Chain wen Wei & anor v The Minister for Justice & anor (Approved)

      As the applicants had been refused entry by reference to public policy as reflected in the published guidelines of 27 th October 2020, Burns J. found that the refusal was lawful for the purposes of s. 4(3)(j) of the 2020 Act. Burns J. nevertheless granted leave to appeal to the Court of Appeal pursuant to s. 5(2) of the Illegal Immigrants (Trafficking) Act 2000 on the issue of the proper construction of the meaning of the phrase "public policy" in s. 4(3)(j) of the 2004 Act.

      Before proceeding any further, I should state that I entirely agree with the comments of O'Donnell C.J. regarding the form of the stay order which was originally granted by the High Court in this case. This stay order effectively amounted to an open-ended ex parte interlocutory injunction restraining the deportation of the applicants.

      At the heart of the present appeal lies the question of whether s. 4(3)(j) provides for two separate and distinct concepts, namely, national security or public policy. Are these concepts inter-linked in some way or are they (as the High Court and the Court of Appeal considered) two separate and distinct concepts? The applicants can succeed only if they established that the former interpretation is indeed the correct one.

  In examining this question, one may start by saying that while admission into the State is partly governed by obligations imposed by both EU law and international law, any decision regarding entry into the State is at its heart an executive function for the purposes of Article 28.2 of the Constitution, albeit that these executive powers are themselves also regulated by legislation enacted by the Oireachtas. The 2004 Act is itself an example of such legislation.

  As a matter of strict law, only Irish citizens have a legal and unquestioned entitlement to be in the State. While the vast majority of EU citizens (and, by extension, citizens of the EEA) come and go from the State without let or hindrance, in strictness the exercise of these free movement rights is subject to certain exceptions prescribed by the provisions of Article 20 TFEU and Article 21 TFEU and Article 27 of the Citizenship Directive (Directive 2004/38/EC). This is reflected in a variety of statutory instruments.�