Iatan and Others v Commissioner of on Garda Síochána and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 02 February 2006
• Neutral Citation: [2006] IEHC 30
• Docket Number: [2005 No. 1192 JR]
• Court: High Court
• Date: 02 February 2006

IATAN & ORS v COMMISSIONER OF AN GARDA SIOCHANA & ORS

JUDICIAL REVIEW

BETWEEN/

VALENTINE IATAN, ANNA DANIELA TEMNEANU, MARIA FLORIANA IATAN (A MINOR SUING BY HER FATHER AND NEXT FRIEND VALENTINE IATAN) AND VALENTINE DANIEL IATAN (A MINOR SUING BY HIS FATHER AND NEXT FRIEND VALENTINE IATAN)

APPLICANTS

AND

THE COMMISSIONER OF AN GARDA SÍOCHÁNA, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE REFUGEE APPLICATIONS COMMISSIONER, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

[2006] IEHC 30

No. 1192 J.R./2005

THE HIGH COURT

IMMIGRATION

Asylum

Legitimate expectation - Family reunification- Member of family - Permission to be in State - Discretion of Minister - Whether spouse entitled to join refugee in State -Fakih v Minister for Justice [1993] 2 IR 406 considered - Refugee Act 1996 (No 17), s 18- Mandamus granted (2005/1192JR - ClarkeJ - 2/2/2006) [2006] IEHC 30 I(V) v Commissioner of An Garda Síochána

Facts: These proceedings raised the question of the entitlement of the applicant to be

within the State. The Court considered the legal and practical differences

between: a visa; a permission to be and remain in the State; and a permission under s.

18 of the Refugee Act 1996 conferring upon a person, who was a member of the family

of a refugee, rights analogous to those conferred by law on such refugee. The Court also

considered whether the applicant had any enforceable legitimate expectation.

Held by Clarke J. in making an order of mandamus requiring the Minister to determine the entitlement of the applicant under s. 18 of the Refugee Act 1996, that the applicant was entitled to have his original visa application to the Irish Consul in Bucharest treated as an application for permission under s. 18 and the Minister was obliged to make a decision in early course. The applicant was entitled to assume that the decision on the visa application was the decision on the s. 18 application.

Reporter: R.W.

REFUGEE ACT 1996 S18

IMMIGRATION ACT 2003 S1

IMMIGRATION ACT 2004 S4

IMMIGRATION ACT 2004 S4(3)

IMMIGRATION ACT 2004 S4(3)(e)

REFUGEE ACT 1996 S18(2)

REFUGEE ACT 1996 S18(5)

REFUGEE ACT 1996 S18(3)(B)(i)

KEOGH v CRIMINAL ASSETS BUREAU (CAB) & ORS UNREP MCKECHNIE 20.12.2002 2003/29/6875

WEBB v IRELAND 1988 IR 353

FAKIH v MIN JUSTICE 1993 2 IR 406

REFUGEE ACT 1996 S10

1 JUDGMENT of Mr. Justice Clarke delivered 2nd February, 2006.

1. Introduction

2 2 1.1 These proceedings raise, in somewhat unusual circumstances, the question of the entitlement of the first named applicant ("Mr. Iatan") to be within the State. There does not seem to be any significant dispute as to the principal primary facts. However, the legal consequence of those facts is a matter of controversy between the parties. In order to set out fully the contentions made on behalf of Mr. Iatan as to his status within the State and the authorities" position in relation to that status it is appropriate to address firstly the undisputed facts.

2. Facts

3 2 2.1 It would appear that Mr. Iatan is the husband of the second named applicant ("Ms. Temneanu"). There is no doubt but that Ms. Temneanu was granted refugee status on 10th June, 2003. The minor applicants are the children of Mr. Iatan and Ms. Temneanu. All are Romanian nationals. While it will be necessary to return to the legal basis of such applications in due course, it is sufficient for a recital of the facts to note that there exists both in law and in practice, a scheme for the consideration of what is called "family reunification" where, in certain circumstances, close members of the family of a person who has been given refugee status are entitled to join the refugee in the State. Such persons are given rights which appear to be identical to the rights of the refugee him or herself.

4 3 2.2 It will be necessary to return to the precise application made on behalf of Ms. Temneanu and Mr. Iatan in due course, as this is material to some of the issues which arise in the case. It is sufficient, for this brief recital of the facts, to note that on foot of correspondence written by solicitors acting on behalf of Ms. Temneanu, it was indicated by officers of the Minister for Justice, Equality and Law Reform ("the Minister") that an application for a visa should be made to the Irish Honorary Consul in Bucharest (being the appropriate Irish diplomatic location having regard to Mr. Iatan's residency). On foot of that application a visa was granted and Mr. Iatan came to Ireland.

5 4 2.3 In circumstances which are central to the controversy which now exists between the parties it would appear that, upon being given permission to land at Dublin airport, Mr. Iatan was advised to go to the Garda National Immigration Bureau ("GNIB"). Mr. Iatan consulted the firm of solicitors who had acted for his wife in her refugee application and was, quite properly, advised that he would have to present himself to officials at the GNIB at Burgh Quay. Thereafter, on attending at Burgh Quay, Mr. Iatan was given a GNIB identity card and his passport was stamped with a permission to remain in Ireland for one year, until 27th April, 2005. That permission also bears the number "G/4" which, I am told, permits the holder of such a permission to work while in the State.

6 5 2.4 It was not intimated, either to Mr. Iatan, to Ms. Temneanu , or to the solicitor who had advised both of them, that any further application was required in order to secure permission to remain indefinitely in the State in accordance with the family reunification scheme. For that reason no further application was made.

7 6 2.5 However, things came to a head when Mr. Iatan lost his identity card and, on applying for a new card, was informed that his permission to be in the State had expired (it being after 27th April, 2005). In those circumstances Mr. Iatan was informed that he no longer had any legal entitlement to remain in the State.

8 7 2.6 Correspondence from the Applicants" solicitors ensued. In a reply of the 21st September, 2005, on behalf of the Minister, the distinction between different forms of visas and permissions was set out. It was contended that no permission under s. 18 had ever been granted and finally it was indicated that it was open to the Applicants "to make an application to remain/family re-unification under Section 18 of the Refugee Act, 1996."

3. The Issues

9 2 3.1 It should be noted that it is not contested on the part of the State authorities that Mr. Iatan is the husband of Ms. Temneanu. It does appear that, subsequent to the reunification of Mr. Iatan and Ms. Temneanu in the State their marriage ran into difficulties and they are now separated. Mr. Iatan retains a close relationship with his children. The fact of the parties separation does not appear to be material to any of the issues which I have to consider.

10 3 3.2 In substance, the State authorities draw attention to the fact that there are a number of different permits or permissions (and consequently documents recording such permissions) which are of relevance for the purposes of establishing the entitlements and rights of persons in a position such as each of the applicants in this case. It will be necessary to consider the legal distinction between the various permissions and documents concerned in due course. However, for the purposes of defining the issues it is sufficient to note that it is contended that there are significant legal and practical differences between:-

11 (1) a visa;

12 (2) a permission to be and remain in the State; and

13 (3) a permission, under s. 18 of the Refugee Act, 1996, conferring upon a person who is a member of the family of a refugee, rights analogous to those conferred by law on such refugee.

14 4 3.3 In simple terms, the State authorities contend that the successful application of Mr. Iatan to the Irish Honorary Consul in Bucharest resulted in him being given a visa and no more. Secondly, it is said that his application to the GNIB at Burgh Quay resulted in him being given a permission to remain in the State but no more than its terms provided for (that is to say, a permission for one year). On that basis it is suggested that that permission is now spent. Finally, it is said that no permission under s. 18 has been given although it is pointed out that if an application for such permission is made it will be considered on its merits.

15 5 3.4 While not disputing the legal distinctions drawn between the various forms of visas, permissions and declarations, counsel for the applicants suggests that the manner in which Mr. Iatan's application (and, indeed, the initial application made by Ms. Temneanu) was made and responded to gives rise to additional legal entitlements beyond those which might formally, be said to flow, in the ordinary way, from the various visas and permissions given.

16 6 3.5 In those circumstances it is necessary to look at both the legal distinction between the visa, permission to stay and s. 18 permission which arise in the context of this case, and also to look, in some detail, at the precise sequence of events. In this latter context it is important to note that there was, undoubtedly, a significant level of confusion as to the manner in which Mr. Iatan was dealt with. It will be necessary to analyse the sequence of events in order to determine how and why that confusion arose and to address the legal consequences (if any) of such confusion. However, the starting point must be the legal status of the variety of permits and permissions to which I have referred. I now turn to that issue.

4. The Law

17 2 4.1 It was submitted on behalf of the State authorities, and I agree, that the definition of a visa is to be found in s. 1 of the Immigration Act, 2003 as û

"an endorsement made on a passport or travel...