Delsoz v The Garda National Immigration Bureau
| Jurisdiction | Ireland |
| Judge | Mr Justice David Keane |
| Judgment Date | 04 September 2018 |
| Neutral Citation | [2018] IEHC 492 |
| Docket Number | [2017 No. 1468 SS] |
| Court | High Court |
| Date | 04 September 2018 |
[2018] IEHC 492
THE HIGH COURT
Keane J.
[2017 No. 1468 SS]
IN THE MATTER OF AN ENQUIRY PURSUANT TO ARTICLE 40.4.2° OF THE CONSTITUTION OF IRELAND
Unlawful detention – Article 40 Inquiry – Costs – Applicant seeking costs – Whether there was an 'event' for costs to follow
Facts: Humphreys J, on 13 December 2017, directed an Article 40 Inquiry into the lawfulness of the detention of the applicant, Mrs Delsoz, which became moot when Mrs Delsoz was released from detention before it could begin the following day. Mrs Delsoz applied to the High Court seeking her costs of that inquiry against the State. The State countered that, while in its submission it was entitled to its costs of the inquiry against Mrs Delsoz, the appropriate course for the court to adopt was to make no order. The following issues arose for determination: (i) whether there was an 'event' for costs to follow in this case; (ii) whether an Article 40 inquiry that has become moot is different from other moot proceedings; (iii) the proper approach to the costs of proceedings that have become moot where there is no event; and (iv) whether it was reasonable to have sought an Article 40 inquiry.
Held by Keane J that he found no basis on the facts of this case to conclude that the actions that rendered the proceedings moot were carried out in direct response to the issue of the proceedings; there had never been an implicit or explicit acknowledgment or admission by the State of any unlawfulness in the detention of Mrs Delsoz and it followed that there was no 'event' in this case by reference to which the issue of costs could be determined. Keane J held that while the right to personal liberty holds a prominent place in the hierarchy of fundamental rights and that the habeas corpus procedure is enshrined in Article 40.4.2° of the Constitution, it does not follow that this requires the adoption of a completely different approach to the costs of a moot Article 40 inquiry than to the costs of moot proceedings generally, much less that it requires the application of a the particular approach that the Supreme Court had expressly disapproved in Matta v Minister for Justice [2016] IESC 45. Keane J held that the Minister for Justice and Equality's change of position in directing the release of Mrs Delsoz was a reasonable, indeed appropriate, response to the change of circumstances represented by the belated provision of information that, if verified, would establish the entitlement of Mrs Delsoz to exercise EU law free movement and residence rights; it was therefore inappropriate to characterise the proceedings as having become moot by the unilateral action of the Minister. Keane J held that the entitlement of Mrs Delsoz to exercise derived EU law entry and residence rights as the spouse of a Union citizen exercising free movement rights was squarely in issue. Accordingly, Keane J was not satisfied that it was reasonable for Mrs Delsoz to issue proceedings challenging the lawfulness of her detention, prior to (or instead of) providing the Minister with the limited evidence necessary to establish her entitlement to exercise those rights.
Keane J held that he would make no order on the costs of this inquiry.
Costs refused.
Who must bear the costs of an Article 40 Inquiry into the lawfulness of the detention of the applicant, Mrs Gulsanga Delsoz, that Humphreys J directed on 13 December 2017 but which became moot when Mrs Delsoz was released from detention before it could begin the following day?
Bashir Ahmad Delsoz, is a citizen of the United Kingdom and the husband of Mrs Delsoz. Mr and Mrs Delsoz and their children have been residing in the State since 2 June 2015. Mr Delsoz has been doing so as a Union citizen exercising his free movement rights under European Union law. Mrs Delsoz and the couple's five children, all of whom are nationals of Afghanistan, have been doing so as family members of Mr Delsoz and, hence, beneficiaries together with him of the free movement and residence rights conferred by Directive 2004/38/EC ("the Citizens" Rights Directive"), currently transposed by the European Communities (Free Movember of Persons) Regulations 2015 ("the 2015 Regulations").
On 19 September 2016, the Irish Naturalisation and Immigration Service ("INIS") wrote to Mrs Delsoz to inform her that her application for a residence card under Reg. 7(5) of the 2015 Regulations, as a Union citizen family member entitled to reside in the State under Reg. 6 of those Regulations, had been approved. In that letter, Mrs Delsoz was specifically asked to note that the onus was on her to advise the INIS of any change in circumstance that may affect her right to reside in the State under the 2015 Regulations.
Regulation 11 of the 2015 Regulations states in material part:
"(1) A person residing in the State under Regulation 6, 9 or 10 shall be entitled to continue to reside in the State for as long as he or she satisfies the relevant provision of the regulation concerned and does not become an unreasonable burden on the social assistance system of the State.
(2) A family member to whom paragraph (1) applies who is not a national of a Member State shall notify the registration officer of the registration district in which he or she is located—
(a) of any of the following, within 7 days of its occurrence:
(i) a change in his or her place of residence in the State;
...
and
(b) of an absence by him or her from the State for a period that is longer than one month, which notification may be made before his or her departure from the State but, in any case, shall be made no later than 7 days after he or she has been absent from the State for a period of one month."
On 12 April 2016, Mr Delsoz had emailed the INIS to inform it that he and his family had moved to a particular address in Limerick City. Unhappily, Mr Delsoz and his family later moved to another address in Limerick City without notifying the relevant registration officer.
It subsequently came to the attention of the INIS that the payment by the Department of Social Protection to Mr Delsoz of "Family Income Supplement" (a weekly tax free benefit for the families of persons at work on low pay), which had begun on 29 September 2016, had ceased on 7 June 2017 on the basis that Mr Delsoz was no longer in employment. That discovery prompted the INIS to write to Mrs Delsoz on 11 October 2017 at the address that had been provided to the authorities, requesting evidence of her family's current activities in the State, to include details of the employment, self-employment, involuntary unemployment, independent means or course of study, and the place of residence, of each of them. That letter was returned to the INIS marked "returned not called for."
On 31 October 2017, the INIS wrote to Mrs Delsoz again, referring to the events just described, and pointing out that the requirements of Reg. 11 (2) of the 2015 Regulations had not been complied with. The letter continued that, as the evidence then available to the Minister for Justice and Equality ("the Minister") appeared to establish that Mr Delsoz had left the State, since he had not been exercising free movement rights in the State since June 2017, the derived residence rights of Mrs Delsoz and of the couple's children as family members of Mr Delsoz had ceased. Mrs Delsoz was invited to make written representations within 15 working days on why her permission to remain in the State should not be revoked.
The INIS did not receive any written representations from Mrs Delsoz. On 21 November 2017, it wrote to her again at the address that had been provided on her behalf, notifying her of the revocation of the residence permission that had been granted to her under the 2015 Regulations for the reasons already summarised. The letter informed Mrs Delsoz of her entitlement to seek a review of that decision under Reg. 25 of the 2015 Regulations.
Regulation 25 of the 2015 Regulations provides, in material part, as follows:
"(1) A person who has, or who claims to have, an entitlement under these Regulations to enter or reside in the State may seek a review of any decision concerning such entitlement or claimed entitlement.
(2) An application for review under this Regulation shall be submitted to the Minister within 15 working days of the receipt by the person concerned of the decision and shall set out in writing the grounds for review and the particulars specified in Schedule 4.
(3) The Minister may, where he or she is satisfied that it is warranted in the particular circumstances, extend the period referred to in paragraph (2) within which a review must be submitted.
...
(6) A person who makes an application under paragraph (1) for the review of a removal order may, at the same, make an application for the suspension of the enforcement of the order.
(7) Where a person makes an application under paragraph (6), the removal of him or her from the State shall, unless the officer carrying out the review is of the view that the removal decision is based on imperative grounds of public security, be suspended until such time as that officer makes his or her decision under paragraph (5)."
To understand one of the arguments advanced on behalf of Mrs Delsoz, it is also necessary to note that, under Reg. 24, where a notice under the 2015 Regulations is sent to a person by registered post at the address most recently furnished by him or her, it is deemed to have been duly served on, or given to, that person on the third day after the day on which it was sent. Thus, Mrs Delsoz was deemed to have received notification of the revocation of her residence rights on 24 November 2017. Under Part 2 of the Schedule to the Interpretation...
To continue reading
Request your trial