Rosa v Minister for Justice, Equality and Law Reform
| Jurisdiction | Ireland |
| Judge | Ms. Justice Faherty |
| Judgment Date | 09 March 2018 |
| Neutral Citation | [2018] IEHC 287 |
| Docket Number | [2015 No. 640 J.R.] |
| Court | High Court |
| Date | 09 March 2018 |
[2018] IEHC 287
THE HIGH COURT
JUDICIAL REVIEW
Faherty J.
[2015 No. 640 J.R.]
Asylum, Immigration & Nationality – Certiorari – Judicial review – Ss. 4(3) and 4(10((a) of the Immigration Act, 2004 – Award of damages
Facts: The applicant sought an order of certiorari, by way of an application, for judicial review for quashing the decision of the respondent, who refused the applicant 'leave to land' under ss. 4(3) and 4(10((a) of the Immigration Act, 2004. The applicant sought an order of mandamus for compelling the respondent to delete references to and immigration records of a refusal of 'leave to land' in respect of the applicant. The applicant contended that she had valid long-term residency permission and thus, the respondent had no basis upon which her leave to land was refused. The applicant submitted that if the refusal of leave to land was found to be unlawful, then the applicant should be awarded damages for the unlawful detention and removal.
Ms. Justice Faherty granted an order of certiorari for quashing the impugned decision of the respondent. The Court, however, refused to grant an order of mandamus to the applicant. The Court held that the respondent's decision where the applicant's entry was refused seemed to be unlawful. The Court was satisfied that the deprivation of the applicant's liberty should be marked in damages. The Court awarded damages to the applicant for unlawful detention.
The applicant is a Brazilian national. She came to Ireland to work in the hotel industry in 2003 and had work permits and 'Stamp 1' type residency permission from 2003 to 2010.
After she accrued five years of stamps on work permits, she applied for 'long term residency' permission ('LTR') and naturalisation. She was granted LTR by a decision letter dated 10th November, 2010. She duly registered this permission and received a five year stamp (Stamp 4 permission) from 6th December, 2010 to 10th November, 2015.
Some seven months or so following the grant of LTR, the applicant returned to Brazil with her husband and child, due to her husband's wish to return there for medical reasons following a serious injury sustained in this jurisdiction. The applicant and her family departed for Brazil on 25th June, 2011. Following treatment in Brazil, the applicant's husband recovered in or about March, 2012. In the interim, the applicant had found work in Brazil and the family remained there.
The applicant's naturalisation application, which she had submitted at the same time as her application for LTR, was approved by letter dated 15th June, 2011 from the Irish Naturalisation and Immigration Service (INIS), subject to her attending at the District Court to make her oath of fidelity to the State and paying the requisite fees.
The applicant had not made the oath or paid the requisite fees by the time she departed for Brazil on 25th June, 2011.
On 6th March, 2013, INIS wrote to the applicant, with reference to the letter of 11th June, 2011, stating that no reply to the letter had been received. The applicant was advised that any delay in completing the naturalisation procedure could result in the Minister reconsidering his decision to grant naturalisation or an increased fee before a certificate of naturalisation would issue.
The applicant was requested to note that her file 'will be put away' pending a response from her.
The applicant made contact with INIS on 13th March, 2013, requesting information regarding the location of the citizenship ceremony and the payment of the certificate fee.
On 3rd May, 2013, she wrote enquiring whether she could have a further period of four weeks to pay the certification fee, advising that while she wanted the Irish passport, she did not have the funds to hand. She gave her address as being Crosby Place, Little Barrack Street, Carlow.
A reply was furnished by INIS on 8th May, 2013, noting the applicant's comments and stating that the fee and relevant documentation were awaited.
In the absence of further communication from the applicant, the Citizenship Division of the respondent's department wrote to the applicant on 12th May, 2015, requesting that she confirm her current address, that she was still resident in the State and whether she was in a position to submit the requisite fee.
No reply was received from the applicant until 25th September, 2015, when she requested information in relation to the payment of the certification fee but did not address the request for confirmation concerning her residence in the State.
A further email issue from the Citizenship Division to the applicant on 28th September, 2015, again requesting confirmation as to her address and that she had been resident in the State since 2011, supported by evidence. No response was received to that request.
According to Ms Larney's grounding affidavit, the applicant's instructions were that it was always her intention to return to Ireland to take up her naturalisation approval when the time was right for the family to return and when they had the means to do so.
The applicant travelled to Ireland on 19th October, 2015, on a flight from Madrid, having originally flown from San Paulo, Brazil. Upon arrival, she was refused leave to land at Dublin Airport. At the time of her arrival in the State, the applicant's LTR stamp on her passport was still extant.
The basis for the refusal to land is contained in a 'Border Management Unit Entry' report complied by Lisa Lawless, the Immigration Officer who refused the applicant leave to land on 19th October, 2015. It reads as follows:
'The passenger presented at Immigration and stated she was here to stay with a friend. She then stated that she had permission to reside here. She produced a GNIB [Garda National Immigration Bureau] card, Stamp 4 valid from December 2010 until November 2015. She was asked if she lived in Ireland. She stated no she lives in Brazil with her husband and child. She stated that she had lived in Ireland for nine years but left sometime in December, 2010. Ms. Rosa stated she intended to renew her GNIB card and then she intended to be naturalised. She then produced a letter dated 2011 which purports to show she had an application for naturalisation. She stated she had 200 euro in cash and a credit card. She claimed she would live with a friend. She stated if she gets her card renewed her husband and child would then join her.
ICS Farrelly spoke to the passenger who stated she was here for a visit and was asked how long she intended to stay. She then stated she was entitled to reside here and did not understand why she was being questioned. She claimed she was entitled to naturalisation as she had a card valid till November 2015. She also produced a letter showing she had an application for naturalisation in 2011. Ms. Rosa told ICI Farrelly she left Ireland in 2011. She was asked if she had medical insurance and she stated why would she need it, get permission to live in Ireland.
As she had not lived since 2010 her permission would no longer be valid. Neither is she a genuine visitor as stated to ICS Farrelly.
I am not satisfied if she has access to sufficient funds to cover the potential cost of her stay in Ireland. Passenger is refused accordingly in consultation with ICS Farrelly.'
'The Refusal Details' state the reason for the refusal as follows:
'(a) that the non-national is not in a position to support himself or herself and any accompanying dependants
(k) There is a reason to believe that the non-national intends to enter the State for purposes other than those expressed by the non-national.'
The applicant's solicitor, Ms. Larney, tried to have the decision reviewed by INIS on 21st October 2011, but the review was refused. On the said date, INIS wrote to Ms. Larney in the following terms:
'Our records indicate that your client arrived at Dublin Airport on the 19 October 2015 having travelled from Madrid with Iberia Express. As your client is a foreign national she is required to seek permission to enter the State upon arrival. In the course of the examination necessary to determine her application for permission to enter, the Immigration Officer and subsequently the Officer's supervisor established that your client had left the State in December 2010 and was now seeking to return for a visit.
Notwithstanding your client's stated intention to pursue an application for naturalisation the Officer was satisfied that the grounds for refusal set out at (a) and (k) in Section 4 of the Immigration Act, 2004 had been satisfied. Consequently your client was refused leave to land and transferred into the custody of An Garda Siochana to effect her removal from the State. Matters pertaining to her custody are appropriate to the Garda National Immigration Bureau.'
By order of Mac Eochaidh J. on 16th November, 2015, the applicant was granted leave to seek relief by way of judicial review for:
1. An order of certiorari by way of an application for judicial review quashing the decision of 19th October, 2015, to refuse the applicant leave to land under s. 4(3)(a) and/or 4(10)(a) of the Immigration Act, 2004 ('the 2004 Act').
2. An order of mandamus compelling the respondent to delete references to and immigration records of a refusal of 'leave to land' in respect of the applicant.
3. Damages.
The grounds upon which leave was granted are as follows:
1. The applicant who, as a Brazilian, is visa-exempt already had LTR permission when she came to Ireland and a valid permission stamp. She was not applying for visitor type permission at the airport.
2. It was not a condition of LTR permission that the beneficiary resides in Ireland at all times, or at all. It is a...
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