Courts

Supreme Court dismisses appeals brought by Malaysian students refused entry to study online course

Meaning of the word ‘or’ a material factor in the case

Malaysian students Chain Wen Wei and Tang Ting Ting claimed they were wrongly refused entry to the country during the Covid-19 pandemic. Photograph: Crispin Rodwell
Malaysian students Chain Wen Wei and Tang Ting Ting claimed they were wrongly refused entry to the country during the Covid-19 pandemic. Photograph: Crispin Rodwell
Paul Neilan
Thu Dec 19 2024 - 20:17

The Supreme Court has dismissed appeals brought by two Malaysian students who claimed they were wrongly refused entry to the country during the Covid-19 pandemic due to the incorrect interpretation of the word “or” in a section of the Immigration Act.

In December 2020, during a “level 3″ lockdown, Chain Wen Wei and Tang Ting Ting arrived at Cork Airport in order to pursue an English language course that was to be moved online. However, both appellants were refused entry by immigration officers.

At the time an exemption introduced during the pandemic allowed certain non-EEA students to remain in Ireland for courses that were moved online due to Covid-19 restrictions, but this did not extend to people seeking to enter Ireland 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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The refusal of entry came under section 4 of the Immigration Act 2004, which provides that permission to enter the State can be denied if the immigration officer is satisfied the “foreign national’s entry into the State could pose a threat to national security or be contrary to public policy”.

The appellants challenged the decision by taking actions against the Minister for Justice and An Garda Síochána over the meaning of the section.

In a Supreme Court judgment dismissing the appeal on Thursday, Mr Justice Séamus Woulfe gave consideration to the meaning of the word “or” in the case.

The use of the two-letter word in subsection 4(3)(j) of the Act led to clashing High Court decisions due to opposing conclusions on whether the word had a disjunctive or conjunctive effect.

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

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”.

In their 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 Garda Commissioner to consider if an immigrant’s personal conduct poses a real and immediate threat to the fundamental interests of the State, they argued.

However, the High Court and Court of Appeal favoured Mr Justice Humphreys’s definition, as they found Mr Justice Hogan’s ruling did not sufficiently account for the word “or” in the subsection. That decision was then appealed by both students to the Supreme Court.

At the Supreme Court, Mr Justice Woulfe said the word “or” was to be considered as a “disjunctive” word.

He said the use of the word “or” means that the phrases “pose a threat to national security” and “be contrary to public policy” are “distinguished from each other and set up as alternatives”.

He said that national security meant the security or safety of a country and includes matters concerning the military and intelligence gathering. Public policy was a wider concept relating to the achievement of the public good and public interest, he said.

The judge said there was not a sufficient overlap between the two “distinct concepts” for them to be viewed as functioning in conjunction with each other, as the appellants submitted.

Mr Justice Woulfe held that the immigration officers were entitled to refuse entry to the appellants on the grounds that their entry would be contrary to public policy under guidelines, triggered by the Covid-19 pandemic, denying people coming to Ireland for a distance learning course.

Of the five-judge panel, Chief Justice Donal O’Donnell, Ms Justice Aileen Donnelly and Mr Justice Brian Murray agreed with Mr Justice Woulfe, while Mr Justice Hogan gave a dissenting judgment.