Fernandes v The Minister for Justice and Equality
| Jurisdiction | Ireland |
| Judge | Mr. Justice Richard Humphreys |
| Judgment Date | 09 March 2020 |
| Neutral Citation | [2020] IEHC 171 |
| Docket Number | [2019 No. 878 JR] |
| Court | High Court |
| Date | 09 March 2020 |
[2020] IEHC 171
Richard Humphreys J.
[2019 No. 878 JR]
THE HIGH COURT
JUDICIAL REVIEW
Judicial review – Leave to land – Costs – Applicant seeking an order of certiorari quashing the refusal of leave to land – Whether the proceedings became moot due to the unilateral act of one party and, if so, whether that had a causal nexus with the proceedings
Facts: The applicant, Mr Fernandes, a Portuguese citizen, arrived in the State on a Brazilian passport travelling from Spain on 2nd December, 2019 and was refused leave to land under s. 4(3)(k) of the Immigration Act 2004 on the basis that the proposed entry was for purposes other than those expressed. He was detained under s. 5 of the Immigration Act 2003 and taken to Cloverhill Prison. He sought an order of certiorari quashing the refusal of leave to land. On 5th December, 2019 the Portuguese Embassy telephoned the CSSO stating that the applicant held Portuguese nationality because his father was such a national. On that basis, the State agreed to release the applicant from custody, on the understanding that the applicant would apply for a Portuguese identity card. The applicant was transferred from Cloverhill Prison to Irishtown Garda Station and released later on 5th December, 2019. On 6th December, 2019 the Portuguese Embassy emailed the CSSO to state that the application for a Portuguese identity card had been made. The only issue remaining was that of costs.
Held by the High Court (Humphreys J) that the development that made it unnecessary for the proceedings to be prosecuted was the State’s decision to release the applicant, so in that sense, it was the act of the State that gave rise to the proceedings becoming moot. Humphreys J held that there was no causal nexus between the act rendering the proceedings moot and the taking of the proceedings themselves. While the applicant got an injunction, and that helped to buy time to allow the appropriate information to be produced, Humphreys J held that this in itself could not carry with it a right to costs if the overall default approach of no order as to costs would, but for that, apply; otherwise injunctions and indeed undertakings would be severely disincentivised if it was to be implied that they presumptively carried with them some entitlement to costs at the end of the day. Humphreys J held that, in the circumstances, the injunction was, if anything, a concession to the applicant, given that the actual documentary proof of the Portuguese citizenship had yet to be produced at that stage; costs were reserved, but the intention and effect was that they would travel with the cause. Humphreys J held that an approach that there is to be order as to the costs of the cause should, unless it is otherwise appropriate, also apply to the injunction; and here it was not otherwise appropriate. In particular, Humphreys J found that there was no basis to depart from the default approach to allow the applicant the costs of the injunction application because the position at that time had yet to be clarified by the Portuguese authorities. Humphreys J refrained from granting costs of the costs application to the respondent in all the circumstances of the case, particularly given that the applicant did ultimately establish some sort of entitlement to be in the State.
Humphreys J held that there would be no order as to costs including no order as to reserved costs.
No order as to costs.
The applicant is a Portuguese citizen who arrived in the State on a Brazilian passport travelling from Spain on 2nd December, 2019 and was refused leave to land. He interacted with Garda Michael Freeney of the Border Management Unit and there has been some dispute as to what, precisely, he told Garda Freeney.
Neither side has sought cross-examination of the other side's deponent for the purpose of clarifying the facts, so consequently I emphasise that I cannot make a definitive finding of fact as to what exactly happened at the border. However, bearing in mind that the onus is on the applicant at all times, certainly his version cannot be accepted insofar as it differs from Garda Freeney's.
Garda Freeney says that he ascertained that the credit card used to book the applicant's accommodation had been declined. The card was in the name of the applicant's brother who was present in the State on a stamp 2 permission. The applicant had €900 in cash on his person. The applicant claims he asserted Portuguese citizenship on arrival, but Garda Freeney says he never made any claim of that kind. He did, however, have in his possession what purported to be a Portuguese birth certificate.
Garda Freeney avers that the applicant said he knew nobody in Ireland, but it is clear that the applicant's brother was here at all material times. Garda Freeney goes on to say that the applicant said that the brother was in Brazil. He says that the applicant was shown a picture of the brother and eventually admitted that the brother resided in the State. The applicant was asked for proof of employment in Brazil, which was produced in the form of an unsigned letter stating that he was on vacation until the 31st December, 2019. Garda Freeney says he examined the applicant's WhatsApp messages and the majority of the conversations and the internet history had been wiped. Consequently, he formed the suspicion that this was done to conceal information from the immigration authorities. Messages from the brother were on the phone, but to the effect, in Garda Freeney's opinion, of coaching to the applicant as to what to say at the border. The applicant was then refused...
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