Supreme Court to decide meaning of word ‘or’ following clashing interpretations

The meaning of the word “or” when it appears in statutes will be considered by a bench of at least five Supreme Court judges as part of appeals by two Malaysians who were refused entry to land in this State.

The use of the two-letter word in a subsection of the 2004 Immigration Act led to clashing High Court decisions due to opposing conclusions on whether the word had a disjunctive or conjunctive effect.

Subsection 4(3)(j) provides that permission to land in the State may be refused if an officer is satisfied the foreign national’s presence here “could pose a threat to national security or be contrary to public policy”.

In a 2015 ruling, Mr Justice Richard Humphreys found the reference to “public policy” should be considered separately and distinctly from “national security”.

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This departed from a 2011 judgment by Mr Justice Gerard Hogan (now a Supreme Court judge), which considered the public policy reference as “but another variant of the concept of national security”, whereby it implies that the personal conduct of an immigrant “poses a real and immediate threat to fundamental policy interests of the State”.

The issue arose again in 2021, when Ms Justice Tara Burns found the State was entitled to refuse, on public policy grounds, two Malaysians permission to land in Ireland during a “level three″ pandemic lockdown to study online English language courses here.

In judicial review cases, Chain Wen Wei and Tang Ting Ting alleged the refusals under public policy must be seen as connected to national security, as per Mr Justice Hogan’s analysis. Such a view requires the Minister of Justice and the Commissioner of An Garda Síochána to consider if an immigrant’s personal conduct poses a real and immediate threat to the fundamental interests of the State, they argued.

However, Ms Justice Burns favoured Mr Justice Humphreys’s definition, as she found the earlier ruling did not sufficiently account for the word “or” in the subsection. Her decision, dismissing the cases, was upheld in the Court of Appeal.

The Supreme Court has now agreed to bring clarity to the quandary in the further appeals of Wen Wei and Ting Ting.

A panel of three Supreme Court judges said the case “raises difficult questions of statutory interpretation” which has resulted in differing High Court decisions. It also presented difficult issues relating to the rule as to context, the doctrine of construction, and the circumstances in which the word “or” is to be regarded as disjunctive or conjunctive in interpreting statute.

Further to this, the appeals raise significant and important issues about the operation of the 2004 Act and the precise ambit of the public policy provisions contained in section 4(3)(j), the judges said.

The court will examine whether public policy in this sense can be equated with “government policy” and, if so, whether the policy requires some independent statutory foundation.

The appeals have obvious implications for virtually all non-EU/European Economic Area (EEA) travellers seeking to enter this State, the panel said. The applicants submitted European Commission figures showing that 9,240 non-EEA nationals were refused entry to this State in 2022.

Chief Justice Donal O’Donnell, Mr Justice Séamus Woulfe and Mr Justice Hogan said it is appropriate to grant the applicants leave to appeal.

In upholding the dismissal of the students’ appeals last June, the Court of Appeal found the Minister adopted a “perfectly rational” policy of not permitting a student to enter the State for an online course.

A 2011 Irish Naturalisation and Immigration Service policy forbids students from non-EEA countries from entering the State for an online English language course.

An exemption introduced during Covid-19 allowed certain non-EEA students to remain in Ireland for courses that were moved online due to the pandemic, but this did not extend to people seeking to enter to pursue online studies. The Department of Justice said prospective students seeking to enter the State should wait until in-person tuition resumed.

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