The Applicants were a family of Nigerian origin. Ms Efe had been given permission to remain in the state on the basis of the IBC/05 scheme, but such permission had been denied to Mr Efe, the children’s stepfather, who had been issued with a deportation order. The Applicants challenged the deportation order on the grounds that the substantive common law rules governing judicial review – namely the doctrines of reasonableness, rationality and other related rules – did not provide an ‘effective remedy’ against breach of their rights under the Constitution and the European Convention on Human Rights (ECHR) as required by Articles 40.3.1 and 40.3.2 of the Constitution and Article 13 of the ECHR.
The High Court (Hogan J.) noted first that Articles 40.3.1 and 40.3.2 of the Constitution require the State to vindicate constitutional rights. This of necessity requires the State to provide a mechanism where such rights are adequately vindicated by means of an adequate remedy and, where appropriate, the courts will take on the task of fashioning such a remedy. The Court further observed that any rule of law which purported to constrain this Court from protecting constitutional rights in circumstances where it could only interfere where there was ‘no evidence’ to justify a factual conclusion reached by a decision-maker would simply be at odds with these constitutional obligations. A test of this nature in the sphere of constitutional rights would thus fall to be condemned as unconstitutional in the light of the obligations imposed on the State by Articles 40.3.1 and 40.3.2 to vindicate these constitutional rights. Hogan J. noted that, in the wake of the Supreme Court’s decision in Meadows, it could no longer be said that the courts were constrained to apply some artificially restricted test for review of administrative decisions affecting fundamental rights on reasonableness and rationality grounds. The Court held that this test was broad enough to ensure that the substance and essence of constitutional rights would always be protected against unfair attack, if necessary through the application of a Meadows-style proportionality analysis. Accordingly, the Court held that constitutional rights – including the family rights protected by Article 41 at issue here – were adequately vindicated by the common law rules of judicial review.
Having considered the constitutional issues, the Court then considered whether there were grounds for granting a declaration of incompatibility pursuant to section 5(2) of the European Convention on Human Rights Act 2003. The Court noted that in judicial review proceedings it is not permissible for the Court to receive and act on new evidence, since to do so would be to cross a border between appeal and review. If there were no mechanism whereby material new facts which impacted significantly on constitutional rights emerged after the relevant administrative decision could be reviewed, then such a lacuna would amount to a failure to vindicate constitutional rights for the purposes of Article 40.3 and the Court might have to give a declaration to this effect. However, the Court was satisfied that there existed such a mechanism, in that s. 3(11) of the Immigration Act 1999 allows the Minister to revoke a deportation order. In these circumstances, there is no basis for granting a declaration of incompatibility in respect of any legal lacuna and still less is there any basis declaring the common law rules of judicial review to be unconstitutional on this account. The Court stated that it was clear from the decision of the ECHR in Kay v. United Kingdom that Meadows-style judicial review satisfies the requirements of Article 13 of the ECHR and that, so far as the receipt of new evidence was concerned, it was likewise clear from Maslov v. Austria that all that is necessary that there is a mechanism whereby new material evidence can be evaluated by administrative decision-makers. The Court noted that such a procedure is provided by s. 3(11) of the 1999 Act. For these reasons, the Court held that there was no basis for granting a declaration of incompatibility pursuant to s. 5(2) of the 2003 Act.
