Gulyas v Minister for Justice

JurisdictionIreland
JudgeMs. Justice Carroll
Judgment Date25 June 2001
Neutral Citation[2001] IEHC 100
Docket NumberNo. 13786p/98,[1998 No. 13786 P]
CourtHigh Court
Date25 June 2001
GULYAS & BORCHARDT v. MINISTER FOR JUSTICE & ORS

BETWEEN

SZILVIA GULYAS AND BRENDA BORCHARDT
PLAINTIFFS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL
DEFENDANTS

[2001] IEHC 100

No. 13786p/98

THE HIGH COURT

Synopsis

IMMIGRATION

Fair procedures

State liability - Legitimate expectation - Mistake of fact - Damages - Ubi ius ibi remedium - Financial means of support - Whether decision of immigration officer mistaken - Whether plaintiffs entitled to damages (1998/13786P - Carroll J - 25/6/01)

Gulyas v Minister for Justice, Equality and Law Reform - [2001] 3 IR 216

The first named plaintiff had flown to Ireland with the intention of residing with the second named plaintiff for three months. The first named plaintiff was refused permission to enter the State and was sent back to Hungary. The plaintiffs instituted proceedings. Ms. Justice Carroll was satisfied that the decision to refuse entry to the first named plaintiff was based on a mistake of fact and was not valid. Both plaintiffs were awarded damages by the court.

Citations:

ALIENS ORDER 1946 SI 395/1946 PARA 5(2)

JUDGMENT of
Ms. Justice Carroll
delivered the 25th day of June, 2001
1

The first Defendant Szilvia Gulyas aged 26 is a Hungarian national who was refused entry to this State on the 4th of September 1998, on the grounds that she was not in a position to support herself. The second Plaintiff Brenda Borchardt is her friend who invited her to come and stay with her for three months.

The evidence was as follows:-
2

Ms Gulyas was employed by Mrs. Borchardt's mother, Mrs. Abrams, in London in 1995 – 1996. Mrs. Abrams was not in good health and Ms. Gulyas was to live with her and help around the house. She became a friend of Mrs Borchardt who was married and living in Dublin. She had an aupair visa for twelve months from the British Authorities. Mrs. Abrams become suddenly ill and was taken to hospital in August 1996 and She died on the 2nd of October 1996. During that period and until her visa ran out Ms. Gulyas came to Dublin to stay with the Borchardts twice. She was never employed by them. When her visa expired she returned to Budapest at the beginning of November 1996. She got a job as a sales person in a stationary business, which she still has. Mrs. Abrams left her a legacy of five hundred pounds which she received in March 1997 and which she banked. The two Plaintiffs kept in touch by letters and cards and by phone. Mrs. Borchardt, who has two children, invited Ms. Gulyas to come and stay for a holiday for three months. She was not coming as an aupair but as a friend. The question of the visit was first raised at the beginning of 1998. Mrs. Borchardt enquired in the Aliens Office and with the Hungarian Embassy what was required to enter the country. She was told by the Aliens Office that no visa was required. All that was required was a letter inviting the person to stay and saying that she would be responsible for her keep for three months. Ms. Gulyas made the same enquiry in Budapest from the Irish Embassy and was told the same. Mrs. Borchardt wrote the necessary letter inviting Ms. Gulyas. Ms. Gulyas got leave of absence from her job; she got a three month ticket and arrived on the 4th of September 1998. The immigration officer who dealt with her was Detective Garda Halpin. There is Considerable conflict of evidence between Ms. Gulyas and Mrs Borchardt on the one hand and Detective Garda Halpin on the other.

3

Ms. Gulyas said she produced the letter with her passport. She was asked if she was being met and she said Mrs. Borchardt. She said she was asked how long she was staying and how much money she had. She said one hundred and twenty five pounds sterling and staying three months. She was asked had she a credit card and she said no. She was asked the nationality of the family and she said Mrs. Borchardt was English but she was not sure what nationality Mr. Borchardt was. The immigration officer went away. When he came back with another man he had her passport and letter of invitation. He asked how much was she getting for your work per week. She said she wasn't going to work, she was coming as a friend. She was asked if she would be looking after the children and she said no. They said she couldn't stay because she didn't have enough money to keep herself. She asked could she stay just for a while and then in the mean time she could get five hundred pounds sterling. They said no. After that she was on her own for two to two and a half hours on a bench. They came back and told her the plane to Frankfurt would leave in five minutes. She asked to speak to Mrs. Borchardt and they would not allow it. She asked if presents she had brought for the children could be given and was told no by Detective Garda Halpin. The second man went out and came back and said that Mrs. Borchardt had gone. She was given her passport and a form from the Aliens Office. The letter was not returned. She was put on the plane for Frankfurt which made a connection to Budapest and arrived back there the same day.

4

She was cross examined about the landing card she filled in which did not show my occupation. She said she could not remember being questioned about her occupation. At the Airport she was questioned in English but she said she understood. It was put to her that she said she was employed by the Borchardts to look after Mr. Borchardts to look after Mr. Borchardts mother. She said no. She said that the mother paid.

5

Mrs. Brenda Borchardt, who has two children, Emily now twelve and Jonathan now ten and a half, said she lived in Dublin for thirteen years. Her husband is a managing director of an import/export business. She works in the home. She went out to the Airport to meet Ms. Gulyas with Emily on the 4th of September 1998. The plane was due in at 2.30 pm and arrived on time. She waited and paged Ms. Gulyas twice. Around 4 p.m. her name was paged to go to Information. An Immigration Officer approached her; it was Detective Garda Halpin. He had the passport and the letter which she recognised as the one she had written after phoning the Aliens Office; it was in the passport. He inferred that she wanted Ms. Gulyas to work and she said she was coming as a friend. She said she would take full financial responsibility for her. She told him how she came to know Ms. Gulyas. He was with her four to five minutes. He told her to wait. She waited until 6.50 p.m.. She remained where she was except once very briefly when Emily wanted to go to the toilet. She rang her husband at some stage during the afternoon. At around 6.50 p.m. she was paged for a telephone call from her husband who told her that Ms. Gulyas was gone and to come home. She never saw Detective Garda Halpin again or anyone from immigration. She was very upset as was Emily. There was a problem to contact Ms. Gulyas' parents who only spoke Hungarian but that was solved later that evening. She denied she ever told Detective Garda Halpin that Ms. Gulyas was going to work for her. She agreed that Detective Garda Halpin said Ms. Gulyas had not enough money but she said she would take full responsibility and give her what money she needed, give her a room and look after her totally. She was asked what she would do for three months with so little money and she said she could do whatever she wanted to do. She was going to take full financial responsibility for her but she was not going to pay her.

6

Mr. Borchardt confirmed that Ms. Gulyas was employed by his mother-in-law for company and help around the house. When she got ill and came to Dublin Ms. Gulyas was not paid by him or his wife. There was no question of Ms. Gulyas coming to work. She was a family friend. The visit was suggested at the beginning of 1998. When she came in September they were not going to pay her. She would stay with them and he'd pay outgoings. He hoped she would help his wife to settle after his mother-in-law's death.

7

On the 4th of...

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