Ammad Mahfooz v The Minsiter for Justice and Equality

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 28 October 2021
• Neutral Citation: [2021] IECA 286
• Court: Court of Appeal (Ireland)
• Docket Number: Record No.: 2020/18

Between/

Ammad Mahfooz

Appellant

and

The Minsiter for Justice and Equality

Respondent

and

Aija Namike

Notice Party

[2021] IECA 286

Donnelly J.

Noonan J.

Binchy J.

Record No.: 2020/18

THE COURT OF APPEAL

Deportation order – Revocation – Order of mandamus – Appellant appealing against a refusal to grant him an order of mandamus – Whether the alleged failure to consider the appellant’s fundamental rights had been established

Facts: The appellant, Mr Mahfooz, appealed to the Court of Appeal against a refusal to grant him an order of mandamus arising out of his application to revoke a deportation order against him and also to decide on his application for a residence card. The appellant had already lost at first instance and on appeal an application made under Article 40 for his release from detention pending deportation was unsuccessful. The main thrust of the judicial review proceedings, issued but not moved at the same time as the Article 40 application, was focused on his right to relief pending determination of his application. The appellant’s argument on appeal was primarily directed towards establishing that the decision of the Court of Justice of the European Union in Chenchooliah v Minister for Justice and Equality (Case C-94/18), delivered after the leave application but before the High Court hearing, gave him rights which required an urgent decision in his favour on the basis of his relationship with an EU national who was exercising Treaty rights in Ireland.

Held by Donnelly J that the trial judge was correct in holding that the alleged failure to consider the appellant’s fundamental rights, the only ground remaining in the case, had not been established where no decision had yet been taken by the respondent, the Minister for Justice and Equality. The trial judge held that delay was not pleaded and that on that basis the application could be refused. Nonetheless he went on to consider the issue of delay. Donnelly J held that the trial judge was also correct in holding that there was no delay, in the sense of egregious or unjustified delay in the proceedings. Donnelly J held that regardless of whether the lapse of time was termed delay, lack of urgency or unreasonable, the appellant failed to establish that there was any such breach in the circumstances of the case. Donnelly J held that the issues identified in Chenchooliah were not part of the pleadings in the case and even if they were, they would not alter the outcome of the case. Without deciding whether the appellant was correct or incorrect that these gave him an automatic right to have his residence card granted and his deportation order revoked, Donnelly J held that these were still issues which required at least some consideration by the Minister. Given the complexity of the issues and the time frame involved, Donnelly J held that there was no error in refusing to grant the appellant an order of mandamus.

Donnelly J held that the appeal would be dismissed. Given that the appellant had failed in the appeal, Donnelly J held that the Minister was entitled to the costs of the appeal, to be adjudicated in default of agreement.

Appeal dismissed.

JUDGMENT of Ms. Justice Donnelly delivered on the 28th day of October, 2021

1 This appeal concerns matters relating to the appellant's immigration status. In writing a judgment it is usual to set out at an early stage the issues between the parties. That is not possible in this case because the parties take opposing views on what the underlying appeal is actually about. It is therefore necessary to set out in some detail, the reliefs sought and the history of the litigation between the parties.

2 On the 1st July, 2019, the High Court (Humphreys J.) gave leave to the appellant to apply by way of an application for judicial review for the following reliefs as set forth in the statement of grounds:

• I. An order of mandamus to compel the Minister to make a determination of the appellant's application under s. 3(11) of the Immigration Act, 1999 (“the Act of 1999”) for revocation of the deportation order issued in respect of the applicant dated the 3rd August, 2018;

• II. An order of mandamus to compel the Minister to make a determination of the review under regulation 25 of the European Communities (Free Movement of Persons) Regulations, 2015 (“the Regulations”) of his application for permission to remain as a “permitted family member” of a European Union national under Regulation 5(2) of the Regulations;

• III. A declaration that, where an applicant's application as a “permitted family member” of a European Union national is being considered by the Minister, his servants or agents, at first instance under Regulation 5 or on review under regulation 25 of the Regulations, then the applicant may only be removed under the provisions of the Regulations and/or Directive EU 2004/38/EC (“the Directive”) and may not be deported only or at all under the provisions of the Act of 1999.

• IV. An injunction, including an interim injunction, restraining the Minister, his servants or agents, from taking any further steps in relation to the removal of the applicant from the State pending the determination of the within proceedings.

3 What is unusual about the grant of leave is that by the time the order granting leave was made the injunctive relief claimed at IV was completely moot. On the 13th June, 2019 following an unsuccessful appeal to the Court of Appeal in Article 40 proceedings, the appellant had been deported to his native country of Pakistan.

4 Another curious feature of the order granting leave to apply for relief is that it refers to affidavits of the notice party and the solicitor for the appellant both filed on the 6th June, 2019, whereas we have an affidavit of the notice party sworn on the 11th June, 2019 and an affidavit of the solicitor on the 12th June 2019. Even more curiously the affidavit of the solicitor for the appellant entitled “Second Affidavit” was sworn on the 11th June, 2019 and apparently filed that day.

5 This litigation is the appellant's third set of proceedings taken against the State in respect of his immigration status. The notice party to these proceedings, the appellant's partner (now purported wife), a Latvian national exercising her rights to live and work in the State under the Directive, took a fourth set of proceedings against the State in respect of the appellant's immigration status. It appears that the same solicitor and counsel acted for the appellant and notice party in all four proceedings. Subsequent to the oral hearing of the appeal, we were informed that the notice party, has withdrawn those proceedings.

6 The relevant background to those claims can be set out as follows;

1 January 2015	The appellant, a Pakistani national, entered the State without permission.
10 February 2015	The appellant applied for asylum on the ground of fear of persecution for political opinion.
19 September 2017	The application for international protection was denied by the International Protection Officer. The appellant was also denied permission to remain under s. 49(4)(b) of the International Protection Act 2015 (“the Act of 2015”).
21 March 2018	An appeal by the appellant to the International Protection Tribunal was refused.
16 May 2018	The appellant sought a review of the refusal to grant him leave to remain under s. 49(7) and (9) of the Act of 2015 with the submission of additional information on the 16th May, 2018.
29 June 2018	The Minister upheld the decision to refuse the appellant leave to remain.
26 July 2018	The appellant was notified of the decision of refusal for leave to remain.
3 August 2018	The Minister signed the deportation order pursuant to s. 50 of the Act of 2015.
14 August 2018	Letter dated the 14th August, 2018 notified the appellant of the signed deportation order.
10 September 2018	Appellant granted leave for judicial review of the s. 49(7) decision, Record No. 2018/690/JR.
15 January 2019	Appellant and notice party receive a notice of an appointment from the Civil Registration Service regarding their proposal to marry, scheduled for the 31st January, 2019.
24 January 2019	Appellant submits an application for revocation of the deportation order under s. 3(11) of the Act of 1999.
25 January 2019	Appellant withdraws his application for judicial review, Record No. 2018/690/JR.
25 January 2019	Appellant's solicitors write to the Irish Naturalization and Immigration Services (INIS) requesting revocation of the deportation order and an undertaking not to implement the deportation order.
20 February 2019	Appellant applies for a residence card based on his relationship with the notice party as a “partner in a durable relationship” under Regulation 5(2) of the Regulations.
26 March 2019	Minister refuses EEA application based on “insufficient evidence of a durable relationship”.
2 April 2019	Appellant and notice party lodge notice with the Civil Registration Service of their intention to marry on the 25th July, 2019.
9 April 2019	Appellant's solicitors write a letter to INIS requesting revocation of the deportation order and an undertaking not to implement the deportation order.
11 April 2019	Appellant applies for a review of EEA refusal under Regulation 25 of the Regulations.
15 April 2019	EU Treaty Rights Review Unit confirmed it would carry out a review under Regulation 25 of the Regulations.
16 April 2019	Request for an undertaking denied by the INIS.
25 April 2019	Office of the Registrar General advises the Civil Registration Office that the notice party's divorce of the 16th August, 2018 was in order and that the marriage may proceed provided all other requirements have been met.
30 May 2019	Appellant's solicitors write again to INIS requesting revocation of the...