Mahmood v The Minister for Justice and Equality
| Jurisdiction | Ireland |
| Judge | Mr Justice David Keane |
| Judgment Date | 20 June 2019 |
| Neutral Citation | [2019] IEHC 447 |
| Court | High Court |
| Docket Number | [2016 No. 802JR] |
| Date | 20 June 2019 |
[2019] IEHC 447
THE HIGH COURT
JUDICIAL REVIEW
Keane J.
[2016 No. 802JR]
and
Judicial review – Residence card – Permitted family member – Applicants seeking an order of certiorari quashing a decision of the respondent – Whether the review decision was made ultra vires, unlawfully or in breach of the applicants’ right to natural and constitutional justice and fair procedures
Facts: The applicants, Mr Mahmood and Mr Mehmood, sought judicial review of a decision of the respondent, the Minister for Justice and Equality, dated 4th October 2016, to uphold on review a first instance decision of 22 December 2015 to refuse the application under Reg. 7(2) of the European Communities (Free Movement of Persons) (No. 2) Regulations 2006 and 2008 (the 2006 Regulations) of the second applicant, a national of Pakistan, for a residence card as a permitted family member of his brother, the first applicant, a British - and, hence, European Union – citizen, exercising free movement rights in the State (the review decision). By order made on 24 October 2016, Humphreys J granted leave to seek an order of certiorari quashing the review decision on three of the grounds set out in that statement. Those three grounds amounted, in substance, to just two. The first ground (combining the first and second grounds as they were expressed in the statement of grounds) was that, in conducting the review of the decision to refuse the second applicant a residence card under the European Communities (Free Movement of Persons) Regulations 2015, rather than the 2006 Regulations, the Minister acted: ultra vires; in breach of the transitional provision of Reg. 31(28) of the 2015 Regulations; in breach of the applicants’ entitlement to natural and constitutional justice and fair procedures; or in a combination of some or all of those unlawful ways. The second ground (expressed as the third) was that the decision to refuse the second applicant’s review application was arrived at in breach of; fair procedures, natural and constitutional justice; the 2006 Regulations; the 2015 Regulations; or any combination of some or all of those lawful requirements. In a statement of opposition, the Minister joined issue with the applicants’ claims that the review decision was made ultra vires, unlawfully or in breach of the applicants’ right to natural and constitutional justice and fair procedures. In addition, the Minister put forward two affirmative pleas. The first was that, while the review decision refers in error to the 2015 Regulations, the review was carried out under the 2006 Regulations. The second plea, made in the alternative and strictly without prejudice to the first, was that, even if the review had been conducted under the 2015 Regulations, there could have been no prejudice to the applicants because there was no material difference between the 2015 and 2006 Regulations as each would apply to the facts of the applicants’ case.
Held by the High Court (Keane J) that the Minister had provided an explanation, in the form of sworn evidence, for the mistaken references, and that it could see no reason to reject it. Keane J accepted the Minister’s evidence that the 2006 Regulations were properly applied, despite the incorrect recital on the face of the review decision.
Keane J held that the application for judicial review would be refused.
Application refused.
This is the judicial review of the decision of the Minister for Justice and Equality (“the Minister”), dated 4 October 2016, to uphold on review a first instance decision of 22 December 2015 to refuse the application under Reg. 7(2) of the European Communities (Free Movement of Persons) (No. 2) Regulations 2006 and 2008 (“the 2006 Regulations”) of the second applicant, Azhar Mehmood, a national of Pakistan, for a residence card as a permitted family member of his brother, the first applicant Mazhar Mahmood, a British - and, hence, European Union – citizen, exercising free movement rights in the State (“the review decision”).
Both sides agree that the application fell to be considered under the review of decisions provision in Reg. 21(4) of the 2006 Regulations because, although those Regulations were revoked with effect from 1 February 2016 by the European Communities (Free Movement of Persons) Regulations 2015 (“the 2015 Regulations”), the transitional provision at Reg. 31(28) of the new regulations provides that, where a person had sought a review under Reg. 21(1) of the old ones that had not been determined by that date, Reg. 21 of the old regulations continued to apply to the determination of that review. The applicants had sought a review on 8 December 2015 and, thus, it came within the scope of the transitional provision.
Both the 2006 Regulations and the 2015 Regulations that replaced them were made for the purpose of giving effect to Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (“the Citizens” Rights Directive”). The requirements of the Citizens” Rights Directive have not changed.
These proceedings have come about because the first paragraph of the decision recites, in material part, “[t]he decision to refuse your application … has been reviewed in accordance with Regulation 25 of [the 2015 Regulations]”, and the reason given for upholding that decision was, in relevant part, that the second applicant did not qualify as a “permitted family member” under Reg. 3(5) of those regulations, suggesting that the Minister had overlooked or ignored the application of the transitional provision in conducting that review.
The application is based on a statement of grounds dated 20 October 2016, supported by an affidavit of the first applicant, sworn on the same date.
By Order made on 24 October 2016, Humphreys J granted leave to seek an order of certiorari quashing the review decision on three of the grounds set out in that statement. Those three grounds amount, in substance, to just two (and, arguably, because of the compendious nature of each, could probably be expressed as just one).
The first ground (combining the first and second grounds as they are expressed in the statement of grounds) is that, in conducting the review of the decision to refuse the second applicant a residence card under the 2015 Regulations, rather than the 2006 Regulations, the Minister acted: ultra vires; in breach of the transitional provision of Reg. 31(28) of the 2015 Regulations; in breach of the applicants” entitlement to natural and constitutional justice and fair procedures; or in a combination of some or all of those unlawful ways.
The second ground (expressed as the third) is that the decision to refuse the second applicant's review application was arrived at in breach of; fair procedures, natural and constitutional justice; [the 2006 Regulations]; [the 2015 Regulations]; or any combination of some or all of those lawful requirements.
The Minister's statement of opposition is undated but was filed on 26 July 2017. It is supported by an affidavit, sworn on 17 July 2017 by Stacy Morris, a higher executive officer in the EU Treaty Rights Section of the Irish Naturalisation and Immigration Service (“the INIS”) as part of the Department of Justice and Equality.
In that statement of opposition, the Minister joins issue with the applicants” claims that the review decision was made ultra vires, unlawfully or in breach of the applicants” right to natural and constitutional justice and fair procedures.
In addition, the Minister puts forward two affirmative pleas. The first is that, while the review decision refers in error to the 2015 Regulations, the review was carried out under the 2006 Regulations. The second plea, made in the alternative and strictly without prejudice to the first, is that, even if the review had been conducted under the 2015 Regulations, there could have been no prejudice to the applicants because there is no material difference between the 2015 and 2006 Regulations as each would apply to the facts of the applicants” case.
In her affidavit, Ms Morris avers in material part as follows. An executive officer prepared a recommendation on the residence card application on 26 September 2016 (“the recommendation”). The recommendation refers only to the 2006 Regulations.
As review officer, Aengus J Casey prepared a decision on the review on 3 October 2016 (“the review officer decision”). The review officer decision recites that the review was considered under the 2015 Regulations, before adding, confusingly, that in reaching a determination, the review officer had regard to Reg. 31(3) of the 2016 Regulations. The reference is confusing because that regulation is a transitional provision, which provides that, in cases where evidence of permitted family member status had been submitted in accordance with Reg. 5(1) of the 2006 Regulations but no first instance decision had been made, that Regulation would continue to apply in the determination of that status, which, if granted, would be deemed to have been granted under the 2015 Regulations.
Ms Morris exhibits both the recommendation and the review officer decision, each of those documents, neither of which – she acknowledges –is routinely provided to an applicant by the EU Treaty Rights Review Unit
Ms Morris provides this explanation for the reference to the 2015 Regulations in the review decision:
“As is the usual practice within the EU Treaty Rights Review Unit, Aengus Casey used a template letter from the...
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