Druzinins & Druzinina v Min for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 16 March 2010
• Neutral Citation: [2010] IEHC 84
• Docket Number: [No. 1110 J.R./2009]
• Court: High Court
• Date: 16 March 2010

[2010] IEHC 84

THE HIGH COURT

[No. 1110 J.R./2009]

Druzinins & Druzinina v Min for Justice

JUDICIAL REVIEW

BETWEEN/

SERGEJS DRUZININS AND NADZEYA DRUZININA

APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY & LAW REFORM

RESPONDENT

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) REGS 2006 SI 226/2006 REG 6

NEARING v MIN FOR JUSTICE UNREP COOKE 30.10.2009 2009 IEHC 489

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) REGS 2006 SI 226/2006 REG 6(2)(B)

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) REGS 2006 SI 226/2006 ART 7(3)(B)

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) REGS 2006 SI 226/2006 REG 7(2)

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) REGS 2006 SI 226/2006 REG 6(2)(A)(I)

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) REGS 2006 SI 226/2006 REG 6(2)( C) (II)

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) REGS 2006 SI 226/2006 REG 7(1)( C )

EUROPEAN UNION

Free movement of persons

Family residence member card - Moot - Card issued prior to hearing - Costs of proceedings - Absence of automatic entitlement to costs - Whether entitlement in law to relief claimed - Application as spouse of EU citizen in employment - Failure to notify Minister as to redundancy - Request for review of refusal in effect new application based on new circumstances - Reasonableness of expecting temporary extension of visa until conclusion of review - Whether reasonable to commence proceedings to safeguard legitimacy of presence in State - Balance of justice - Nearing v Minister for Justice, Equality and Law Reform [2009] IEHC 489, (Unrep, Cooke J, 30/10/2009) considered - European Communities (Free Movement of Persons) Regulations 2006, reg 6 - 50% costs awarded to applicants (2009/1110JR - Cooke J - 16/3/2010) [2010] IEHC 84

Druzinins v Minister for Justice, Equality and Law Reform

Mr. Justice Cooke

1 By order of 3^rd November, 2009 leave was granted to the applicants to seek relief by way of judicial review including, in particular, an order of mandamus, requiring the respondent to issue to the second named applicant a family member residence card under regulation 6 of the European Communities (Free Movement of Persons) Regulations 2006 ("the 2006 Regulations") for which an application had been made to the Minister on 28^th January 2009 and which had been initially refused by him on 10^th June, 2009.

2 Following the filing of the statement of opposition and replying affidavit, the matter was listed for hearing first on 15^th February, 2010 and then on 2^nd March, 2010. When the matter was called on for hearing on the latter date, the Court was informed that the substantive issue had become moot because the requested card had been issued to the second named applicant on 17^th February, 2010, that is two days after the first hearing date. As a result, the only issue before the Court was the issue as to liability for the costs of the proceeding. Each of the parties claims to be entitled to an order for costs against the other.

3 As this Court pointed out in the analogous circumstances considered in its judgment in the case of Russell Nearing v. Minister for Justice, Equality & Law Reform (Unreported, High Court, Cooke J., 30^th October, 2009,) there is no automatic entitlement on the part of an applicant to costs in a judicial review proceeding by reason of the sole fact that the result sought to be achieved at the outset has become moot since the proceeding was brought because the respondent has done what was demanded in the interim. If reliance is sought to be placed upon the primary rule that costs will follow the event, the 'event' is not the issue of the demanded decision but the acknowledgment or concession that the proceeding was well founded when commenced and thus that the decision had been wrongfully refused or unlawfully delayed at that point. Once again, that is the disputed issue between the parties now before the Court.

4 The first named applicant says that he moved to Ireland in July, 2004 shortly after his country of origin, Latvia, acceded to the European Union. He claims to have been living and working in the country since that date although, so far as the evidence given to the Minister goes, his employment appears to date from September, 2007.

5 The second named applicant is a native of Belarus. The applicants married in Latvia on 2^nd August, 2008. The second named applicant has a daughter from a previous relationship whom the first named applicant regards as his stepdaughter. Mother and daughter came to Ireland in December, 2008 to join the first named applicant.

6 On 29^th January, 2009 the second named applicant applied on form EU1 to the respondent for a residence card as the spouse of the first named applicant under the Regulations. Amongst the items submitted with that form to show compliance with the conditions laid down in Regulation 6 (2)(b) of the 2006 Regulations, was confirmation that the first named applicant had been employed since 3^rd September, 2007 with an undertaking called "Airport Autocare".

7 By letter of 10^th June, 2009 the application for the residence card was refused. The letter referred to the items purporting to show the basis upon which the first named applicant was exercising his Treaty right to work in Ireland and then gave the reason for refusal as follows:

"… On contacting the above named employer it has come to the attention of this department that Mr. Druzinins is no longer employed with Airport Autocare. The Department was not informed of this change in circumstances and therefore there is no evidence on file that Mr. Druzinins is currently exercising EU Treaty Rights in the State. The documentation provided therefore does not satisfy the Minister that the EU citizen spouse is exercising his rights in accordance with the requirements of Regulation 6 (2)(a) of the Regulations or Article 7 of the Directive. Hence you are not entitled to reside in the State in accordance with Regulation 6 (2)(b) of the Regulations or Article 7 (2) of the Directive."

The letter also informed the second named applicant that her current permission to remain in the State would expire on 28^th July, 2009. The permission had been granted on the basis of the EU Treaty Rights application and she was informed that it would not then be renewed.

8 By letter of 25^th June, 2009...