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Leontjava v DPP

Leontjava v DPP [2004 1 IR 591 ]; [2004] IESC 37; [2005] 1 ILRM 214 was a deportation case in which the Irish Supreme Court reversed the High Court's judgment and affirmed the constitutionality of section 5 (1) of the Aliens Act, 1935 and section 2 of the Immigration Act, 1999.

Background
Leontjava (the applicant) a Latvian national, was apprehended on the 5th of June 2003 and was arraigned in the District Court for breaking a condition of her leave to land in the state, pursuant to the Aliens Act, 1935 and the Immigration Act, 1999. The application was thus charged with violating the provisions of the Aliens Order of 1946 and the Immigration Act, of 1999. As a result, the applicant initiated a judicial review proceeding, seeking to prohibit her trial. In the proceeding, the applicant contended that section 5(1) of the Aliens Act 1935, was invalid and inconsistent with the provisions of the Constitution. The applicant further contended that section 2(1) of the Immigration, Act 1999, was repugnant to the provisions of the Constitution of Ireland, and hence invalid. The High Court declared Article 5(6) of the Aliens Order of 1946 unconstitutional in terms of being ultra vires. The High Court also declared that section 5(1) of the Aliens Act, 1935, and section 2 of the Immigration, Act 1999 were unconstitutional. According to the High Court the Ministerial regulation that prompted the creation of the Aliens Order of 1946 was repugnant to the established constitutional process for law making. Dissatisfied with the High Court’s judgment, the DPP (“the respondent”) to the Supreme Court.

Holding of the Supreme Court
In a judgment delivered by Finlay Geoghegan J. on the 22nd of January 2004, the Supreme Court reversed the High Court's judgement regarding section 5(1) of the Aliens Act, 1935, and section 2(1) of the Immigration Act, 1999. The Court held that the Oireachtas (the Irish parliament) could make legislation, even though the substantive Act did not explicitly provide for such entitlements. The Court held further that it was not satisfied with the applicant's contention that section 2 of the Immigration Act, 1999, was unconstitutional.

In summary, a fundamental principle established in the Leontjava case, therefore, is that the Oireachtas has an entitlement to make legislation. In addition, section 2(1) of the Immigration Act, 1999, was not unconstitutional as claimed by the applicant.

Subsequent developments
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Refer forward to subsequent cases citing this decision as a precedent.

The principle established by the Supreme Court in Leontjava v DPP has subsequently been applied in subequent cases, For example, in Bederev v. Ireland, The Attorney General & Ors, the Supreme Court, in a judgement delivered by John MacMenamin J., revisited its decision in the Leontjava case. It reaffirmed that section 5(1) of the Aliens Act, 1935, and section 2(1) of the Immigration Act, 1999, were not repugnant to the Irish Constitution.

Background
Following the assault and subsequent death of her husband in a Dublin Hotel on the 20th of April 1997, Angela Tomlinson (“the applicant”) applied to the Criminal Injuries Compensation Tribunal (“the respondent”) for compensation, pursuant to the Scheme of Compensation for Personal Injuries Criminally Inflicted. On the 24th of September 2002, the respondent informed the applicant that her compensation claim had been considered and an award of €30,571.02 plus £431,000.00 consequently made. The applicant was also informed about her right to appeal and the procedure for executing the appeal. She was notified that the appeal was a hearing de novo at which the sum awarded could be confirmed, varied, or refused in its entirety. A copy of the decision of the respondent attached to the latter of the 24th of September 2002 sent to the applicant indicated that the respondent had found sufficient evidence to believe that the applicant’s application for compensation was made within the scheme. The letter equally provided a breakdown of how the award was made. Notably, the breakdown included an award for the loss of earnings (stg £990,000.00), a loss of company car (stg £33,000.00), and benefits paid the death of the applicant's husband (stg£592,000.00). The total award arrived by the respondent for loss of wages, including the company car was (stg£431,000.00). The respondent also stated an award of a total sum of €25,394.96 for what it described as mental distress. The applicant was entitled to an amount of €15,394.96 out of the total amount awarded for mental distress. Other beneficiaries of the mental distress sum included the applicant's three sons, mother-in-law, and two brothers-in-law.However, the applicant contested the respondent’s deduction of stg£592,000.00. She argued that the deduction was unlawful under the scheme and amounted to more than the respondent’s jurisdiction. The applicant consequently applied for leave for judicial review of the respondent’s action. On the 16th of December 2002, the High Court judge O’Higgins J. granted the applicant leave for judicial review. In his ruling, the learned judge declared that the respondent’s deduction of the sum stg£592,000 was ultra vires, void, and ineffective. The High Court also issued an Order of Mandamus directing the respondent to determine the compensation payable to the applicant based on the relief sought by the applicant. In addition, the High Court quashed the respondent's deduction of stg £592,000 from the compensation to the applicant.

The applicant appealed the decision of the High Court. On the 3rd of March 2004, Kelly J., referring to the decision of the Supreme Court in Garvan v Criminal Injuries Compensation Tribunal, refused the application. The learned judge observed that courts ought to be hesitant to utilize judicial review except to rectify a respondent's ultimate decision. The judge, referring to the decisions in The State (Abenglen Properties) v. Dublin Corporation and McGoldrick v. An Bord Pleanála, observed that it would be inappropriate for the court to intervene by way of judicial review before all the mechanisms provided under the scheme had been exhausted. The applicant appealed to the Supreme Court.

Holding of the Supreme Court
In an approved judgment delivered on the 19th January 2005 by Denham J. on behalf of the three-judge bench, the Supreme Court observed that the jurisdiction of the respondent to make the decision of deducting the sum of sterling £592,000 was the core issue in the case. The Court noted that the right alternative approach emphasized by the lower court was substantial. Such a remedy could not, therefore, be used to deny the applicant the right to the court process. In addition, as a matter of common sense, the Court held the view that judicial remedy would provide a more just approach to remedying the applicant for the intra vires deductions made by the respondent. Therefore, in the opinion of the Court, proceeding by way of judicial review would provide the just result. Consequently, the Court, in paragraph 23 of its ruling, allowed the appeal and remitted the matter to the High Court to allow the the substantial judicial review to proceed. The Supreme Court further opined that it would be unnecessary for the matter to be heard by the same judge since the issues before the High Court would be substantive rather than preliminary. Accordingly, the Court remitted the matter to the High Court’s list of reviews. In addition, the principle established by the Supreme Court in Tomlinson v Criminal Injuries Compensation Tribunal is that judicial review is the most just remedy for the respondent’s intra vires deductions. The argument for the right of an alternative remedy is not therefore, compelling in the opinion of the Court.