Home > New Judgments and Cases to Watch > Proportionality, Administrative Decision-Making and Judicial Review

Proportionality, Administrative Decision-Making and Judicial Review

Last week saw the Supreme Court hand down its judgment in the important case of Meadows v Minister for Justice, Equality and Law Reform [2010]. This case considered whether a proportionality analysis is generally applicable to administrative decisions that have an impact on one’s constitutional and/or fundamental rights. This case, in which the Supreme Court appears to have introduced a general requirement for proportionality analyses in all administrative action that has individual rights implications, is a potentially monumental one that might have wide-ranging implications for administrative decision-making in this jurisdiction for quite some time to come. Although the case takes place within the context of asylum and refugee law it seems quite clear that its implications are much broader than this; the ratio as stated is a general one applicable to all situations of rights-endangerment by administrative review, although of course the severity of potential interferences with individual rights will be a factor to be taken into account in the conduct of any proportionality analysis.

The facts

The case concerned an applicant for asylum in Ireland who claimed that she suffered a real risk of persecution if returned to Nigeria because she would be forced to enter into a marriage arranged by her father and would be subjected to female genital mutilation. The applicant had been refused asylum on the basis that she was determined not to have made out a well founded fear of persecution on a Refugee Convention ground and was subsequently unsuccessful before the Refugee Appeals Tribunal, which was not satisfied that she had established “a credible connection between her circumstances and forced marriage and female genital mutilation”. On applying for leave to remain in the state, the applicant claimed that forcing her to return to Nigeria would violate her rights in both national and international law given the severity of the danger that it was alleged awaited her there. The application for leave to remain was refused, with the Minister claiming he was satisfied that the prohibition on refoulement was not breached and that “the interests of public policy and the common good in maintaining the integrity of the asylum and immigration systems outweigh such features of [the] case as might tend to support [the applicant] being granted leave to remain in this State.”

The claim

In the Supreme Court case Meadows argued that whether or not questions of fundamental human rights had been taken into appropriate account in administrative decision making ought to be considered in judicial review proceedings. Judicial review is a means of challenging the decision-making process and not the outcome, but if the process is found to have been deficient then the outcome is a priori also deficient. Unreasonableness has always been a basis for judicial review and this case essentially centred on whether or not a decision making process could be said to be unreasonable if it is found that a proportionality analysis was not properly engaged in, taking into account the grave repercussions of interference with individual rights that might flow from an administrative decision.

Proportionality as part of a reasonableness analysis

In his judgment available here, Chief Justice Murray held that “In examining whether a decision properly flows from the premises on which it is based and whether it might be considered at variance with reason and common sense I see no reason why the Court should not have recourse to the principle of proportionality in determining those issues….Application of the principle of proportionality is in my view a means of examining whether the decision meets the test of reasonableness”. In the context of decisions that have potential implications for individual rights, the Chief Justice went on to hold that “It is inherent in the principle of proportionality that where there is grave or serious limitations on the rights and in particular the fundamental rights of individuals as a consequence of an administrative decision the more substantial must be the countervailing considerations that justify it”. Similary Denham J. (judgment here) held that “Where fundamental rights and freedoms are factors in a review, they are relevant in analysing the reasonableness of a decision. This is inherent in the test of whether a decision is reasonable”. Thus according to the Court determining the reasonableness of a decision must take into account whether or not proportionality analyses were engaged in. This led naturally to the question of how a proportionality determination could be established and to the question of whether or not the decision maker is obliged to reveal the basis of the decision and in particular the extent to which proportionality was taken into account to the person in relation to whom the decision was made.

Making clear the basis for administrative decisions

In the context of proposed immigration deportation and the international and domestic prohibition on refoulement, the Chief Justice held that while the Minister is not required to entered into detailed correspondence on whether refoulement arises as a concern in a particular case, “at the very least the rationale underlying the decision must be discernible expressly or inferentially”. He went on to hold:

An administrative decision affecting the rights and obligations of persons should at least disclose the essential rationale on foot of which the decision is taken. That rationale should be patent from the terms of the decision or capable of being inferred from its terms and its context.

Unless that is so then the constitutional right of access to the Courts to have the legality of an administrative decision judicially reviewed could be rendered either pointless or so circumscribed as to be unacceptably ineffective.

The requirement to at least ensure that the basis for the decision must discernible (if not made express) is, therefore, bound up in the judgment with the need to ensure that access to the courts is effective as a remedy to potential rights violations. The question of whether or not judicial review could be an adequate remedy where such fundamental rights were at question arose in a more self-contained manner in the case as well with the Court particularly considering whether infusing reasonableness with proportionality would be sufficient to made judicial review an adequate remedy or whether some different standard, such as the ‘anxious scrutiny’ standard applied in the UK, would be required.

Proportionality analysis and judicial review as an effective remedy

While the Chief Justice did not feel it necessary to engage in a substantial analysis of the English authorities on anxious scrutiny, finding instead that proportionality analyses were sufficient to ensure the adequacy and effectiveness of judicial review, Fennelly J (judgment) considered the matter taking into particular account that

Where unreasonableness is alleged, the applicant will ask the court to examine the decision to see whether the decision-maker has complied with the duty to take account of and to give due consideration to any relevant rights or interests. There is an infinitely broad spectrum of decisions and of contexts and an infinite gradation of rights. There are constitutional rights, statutory and other legal rights, rights guaranteed by the Convention. In the last case, it is relevant that section 3 of the European Convention of Human Rights Act, 2003 places an obligation on every organ of the State to perform its functions in a manner compatible with the State’s obligations under the provisions of the Convention. In the Convention context, we must be conscious that the Court of Human Rights is influenced by the effectiveness of legal remedies against administrative decisions, when it considers the effectiveness of a national remedy pursuant to Article 13.

He held that whether or not judicial review is an appropriate and effective remedy will depend on the manner in which it operates in different contexts. With particular reference to the potential for applying the anxious scrutiny approach, he held:

If we were to adopt the criterion of “anxious scrutiny,” it would follow that different standards of review would apply depending on whether the case was concerned with the protection of different types of right. That is the English “sliding scale” of review. In my view, it is neither appropriate nor necessary to have a different standard of review for cases involving an interference with fundamental, constitutional or other personal rights….It seems to me that the principle of proportionality, more fully developed in the judgments which have been delivered by the Chief Justice and of Denham J, can provide a sufficient and more consistent standard of review, without resort to vaguer notions of anxious scrutiny.

Conclusion

The overall ratio in this important case is well encapsulated in the following extract from the judgment of Denham J at paragraph 51 of her judgment:

In determining the reasonableness of an administrative decision which affects or concerns constitutional rights the standard to be applied is that stated by Henchy J., in The State (Keegan) v. Stardust Victims’ Compensation Tribunal [1986] I.R. 642. This has been set out previously in the judgment, but for clarity I restate it here:

Henchy J. stated at p.658:-
“I would myself consider that the test of unreasonableness or irrationality in judicial review lies in considering whether the impugned decision plainly and unambiguously flies in the face of fundamental reason and common sense. If it does, then the decision-maker should be held to have acted ultra vires, for the necessarily implied constitutional limitation of jurisdiction in all decision-making which affects rights or duties require, inter alia, that the decision-maker must not flagrantly reject or disregard fundamental reason or common sense in reaching his decision.”
This test includes the implied constitutional limitation of jurisdiction of all decision-making which affects rights and duties. Inter alia, the decision-maker should not disregard fundamental reason or common sense in reaching his or her decision. The constitutional limitation of jurisdiction arises inter alia from the duty of the courts to protect constitutional rights. When a decision-maker makes a decision which affects rights then, on reviewing the reasonableness of the decision: (a) the means must be rationally connected to the objective of the legislation and not arbitrary, unfair or based on irrational considerations; (b) the rights of the person must be impaired as little as possible; and (c) the effect on rights should be proportional to the objective.

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