BA v Minister for Justice and Equality

JurisdictionIreland
CourtHigh Court
JudgeMs. Justice O'Regan
Judgment Date30 January 2017
Neutral Citation[2017] IEHC 42
Date30 January 2017
Docket Number[2016 No. 455 J.R.]

[2017] IEHC 42

THE HIGH COURT

JUDICIAL REVIEW

O'Regan J.

[2016 No. 455 J.R.]

BETWEEN
B.A.
APPLICANT
AND
THE MINISTER FOR JUSTICE AND EQUALITY
RESPONDENT

Asylum, Immigration & Nationality – Refusal to issue residence card within specified time – Council Directive 2004/38/ EC – Breach of fair procedures – Mootness – Strict compliance of time-limit.

Facts: The applicant originally sought an order of mandamus to direct the respondent to decide his application for the grant of residence card within the stipulated time mentioned under the Council Directive 2004/38/EC. Before the present application came to hearing, the respondent made its decision on the said application for the grant of residence and thus, the relief sought became moot. However, the key issue remained as to whether the respondent could exercise its discretion by deciding the relevant application beyond the statutory time-limit.

Ms. Justice O'Regan held that the applicant was not entitled for a relief of mandamus. The Court observed that the respondent was under a duty to render its decision with specified time period, failing which, there would be breach of fair procedures and departure from the principles of natural and constitutional justice. The Court, however, noted that the respondent was not mandated to stick to the prescribed time limit in certain cases owing to the existence of some significant facts. The Court held that the respondent was needed to make an individual assessment while deciding the relevant application in which the conduct of the applicant must be evaluated. The Court found that in the present case, the applicant was responsible for such a delay as he had made false representation about his prior criminal conviction in the United Kingdom and failed to produce an amended marriage certificate, which required the need to submit relevant documents from the applicant in order to further proceed with the application.

JUDGMENT of Ms. Justice O'Regan delivered on the 30th day of January, 2017
Issues
1

On the 27th June, 2016 by order of MacEochaidh J. the applicant was afforded leave to apply for judicial review by way of securing an order of mandamus compelling the respondent to issue a decision on the applicant's application for a residence card within the meaning of Council Directive 2004/38/EC and/or the European Communities (Free Movement of Persons) Regulations, 2015.

2

The statement required to ground the application for judicial review is dated the 22nd June, 2016 and complains that the applicant's right to fair procedure and natural and constitutional justice under Article. 6 of the European Convention on Human Rights is not being honoured by the respondent in that the applicant claims to be entitled to a decision on his application for a residence card within a reasonable time and the respondent has delayed processing the application in an egregious and unjustified manner. The applicant also claims that the respondent has no later than 6 months from the date on which the application was submitted to make a decision and therefore it is claimed that the failure is in breach of Article 10(1) of Council Directive 2004/38/EC.

3

Under para. 20 of the statement of opposition bearing date 11th October, 2016 the respondent pleads that this is a particularly suitable case to exercise the Court's inherent discretion in judicial review not to grant an order of mandamus in light of the behaviour of the applicant and/or in all of the circumstances of the case.

Background
4

The applicant is a Nigerian National born in 1985. His application is based upon his assertion that he met and commenced a relationship with JP in the month of December, 2014 and subsequently arrived in Ireland in April, 2015. He asserts that he was married on the 5th November, 2015 and on the 16th November, 2015 he applied to the respondent for a residence card which application was received on the 18th November, 2015 by the respondent.

5

Following the receipt of the application as aforesaid information was sought of the applicant by the respondent on the 26th January, 2016 and a response was furnished by the applicant on the 9th February, 2016. On the 25th February, 2016 further clarification was sought on the basis of the respondent asserting that the applicant had made a number of omissions in his application, namely that:—

(a) He was convicted in the Central Criminal Court in the UK on the 10th September, 2013 of computer fraud for which he was sentenced to 15 months in prison — in this regard in the applicant's application he denied any criminal conviction in this state or abroad.

(b) The applicant stated that his civil status at the time of his marriage to JP on the 5th November, 2015 was that of single whereas on the 23rd November, 2009 the applicant was issued with an EEA residence card in the UK as the spouse a Belgian national. In this regard a statement was included to the effect that the applicant should inform the GRO of the discrepancy contained in his current marriage certificate and seek to have it amended.

(c) The applicant advised the UK Home Office on the 16th December, 2015 that he had returned to Nigeria.

(d) In addition to the foregoing the respondent sought evidence of his divorce from his Belgian national wife and clarification of the above omissions.

6

By way of response on the 4th March, 2016 the applicant's solicitors indicated that the applicant would contact the GRO to have the discrepancy of his marriage certificate amended and they also enclosed a copy of the applicant's divorce papers from his first wife together with a letter in which the applicant states that he indicated that he did not have a criminal record as he honestly thought that as he was living in Ireland he had no criminal record even though the application did ask whether he had a criminal record abroad. He further indicated that he advised the UK Home Office that he had returned to Nigeria because he did not want the UK to know he was now in Ireland.

7

Notwithstanding the representations made by the applicant's solicitor as to securing an amendment to the discrepancy on the applicant's marriage certificate it is the case that the amended marriage certificate was not at any time provided to the respondent.

8

Prior to the institution of the within proceedings by letter dated the 16th June, 2016 the applicant's solicitors indicated that the applicant had been waiting for a considerable period of time for a decision in the matter and called upon the respondent to make a decision within 10 days of the date of the letter failing which necessary steps would be taken to protect the applicant's interests, including the making of an application to the Court. In a response letter dated the 24th June, 2016 but not available to the applicant at the time of processing of the leave application the respondent required 3 items of documentation within 7 days in order to finalise the application and it was indicated that the decision in respect of the applicant would issue on receipt of such documents. These documents were:—

(a) An amended marriage certificate.

(b) P60 for 2015 in respect of the EU citizen.

(c) Further invoices and bank statements in respect of the EU citizen.

9

The applicant's solicitors in a letter dated the 1st July, 2016 furnished tax credit certificates, an AIB bank statement and a pay slip for the applicant's wife together with untitled receipts. It was indicated that the applicant did not have an amended marriage certificate. The issue of a P60 for Ms. P was not addressed.

Legislative background
10

Directive 2004/38/EC contains the relevant provisions for an EU citizen and their family members moving and residing freely within the territory of the member states. Under Article 10(1) thereof it is provided:—

'The right of residence of family members of a Union citizen who are not nationals of a Member State shall be evidenced by the issuing of a document called 'Residence card of a family member of a Union citizen' no later than six months from the date on which they submit the application. A certificate of application for the residence card shall be issued immediately.'

11

The respondent has also made reference to Article 35 which provides:—

'Member States may adopt the necessary measures to refuse, terminate or withdraw any right conferred by this Directive in the case of abuse of rights or fraud, such as marriages of convenience. Any such measure shall be proportionate and subject to the procedural safeguards provided for in Articles 30 and 31.'

12

Notwithstanding reference to Article 35 aforesaid on behalf of the respondent, nevertheless the respondent does not refer to any measures taken by the State in accordance with the entitlement provided in Article 35.

Net issue before the Court
13

The respondent in fact made a decision on the 12th October, 2016. Therefore the issue of mandamus was rendered moot. The respondent sought, notwithstanding that the issue of mandamus was rendered moot, that the Court would nevertheless deal with the issue of mandamus as same would be relevant to other cases in which Mandamus has been sought. In this regard the parties accepted the Supreme Court decision of 16th October, 2012 in Okunade v. Minister for Justice Equality & Law Reform [2012] I.R. 152 as being relevant and establishing the principle that notwithstanding that although the application before the Supreme Court on appeal had become moot, that the issues might nevertheless be dealt with if the appeal was relevant to a significant number of other cases. Reference was also made to the Supreme Court judgment of Lofinmakin v Minister for Justice, Equality and Law Reform [2013] 4 I.R. 274 to the effect that exceptional circumstances are required before a Court will deal with a moot case. The parties also referred to the judgment of Humphreys J. of...

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1 cases
  • M.E. v Refugee Appeals Tribunal
    • Ireland
    • High Court
    • 17 July 2017
    ...interest of justice to deal with same. The position with regard to mootness was outlined by this Court in B.A. v. Minister for Justice [2017] IEHC 42:- ‘The respondent in fact made a decision on the 12th October, 2016. Therefore the issue of mandamus was rendered moot. The respondent sought......

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