Jim O'Keeffe (Cork South West, Fine Gael)
Link to this: Individually | In context

Question 76: To ask the Minister for Justice, Equality and Law Reform the basis upon which he has the power to delegate to his officials the power to adjudicate on an application for leave to remain which is made to him; and if he will make a statement on the matter. [10890/05]

Michael McDowell (Dublin South East, Progressive Democrats)
Link to this: Individually | In context

There is a solid basis in legislation and case law for the delegation to officials of authority to adjudicate on applications for leave to remain. On the other hand, the power to make a deportation order is never in practice delegated to officials. In every case deportation orders are made by the Minister.

Perhaps this distinction is best illustrated by the case of P.L and B v. the Minister for Justice, Equality and Law Reform [2002] 1 ILRM 16, where the Supreme Court characterised the position of failed asylum seekers as persons who "lacked any entitlement to remain in the country save that deriving from the procedure they were operating i.e. a right to await a decision not to be deported". In other words, while a person who does not have permission to remain in the State does not have a right to remain here, he or she may submit to those administrative procedures which are necessary before a deportation order can be made.

In the case of Tang v. the Minister for Justice [1996] 2 ILRM 46, a question arose in relation to the propriety of decisions taken by civil servants in the name of the Minister for Justice, Equality and Law Reform under the provisions of immigration law. In that case the Supreme Court stated that the Aliens Act 1935 and orders made thereunder, conferred extensive powers on the Minister for Justice to make orders in relation to non-nationals. The court found, in line with the Carltona principle, that it could not be supposed that it was the intention of the legislature that the Minister should personally exercise these powers. The court upheld the decision of an assistant principal officer in the Department of Justice to refuse to extend permission to remain but impugned a purported decision by that same officer to order the applicant to leave the State.

In the case of Kanaya v. the Minister for Justice [2000] 2 ILRM 503, the High Court held that the delegation of power to an immigration officer by the Minister to refuse leave to land was not ultra vires the power of the Minister for Justice, Equality and Law Reform.

In the year 2004 there were approximately 133,000 persons who had permission to remain in the State at any time during that year. The main body of such persons dealt with on a given day are persons seeking an extension in permission to remain. It is clear that I could not possibly personally intervene in all these cases. The statutory provision now governing such extensions — section 4(7) of the Immigration Act 2004 — specifically acknowledges that such decisions are made by immigration officers on behalf of the Minister.

Section 17(6) of the Refugee Act 1996 empowers the Minister, at his discretion, to grant permission to remain to a failed asylum seeker. This provision came into force in November 2000. It has been the practice in the vast majority of cases that such decisions are made by officials of my Department acting on my behalf. In fact the legislative provision itself did no more than give specific statutory expression to the reality as enunciated in the aforementioned Tang case which was heard in 1994.

A decision to refuse permission to remain or a decision not to extend permission to remain is not the same as a decision to make a deportation order. Every such order, as I have already pointed out, is signed by the Minister himself.

It has always been the case that decisions to grant or refuse leave to remain are made by officials of my Department. This practice has been repeatedly upheld by the superior courts in accordance with the Carltona principle. However, in every case where the ultimate step, that of deportation, is undertaken this is only with the express authority of the Minister in the form of a signed deportation order.