which has led the English courts to doubt whether traditional Wednesbury principles were sufficient and to move in the direction of “anxious scrutiny.” It is clearly necessary to have a rule which accords with the two principles I have identified. The question is whether our rule, as explained in Keegan and restated in O’Keeffe is suited for the task. First I will discuss the decision in Wednesbury.

Wednesbury: a summary
46. As I have mentioned, the judgments of Finlay C.J., Henchy J and Griffin J in Keegan take the judgment of Greene M.R. in Wednesbury as the starting point for their analysis. Greene M.R. laid down the famous Wednesbury principles in a respect of an application for certiorari of a perfectly routine type of administrative decision. The total prohibition on cinematograph performances on a Sunday contained in the Cinematograph Act, 1909 had been relaxed by the Sunday Entertainments Act, 1932. But the Wednesbury Corporation imposed a condition on a licence for showing films on Sunday that no children under the age of fifteen years should be admitted. The challenge by the cinema owners raised no larger issue of individual or human rights. Greene M.R. firstly referred to the judicial-review principle that it may be unlawful for a decision-maker to have regard to matters to which he should not have regard or, conversely, to fail to take into account matters which he is bound to consider. Wednesbury, however, has become synonymous with the proposition then laid down by Greene M.R., at page 230, that:

“It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere. That, I think, is quite right; but to prove a case of that kind would require something overwhelming, and, in this case, the facts do not come anywhere near anything of that kind.”

“It is not what the court considers unreasonable, a different thing altogether. If it is what the court considers unreasonable, the court may very well have different views to that of a local authority on matters of high public policy of this kind.”

Anxious scrutiny appears in English law
49. The courts in England became concerned from some time in the 1980’s that the Wednesbury principles, literally interpreted, were insufficiently responsive to the obligation of the courts to ensure that administrative decisions respected fundamental human rights. At some points a distinction was made between “the conventional Wednesbury principle” and a rule requiring a decision-maker to show that a right either had not been interfered with or that, if it had, any interference was supported by substantial objective justification. (See, for example Laws L.J. in Re (Mahmood) v Secretary for State for the Home Department, cited above at page 847). Some, but not all of the English cases were concerned with immigration decisions. Most famous among them is the decision dealing with the Savile Inquiry.

50. A small sample of these judicial dicta will suffice for present purposes. The notion of “anxious scrutiny” made its first appearance in 1987. Lord Bridge of Harwich in Regina v Secretary of State for the Home Department, ex parte Bugdaycay [1987] A.C.514 repeated the basic rule that the exercise of discretion in relation to asylum applications lay exclusively within the jurisdiction of the Secretary of State and that the limitations on that power were well known. He went on, however, to coin the expression “anxious scrutiny” in a passage at page 531of his speech:

“Within those limitations the court must, I think, be entitled to subject an administrative decision to the more rigorous examination to ensure that it is in no way flawed, according to the gravity of the issue which the decision determines. The most fundamental of all human rights is the individual’s right to life and when an administrative decision under challenge is said to be one which may put the applicant’s life at risk, the basis of the decision must surely call for the most anxious scrutiny.”

"In my opinion where the result of a flawed decision may imperil life or liberty a special responsibility lies on the court in the examination of the decision making process."

53. R v Minister for Defence, ex parte Smith [1996] QB 517, a decision of the Court of Appeal in England, involved a challenge to a blanket policy of the Ministry of Defence that persons of homosexual orientation would be discharged from the Army. The court decided that the policy could not be set aside as irrational, though at least one member of the court thought the policy doomed. The headnote contains a useful summary of the way in which English law had developed:

“…where an administrative decision was made in the context of human rights the court would require proportionately greater justification before being satisfied that the decision was within the range of responses open to a reasonable decision-maker, according to the seriousness of the interference with those rights; that in applying the test of irrationality, which was sufficiently flexible to cover all situations, the court would show greater caution where the nature of the decision was esoteric, policy-laden or security-based…”

"The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker. But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above."

56. The Court of Appeal in the Savile Inquiry case was concerned with the conditions laid down by the Tribunal to protect the lives of soldiers giving evidence before it. Lord Woolf, having referred to the fact that the parties before the court had agreed to adopt Mr. Pannick’s test (set out at paragraph 54 above), proceeded to explain:

“What is important to note is that when a fundamental right such as the right to life is engaged, the options available to the reasonable decision-maker are curtailed. They are curtailed because it is unreasonable to reach a decision which contravenes or could contravene human rights unless there are sufficiently significant countervailing considerations. In other words it is not open to the decision-maker to risk interfering with fundamental rights in the absence of compelling justification. Even the broadest discretion is constrained by the need for there to be countervailing circumstances justifying interference with human rights. The courts will anxiously scrutinise the strength of the countervailing circumstances and the degree of the interference with the human right involved and then apply the test accepted by Sir Thomas Bingham M.R. in Reg. v. Ministry of Defence, ex parte Smith.”

“The duty of the courts is to check that legislation and ministerial decisions do not overlook the human rights of persons adversely affected. In enacting legislation and reaching decisions Parliament and ministers must give due weight to fundamental rights and freedoms. For their part, when carrying out their assigned task the courts will accord to Parliament and ministers, as the primary decision-makers, an appropriate degree of latitude. The latitude will vary according to the subject matter under consideration, the importance of the human right in question, and the extent of the encroachment upon that right. The courts will intervene only when it is apparent that, in balancing the various considerations involved, the primary decision-maker must have given insufficient weight to the human rights factor.”

58. It is notable that the move towards anxious scrutiny predated and was well under way before the passing of the Human Rights Act, 1998. Professor Paul Craig, in “Substance and Procedure in Judicial Review,” (in “Tom Bingham and the Transformation of the Law,” A Liber Amicorum, Eds. Mads Andenas and Duncan Fairgrieve, Oxford University Press 2009) writes that “the endorsement of more searching rationality scrutiny in Smith was a welcome development.” Professor Craig goes on to review the subsequent criticism by the European Court of Human Rights of the adequacy of the remedy of judicial review provided by the English courts. After 1998, the European Court heard a number of cases concerning the standard of judicial review in the United Kingdom. These cases raised, in particular, the question whether the Wednesbury approach provided a sufficiently effective remedy for the protection of Convention rights.

The view of the European Court of Human Rights: effective national remedy
59. The parties to the appeal have referred to a number of decisions of the European Court of Human Rights concerning the adequacy of judicial review scrutiny in the English courts, in the light of the requirement of “an effective remedy before a national authority,” contained in Article 13 of the Convention. These are relevant to this case, because the rights of the appellant protected by Article 3 of the Convention (prohibition against torture or inhuman or degrading treatment) are engaged. The Minister cites authorities which, he claims, clearly indicate that the availability of judicial review in the United Kingdom has been held sufficient to satisfy the requirements of Article 13 of the Convention regarding the availability of a national remedy.

60. I am not at all persuaded that the cases cited by the Minister support his case. He refers to Soering v United Kingdom (1989) 11 EHRR 439, Vilvarajah v United Kingdom (1992) 14 EHRR 248 and, more recently, Bensaid v United Kingdom (2001) 33 EHRR 10. A perusal of these decisions shows that the European Court was persuaded in a some cases to accept the effectiveness of judicial review in English law specifically because it accepted that the English courts applied “anxious scrutiny” to decisions “where an applicant’s life or liberty may be at risk…” For example, in Vilvarajah (at paragraph 125), the court observed:

“Indeed the courts have stressed their special responsibility to subject administrative decisions in this area to the most anxious scrutiny where an applicant’s life or liberty may be at risk…” (emphasis added)

62. The European Court did not invariably approve the English standard of review. Most notably, in Smith and Grady v United Kingdom (Application numbers (33985/99; 33986/96 (1999) 29 EHRR 493 the court had to consider the complaints of the plaintiff in R v Minister for Defence, ex parte Smith, already discussed. Specifically, it considered the standard of judicial review that had been applied by the Court of Appeal in that case and found it wanting in the following passage:

”……the threshold at which the High Court and the Court of Appeal could find the Ministry of Defence policy irrational was placed so high that it effectively excluded any consideration by the domestic courts of the question of whether the interference with the applicants' rights answered a pressing social need or was proportionate to the national security and public order aims pursued, principles which lie at the heart of the Court's analysis of complaints under Article 8 of the Convention.”

Consideration of the test
64. The Wednesbury principle or the Keegan explanation of it has never been an inflexible test. It is not surprising to see the courts act with particular caution before interfering in the case of routinely administrative decisions or decisions made by persons with particular technical expertise. Planning authorities have the technical expertise and knowledge necessary for the granting or refusal of planning permissions. Wednesbury was concerned with conditions excluding children under 15 from the cinema (it might be added, in the 1940’s); Keegan was concerned with a compensation award by a tribunal under a statutory scheme and O’Keeffe with a planning decision made under statutory powers. In none of these was the court confronted with a significant incursion into the fundamental human rights of affected persons. The courts are by tradition and instinct very slow to interfere with decisions regarding technical or administrative matters.

65. It is natural, however, for any decision-maker to be the more hesitant, the more deliberate, the more cautious as the decision he or she is considering will the more gravely trench on the rights or interests of those likely to be affected. In White v Dublin City Council [2004] 1 I.R., the decision was whether or not a modification to a planning application which changed the extent of overlooking of a neighbour’s property should be notified to the public. The Court held the planning officer’s decision to be flawed because of his failure to appreciate the possibility that the neighbour would wish to object. The decision-maker will balance the need to make the particular decision against the effects of the decision, if made, on rights. The Minister, in his written submissions, adopts the following passage from my judgment in O’Brien v Moriarty (No. 2) [2006] 2 I.R. 415 at page 469:

“The courts will, of course, always have regard to the context of a decision, the statutory purpose of the body concerned and its duties and, where appropriate, the need to have regard to the rights or interests of individuals or categories of individuals, whose interests it is the object of legislation to protect.”

“As to the test of reasonableness, the Respondents have already made it clear that they have no difficulty whatever with the proposition that, in applying O’ Keeffe, regard must be had to the subject-matter and consequences of the decision at issue and that the consequences of that decision may demand a particularly careful and thorough review of the materials before the decision-maker with a view to determining whether the decision was unreasonable in the O’ Keeffe sense.”

67. At one level all this is no more than semantics: what is irrational or unreasonable depends on the subject-matter and the context. Following the colloquial adage that a sledge-hammer is not necessary to crack a nut, a savage sanction should not be applied for a trivial offence. By parity of reasoning, the mere imposition of a fine, without disqualification, on the owner of a “doped” greyhound, which had won an important race, was held to be so unreasonable as to be perverse. (per O’Hanlon J in Matthews v Irish Coursing Club [1993] 1 I.R. 346) 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 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 respondents, quoted at paragraph 65, 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. It is implicit in East Donegal. 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, 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. For example, it would be wrong and confusing to have two different standards of judicial review for planning decisions depending on whether the review was being sought by the applicant for permission (the owner of the land with constitutionally protected rights) or a third-party objector (with a merely legal right to object, as in White v Dublin County Council). The holder of a licence may have a mere legal right, but still be entitled to expect not only fairness in any decision affecting his right to hold it but, in addition, that it will not be taken from him for trifling reasons. 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. 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.

Applying the test; decision
73. I turn finally to the deportation order made by the Minister in this case. Firstly, it needs to be emphasised that this case concerns a decision of the Minister pursuant to section 3 of the Immigration Act, 1999. The High Court order under appeal was one whereby the learned judge refused leave to apply for judicial review. Section 5(2)(b) of the Illegal Immigrants (Trafficking) Act, 2000 requires an applicant for leave to show that “there are substantial grounds for contending that the decision……is invalid or ought to be quashed.” Keane C.J., in delivering the judgment of the Court in In the Matter of Article 26 of the Constitution and…the Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 I.R. 360 at page 394 considered that test as follows:

“The Oireachtas has imposed the "substantial grounds" requirement in other legislation including the Planning Acts, the Roads Act, 1993 (as amended by the Roads (Amendment) Act, 1998) the Irish Takeover Panel Act, 1997 and the Fisheries (Amendment) Act, 1997. In McNamara v. An Bord Pleanála (No. 1) [1995] 2 I.L.R.M 125, Carroll J. interpreted the phrase "substantial grounds" in the provisions of the Planning Act of 1992 as being equivalent to "reasonable","arguable" and "weighty" and held that such grounds must not be "trivial or tenuous". Although the meaning of the words"substantial grounds" may be expressed in various ways, the interpretation of them by Carroll J. is appropriate.”

75. The Minister makes a deportation order at the end of the asylum process. In this case, the appellant had been refused refugee status and the Minister informed her that her right to remain temporarily in the State in accordance with section 9(2) of that Act had expired. At the same time, he informed her of his intention to make a deportation order and of her right to make representations. He was proposing to make the distinct decision which section 3 of the Act empowered him to make. It is the Minister and not the Refugee Appeals Tribunal that has power to expel a person from the State. As the Court pointed out in its judgment in In the Matter of Article 26 of the Constitution and…the Illegal Immigrants (Trafficking) Bill, 1999, cited above, at page 391, “a non-national has a constitutional right of access to the courts to challenge the validity of a decision such as a deportation order.” The appellant had submitted to the Minister that she faced dangers coming within the scope of section 5 if returned to Nigeria. The question of whether her claims of likely exposure to these risks were well-founded was addressed by the Minister in the form of his statement that the provisions of section 5 (prohibition of refoulement) of the Refugee Act 1996 were “complied with in her case,” but not otherwise. The recommendation to the Minister had stated that it was “found not to be an issue.”

76. There were two distinct aspects to the Minister’s decision. Firstly, he expressed himself “satisfied……that the provisions of section 5 (prohibition of refoulement) of the Refugee Act 1996 [had been] complied with” in the appellant’s case. Secondly, he explained the general reasons for his decision as being that the appellant was a person whose refugee status had been refused and, that, having had regard to the factors set out in section 3(6) of the Immigration Act, 1999, including the representations made on her behalf he was satisfied that the interests of public policy and the common good in maintaining the integrity of the asylum and immigration systems outweighed such features of her case as might tend to support her being granted leave to remain in the state.

77. I am satisfied that the second and more general aspect of the decision falls within the principle of the decision of this Court in F.P. v Minister for Justice, Equality and Law Reform [2002] 1 I.R. 164. The reasons given for the decision of the Minister in that case, which are quoted in the preceding paragraph, were verbatim the same as in the present case. Insofar as the general reasons are concerned, it seems to me clear that the decision in F.P. should be followed. There is no ground for making any distinction between the two cases. In that case, as in this, the applicant had sought recognition as a refugee through the two stages of the asylum system and had been refused and had been informed that she had no continuing right to remain in the State. The following statement of Hardiman J, in delivering the unanimous judgment of this Court is equally applicable to what I have called the second aspect of the Minister’s decision in the present case:

“In the circumstances of this case, the respondent was bound to have regard to the matters set out in s. 3(6) of the Act of 1999. In my view he was also clearly entitled to take into account the reason for the proposal to make a deportation order, i.e. that the applicants were in each case failed asylum seekers. If the reason for the proposal had been a different one, he would have been entitled to take that into account as well. He was obliged specifically to consider the common good and considerations of public policy. In my view he was entitled to identify, as an aspect of these things, the maintenance of the integrity of the asylum and immigration systems. The applicants had been entitled, in each case, to apply for asylum and to remain in Ireland while awaiting a decision on this application. Once it was held that they were not entitled to asylum, their position in the State naturally falls to be considered afresh, at the respondent's discretion. There was no other legal basis on which they could then be entitled to remain in the State other than as a result of a consideration of s. 3(6) of the Act of 1999. In my view, having regard to the nature of the matters set out at sub-paras. (a) to (h) of that subsection, the decision could be aptly described as relating to whether there are personal or other factors which, notwithstanding the ineligibility for asylum, would render it unduly harsh or inhumane to proceed to deportation. This must be judged on assessment of the relevant factors as, having considered the representations of the person in question, they appear to the respondent. These factors must be considered in the context of the requirements of the common good, public policy, and where it arises, national security.”

79. I have summarised at paragraph 17 above the material that was before the Minister in respect of the prevalence of FGM in Nigeria. None of this is referred to in the Minister’s decision. As already stated the Minister limited himself to stating that he was “satisfied……that the provisions of section 5 (prohibition of refoulement) of the Refugee Act 1996 [had been] complied with” in the appellant’s case. This statement does not disclose the basis on which the appellant’s complaint of risk of subjection to FGM was rejected. The Minister does not disclose whether he believes or disbelieves the appellant or what his views are regarding the extent or the existence of the risk of FGM in Nigeria or whether or not he believes the appellant is subject to the risk, or, if not, why not. It was, of course, for the Minister to assess and to weigh these matters, before making a decision which is his alone. It is clear that the allegations are of a serious character. It is instructive to consider the remarks on the subject of Lord Bingham and Lady Hale in a case decided much more recently than the High Court decision in this case, namely, F v Secretary of State for the Home Department [2007] 1 All ER 671, respectively at paragraphs 25 and 91 to 94. Lord Bingham stated, with citations, that “…claims based on fears of FGM have been recognised or upheld in courts all round the world.” The difficulty posed by the form of the Minister’s decision is not merely his failure to provide reason for his decision, though that is undoubtedly the case, but that the decision is defective as a result. There is a complaint of a serious risk of exposure to what is arguably an infringement of life or freedom (as defined in section 5 of the Refugee Act, 1995) and nothing on the other side, nothing to explain how the Minister came to the conclusion that the appellant should, nonetheless, be deported. The Minister might have had any one of a range of reasons for his decision, but the court simply does not know. Hardiman J has discussed the issue of FGM in some detail and has referred to a number of policy considerations. But none of these matters were advanced in explanation of the Minister’s decision.

80. At one point the Minister refers to such features of the appellant’s case as might tend to support her being granted leave to remain in this state, but does not state what these are, in particular whether they imply a view about the risk of FGM. In my view, the appellant has established substantial grounds for concluding that the Minister did not address the complaint of the appellant regarding the danger of exposure to breach of her human rights (including FGM) before deciding to deport her.

81. In these circumstances, I am satisfied that the appellant has satisfied the requirement which rests upon her and that she has established “substantial grounds,” as required, for contending that the decision of the Minister was so unreasonable, within the meaning of Keegan and O’Keeffe, that it was invalid or ought to be quashed. In other words, the appellant has crossed the threshold of showing, by evidence, grounds for judicial review which are reasonable, arguable and weighty in the sense used by Keane C.J. in In the matter of Article 26 of the Constitution and…the Illegal Immigrants (Trafficking) Bill, 1999, cited above.

82. For the avoidance of doubt or misunderstanding, it should be clearly understood that this judgment is not intended to express or imply any view as to how the Minister should decide cases involving deportation of persons relying on a risk or a danger of infringement of their human rights. Matters of policy are for the Minister. He has been assigned the responsibility of deciding how the balance is to be struck between the rights of persons subject to being deported and the common good in maintaining the integrity of the asylum and immigration systems. He might, for example decide as the Refugee Appeals Tribunal had done in this case or that the degree of risk to the individual was outweighed by the need to protect the integrity of the system. The Minister would be entitled to take account of the entirety of the problem of which an individual person was merely one example and the feasibility for the State of offering refuge to a large number of people from other countries.

83. Equally, this judgment implies no view on how the application for judicial review should be decided in the High Court, except insofar as it explains the applicable test for review on the ground of unreasonableness. It will be for the High Court to decide whether the appellant has provided sufficient evidence to discharge the burden which rests on her to show that the decision of the Minister was, recalling once more the words of Henchy J “fundamentally at variance with reason and common sense.”

84. I would grant an order to the appellant giving her leave to apply for judicial review of the decision of the Minister to deport her dated 12th July 2002, but strictly limited to that aspect of the decision which dealt with her complaint of refoulement contrary to the provisions of section 5 of the Refugee Act, 1996. The order should accordingly grant leave to apply for the relief sought at paragraph d), I and II of the Statement of Grounds on the grounds set out at paragraph e), 1, 3, 5, 7 insofar as they relate to section 5 of the Refugee Act, 1996 (prohibition of refoulement).