The High Court refused a judicial review application by AJK, a Pakistani national with subsidiary protection status, challenging his exclusion from enlistment in the Defence Forces. The court found that a January 2018 letter from the Department of Defence was not a decision and refused to extend the time to challenge the military’s earlier refusal.
AJK had applied to join the Defence Forces in 2016 and was selected for enlistment. He was told at the Curragh Camp on 24 April 2017 that he was ineligible because he did not have permission to reside in Ireland for the twelve-year engagement period or open-ended permission. A letter dated 4 May 2017 set out that position, referring to Defence Forces administrative instruction A10. The parties agreed that the instruction was a circular without legal authority.
AJK’s solicitors later asked the Minister to use discretion to set aside the policy, citing his circumstances and arguing that a rigid policy without exceptions would be unlawful. The Department’s letter of 31 January 2018 said his residency permission did not meet the induction criteria and referred to section 53(1) of the Defence Act 1954. AJK argued that this letter was a fresh decision following a review; the Minister disputed that he had made a decision or had authority to review the military’s decision.
The court held that the statutory recruitment scheme did not give the Minister a recruitment function or an implied power to review the military decision. It found that the January letter, which came from the Department rather than the military authorities, did not amount to a decision. Even if it had, the Minister lacked legal authority to make it.
The judge also rejected the Defence Forces’ interpretation of section 53(1). The twelve-year term was a fixed term of service, the court said, and the legislation did not require an applicant to guarantee permission to remain for the full period. The applicant was not ineligible under the other relevant regulatory criteria. These conclusions did not result in relief for AJK.
The application to extend time to challenge the 4 May 2017 refusal failed. The court found that AJK had not provided good and sufficient reasons that objectively excused the delay, and that his solicitors’ correspondence had asked the Minister to exercise discretion rather than challenge the original decision. The statement of grounds did not contain a standalone request to quash that refusal. The court therefore refused the application.