Facts: The appellants were two Malaysian nationals who sought permission to land and enter the State at Cork Airport in December 2020 in order to start an English language course in January 2021. They were refused permission to land because the course was to be conducted online and not in person. This decision was made at the time of the COVID-19 pandemic and the related restrictions on movement. Their entry was refused pursuant to section 4(3)(j), Immigration Act 2004, which provides that a non-national can be refused entry on grounds that the non-national’s entry into, or presence in, the State could pose a threat to national security or be contrary to public policy. The appellants initiated judicial review proceedings contesting their refusal of leave to land under s. 4(3)(j) and the ambit of public policy under that provision.
The applicants relied on the judgment in Ezenwaka ([2011] IEHC 328) in which the public policy ground in s. 4(3)(j) had a narrower meaning akin to national security, and furthermore required something personal to the individual concerned, rather than the application of considerations of general policy. The interpretation was also said to be an application noscitur a sociis, that a word could be understood by reference to its neighbours. The applicants contended that the use of “or” between national security and public policy was conjunctive.
The High Court and the Court of Appeal refused the reliefs sought. An appeal was brought to the Supreme Court.
Reasoning: Woulfe J, in his judgment, recalled that the starting point in the construction of a statutory provision is the language used in the provision under consideration, and the plain and ordinary meaning of that language. He held that the plain and ordinary meaning of the words in s 4(3)(j) is that the immigration officer may refuse to give permission on two alternative bases, either national security grounds or public policy. National security means the security or safety of a country and includes various related matters concerning the military and intelligence gathering. Public policy, on the other hand, is a much wider concept and more difficult to define. It was held to generally relate to certain policy which is directed towards the achievement of the public good or public interest, including a public policy position taken by the Executive. On the word “or” in section 4(3)(j), Woulfe J. held that it was disjunctive and that the two terms are distinct from one another and different in nature or meaning. In coming to this decision, Woulfe J. considered the High Court’s findings in Ezenwaka and in Li and Wang [2015] IEHC 638, the former construed the term public policy narrowly, while the latter regarded it as conferring a wide discretion on the Minister. Woulfe J concurred with the ruling in Li and Wang, as conferring wide discretion.
O’Donnell CJ published a concurring judgment, whereas Hogan J published a dissenting judgment. Hogan J held that the wider words “public policy” have no precise and fixed meaning and, should they be taken to bear an open-ended construction, it would mean that applicants for permission to enter the State could be refused entry for ill-defined and vague reasons. Public policy, according to Hogan J, should be understood narrowly. For Hogan J, the words “public policy” accordingly take their meaning from the companion words and the word “or” should be understood as conjunctive.
Decision: A majority of the court ruled to dismiss the appeal.
