Okolie v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr Justice David Keane
• Judgment Date: 03 September 2018
• Neutral Citation: [2018] IEHC 490
• Court: High Court
• Docket Number: [2016 No. 527 JR]
• Date: 03 September 2018

[2018] IEHC 490

THE HIGH COURT

JUDICIAL REVIEW

Keane J.

[2016 No. 527 JR]

BETWEEN

KINGSLEY OKOLIE

AND

ANGEL DANIELLE ISHIOMA OKOLIE(AN INFANT SUING BY HER FATHER AND NEXT FRIEND KINGSLEY OKOLIE)

APPLICANTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

Judicial review – Permission to reside in the State – Costs – Applicants seeking costs – Whether there was an 'event' for costs to follow

Facts: The first applicant, Mr Okolie, is a citizen of Nigeria and the father of the second applicant, who was born in the State on 8 July 2004 and is a citizen of Ireland. Mr Okolie entered the State unlawfully in October 2013 or 2015. On 19 October 2015, he wrote to the Irish Naturalisation and Immigration Service (INIS) seeking permission to reside in the State based on his parentage of an Irish citizen child, in reliance upon the principle identified by the Court of Justice of the European Union in Case C-34/09 Gerardo Ruiz Zambrano v Office national de l'emploi EU:C:2011:124. By order made on 10 October 2016, Mac Eochaidh J granted the applicants leave to seek an order of mandamus compelling the respondent, the Minister for Justice and Equality, to issue a decision on that application. On 20 December 2016, the INIS wrote to Mr Okolie, informing him of the Minister's decision to refuse him permission to reside and work in the State under the Zambrano principle, thereby rendering these proceedings moot. Mr Okolie and his daughter applied to the High Court seeking their costs of the moot judicial review proceedings against the Minister.

Held by Keane J that: (a) these judicial review proceedings became moot when the INIS wrote to Mr Okolie, informing him of the Minister's decision to refuse him permission to reside and work in the State under the Zambrano principle; (b) on the evidence, the Minister's decision was due to what was, from the Minister's perspective, an external factor, namely the arrival of Mr Okolie's application at the top of a queue of such claims that were being dealt with strictly in chronological order; (c) on that evidence, the Minister's decision was not made in direct response to the issue of the proceedings, hence there was no 'event' in this case, comparable to the one that was at issue in Godsil v Ireland [2015] 4 IR 535, to which the general rule on costs under O. 99, r. 1(4) of the RSC can be applied; (d) insofar as the Minister's decision can be correctly characterised as a change of position on the Minister's part, it was a reasonable and appropriate response to the change of circumstances represented by the fact that Mr Okolie's application had arrived at the top of the queue. Keane J held that it would be inappropriate to characterise the proceedings as having become moot by the unilateral action of the Minister.

Keane J held that he would make no order on the costs of these proceedings.

Costs refused.

JUDGMENT of Mr Justice David Keane delivered on the 3rd September 2018

Introduction

1 This is an application for the costs of judicial review proceedings that have become moot.

2 The first applicant, Kingsley Okolie, is a citizen of Nigeria and the father of the second applicant, Angel Danielle Ishioma Okolie, who was born in the State on 8 July 2004 and is a citizen of Ireland.

3 Mr Okolie entered the State unlawfully in October 2013 or 2015 - on the papers before me it is not entirely clear which. On 19 October 2015, through his solicitors, he wrote to the Irish Naturalisation and Immigration Service ("INIS"), seeking permission to reside in the State based on his parentage of an Irish citizen child, in reliance upon the principle identified by Court of Justice of the European Union ("CJEU") in Case C-34/09 Gerardo Ruiz Zambrano v Office national de l'emploi EU:C:2011:124 ("the Zambrano principle").

4 By order made on 10 October 2016, Mac Eochaidh J granted the applicants leave to seek an order of mandamus compelling the respondent, the Minister for Justice and Equality ("the Minister"), to issue a decision on that application.

5 On 20 December 2016, the INIS wrote to Mr Okolie, informing him of the Minister's decision to refuse him permission to reside and work in the State under the Zambrano principle, thereby rendering these proceedings moot.

6 Mr Okolie and his daughter now seek their costs of the proceedings against the Minister.

The correct approach to the costs of moot proceedings

7 The principles I distill from the leading cases on the correct approach to the costs of moot proceedings are the following:

(a) Under O. 99, r. 1(4) of the Rules of the Superior Courts, the general rule on the costs of proceedings is that they follow the event, although there is a discretion to order otherwise; Grimes v Punchestown Developments Co. Ltd [2002] 4 IR 515 (at 522).

(b) Even where the substantive point has become moot, the first inquiry which a court must make on a follow on costs application is to decide whether or not there exists an 'event' to which the general rule can be applied; Godsil v Ireland [2015] 4 IR 535 at 555-6. Such an event may exist where, for example, the actions that rendered the proceedings moot were carried out in direct response to the issue of the proceedings; ibid (at 557).

(c) Where there is no "event", the basic rule, though not one that should be applied over-prescriptively, is that, in the absence of significant countervailing factors, the court should lean ordinarily in favour of making no order as to costs where a case has become moot due to a factor or occurrence outside the control of the parties but should lean in favour of awarding costs against a party through whose unilateral action the proceedings have become moot; Cunningham v. President of the Circuit Court [2012] IESC 39, [2012] 3 I.R. 222 (at 230).

(d) There are hybrid cases that do not fit neatly into either category; Cunningham (at 23). The most obvious instance of such a case is where a statutory officer or body, whose conduct is under challenge, has changed position, to a greater or lesser extent, due to wholly external factors. Statutory authorities have an obligation to exercise their powers in a proper manner. Where circumstances change, it is not only reasonable but necessary for them to take that into account, which may result in a change of position, rendering proceedings moot. When that happens, it may be inappropriate to characterise the proceedings as having become moot by the unilateral action of that authority, whereas it may be appropriate to do so if there has simply been a change of mind or the adoption of a new and different view. Where the immediate or proximate cause of mootness is an act or omission of a statutory body or officer, which that body or officer claims was precipitated by an external factor or factors, that body or officer bears the evidential burden in that regard; Cunningham (at 230-2)

(e) The court cannot and should not form a view on the merits of the proceedings - i.e. whether the substantive application for judicial review would have succeeded or failed; Cunningham (at 233).

(e) The quite different test for determining the issue of liability for the costs of moot proceedings posited in S.G. and N.G. v Minister for Justice, Equality and Law Reform & Ors [2006] IEHC 371, (Unreported, High Court (Herbert J), 16th November, 2006) - i.e. whether in the circumstances it was reasonable for the applicants to have commenced their application for leave to seek judicial review - must now be viewed as one limited in its application to the facts of that case; Matta v Minister for Justice [2016] IESC 45 (Unreported, Supreme Court (MacMenamin J; Dunne and O'Malley JJ concurring), 26th July, 2016) (para. 22).

The Zambrano principle

8 Article 20(1) of the Treaty on the Functioning of the European Union ("TFEU") establishes the concept of European Union citizenship by providing that every person holding the nationality of a Member State shall be a citizen of the Union. Under Article 20(2) of the TFEU the rights of the Union citizen are expressed to include the right to move and reside freely within the territory of the Member States.

9 In Zambrano, the CJEU ruled:

"Article 20 TFEU is to be interpreted as meaning that it precludes a Member State from refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen."

10 This is the Zambrano principle, upon which Mr Okolie, as the third country national ("TCN") parent of an infant Irish - and, hence, Union - citizen daughter, sought to rely.

11 How may the decision to refuse permission to a third country national to work or reside in the Member State of the nationality of his dependent Union citizen child deprive that child of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizenship? In Case C-256/11 Murat Dereci v Bundesministerium fûr Inneres EU:C:2011:734, the CJEU first noted (at para 65) that, in Zambrano, the Court was satisfied that the refusal to grant the right of residence sought would require the Union citizen children concerned to leave the territory of the Union with their TCN parents, before concluding (at para 66):

"It follows that the criterion relating to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of European Union citizen status refers to situations in which the Union citizen has, in fact, to leave not only the territory of the Member State of which he is a national but also the territory of the Union as a whole."

12 The judgment of the CJEU continues:

"67 That...