A number of recent decisions in the High Court have considered the question of whether deportation decisions can be delegated by the Minister for Justice to a department official.
In LAT v. Minister for Justice, Hogan J in the High Court stated that the issue of law relevant to the case was whether a deportation order must be made personally by the Minister for Justice and Equality. He considered the English case of Carltona Ltd. v. Commissioners of Works, where it was held that ministerial duties are normally exercised by department officials under the relevant minister’s authority. Justice Hogan held that ‘while I accept that the decision to deport is often a complex one which has significant implications for the individual who is the subject matter of the order, I am not satisfied that it is of such intrinsic importance to the community at large that the decision can be made only by the Minister generally’.
Click here to read the judgment in the LAT case.
A similar decision - FL v. Minister for Justice and Equality – was also heard by Justice Hogan. He referred to his ruling in LAT and once again to the Carltona Principle. After considering the relevant authorities once again, he concluded that the deportation order was lawfully made in the name of the Minister by a department official and therefore the applicant’s leave to apply for judicial review on that ground was refused.
Click here to read the FL judgment.
However, Justice Cooke in Afolabi v. Minister for Justice on the same topic, came to a slightly different conclusion. In this case, the question of whether a deportation order should have been signed personally by the Minister was also linked with the question of whether the Minister should have personally addressed the issue as to whether the non-refoulement prohibition in s.5 of the Refugee Act 1996 was applicable. Justice Cooke granted leave to apply for judicial review of the deportation orders "by reason of the first named respondent not having personally considered whether the State’s non-refoulement obligations would be breached by the deportation of the applicants".
Click here to read the Afolabi judgment.