K.M. and D.G. v Minister for Justice, Equality and Law Reform and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice John
• Judgment Date: 17 July 2007
• Neutral Citation: [2007] IEHC 234
• Court: High Court
• Docket Number: [No. 321 J.R./2007]
• Date: 17 July 2007

M (K) & G (D) v MIN FOR JUSTICE & ORS

JUDICIAL REVIEW

BETWEEN

KM AND DG

APPLICANTS

AND

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

RESPONDENTS

[2007] IEHC 234

[No. 321 J.R./2007]

THE HIGH COURT

IMMIGRATION LAW

Deportation

Alien married to Irish citizen - Application for residency on basis of marriage - Indication that decision on application would take 11 months - Delay - Obligation to reach administrative decision on immigration issue within reasonable time - Whether degree of delay so unreasonable or unconscionable such as to breach fundamental human rights - Reasons for delay - Whether excusable - Judicial review - Mandamus - European Convention on Human Rights Act 2003 (No 20) - Constitution of Ireland 1937, Article 41 - Application refused (2007/321JR - Edwards J - 17/7/2007) [2007] IEHC 234

M (K) v Minster for Justice

The applicant sought an order of mandamus ordering the first named respondent to determine his application for permission to remain in this State on foot of his marriage to the second named respondent, who was an Irish citizen, within a reasonable time. The first named applicant had entered the State on foot of a student visa and was subsequently granted two permissions to remain in the State. The applicants married each other just over two weeks subsequent to the expiry of the first named applicant’s permission to remain. The applicant sought the aforementioned relief on the basis that he was informed it would take a minimum of eleven months to determine his application to remain.

Held by Edwards J. in refusing the application: That the period of delay expected in this case was not such that it could be characterised as being unreasonable and/or unconscionable. To date, the first named applicant had not acted in breach of constitutional justice. However, if the applicant was required to wait for a decision longer than 12 months that would amount to unreasonable and unjustifiable delay.

Reporter: L.O’S.

IMMIGRATION ACT 2004 S4

IMMIGRATION ACT 2004 S5(1)

MMIGRATION ACT 2004 S5(2)

CONSTITUTION ART 41

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 10

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3(2)

O'DONOGHUE v LEGAL AID BOARD & ORS UNREP KELLY 21.12.2004 2004/38/8872

AWE v MIN FOR JUSTICE UNREP FINLAY GEOGHEGAN 24.1.2006 2005 IEHC 6

IATAN & ORS v COMMISSIONER OF AN GARDA SIOCHANA & ORS UNREP CLARKE 2.2.2006 2006 IEHC 30

REFUGEE ACT 1996 S18

EEC DIR 2004/38 ART 10.1

D (T) & ORS v MIN FOR EDUCATION & ORS 2001 4 IR 259

O'REILLY v LIMERICK CORPORATION 1989 ILRM 181

KILKELLY ECHR & IRISH LAW 1ED 2004 PARA 4.56

MAHMOOD, R v SECRETARY OF STATE FOR THE HOME DEPARTMENT 2001 1 WLR 840 2001 UKHRR 307

C (T) & C (A) v MIN JUSTICE 2005 4 IR 109

OSAYANDE & LOBE v MIN FOR JUSTICE 2003 1 IR 1

GONCESCU v MIN FOR JUSTICE EQUALITY AND LAW REFORM 2003 3 IR 442

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

DE SMITH, WOOLF & JOWELL JUDICIAL REVIEW OF ADMINISTRATIVE ACTION 5ED 1995 584

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

PHILIPS v MEDICAL COUNCIL 1991 2 IR 115 1991 5 1236

JUDGMENT of

Mr. Justice John

Edwards delivered on the 17th day of July, 2007

1 This judgment is circulated in redacted form to avoid identification of the parties

FACTS

2 The first named applicant is a ---- national. He is married to the second named applicant who is an Irish citizen.

3 The first named applicant arrived in the State on the 5^th January, 2004 as a student of computer studies at a College, in the City of Cork. He entered the State on a student visa. This visa permitted him to remain in Ireland to pursue a course of studies on condition that he did not engage in any business or profession other than casual employment (defined as employment for up to 20 hours per week during school term and up to 40 hours per week during school holidays) and did not remain beyond the stated date. The court has not been given the first visa expiry date but in any event it is not material to the issues that I have to decide. The first visa was endorsed on a ---- passport held by the first named applicant which is no longer current. His current passport was issued out of the embassy of ---- in Dublin on the 4^th July, 2005 and gives his then current address as an address in Cork. This passport is endorsed with two permissions within the meaning of s. 4 of the Immigration Act, 2004. The first was endorsed on the 20^th July, 2005 and gave the applicant permission to remain in the State for the purpose of pursuing a course of studies on condition that he did not engage in any business or profession other than casual employment (as previously defined) and did not remain in the State later than the 30^th September, 2005. The second permission was in similar terms covering the period from the 6^th October, 2005 to the 30^th June, 2006. The first named applicant's permission to remain in the State expired on the 30^th June, 2006 and was not renewed. However, the first named applicant did not leave the State on the expiry of his permission to be here and he has remained here since that time. The respondents contend, and it is not disputed by the applicants, that the provisions of subs. 1 and 2 of the s. 5 of the Immigration Act, 2004 apply to the first named applicant. These are as follows:-

4 2 "(1) No non-national may be in the State other than in accordance with the terms of any permission given to him or her before the passing of this Act, or permission given under this Act after such passing, by or on behalf of the Minister.

5 (2) A non-national who is in the State in contravention of subs. (1) is for all purposes unlawfully present in the State."

6 According to the affidavit of the first named applicant he met the second named applicant after his arrival in Ireland and they became married on the 17^th July, 2006. The first named applicant, by letter dated the 5^th September, 2006, applied to the first named respondent for permission to remain in the State on the basis of his marriage to an Irish citizen. That application was acknowledged by a letter dated the 3^rd October, 2006 from the first named respondent which stated inter cilia:-

"Your client's application was received by this office in September, 2006. Please be advised applications for residency in the State on the basis of marriage to an Irish national take approximately 12 to 14 months minimum to process.

Please note your client has no entitlement to work during this application process."

7 In the course of a subsequent exchange of correspondence between the applicant's solicitors and the first named respondent, the first named respondent was pressed to process the first named applicant's application for residency as soon as possible and it was urged on the first named respondent that delay in processing the said application was causing undue and unnecessary hardship to the applicants as the first named applicant was not permitted to work. By a letter of the 10^th January, 2007 the first named respondent wrote to the solicitor for the first named applicant stating that, at that point, applications were taking 11 months minimum to finalise and that it would be a number of months before the first named applicant's application was examined. This undoubtedly represented some improvement, though the applicants would say an inadequate improvement, on the initial estimate given.

8 On the 26^th March, 2007 the applicants applied for, and were successful in obtaining, an order from this Honourable Court granting them leave to apply for the following reliefs (listed in paragraph D of the applicants' statement of grounds) by way of judicial review:

9 1. An order of mandamus ordering the first named respondent to determine the first named applicant's application for permission to remain in the State on foot of his marriage to the second named applicant within 21 days of the date of such order.

10 2. An interim or interlocutory injunction ordering the respondent to determine the first named applicant's application for permission to remain in the State on foot of his marriage to the second named applicant within 21 days of the date of such order.

11 3. A declaration that the applicants are entitled to have the first named respondent determine the first named applicant's application for permission to remain in the State on foot of his marriage to the second named applicant promptly but it any case within six months of the date of the application or within such other reasonable time as maybe determined by the court.

12 4. Damages for breach of constitutional rights and/or breach of the European Convention on Human Rights and fundamental freedoms.

13 5. Such further and other orders as to the court seem just.

14 6. The costs of the application.

15 The grounds upon which the applicants obtained the said leave were those set forth at paragraph E of the statement of grounds filed in support of the application.

16 They may be summarised as follows:

17 The first named respondent is obliged to render a decision on the first named applicant's application for permission to remain in the State promptly or at any rate within a reasonable time.

18 The principles of constitutional and natural justice apply to the making of that decision.

19 The principles of constitutional and natural justice include a right to have a decision made on the first named applicant's said application within a reasonable time. A period of 1ç to 14 months, or even the reduced period of 11 months, is an excessive length of time within which to make such a decision. The delay in making a decision on the first named applicant's application is unreasonable and irrational. A person in the position of the first...