Nearing v Min for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 30 October 2009
• Neutral Citation: [2009] IEHC 489
• Court: High Court
• Docket Number: [2009 No. 432 JR]
• Date: 30 October 2009

Nearing v Min for Justice

MR JUSTICE COOKE

APPROVED TEXT

BETWEEN

RUSSELL NEARING

APPLICANT

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

[2009] IEHC 489

[No. 432 JR/2009]

THE HIGH COURT

JUDICIAL REVIEW

Costs

Mootness - Long term residency - Non-statutory administrative scheme - Whether applicant entitled to order for costs - Whether respondent had been afforded reasonable time - Whether applicant could compel respondent to make decision - Whether entitlement to relief had been proved - Halowane v. Minister for Justice [2008] IEHC 280 (Unrep, Finlay Geoghegen J, 30/7/2008); Garibov v Minister for Justice [2006] IEHC 371 (Unrep, Herbert J, 16/11/2006); Point Exhibition Company Ltd v Revenue Commissioners [1993] 2 IR 551 and KM v Minister for Justice [2007] IEHC 234 (Unrep, Edwards J, 17/11/2007) considered - Applicant refused costs (2009/432JR - Cooke J - 30/10/2009) [2009] IEHC 489

Nearing v Minister for Justice

IRISH NATIONALITY & CITIZENSHIP ACT 1956 PART III

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO 2) REGS 2006 SI 656/2006 REG 12

WEBB v IRELAND & AG 1988 IR 353 1988 ILRM 565

TARA PROSPECTING LTD & ANOR v MIN FOR ENERGY & ORS 1993 ILRM 771 1993/9/2705

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

CURTIN v CLERK OF DAIL EIREANN & ORS 2006 2 IR 556 2006 2 ILRM 99 2006/13/2692 2006 IESC 14

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

POINT EXHIBITION CO LTD v REVENUE CMRS 1993 2 IR 551 1993 ILRM 621 1993/9/2596

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

PHILIPS v MEDICAL COUNCIL & ORS 1991 2 IR 115 1991/5/1236

1 1. This matter comes before the Court on the basis that the substantive issue raised by the proceeding has become moot since leave was granted, such that only the question of costs now remains to be decided.

2 2. The applicant submits he is entitled to be awarded the costs of the proceeding because the Minister has since made in his favour the decision on his application for long term residency which, he says, was unreasonably delayed and for which he was compelled to seek an order of mandamus. He has now obtained what he sought and costs should therefore follow the event in accordance with the general rule.

3 3. The Minister, on the other hand, takes what is described as "a jaundiced view" of the proceeding and says that while he would like to apply for costs on the basis that the proceedings were unnecessary and premature and had no bearing on the processing of the application, he is content to submit that no order for costs should be made.

4 4. The background to the case is straightforward. The applicant is a US citizen who has been resident in the State since 2001 and has a work permit which permits him to work in a particular employment. When he had been here for five years, he applied to the Minister for what is called "long term residency". It is the delay in processing and deciding that application which gave rise to the application for leave to seek an order of mandamus by way of judicial review.

5 5. The basis upon which this application came to be made requires some explanation because it does not, as such, involve the exercise by the Minister of a specific statutory power such as arises where an application is made, for example, for a certificate of naturalisation under Part III of the Irish Naturalisation and Citizenship Act 1956, as amended, or is an application made by an EU citizen for permanent residence under Regulation 12 of the European Communities (Freedom of Movement of Persons,) (No. 2) Regulations, 2006.

6 6. These applications by non EU nationals are dealt with on the basis of a non statutory, administrative scheme operated by the Minister as set out in a notice which is apparently posted on the website of the Irish Naturalisation and Immigration Service. Its terms bear some analogy with those of the EU scheme in the 2006 Regulations.

7 7. The scheme provides that a non-national who has legally resided in the State for more than five years may apply for long term residency. If granted, the applicant can then reside for five years without having continually to renew the temporary permission to be in the State previously held. In addition, restrictions attached to a work permit, such as the requirement to work only for one particular employer, cease to apply, with obvious advantages as regards mobility in seeking work.

8 8. It is not disputed that there is no legal entitlement to long term residency on the part of a non-national and that its grant is entirely in the discretion of the Minister. By the same token, however, it is clear, as a matter of law, that where a non-statutory administrative scheme ofthis kind is promulgated, the Minister is bound by its self-imposed terms and there is a legitimate expectation that eligible persons who are its potential beneficiaries will have their applications dealt with in accordance with those terms. (See by analogy the judgment of the Supreme Court in Web v. Ireland [1988] I.R. 353, and the judgment of Costello J. in Tara Prospecting Limited v. The Minister for Energy [1993] I.L.R.M. 771.)

9 9. Furthermore, it is not disputed that the purely administrative character of the scheme for the receipt and processing of such applications does not render it immune from judicial review if its operation, or its non-operation, in a particular case gives rise to an illegality recognised by administrative law.

10 10. As mentioned, this applicant applied for long term residency under this scheme on the 12 ^th August, 2007. On the 26 ^th March, 2008, his solicitors, Messrs. Watters and Co., wrote reaffirming the application and providing additional supporting documents. They asked for confirmation that the original application had been received and fired a shot across the Ministers bows by referring to the judgment of Edwards J. on the issue of delay in deciding such cases in K.M. v. M.J.E.L.R (infra) and suggested that this case recognised that anything in excess of one year's delay was excessive.

11 11. On 31 ^st March, 2008, the General Immigration Division of the Department's Irish Naturalisation and Immigration Service replied explaining that due to the volume of long term residency applications received, the division was at that point processing applications received in August 2006. A further letter from Watters and Co., on 1 ^st April furnished additional documentation but probably crossed with that from the division. On 28 ^th July 2008, the firm wrote again to the division asking for an update in relation to the application.

12 12. On 8 ^th August, 2008 the division replied saying, "We are now currently processing applications received in November 2006." This letter went on however to request a police clearance certificate from the applicant's country of origin and to enquire as to whether he hadany criminal convictions elsewhere. On 13 ^th October 2008, the police certificate from the State of California was sent to the division by Watters and Co., who also confirmed that the applicant had no criminal convictions elsewhere. The letter also informed the division that the applicant was "in a long term relationship with an Irish citizen and they are expecting their first child at the end of the year". On 23 ^rd October, 2008, the division wrote saying that they were then processing applications received in January 2007.

13 13. On the 4 ^th April 2009, Watters and Co., wrote taking the matter a stage further; they said,

"Upon reviewing our client's file, a period of one year and six months has elapsed since the submission of the application in August 2007. We would be obliged if the department would make a decision on this matter within the next 14 days as we have received instructions from our client to institute appropriate court proceedings."

The division replied on the 11 ^th February, 2009 saying that they were at that stage processing applications received in March 2007.

14 14. It was against that background that proceedings were commenced and by order of Peart J. of 27 ^th April, 2009, leave was granted for an application for judicial review seeking an order of mandamus to compel the Minister to make a decision on the application together with a declaration in these terms,

"That the Minister has had sufficient time to make a decision on the applicant's request for leave to remain in the State, first submitted on 14 ^th August, 2007, and that the applicant is entitled to a decision within a reasonable time."

15 15. By letter of 14 ^th May, 2009, the department informed the applicant that the Minister had decided to grant him permission to remain for five years from that date and a that condition ofthe permission would permit him to work and to engage in business without the need for a work permit.

16 16. In the submissions lodged in...