NK and AR v Minister for Justice

• Jurisdiction: Ireland
• Judge: Ms Justice Tara Burns
• Judgment Date: 09 March 2021
• Neutral Citation: [2021] IEHC 161
• Docket Number: RECORD NO. 2020/195/JR
• Court: High Court
• Date: 09 March 2021

Between:

NK and AR

Applicants

and

Minister for Justice

Respondent

[2021] IEHC 161

RECORD NO. 2020/195/JR

THE HIGH COURT

JUDICIAL REVIEW

Discovery – Judicial review – Permanent residence card – Applicants seeking discovery of documents – Whether discovery of the material was necessary and relevant

Facts: The applicants sought certiorari of a decision of the respondent, the Minister for Justice, refusing the second applicant’s application for a review of a decision of the respondent which refused the second applicant’s application for a permanent residence card and revoked his current residence card, made pursuant to the European Communities (Free Movement of Persons) Regulations 2015. One of the grounds upon which the decision of the respondent was challenged was that the respondent acted in breach of constitutional justice by relying upon undisclosed and unparticularised information provided by the Garda National Immigration Bureau (GNIB) and/or the Hungarian authorities. The applicants applied to the High Court seeking discovery of all documents relating to communications between the Hungarian authorities and the GNIB about the first applicant. In their request for voluntary discovery they said that the verifying affidavit of Ms Morris, Higher Executive Officer in the respondent’s Investigation Unit of the EU Treaty Rights Division, had deployed this information in opposing their application but the actual information had not been exhibited. They further stated: “Accordingly, that affidavit is incomplete or fails to deal fully with the issue of what the information was. The applicants must have the opportunity of satisfying themselves that what the Minister has chosen to refer to represents the whole of the information relevant to the issues in these proceedings and is accurately characterised. The Minister has a duty to make appropriate disclosure to the High Court of all relevant material before her when the decision under challenge was made.”

Held by Burns J that discovery of the material was not necessary or relevant. Burns J found that the discovery application in effect was seeking to establish that there was other information before the respondent when making her decision which was considered by the respondent and which was not notified to the applicant. Burns J held that there was no basis for any such suspicion nor any basis to challenge the averment that this was the entirety of the information before the respondent. Burns J held that the fact that the information from GNIB emanated from the Hungarian authorities did not alter the fact that the legal basis for ordering discovery had not been met in this case.

Burns J refused to order that the discovery sought be made and made an order for the respondent’s costs in respect of the discovery motion as against the applicant.

Discovery refused.

JUDGMENT of Ms Justice Tara Burns delivered on 9th day of March, 2021.

General

1 In the substantive proceedings herein, the Applicants seek Certiorari of a decision of the Respondent refusing the Second Applicant's application for a review of a decision of the Respondent which refused the Second Applicant's application for a permanent residence card and revoked his current residence card. This application was made pursuant to the European Communities (Free Movement of Persons) Regulations 2015.

2 One of the grounds upon which the decision of the Respondent is challenged is that the Respondent acted in breach of constitutional justice by relying upon undisclosed and unparticularised information provided by the Garda National Immigration Bureau (hereinafter referred to as “GNIB”) and/or the Hungarian authorities.

3 The Statement of Opposition filed in the matter denies that the Respondent acted in breach of constitutional justice in the manner claimed. It is pleaded that the Respondent arrived at her decision having due regard to all of the facts, information, circumstances and documentary evidence and that she did not rely on undisclosed and unparticularised information. It is further pleaded that the Respondent notified the Applicants prior to the decisions being made, that information provided from the GNIB indicated that the First Applicant had been living and working in Hungary since 2012. A verifying affidavit of Ms Stacey Morris, Higher Executive Officer in the Respondent's Investigation Unit of the EU Treaty Rights Division, avers at paragraph 6 of her affidavit, in relation to these pleas, that “the Respondent…did not have any information beyond that which was communicated to the Applicant: namely that the EU citizen had been living and working in Hungary since 2012”. She avers that this information was provided to the Applicants by letter dated 24 May 2019, prior to the initial refusal and revocation decision. Ms Morris further avers that the Applicants did not provide any documentation contradicting this information throughout the course of their solicitors' communications with the Respondent. She again avers at paragraph 35 of her affidavit:-

“As previously stated in this Affidavit, the Respondent did not have any additional information from the GNIB and/or the Hungarian Authorities at the time of the first instance or review decisions…. All of the information in the possession of the Respondent was shared with the Applicants prior to the review decision being made.”

Discovery

4 The Applicants have sought discovery of all documents relating to communications between the Hungarian authorities and the GNIB about the First Applicant. In their request for voluntary discovery they say that the verifying affidavit of Ms Morris has deployed this information in opposing their application but the actual information has not been exhibited. They further state:-

“Accordingly, that affidavit is incomplete or fails to deal fully with the...