A three/two majority Supreme Court decision clarifying the criteria for judicial review of administrative decisions affecting fundamental rights could lead to a substantial increase in judicial review cases in the courts, particularly in asylum cases.
The ruling allows a Nigerian woman bring a judicial review challenge to a deportation order in the latest stage of her ten year battle to avoid deportation. Abosede Oluwatoyin Meadows (27) came here in 1999 and completed her Leaving Certificate but was unable to puruse a career in nursing because she was refused refugee status.
The majority Supreme Court decision of the Chief Justice John Murray, Ms Justice Susan Denham and Mr Justice Nial Fennelly, provides the courts, in assessing the reasonableness of administrative decisions in cases affecting fundamental rights, are entitled to consider the proportionality of the decision.
Dissenting, Mr Justice Nicholas Kearns argued the decision expands the criteria for judicial review and would render the courts’ “already struggling” judicial review system “virtually inoperable”.
Mr Justice Fennelly said the court was not altering the existing test for judicial review, laid down by the Supreme Court in the 1993 O’Keeffe case, which provided an administrative decision can only be set aside if shown to be unreasonable in the sense of being “fundamentally at variance with reason and common sense”.
The majority court was saying the principle of “proportionality” as outlined in the judgments of the Chief Justice and Ms Justice Denham could provide “a sufficient and more consistent standard of review”, he said.
This did not involve a modification of the existing test but was an explanation of principles “already implicit” in our law. The O’Keeffe test, “properly interpreted and applied”, laid down a correct rule for the relaitonship between the courts and administrative bodies and, “properly understood”, was capable of according an appropriate level of protection of fundamental rights.
The courts always examined decisions in context and there was “nothing new” in requiring decision makers to give due consideration to fundamental rights.
Ms Justice Denham said the O’Keeffe decision has been construed “too narrowly” and judicial review should be an effective remedy especially where, as in asylum cases, access to the courts has been curtailed by law. Where fundamental rights are factors in a review, they are relevant in analysing the reasonableness of a decision and proportionality was inherent in any analysis of reasonableness.
Granting the appeal by Ms Meadows against the High Court’s refusal to allow her challenge via judicial review the deportation order made by then Justice Minister Michael McDowell in 2002, the majority court found she had established substantial grounds for review.
Ms Meadows claimed, if deported to Nigeria, she would be forced into an arranged marriage and subjected to female genital mutilation (FGM). Section 5 of the Refugee Act 1995 prohibits “refoulement” or return to a State of a person if the Minister believed their life or freedom would be threatened and they could be subject to a serious assault.
The majority court granted leave for judicial review on grounds the Minister’s decison did not properly address the refoulement issues.
The Chief Justice said the Minister’s decision was “so vague and indeed opaque” its underlying rationale could not be reasonably deduced. A memo before the Minister stating “Refoulement was not found to be an isuse in this case” was open to multiple interpretations.
Mr Justice Fennelly said two fundamental principles must be respected in the rules for judicial review of administrative decisions — the decision is of the administrative body, not the court and judicial review requires fundamental rights be respected.
While that second consideration had led the English courts to move towards “anxious scrutiny” of administrative decisions, it was neither appropriate nor necessary to have a different standard of review for cases involving interference with fundamental rights and the principle of proportionality could provide a sufficient and more consistent standard of review.
Article 13 of the European Convention on Human Rights required parties in litigation to have an “effective remedy” before a national authority and the ECHR Act 2003 obliged all organs of the State to perform their functions in a manner compatible with the State’s obligations under the ECHR.
Where a right is not considered at all or misunderstood by the decision maker, it is vulnerable to attack, he said. In such cases, it might not be necessary to establish it was unreasonable. It might affect fundamental rights to such a disproportionate degree, having regard to the public objectives it seeks to achieve, as to cross a threshold and be justifiably labelled so unreasonable no reasonable decison maker could have made it.
