The Supreme Court allowed the Minister for Justice, Equality and Law Reform’s appeal in the Adio case, reversing a High Court decision that had found the refusal to consider an application under the IBC/05 scheme invalid.
The judgment, delivered by Denham J. on 20 December 2007, concerned an application by Folashade Olubunmi Adio, a Nigerian national, to remain in the State with her two sons. Her younger son, Farouq Adio, was born in the State on 27 March 2003; her older son, Fuad Adio, was born in Nigeria in 2001. Both children were applicants in the proceedings, represented by their mother as next friend.
The High Court found that the application form was submitted on 26 April 2005 and received by the Minister on 5 May 2005. The scheme’s closing date was 31 March 2005. In letters dated 29 November and re-issued on 19 December 2005, the Department said the application was too late to be considered under the revised arrangements.
The High Court had held that the Minister retained discretion to consider a late application and was required, when deciding whether to exercise that discretion, to consider the Irish-born child’s rights under Article 40.3 of the Constitution. It found the refusal invalid because those rights had not been considered.
The Supreme Court disagreed. It held that the IBC/05 scheme was an administrative scheme with defined criteria, including a time limit, and that the application was outside that limit. The Minister had acted correctly within the scheme by refusing to consider it, the court said.
The court also held that constitutional and Convention rights were not to be considered within the scheme. It described the rights-based grounds of the application and appeal as premature, stating that people unsuccessful under the scheme remained in the position they had been in before applying. Those rights remained to be considered through another appropriate process.
The judgment formed part of a group of eight related appeals concerning the scheme. The Minister’s appeal in this case was allowed, and the High Court decision was reversed. The Supreme Court did not determine the applicants’ constitutional or Convention rights in this proceeding.