Saleem & Spryszynska v Minister for Justice and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice John Cooke
• Judgment Date: 16 February 2011
• Neutral Citation: [2011] IEHC 49
• Docket Number: [No. 11 J.R./2010]
• Court: High Court
• Date: 16 February 2011

[2011] IEHC 49

THE HIGH COURT

[No. 11 J.R./2010]

Saleem & Spryszynska v Min for Justice & Ors

JUDICIAL REVIEW

MR JUSTICE COOKE

APPROVED TEXT

BETWEEN

MUHAMMAD ALI SALEEM

AND

MARTA SARA SPRYSZYNSKA

APPLICANTS

AND

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

RESPONDENTS

EUROPEAN COMMUNITIES FREE MOVEMENT OF PERSONS (NO2) REGS 2006 SI 656/2006 REG 21

EUROPEAN COMMUNITIES FREE MOVEMENT OF PERSONS (NO2) REGS 2006 SI 656/2006 SCHED 2

EUROPEAN COMMUNITIES FREE MOVEMENT OF PERSONS (NO2) REGS 2006 SI 656/2006 REG 6(2)(A)

EEC DIR 2004/38 ART 7

EUROPEAN COMMUNITIES FREE MOVEMENT OF PERSONS (NO2) REGS 2006 SI 656/2006 REG 6(2)(B)

EEC DIR 2004/38 ART 7(2)

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 288

LAMASZ & GURBUZ v MIN FOR JUSTICE & ORS UNREP COOKE 16.2.2011 2011 IEHC 50

EUROPEAN COMMUNITIES FREE MOVEMENT OF PERSONS (NO2) REGS 2006 SI 656/2006 REG 6

EUROPEAN COMMUNITIES FREE MOVEMENT OF PERSONS (NO2) REGS 2006 SI 656/2006 REG 7

EUROPEAN COMMUNITIES FREE MOVEMENT OF PERSONS (NO2) REGS 2006 SI 656/2006 REG 6(2)(A)(I)

EEC DIR 2004/38 ART 10.1

EEC DIR 2004/38 ?

EEC DIR 2004/38 ?

EUROPEAN COMMUNITIES FREE MOVEMENT OF PERSONS (NO2) REGS 2006 SI 656/2006 REG 7(1)(A)

POINT EXHIBITION CO LTD v REVENUE COMMISSIONERS 1993 2 IR 551

IMMIGRATION

Residence card

Review - Failure to give reasons for decision - Delay in giving review decision unreasonable and excessive - Whether failure to give reasons prevented applicant from adducing evidence to contradict basis of Minister's decision - Minister under obligation to give reasons within specified time - Lamasz and Anor v Minister for Justice [2011] IEHC 50, (Unrep, Cooke J, 16/2/2011) and Point Exhibition Co. Ltd. v. Revenue Commissioners [1993] 2 IR 551 considered - European Communities (Free Movement of Persons) (No.2) Regulations 2006 (SI 226/2006), regs 6, 7 and 21 - Order of mandamus directing review granted (2010/11 JR - Cooke J - 16/2/2011) [2011] IEHC 49

Saleem and Anor v Minister for Justice and Ors

Facts The applicants sought, by way of judicial review, an order of certiorari quashing the decision of the first named respondent refusing the first named applicant a Residence Card, under the European Communities (Free Movement of Persons) No. 2 Regulations 2006. The applicants also sought declaratory reliefs and an order of mandamus compelling the respondent to issue a decision on an application for administrative review of the aforementioned decision. The Regulations relied on by the applicant gave effect in national law to Directive 2004/38/EC of the European Parliament and of the Council. The first named applicant's application for a residency card was made on 9 December 2008 and was refused by letter dated 16 June 2009 on the ground that the applicant failed to provide certain relevant documents with his application. The applicant did in fact send in further documentation but same was received after the decision had been made by the respondent refusing his application. The applicant requested a review of his application and followed up that request with solicitors letters sent on his behalf. The respondent replied to the request for a review stating that it was being dealt with in strict chronological order and further asserted "there was no set time limit within which a decision must be made."

Held by Cooke J. in granting an order of mandamus: That the directive under consideration in this case was transposed in the Regulations. Accordingly, the law to be applied was the Regulations. The applicant was not entitled to an order of certiorari because the respondent was entitled to satisfy himself that as of the date of taking the decision the conditions for the issue of the residency card had been fulfilled and in this case all of the relevant documentation had not been received at the time of the making of the decision. The respondent's view that there was no set time limit within which to review the decision was a mistaken view of the obligation of the State towards Union citizens and their family members arising under the Directive. The respondent had a duty to make his decision within a reasonable time. The respondent was directed to make a decision on the review request within 28 days of the perfection of the order.

Reporter: L.O'S.

Mr. Justice John Cooke

1 By order of 11^th January, 2010 the Court (Cooke J.), granted leave to the applicants to bring the present application for judicial review, seeking, amongst a number of reliefs, an order of certiorari to quash a decision of the first named respondent ("the Minister"), dated 16^th June, 2009, which refused the first named applicant a Residence Card, under the European Communities (Free Movement of Persons) No. 2 Regulations 2006 ("the Regulations"). The Regulations give effect in national law to Directive 2004/38/EC of the European Parliament and of the Council of 29^th April, 2004, on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States ("the Directive"). Leave was also granted to apply for certain declaratory reliefs, together with an order of mandamus, to compel the Minister to issue a decision on an application for an administrative review of the above decision made on 24^th June, 2009 pursuant to Regulation 21. This is one of a number of cases raising similar issues under the Regulations and the Directive which were heard together and in which separate judgments are now being given.

2 The background to the present proceeding is as follows. The first named applicant is a national of Pakistan, who arrived in the State in September 2005, on a student visa. The second named applicant is a national of Poland who arrived in the State in May 2006. She says that she worked with "McDonalds" between May 2006 and March 2008, and took up fulltime employment with the "Starbucks" outlet at Sandyford in County Dublin as a sales person on a fulltime basis in January 2008. The couple met while both were working in McDonalds and married on 1^st December, 2008, at Naas in County Kildare.

3 An application dated 9^th December, 2008, on Form EU1 for a Residence Card for the first named applicant was made and stamped as 'Received' by the Irish Naturalisation and Immigration Service on 16^th December, 2008. The form was accompanied by the original documents (so far as relevant,) specified in the "Checklist" on the form, being the proofs required under Schedule 2 of the Regulations. These included passports, the marriage certificate, evidence of residence, birth certificate and so forth. By letter of 17^th December, 2008, the application was acknowledged and the first named applicant was informed that he could obtain a "Stamp 4" endorsement on his passport from the local Immigration Officer which would validate his residence until 17^th June, 2009.

4 By letter dated 16^th June, 2009, the application was refused. The material part of the letter reads as follows:

"I am to inform you that the Minister has decided to refuse your application for a "Residence Card of a family member of a Union citizen.

5 This is for the following reasons:

6 You submitted the following as evidence of the EU citizen exercising their EU Treaty Rights in this State: Letter from Starbucks, dated 04 December, 2008. You were also asked to provide payslips and the most recent P60 in respect of Marta Sara Spryszynska, you...