Matta v Minister for Justice and Others

JurisdictionIreland
JudgeMS. JUSTICE M. CLARK,
Judgment Date21 July 2010
Neutral Citation[2010] IEHC 488
CourtHigh Court
Date21 July 2010

[2010] IEHC 488

THE HIGH COURT

[No. 796 J.R./2009]
Matta v Minister for Justice & Ors
JUDICIAL REVIEW

BETWEEN

ELIAS MATTA
APPLICANT

AND

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

M (G) & G (D) v MIN FOR JUSTICE & ORS UNREP EDWARDS 17.7.2007 2007/38/7754 2007 IEHC 234

N (A) v MIN FOR JUSTICE UNREP CLARK 26.6.2009 (EX TEMPORE)

GARIBOV v MIN FOR JUSTICE & ORS UNREP HERBERT 16.11.2006 2006/26/5580 2006 IEHC 371

N (A) v MIN FOR JUSTICE UNREP CLARK 29.7.2009 2009/41/10279 2009 IEHC 354

NEARING v MIN FOR JUSTICE UNREP COOKE 30.10.2009 2009/42/10430 2009 IEHC 489

IMMIGRATION

Costs

Residency - Mandamus - Ministerial decision within reasonable time - Residency granted prior to hearing - Whether proceedings reasonable at time of commencement - Delay in processing of application - Requests for priority due to illness of wife - Whether prejudice existed - Offer of employment conditional on legal entitlement to work - Absence of evidence of arbitrary behaviour in consideration of application - Whether prospective job offer constituted special or pressing circumstance - Explanation for delay - System of consideration in chronological order - Mobin v Minister for Justice (Unrep, Edwards J, 17/7/2007); Nawaz v Minister for Justice (Unrep, Clark J, 26/6/2009); Garibov v Minister for Justice [2006] IEHC 371, (Unrep, Herbert J, 16/11/2006) and Nearing v Minister for Justice [2009] IEHC 478, [2010] 4 IR 211 considered - Immigration Act 1999 (No 22), s 3 - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006) - No order as to costs (2009/796JR - Clark J - 21/7/2010) [2010] IEHC 488

Matta v Minister for Justice, Equality and Law Reform

IMMIGRATION

Naturalisation

Costs - Long-term residency - Naturalisation - Challenge delay in making decision - Long-term residency granted after proceedings brought - Application for naturalisation withdrawn - Repeat work permits - Application while applicant in employment - Applications processed chronologically - Priority sought on basis serious illness of wife and Irish citizen child - Full time carer - Voluntary redundancy - Lapse of work permit - Legal status affected by return to work of wife - Status preventing taking up employment - Right to apply - No right to certificate -Discretion of respondent - Resource related explanations for delay - Whether reasonable for applicant to issue proceedings - No evidence of arbitrary or capricious behaviour by respondent - Whether prospective job offer constituted exceptional circumstances - Whether applicant entitled to costs - Whether applicant liable to pay respondent's costs -N (A) v Minister for Justice [2009] IEHC 354 (Unrep, Clark J, 29/07/2009), Garibov v Minister for Justice [2006] IEHC 371 (Unrep, Herbert J, 16/11/2006) and Nearing v Minister for Justice [2009] IEHC 489 (Unrep, Cooke J, 30/10/2009) applied - Mobin and Gafoor v Minister for Justice (Unrep, Edwards J, 17/07/2007) considered - No order as to costs (2009/796JR - Clark J - 21/07/2010) [2010] IEHC 488

Matta v Minister for Justice

Facts: The applicant was a national of the Lebanon and had applied for long-term residency in Ireland in 2007. The applicant had sought an order of mandamus directing the Minister to make a decision of his long-term residency applicant in 2009 and had claimed that the delay on the part of the respondent was causing the applicant actual prejudice as he could not take up job offers in the absence of an appropriate immigration stamp. The residency had later been granted and the proceedings became moot. The remaining issue for the Court to resolve was that of costs.

Held by Clark J. that when the proceedings issued the applicant did not have a job offer. It was difficult to see what prejudice the applicant suffered as a result of administrative delay. It would be unduly harsh to require the applicant to pay the respondent's costs. The Court would make no order as to costs.

Reporter: E.F.

1

1. By order of Peart J. dated the 27 th July 2009 the applicant obtained leave to seek inter alia an order of mandamus directing the Minister for Justice and Law Reform ("the Minister") to make a decision on his long-term residency application and his application for a certificate of naturalisation within a reasonable time or a period of time directed by the Court. On the 14 th August 2009 the Minister granted the applicant long-term residency and these proceedings for relief on that aspect of his claim became moot. The claim relating to his claim for a certificate of naturalisation was subsequently withdrawn and the only issue that remains unresolved is costs.

2

2. The costs application was heard on the 14 th April 2010. Mr Brian Leahy, B.L. and Mr Michael McGrath, B.L. appeared for the applicant and Mr Anthony Moore, B.L. for the respondent. As the primary issue to be determined by the Court is whether it was reasonable for the applicant to commence proceedings when he did, the background to the proceedings is of relevance.

Background
3

3. The applicant is a national of Lebanon who has been legally resident in Ireland since 2003 working on a series of work permits. The first work permit was valid for a period of one year but was renewed thereafter on an annual basis for the next four years. On the 22 nd June 2005 the applicant married a national of Lebanon in Cork. On the 30 th July 2007 she gave birth to their daughter who is a citizen of Ireland by reason of her parents' continuous legal residence in the State. In early 2008 the applicant's wife suffered an acute life threatening and rare neurological disease which necessitated a lengthy period of in-patient care in hospital. The applicant had to take on the full time care of his young baby and the care of his wife. Clearly, he had to take leave from work. Perhaps fortuitously for him during that difficult time, the applicant's employer offered him a redundancy package and thus he was able to be the full time carer for his wife and child. Both the husband and wife received social welfare payments during this time and the applicant was paid a carer's allowance for caring for his sick wife.

4

4. His solicitors (Thomas Coughlan & Co.) had in the meanwhile on the 9 th May 2008 applied for long-term residency rights on his behalf on the basis of his five years of legal work permits and his parentage of an Irish citizen child. Long term residency status dispenses with the requirement that a person's employer should obtain and pay for a work permit from the Department of Trade, Enterprise and Energy with necessary annual renewals and relieves the person from being tied to employment with that single employer. Although at the time of the application the applicant was in employment under his existing work permit, the Minister was requested to afford priority to the application in the light of the wife's neurological illness. The Minister's agents declined to afford him priority and he was informed that his application would be considered in chronological order. He was further informed that there would be a substantial wait owing to the large number of applications being processed.

5

5. His solicitors then made frequent and repeated requests to the Minister to process his application on a priority basis due to his wife's illness and after July 2009 because he had been made redundant and was unable to work. His solicitors also wrote to the Irish-Born Child Section again seeking priority on the basis of his wife's continuing illness.

6

6.The Minister's agents expressed sympathy with the family's position and although they sought police clearance they informed the applicant that long-term residency applications were processed in strict chronological order. The letter noted that the applicant's permission to remain in the State extended to the 28 th February 2010. The applicant had also made an application for naturalisation and again sought priority on the basis of his parentage of an Irish citizen child and his wife's illness. He was informed that all applications were scheduled for consideration in chronological order. The IBC Unit refused to consider a further application for stamp 4 status until the Long-Term Residency Unit had made its determination.

7

7. The applicant's wife who had been on maternity and then sick leave returned to work on the 20 th July 2009. In the run up to her return to employment, the generally polite correspondence from the applicant's solicitors to the Minister's office took on a different tone. While the applicant's wife was debilitated, the husband's employment situation created no prejudice but as his wife's recovery began and continued and there was hope for a full return to health, the applicant found that his legal status and ability to work was frail as he now had no employer and his permit to work had lapsed.

8

8. On the 4 th June, 2009 the applicant's solicitors wrote letters to the Long-Term Residency Section and the Citizenship Section noting that 12 months had elapsed since they first made application. They asserted that the Minister was in breach of the rules of constitutional justice relying on Mobin and Gafoor v. The Minister for Justice, Equality and Law Reform (Unreported, High Court, Edwards J., 17 th July, 2007). They reserved the right to issue proceedings seeking an order of mandamus compelling the Minister to fulfil his constitutional duty.

9

9. On the 8 th July, 2009 they wrote again to the Long-Term Residency Section referring on this occasion to the judgment of this Court in Afzal Nawaz v. The Minister for Justice, Equality and Law Reform ( ex tempore, Unreported, High Court, Clark J., 26 th June, 2009). It was stated that the delay was causing the applicant actual prejudice and they again reserved the right to take judicial review...

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4 cases
  • Okolie v The Minister for Justice and Equality
    • Ireland
    • High Court
    • 3 September 2018
    ...JJ concurring), 26th July, 2016), rather than to that of the High Court in the same case case, reported as Matta v Minister for Justice [2010] IEHC 488 (Unreported, High Court (Clark J), 21st July, 2010). And yet, it was in that appeal that MacMenamin J (Dunne and O'Malley JJ concurring) c......
  • Lufeyo v The Minister for Justice and Equality
    • Ireland
    • High Court
    • 3 September 2018
    ...JJ concurring), 26th July, 2016), rather than to that of the High Court in the same case case, reported as Matta v Minister for Justice [2010] IEHC 488 (Unreported, High Court (Clark J), 21st July, 2010). And yet, it was in that appeal that MacMenamin J (Dunne and O'Malley JJ concurring) c......
  • Salman v Min for Justice
    • Ireland
    • High Court
    • 16 December 2011
    ...2007/38/7754 2007 IEHC 234 NEARING v MIN FOR JUSTICE 2010 4 IR 211 MATTA v MIN FOR JUSTICE & ORS UNREP CLARK 21.7.2010 2010/33/8323 2010 IEHC 488 SALEEM v MIN FOR JUSTICE UNREP COOKE 2.6.2011 2011 IEHC 223 IMMIGRATION LAW Naturalisation Mandamus - Public power granted by statute - Order com......
  • Mansouri v The Minister for Justice & Law Reform
    • Ireland
    • High Court
    • 29 January 2013
    ...... . 29 In  Matta v. Minister for Justice and Law Reform  (Unreported, High Court, Clark J., 21st July, 2010) the applicant, a Lebanese national applied for a long ......

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