The Supreme Court allowed the Minister for Justice, Equality and Law Reform’s appeal in the Oviawe case, reversing a High Court order that had quashed the refusal of an application under the IBC 05 Scheme. The judgment was delivered by Denham J. on 20 December 2007.
The first applicant, a Nigerian national who arrived in Ireland in March 2002, applied under the scheme for permission to remain in the State. The application was refused by letter dated 16 November 2005. The letter said the Minister had been advised of convictions in January 2001 and January 2004 and was not satisfied that she met the scheme’s good-character criterion.
The judgment details a January 2004 conviction for offences under section 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001. The charges concerned goods valued at €99. The applicant pleaded guilty and received a three-month prison sentence, suspended for 12 months, on a €300 bond to keep the peace and be of good behaviour. She had disclosed the conviction in her scheme application.
Her children sought judicial review with her. The seventh and eighth named applicants were twins born in Ireland on 29 July 2002 and were Irish citizens. The High Court held that the refusal had been unlawful because the Minister had not considered their constitutional personal rights or their right to respect for private life under Article 8 of the European Convention on Human Rights. It quashed the refusal and remitted the application for determination in accordance with law.
On appeal, the Supreme Court held that the scheme’s criteria included that applicants had “not been involved in criminal activity”. It said the scheme contemplated that people with convictions might apply, but the Minister could decide the application under the scheme’s stated terms. The Court concluded that evidence of the conviction entitled the Minister to refuse the application.
The Court also held that the scheme did not require consideration of the applicants’ constitutional or Convention rights. An unsuccessful applicant remained in the same position as before applying, and those rights could be considered in other processes, including under section 3 of the Immigration Act 1999, as amended. The judgment described the challenge as premature and misconceived within the scheme. The Supreme Court reversed the High Court decision and allowed the Minister’s appeal.