Holland v The Minister for Justice & Equality
| Jurisdiction | Ireland |
| Judge | Mr. Justice Binchy |
| Judgment Date | 31 March 2023 |
| Neutral Citation | [2023] IECA 73 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Appeal Record Number: 2020/112CA |
[2023] IECA 73
Faherty J.
Ní Raifeartaigh J.
Binchy J.
Appeal Record Number: 2020/112CA
THE COURT OF APPEAL – UNAPPROVED
JUDGMENT of Mr. Justice Binchy delivered on the 31 st day of March 2023
. This is an appeal from a judgment of the High Court (Barrett J.) in two separate but closely related proceedings bearing High Court record numbers 2018/1023JR (these proceedings) and 2019/312JR. By these proceedings, the appellant sought an order of mandamus compelling the respondent to determine the appellant's application for a review (the “Review Application”) of a decision of the respondent of 30 th March 2017 (the “First Decision”), whereby the respondent declined to issue a residence card to the appellant's stepdaughter, and also a declaration that the failure to determine the Review Application within a reasonable period of time was in breach of the appellant's right to an effective remedy and/or good administration as provided by EU law.
. However, before these proceedings came on for hearing in the High Court, the respondent, on 29 th March 2019, issued a determination of the Review Application, whereby the respondent confirmed the First Decision and affirmed her refusal to issue a residence card to the appellant's stepdaughter. The appellant then sought leave to issue judicial review proceedings whereby he sought, inter alia, an order of certiorari quashing the decision of the respondent of 29 th March 2019 (the “Impugned Decision”) and leave to do was granted by Humphries J. in the High Court on 24 th June 2019. Both proceedings came on for hearing on 4 th December 2019 in the High Court before Barrett J., who delivered a single judgment addressing both proceedings on 9 th December 2019. This judgment is concerned with the first proceedings issued by the appellant, whereby he sought, inter alia, an order of mandamus as against the respondent. A separate judgment is being delivered concurrently in the 2019 judicial review proceedings.
. The appellant is a UK national who has resided in the State since 2005 with his wife, a Vietnamese national who is also an Irish citizen. The appellant's wife's daughter, i.e. the appellant's stepdaughter, whose name is Nguyen Thi Kim Tháo (hereafter Ms. Tháo) arrived in the State on 9 th June 2016, having been issued with a tourist visa permitting her to stay in the State for 90 days. In the course of applying for that visa, Ms. Tháo gave an undertaking to leave the State before the expiration of the 90 day period.
. Instead, however, less than three weeks later, on 29 th June 2016, Ms. Tháo made an application for a residence card pursuant to Article 7 of the European Communities (Free movement of Persons) Regulations 2015 (the “Regulations), on the basis that she is a dependent of the appellant and is therefore a “qualifying family member” of the appellant, as that term is defined in the Regulations. At the time of her entry to the State Ms. Tháo was 29 years of age.
. In July 2016, the respondent sought further information in connection with the application. A response was provided by the appellant in November 2016. The application was refused by the respondent by way of the the First Decision, on 30 th March 2017, on the ground that Ms. Tháo had failed to provide the respondent with sufficient documentary evidence of her claimed dependency on the appellant. Ms. Thao then submitted the Review Application on 10 th April, 2017. Following further requests for information by the respondent, and the provision of same by Ms. Tháo, the respondent issued the Impugned Decision on 29 th March 2019, whereby the respondent declined the Review Application. Throughout the process, Ms. Thao was at all times assisted by her solicitors.
. In his judgment, the trial judge sets out a very useful chronology of events, which I gratefully adopt:
“09.06.2016. Mr Holland's stepdaughter enters Ireland on a visit visa.
29.06.2016. Application made for residence card on basis of stepdaughter's alleged EU Treaty Rights (“EUTR”).
26.07.2016. Respondent seeks further evidence in respect of application.
10.11.2016. Mr Holland's solicitor sends the requested information.
15.11.2016. Respondent acknowledges receipt of information.
01.03.2017. Mr Holland's solicitor sends letter noting desire for decision to be made.
27.03.2017. Mr Holland's solicitor writes to indicate that stepdaughter's temporary permission to reside is due to expire and asks that decision be made.
30.03.2017. Respondent refuses application for a residence card on basis that evidence of dependence not submitted.
10.04.2017. Application for review of refusal lodged.
27.04.2017. Respondent's [sic] solicitor sends letter seeking acknowledgement of review application.
02.05.2017. Respondent acknowledges receipt of application and indicates that stepdaughter will be given temporary permission to remain until 10.02.2018. Separate letter of same date also seeks further evidence of stepdaughter's financial and material dependence.
25.09.2017. Mr Holland's solicitor submits additional evidence of stepdaughter's dependence
26.09.2017. Respondent acknowledges receipt of said additional evidence.
01.02.2018. Mr Holland's solicitor writes to indicate that Mr Holland has been made redundant. Letter also noted imminent expiry of stepdaughter's temporary permission and seeks review decision.
02.02.2018. Letter issues from respondent extending stepdaughter's temporary permission to stay to 10.06.2018.
30.05.2018. Minister advised that Mr Holland no longer seeking employment because of illness and basis of residence claim was changed.
05.06.2018. Respondent issues letter extending stepdaughter's temporary permission to
10.10.2018.
11.10.2018. Mr Holland's solicitor writes to indicate that stepdaughter's permission to stay had expired the previous day and seeking that review decision be made.
15.10.2018. Respondent issues letter extending stepdaughter's temporary permission to
10.03.2019.
06.12.2018. Mr Holland commences judicial review proceedings (2018 No. 1023 JR) seeking an order of mandamus requiring respondent to determine review application (now no longer being sought) and also a declaration that the respondent's failure to determine the review application within a reasonable time was in breach of the right to an effective remedy and/or good administration as provided by European Union law (this is still being sought).
29.03.2019. Respondent issues a decision refusing the review application, now also the subject of judicial review proceedings (2019 No. 312 JR).”
. By order of Humphries J. of 10 th December 2018, the appellant was granted leave to apply by way of an application for judicial review for the following reliefs:
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(1) “An order of mandamus compelling the respondent to determine the applicant's application for a review of the refusal to issue a residence card to his stepdaughter which review [application] was submitted on 10 th April 2017.
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(2) A declaration that the failure of the respondent to determine the applicant's review application within a reasonable period of time is in breach of the applicant's right to an effective remedy and/or to good administration as provided by EU law”.
. At the outset, it must be observed that while the appellant is the applicant in these proceedings, he was not the applicant either for a residence card, and nor was he the applicant in the Review Application. This is an issue raised by the respondent in her submissions, although not in her statement of opposition. In any case I will return to this issue in due course.
. A notice of motion in the terms of which leave was granted (see above) was issued on 13 th December, 2018.
. The statement of grounds is commendably succinct, and it is as expedient to quote the relevant parts in their entirety, as it is to attempt any summary thereof. The grounds upon which relief is sought are as follows:
“ Factual Background
1. By application dated 29 th June 2016 the applicant applied to the respondent for a residence card for his stepdaughter as a qualifying member of an EU citizen residing and exercising his EU Treaty rights within the State. On 30 th March 2017 the application was refused on the basis that the applicant had not established that his stepdaughter was dependent on him. The applicant submitted a request for a review of the said refusal on 10 th April 2017. By letter dated 11 th October 2018 the applicant's solicitor wrote to the respondent calling for a decision to be made in respect of the said review. No such decision has issued.
Grounds
(a) The respondent has failed and/or neglected to determine the applicant's application for a review of the decision to refuse a residence card in respect of his stepdaughter, which review was submitted on 10 th April 2017. The said delay is inordinate, unreasonable and/or in breach of fair procedures and/or in breach of Directive 2004/38 and/or EU law and/or the decision of the High Court in Druzinins v. Minister for Justice [2010] IEHC 84.”
Affidavit of appellant
. The statement of grounds is grounded upon the affidavit of the appellant of 23 rd December 2015. By this affidavit, the appellant sets out the chronology of events summarised above and in the concluding paragraph he says: “It is now over 29 months since we applied for a residence card for my stepdaughter, and over 19 months since we appealed the respondent's refusal of a residence card. I say and believe that the respondent has acted unlawfully for the reasons set out in the statement of grounds herein and I therefore pray this Honourable Court for an order granting leave to seek judicial review.”
. On 29 th March 2019,...
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