Chenchooliah v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 25 October 2019
• Neutral Citation: [2019] IEHC 735
• Docket Number: [2016 No. 937 J.R.]
• Court: High Court
• Date: 25 October 2019

[2019] IEHC 735

THE HIGH COURT

JUDICIAL REVIEW

Richard Humphreys

[2016 No. 937 J.R.]

BETWEEN

NALINI CHENCHOOLIAH

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

Costs – Judicial review – Removal order – Applicant seeking costs – Whether costs should follow the event

Facts: The applicant, Ms Chenchooliah, filed a statement of grounds dated 8th December, 2016 seeking an order of certiorari quashing the decision of the respondent, the Minister for Justice and Equality, declining to make a removal order and an injunction restraining her deportation. MacEochaidh J granted leave on 12th December, 2016. The main point in the proceedings was whether the removal of a third country national who is not a beneficiary of current rights under the free movement directive 2004/38 but formerly enjoyed such rights should be dealt with by way of removal order under the European Communities (Free Movement of Persons) Regulations 2015 (S.I. No. 548 of 2015) implementing the directive or under purely national law by way of a deportation order under s. 3 of the Immigration Act 1999. A secondary issue in the case was, if the removal procedure applies, are the grounds for removal limited to the narrow grounds of public policy, public security and public health and the corresponding procedural protections set out in Part VI (arts. 27to 33, other than 30 and 31, which apply anyway) of the directive or can the broader circumstances that arise, such as where the spouse is not exercising treaty rights, as set out in art. 12 to 15 of the directive, apply. The questions in the case were referred to the CJEU by Keane J by means of a reference signed on 16th January, 2018. Judgment was subsequently given by the CJEU in Case C-94/18 Nalini Chenchooliah v Minister for Justice and Equality (10th September, 2019). In essence the court resolved the main question in favour of the applicant and the subsidiary question in favour of the respondent. On 22nd October, 2019, the applicant first learned of the respondent’s change of position in written submissions delivered by the respondent indicating that the proposal to deport was being withdrawn and that the matter would proceed by removal order. Accordingly the actual reliefs sought in the proceedings no longer arose and the substance of the case could be struck out by consent. The remaining issue then was costs.

Held by the High Court (Humphreys J) that, in principle, costs should follow the event and should be full costs, citing Clarke J, as he then was, in A.C.C. v Johnston [2011] IEHC 500. Humphreys J held that there was not sufficient reason to depart from that starting position. Humphreys J held that this was certainly not a case where the applicant’s counsel wasted the time of the court on irrelevant points.

Humphreys J held that he would award the full costs of the proceedings to the applicant against the respondent, including reserved costs and the costs of proceedings before the CJEU. Having heard counsel further, Humphreys J held that the order would include the costs of the costs hearing itself.

Costs awarded to the applicant.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 25th day of October, 2019

1 The applicant is a third country national who arrived in the State from Mauritius in February, 2005 on a student visa. That visa was renewed from time to time but expired on 7th February, 2012. In the meantime, she married a Portuguese national on 13th September, 2011. Simply by his or her presence here, an EU citizen or family member becomes a rights-holder under art. 6 of the free movement directive 2004/38, but that only lasts for six months: see art. 6(1). The applicant then applied for a residence card under art. 7 which allows for residence for more than three months. That application was rejected on 11th September, 2012 as the applicant had failed to show that the spouse was exercising EU Treaty rights. The letter sent to the applicant informing her of this was marked not called for.

2 The applicant subsequently made contact with the Department of Justice and Equality and sought an extension of time for seeking a review of the refusal. An extension of time was allowed but the actual review application form was not furnished so the applicant's case was sent for consideration of the making of a removal order. The applicant's spouse in the meantime was convicted of a drugs offence in Portugal and was imprisoned there in June, 2014.

3 On 21st October, 2016, the Department wrote to the applicant stating that it had been decided not to proceed by way of removal order but instead that the Department was going by way of deportation. The main point in the present proceedings was whether the removal of a third country national who is not a beneficiary of current rights under the free movement directive 2004/38 but formerly enjoyed such rights should be dealt with by way of removal order under the European Communities (Free Movement of Persons) Regulations 2015 ( S.I. No. 548 of 2015) implementing the directive or under purely national law by way of a deportation order under s. 3 of the Immigration Act 1999.

4 A secondary issue in the case was, if the removal procedure applies, are the grounds for removal limited to the narrow grounds of public policy, public security and public health and the corresponding procedural protections set out in Part VI (arts. 27 to 33, other than 30 and 31, which apply anyway) of the directive or can the broader circumstances that arise, such as where the spouse is not exercising treaty rights, as set out in art. 12 to 15 of the directive, apply.

5 The applicant filed a statement of grounds dated 8th December, 2016 seeking an order of certiorari quashing the respondent's decision declining to make a removal order and an injunction restraining her deportation. The applicant did not challenge the proposal to deport as such. MacEochaidh J. granted leave on 12th December, 2016. The matter was listed for hearing on 20th June, 2017, before Keane J. when the first day's hearing took place. The matter was then listed for mention on 26th June, 2017 and 10th July, 2017 and then for a second day's hearing on 18th July, 2017. It was then listed for mention on 27th July, 2017, 3rd, 17th and 26th October, 2017 and 7th and 24th November, 2017 and the questions in the case were then referred to the CJEU by Keane J. by means of a reference signed on 16th January, 2018. A formal High Court order was not drawn up to refer the proceedings, but that does not really make any difference. The reference document was drafted by counsel for the respondent...