Saleem v Min for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 02 June 2011
• Neutral Citation: [2011] IEHC 223
• Court: High Court
• Docket Number: [2010 No. 774 JR]
• Date: 02 June 2011

[2011] IEHC 223

THE HIGH COURT

[No. 774 J.R./2010]

Saleem v Min for Justice

JUDICIAL REVIEW

MR JUSTICE COOKE

APPROVED TEXT

BETWEEN

MUHAMMED SALEEM

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

SALEEM v MIN FOR JUSTICE UNREP COOKE 4.2.2011 2011 IEHC 55

LONG TERM RESIDENCY (FEES) REGS 2009 SI 287/2009

IMMIGRATION ACT 2004 S4

IMMIGRATION ACT 2004 S5

IMMIGRATION ACT 2004 S4(3)

IMMIGRATION ACT 2004 S4(6)

IMMIGRATION ACT 2004 S4(1)

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 20

ZAMBRANO v OFFICE NATIONAL DE L'EMPLOI (ONEM) 2011 AER (EC) 491 2011 2 CMLR 46 2011 2 FCR 491

AMMINISTRAZIONE DELLE FINANZE DELLO STATO v SIMMENTHAL SPA (NO 2) 1978 ECR 629 1978 3 CMLR 263

IMMIGRATION ACT 1999 S3

PIGS & BACON CMSN v MCCARREN & CO LTD 1981 IR 451

RSC O.84

M (AN) v REFUGEE APPEALS TRIBUNAL (GARVEY) UNREP CLARK 16.7.2009 2009/36/9007 2009 IEHC 331

RSC O.40 r14

SARAZIN'S PATENT, IN RE 1947 64 RPC 51

RULES OF THE SUPREME COURT (ENGLAND & WALES) O.41

PRACTICE AND PROCEDURE

Affidavits

Translation - Non English speaking deponent - Admissibility - Officer administering oath - Jurat - Certification - Whether affidavit "read over and perfectly understood" by deponent - Judicial review - Certiorari -Long term residency - Delay in processing application - Legitimate expectation - Whether decision would be different in absence of delay - European Union law - National court - Parent of Irish born child - Whether court called upon to implement directly applicable European Union law - Whether court obliged to consider ground raised at hearing of proceedings - Whether court obliged to consider ground outside grant of leave - In re Letters Patent granted to Sarazin [1947] 64 RPC 51 approved - Rules of the Superior Courts 1986 (SI 15/1986), O 40, r 14 - Treaty on the Functioning of the European Union, Article 20 - Relief refused (2010/774JR - Cooke J - 2/6/2011) [2011] IEHC 223

Saleem v Minister for Justice, Equality and Law Reform

1 1. By Order of the Court (Clark J.) of the 28 ^th June, 2010, leave was granted to the applicant to bring the present application for judicial review of a decision made by the respondent on the 12 ^th May, 2010, in which the Minister refused an application for "long term residency" which the applicant had made in July 2008. ("The contested decision").

2 2. The applicant is a native of Pakistan who had originally come to Ireland in December 2001, having obtained a visa and work permit for the purpose of taking up employment in this country. In the case of a non-EEA national, work permits are issued by the Department of Enterprise, Trade and Employment for limited periods of time. They are issued to a named non-EEA national and cover employment with a specific employer during that period of time. In the case of the applicant, his first work permit was valid from 1 ^st December, 2001, until the 30 ^th November, 2002. The applicant's final work permit was issued as valid from 1 ^st December, 2007, until the 30 ^th November, 2009.

3 3. Similarly, permission to remain for the purpose of the immigration laws is issued by the respondent Minister to migrant workers for limited periods and takes the form of an endorsement stamped in the passport of the migrant concerned. It falls to each migrant worker who continues to reside and work in the State to ensure that the permissions to work and to remain in the State are constantly valid by being renewed from time to time as necessary.

4 4. As this Court pointed out in an interlocutory ruling given in this case on the 4 ^th February, 2011 ( Saleem v Minister for Justice, Equality and Law Reform, Unreported High Court, Cooke J., 4 February 2011 [2011] IEHC 55), the expression "long term residency" is not one used in the Immigration Act 2004, although it does appear in the Long Term Residency (Fees) Regulations 2009, ( SI No. 287/2009). If one leaves aside the special arrangements applicable to migrant workers who are nationals of a Member State of the European Union or of a state in the European Economic Area, the arrangements governing an entitlement to enter or land in the State and to remain within the jurisdiction thereafter, derive in effect from ss. 4 and 5 of the Immigration Act 2004. Section 5 of that Act provides that no non-national may be in the State other than in accordance with the terms of a permission given under the Act by or on behalf of the Minister, or given before the passing of that Act. Section 4 provides that an Immigration Officer may on behalf of the Minister give a non-national, either by means of a document or by placing a stamp on his or her passport, "an authorisation to land or be in the State". No general conditions are prescribed by s. 4 in relation to the grant of such permissions. Subsection (3), however, prescribes a series of circumstances in which an immigration officer on behalf of the Minister may refuse to give permission and subsection (6) provides that a permission can be given subject to such conditions as to duration of stay and engagement in employment, business or profession as may be thought fit. Accordingly, the combined effect of the stamping of the passport with permission to remain for a given duration with reference to the terms of a specific work permit, is that the non-EEA national has permission to be in the State for the purposes of s. 5 upon the conditions as to duration and engagement in a particular employment as are specified in the endorsement on the passport.

5 5. It follows, accordingly, that in s. 4(1) of the Immigration Act 2004, the Oireachtas has conferred on the Minister a discretion exercisable through his immigration officers to grant to non-nationals (that is, non-EEA nationals in present circumstances,) permission to land or remain in the State and to prescribe conditions for such permissions including those as to the length of stay and the employment, business or profession that might be engaged in.

6 6. The Act does not otherwise distinguish between standard forms of permission to remain by reference to specific periods of time. The term "long term residency" effectively derives from the way in which the discretion under s. 4 is exercised in practice. While permissions issued to migrant workers are for short periods of, typically, two years, the respondent has published a scheme which is given the title "Long Term Residency" and which sets out the circumstances in which the Minster will be prepared to entertain and decide upon applications for continued residency in the State for a period of five years before further renewal is required. The publication appears to take the exclusive form of its presentation on the website of the Irish Naturalisation and Immigration Service, (INIS). The terms of the scheme appear to be changed from time to time and neither party has been able to put in evidence the version which was in operation in July 2008, when the applicant made his application. Nevertheless, it is not disputed that one of the essential conditions laid down as to the basis upon which an application might be made was that such applications were confined to "persons who have been legally resident in the State for a minimum of five years (ie. 60 months) on work permit/work authorisation/working visa conditions". Nor does it appear to be disputed that the published conditions for the scheme at all material times stipulated that to be valid, an applicant had to have a permission to remain in the State which was valid when the application was made and be in gainful employment and that both the permission to remain and the employment continued during the application process. In ground No. 3 of the statement of grounds in the this case, it was acknowledged:-

"It is a criteria (sic) under the scheme that an applicant keep his permission to remain up to date at all times, including the period while their application is being processed."

7 7. As already mentioned, the applicant made the application for long term residency to the respondent by letter dated the 4 ^th July, 2008. The application was acknowledged by letter to the applicant's solicitor of the 17 ^th July, 2008, containing the advice: "Please ensure that your client keeps their permission to remain on work permit conditions/work authorisation conditions remains (sic) up to date at all times while their application is under consideration". A police clearance certificate on behalf of the applicant was forwarded on the 22 ^nd April, 2009 and acknowledged on the 30 ^th of that month. In the original acknowledgment of the 17 ^th July, 2008, the INIS had warned that there was a large volume of such applications and that the service was at that point processing applications which had been received in October 2006. When the letter of the 30 ^th April, 2009, was written the process was dealing with those lodged in August 2007.

8 8. In early September 2009, the applicant's solicitor again wrote inquiring as to the delay in dealing with the application and was informed by letter of the 15 ^th September, 2009, that the processing of applications had then reached those lodged in January 2008. By letter of the 24 ^th September, 2009, the solicitor called upon the respondent to issue a decision and threatened proceedings. Such proceedings were commenced on the 5 ^th October, 2009, (Record No. 2009 No. 100 J.R.) and leave to seek relief by way of mandamus was granted by the Court by order of the 5 ^th October, 2009. The substantive hearing of that application was subsequently listed on the 22 ^nd April, 2010, but the proceedings were compromised, the respondent having agreed to give a decision on the application within 21 days.

9 9. It was in those circumstances that the decision on the application was communicated to the applicant's solicitor by a letter of the 12...