Mansouri v The Minister for Justice & Law Reform

• Jurisdiction: Ireland
• Judgment Date: 29 January 2013
• Neutral Citation: [2013] IEHC 527
• Date: 29 January 2013
• Docket Number: [2012 No. 28 J.R.]
• Court: High Court

BETWEEN

YOUCEF MANSOURI

APPLICANT

AND

THE MINISTER FOR JUSTICE AND LAW REFORM

RESPONDENT

[2013] IEHC 527

[2012 No. 28 J.R.]

THE HIGH COURT JUDICIAL REVIEW

Judicial review – Immigration and asylum – Mootness – Costs – Delay in making decision – Whether undue delay in making decision – Whether entitlement to costs arose due to delay – Irish Nationality and Citizenship Act, 1956.

Facts The applicant had been granted a declaration of refugee status by the respondent. However significant delays thereafter ensued relating to the grant of naturalisation as an Irish citizen pursuant to the provisions of s. 15 of the Irish Nationality and Citizenship Act 1956. After a number of letters had been written the applicant instituted judicial review proceedings seeking to challenge the delay as being unreasonable. Subsequently the grant of naturalisation was issued and the proceedings themselves became moot. It was then submitted on behalf of the applicant that he was entitled to his costs in bringing the judicial review proceedings.

Held by McDermott J in making the following order: Statutory officers and bodies had an obligation to exercise their powers in a proper manner. The court was satisfied that the case did not fall within the category of cases in which mootness was caused by the unilateral act of the respondent; neither could it be said that mootness was due to entirely external events. It was something of a hybrid. The court was satisfied that there was delay from the applicant”s perspective from a certain point which could not be justified by the respondent and the decision to commence judicial review proceedings was an entirely proportionate reaction. The applicant would be awarded one half of the costs of the proceedings including one half of the costs of the motion.

JUDGMENT of Mr. Justice McDermott delivered the 29th day of January, 2013

1 This is an application for costs by the applicant in a case in which the issue between the parties became moot after the institution of judicial review proceedings in the following circumstances. The applicant, then an Algerian national was granted a declaration of refugee status by the respondent on 14th September, 2007 and has lived lawfully within the State since that date. He applied for naturalisation as an Irish citizen pursuant to the provisions of s. 15 of the Irish Nationality and Citizenship Act 1956 on 21st February, 2008. The applicant and his solicitors engaged in correspondence with the respondent over the following four years in relation to this application, the most relevant of which is:-

(i) On 8th May, 2008, the Irish Naturalisation and Immigration Service (INIS) wrote to the applicant informing him that his application had not been examined in detail and that confirmation that it was valid could not be given or that he met the statutory conditions for naturalisation until a detailed examination took place.

(ii) On 17th August, 2009, the applicant”s solicitors wrote to INIS some fifteen months after the initial application, indicating his desire for a grant of naturalisation so that he could feel fully integrated into Irish society.

It was emphasised that the applicant was effectively ‘stateless’ in that he could never return to Algeria and could not hold the passport of any other country. It was requested that the application be expedited and finalised.

(iii) On 18th August, 2009, the INIS wrote that it was not possible to give a timescale within which a decision would be furnished and stated ‘there is a limit to the reduction in the processing time that can be achieved as applications for naturalisation must be processed in a way which preserves the necessary checks and balances to ensure that it is not undervalued and is only given to persons who genuinely satisfy the necessary qualifying criteria’.

(iv) On 27th October, 2009, the applicant”s solicitors wrote to the INIS complaining that the delay in processing their client”s application was excessive and unreasonable. They requested a timeframe within which they could expect to have the matter determined.

(v) This correspondence was acknowledged by INIS on 29th October, 2009 and though a timescale could not be given, an assurance was given that ‘officials in this office will contact you as soon as a decision is reached…’.

(vi) On 17th May, 2010, some seven months later, the applicant”s solicitors again wrote to INIS expressing the applicant”s appreciation of the significance of a certificate of naturalisation and ‘that many inquiries need to be made by the Minister during the course of his investigation of an application.’ INIS were asked to confirm the current stage of the processing of the application and whether any further documentary evidence was required.

(vii) By reply on the 18th May, 2010, INIS stated that applicants for naturalisation were generally dealt with in chronological order as this was deemed to be the fairest approach to all applicants. The solicitors were informed that the average processing time from application to decision was about 23 months. It was further stated:-

‘The more complicated cases can at times take more than the current average, while an element of straightforward cases can be dealt with in less than that timescale. There is a limit to the reduction in the processing time that can be achieved as applications for naturalisation must be processed in a way which preserves the necessary checks and balances to ensure that the status of citizenship is not undervalued and is only given to persons who genuinely satisfy the necessary qualifying criteria.’

(viii) On 16th July, 2010, the applicant”s solicitor again requested expedition and confirmation of the current stage of the processing of the application and referred to Article 34 of the Geneva Convention to the effect that ‘contracting states shall as far as possible facilitate the assimilation and naturalisation of refugees. They shall in particular make every effort to expedite naturalisation proceedings…’

(ix) On 20th July, 2010, the INIS replied indicating that the length of time taken to process each application ‘should not be classified as a delay, as the length of time taken for any application to be decided is purely a function of the time taken to carry out necessary checks….’

(x) The applicant”s solicitors wrote on the 9th June, 2011, to INIS informing them that he was frequently missing out on job opportunities as prospective employers would not consider him beyond the interview stage when he could not furnish them with a passport. The prospective employers would not accept his travel document in lieu of a passport.

(xi) A reply was furnished on the 10th June, 2011, stating:-

‘Your client”s application for naturalisation is currently being processed in the normal way with a view to establishing whether the applicant meets the statutory conditions for the granting of naturalisation and will be submitted to the Minister for decision when processing is complete.’

(xii) On 7th December, 2011, the applicant”s solicitors again wrote to INIS. They informed INIS that they had obtained a copy of records held by the Department of Justice, Equality and Law Reform following a request made under the Freedom of Information Act 1997. A copy of these records relating to the applicant”s application was received by the applicant”s solicitors on 23rd February, 2009. Subsequently, a further application was made in respect of any further records held by the Department of Justice, Equality and Law Reform and copies of those documents were furnished to the applicant”s solicitors on 14th December, 2011. The court notes that no reference was made in any of the disclosed materials to any application made to other agencies seeking information in respect of the character of the applicant.

(xiii) On 7th December, 2011, the applicant”s solicitors wrote pointing out to INIS that the average processing time for naturalisation applications was now stated to be 25 months, and that a public announcement had been made by the Department of Justice and Law Reform that it was hoped to achieve a processing time for applications of six months by the spring of 2012. It was stated that no reason had been provided for the apparent delay in processing the application, despite representations made by his solicitors. It was submitted that nothing arose on the facts of the application that would have rendered it more complicated than any other and that the applicant had been prejudiced by the delay in that he had missed out on employment opportunities. In the final paragraph of the letter it was stated that:-

‘In light of the above and previous submissions, we would respectfully request that you now finalise Mr. Mansouri”s application and communicate a decision to us within a strict period of 28 days of the date of this letter. Please note that if we do not hear satisfactorily from you within this timeframe, we will have no alternative but to take our client”s instructions on the possibility of applying to the High Court for an order to compel this decision and this letter will be relied upon to fix you with the costs of same. Our client”s desire is to have this matter finalised favourably and would be very reluctant to engage in litigation.’

(xiv) By letter dated the 9th December, 2011, INIS replied that the law in respect of naturalisation and citizenship was well settled following a series of High Court decisions, which are then listed. The applicant”s solicitors were invited not to issue judicial review proceedings on consideration of these authorities. It was indicated that the letter would be relied upon in defence of any claim and to fix the applicant with costs of any proceedings and concluded:-

‘You should also advise your client that the Minister will vigorously pursue any order for costs as against your client and will ensure the state is not put...