The Applicants were Nigerian nationals, a mother and two children. The youngest child was born in Ireland in 2003 and was therefore an Irish citizen. In April 2005, Ms Adio applied for leave to remain in Ireland under the IBC/05 Scheme. In November 2005 she was informed that her application could not be considered under the Scheme as she had applied after the 31 March 2005 closing date. In February 2006 the Applicants were granted leave by the High Court (Peart J.) to seek to have the Minister’s decision quashed by way of judicial view on the grounds that the Minister’s decision 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 ECHR. In November 2006, the High Court (Finlay Geoghegan J.) concluded that these grounds had been made out and granted an order quashing the Minister’s decision. The Minister appealed and in December 2007 the Supreme Court overturned the judgment of the High Court. The Supreme Court applied the principles it had established in its judgment on the appeal in the case of Bode and Ors v. Minister for Justice, Equality and Law Reform [2007] IESC 62. It held that 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 Court observed that 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 and at no time was it intended, within the ambit of the scheme, that the Minister would consider Constitutional or Convention rights of applicants. The Supreme Court concluded that the grounds of the application and the appeal relating to Constitutional or Convention rights were misconceived, and premature. The Supreme Court held that the Constitutional and Convention rights of the Applicants remained to be considered ‘in another, appropriate, process.’ The Court noted that the Applicants continued to reside in Ireland and that they had not referred to any change in their immigration status or submit that there had been any indication of an intention on the part of the Minister to deport them.
The Applicants then complained to the European Court of Human Rights under Article 8 of the ECHR. They argued that, in the absence of any deportation order under the Immigration Act, 1999, there was no domestic procedure whereby Ms Adio and her non-Irish national son could apply for leave to remain in the Irish State with their Irish citizen family member. They argued that this left them in a state of limbo without any clarified status and that Ms Adio could not work, build a home or plan a future to the detriment of her children. The Applicants contended that there should be a procedure by which non-Irish nationals could regularise their immigration position in Ireland, which procedure should be adversarial and before an independent body competent to review the reasons for the administrative decision and the relevant evidence. The Applicants also invoked Article 14 arguing that that Article applied to additional rights which they maintained the State had voluntarily decided to provide. They submitted that the alleged lack of a legal procedure to apply to regularise their position discriminated against the first and third applicants in a number of respects. In addition, the Applicants invoked Article 13, in conjunction with Articles 8 and 14, arguing that they had no effective domestic remedy.
The European Court of Human Rights noted, at the outset, that the Supreme Court had clarified in the lead domestic case of Bode that the IBC/05 Scheme was an ex gratia administrative scheme lawfully established on a once-off basis by the Minister exercising executive power to consider granting leave to remain to a unique and limited group of foreign nationals on the basis of broad qualifying criteria. The parameters of the Scheme were published and clear, notably a time-limit for making applications under the Scheme. The first applicant did not make her application within the time allowed under the Scheme. Accordingly, while the vast majority of those who did apply under the IBC/05 Scheme were granted leave to remain, the Minister refused to consider her application since it was out of time and the Supreme Court later found that the Minister had acted correctly within the ambit of the Scheme in doing so. The Court observed that Ms Adio had not explained why she failed to comply with that time-limit.
The Court reiterated that under Article 35 § 1 of the Convention it could only deal with a matter after all domestic remedies have been exhausted. The Court recalled that the Supreme Court had found that the IBC/05 Scheme was not intended to determine the Constitutional or Convention rights of those who applied thereunder. It observed that it was for this reason that it found the Applicants’ challenge to the Minister’s decision for failure to consider those rights to be misconceived and, notably, premature. The Supreme Court had concluded that unsuccessful applicants under the IBC05 Scheme were therefore ‘in the same position after the application as they were prior to the application’ so that their Constitutional and Convention rights remained to be considered in ‘another, appropriate, process.’ The Court noted that it was established in Irish law that the Minister, as part of the executive power of the State, has an inherent right and power to exercise a discretion to consider, determine and grant, if he considers it appropriate, residency to the parent of an Irish born child, based on relevant Constitutional and Convention rights. The Court found that the Applicants had not demonstrated that they could not apply to the Minister for leave to remain, raising their Constitutional and Convention rights or that the Minister would not have the power to determine and grant residency to them. The Court noted that an unfavourable response (or indeed a lack of response) from the Minister could then be the subject of an application to the High Court for leave to apply for judicial review on the basis of those Constitutional and Convention rights. The Court also considered the recent judgment of the Supreme Court in the Meadows case which outlined the standard of review to be applied in judicial review cases. The Court was not satisfied that the Applicants’ case demonstrated that the nature and standard of that review would be such as would render judicial review an ineffective remedy within the meaning of Article 35 § 1 of the Convention.
Accordingly, the Court rejected the Applicants’ complaints as being premature since, apart from an application within the IBC/05 Scheme, they had not taken any steps to apply for an entry visa or residence permit or to request leave to remain in Ireland. Ther Court said that given such prematurity, the Applicants could not claim to be victims of a violation of the Convention. For these reasons the Court therefore declared the Applicants’ complaint incompatible ratione personae with the provisions of the Convention.
