Sekoni v Minister for Justice Equality and Law Reform
|Ms. Justice Faherty
|27 October 2017
| IEHC 801
|[2015 No. 435 J.R.]
|27 October 2017
 IEHC 801
THE HIGH COURT
[2015 No. 435 J.R.]
Asylum, Immigration & Nationality - Costs - Permission to remain - Mootness - Submission of documents - Delay
Facts: The applicants sought costs in relation to the proceedings, which had become moot. The applicants contended that as a result of the delay by the respondent in making a decision on the applicants' application to remain in the State, both the applicants were prejudiced as the first named applicant was not in a position to provide for the second named applicant/infant. The respondent contended that the first named applicant failed to submit all the relevant documents before the respondent/Minister and that was the cause of the delay.
Ms. Justice Faherty awarded one third of the costs to the applicants. The Court took an approach somewhat similar to the one taken in the case of , where the proceedings were rendered moot because of external factors beyond the control of the parties. The Court held that the mootness in the present case was not caused by the unilateral actions of either the applicants or the respondent. The Court noted that the respondent was responsible for the delay as it could have been asked for the relevant documents on time.
This is an application for costs by the applicants in the within proceedings which have become moot in the following circumstances.
The first named applicant, a Nigerian national, applied for and was refused asylum in the State. Following the refusal and in response to the proposal to deport him, the first named applicant applied to the respondent on 13th November, 2013, for leave to remain in the State on humanitarian grounds. In the course of the application he made reference, inter alia, to his relationship with a third party who had residence in the State since 2000 and who was as of November 2013 pregnant with the first named applicant's child (the second named applicant herein).
The second named applicant was born on 24th January, 2014. The Minister was advised of her birth by the applicant's solicitor on 6th August, 2014. Receipt of this communication was acknowledged on 7th August, 2014. It is accepted by the applicants that there was delay in advising the respondent of the birth. Some ten months later, on 16th June, 2015, the applicant's solicitor wrote to the Minister enclosing a colour copy of the first named applicant's passport and stating that any queries should be directed to the writer of the letter. This letter was acknowledged on 18th June, 2015.
On 8th July, 2015, the applicant's solicitor wrote to the Minister in the following terms:
'We refer to the above and advise our client has been waiting since November 2013 for a decision on his leave to remain/Zambrano application.
We enclose a copy of our letter dated 6th August 2014 enclosing a copy of his Irish citizen child's passport and the purpose of this letter is to ask you to make a decision on his application within10 days from the date hereof.
We advise the long delay in making a decision on this application is causing stress for the family and our client's inability to work is affecting the welfare of his Irish citizen child.
We hereby call upon you to make a decision on his application within 10 days from the date hereof, failing this we are instructed to make an application to court for an Order of Mandamuses to seek same. We await hearing from you within the aforementioned time.'
By this time the application for leave to remain was with the respondent for twenty months.
By letter dated 9th July, 2015, the respondent replied to the request for an 'early decision', essentially advising that the first named applicant was requested to submit:
- A colour copy of the biodata page of his Irish citizen child's Irish passport together with the child's original passport.
- The child's original Irish Birth Certificate.
- Two colour passport sized photographs of the first named applicant, signed on the back.
- Documentary evidence that the Irish citizen child has been living in the State since birth.
- Proof by way of the first named applicant's address in Ireland since the birth of the Irish citizen child, e.g utility bills.
- Documentary evidence of the role the applicant has played in the Irish citizen child's life since the child's birth such as to demonstrate the child's dependency on the applicant in the State.
- Any other information considered relevant.
The letter also advised that 'in light of the fact that [the first named applicant's] application for right of residency in the State, accompanied by a right to work, based on his parentage of an Irish citizen child, is deficient in so many areas, it can be taken that a decision will not be made on that application within the next 10 days.'
On 16th July, 2015, the applicant's solicitor provided the respondent with a number of documents, as follows: a colour copy passport relating to the second named applicant, passport photographs of the first named applicant signed on the back, a birth certificate in respect of the second named applicant, a letter from a crÃ¨che dated 14th July, 2015, by way of evidence of the first named applicant's involvement with the second named applicant, a letter from the second named applicant's medical practitioner; and a letter from a public health nurse. Included also was a letter from the first named applicant's partner which advised as to his involvement in the second named applicant's life, and a copy of a utility bill in respect of his then residence. The respondent was advised that the first named applicant was unable to provide proof of residing at the said address (where his partner also resided) as the landlord was not aware that he was residing there. The letter concluded by stating that a response was awaited and that the respondent should revert if further queries arose. This correspondence was acknowledged on 23rd July, 2015.
The within proceedings issued on 23rd July, 2015. By order of MacEochaidh J. of 27th July, 2015, the applicants got leave to seek judicial review to seek an order of mandamus compelling the respondent to issue a decision in respect of the application for permission to remain in the State.
On 11th August, 2015, the respondent sought further supporting information from the first named applicant, to include his Nigerian passport and two new passport sized photographs. Reference was made to two previously submitted photographs being damaged and not fit for purpose. A sworn statement from the first named applicant's partner was also sought, fully outlining the financial and emotional support role being provided in respect of the second named applicant.
The requested information was provided under cover of letter dated 9th September, 2015.
On 7th December, 2015, the first named applicant was granted permission to remain in the State on a Stamp 4 basis for one year based on his parentage of the second named applicant, an Irish citizen child.
It is accepted that as of 7th December, 2015, the within proceedings became moot.
In support of the application for costs, counsel for the applicants advances the following arguments. The application for the leave to remain was first submitted in November, 2013. Between then and 6th August, 2014, when the Minister was advised of the second named applicant's birth, no decision in respect of the leave to remain application had issued. Similarly, between 6th August, 2014 and 16th June, 2015, when the first named applicant forwarded a copy of his passport and updated his address details, no decision issued.
It is submitted that as a result of the delay, both of the applicants were prejudiced in circumstances where the first named applicant (being unlawfully in the State) was not in a position to provide for the second named applicant.
It is submitted that Mr. Nicholson's affidavit does not inform as to what was happening between November, 2013 and August, 2014, or between August, 2014 and July, 2015. Moreover, the photographs requested by the respondent via the letter of 11th August, 2015, had previously been forwarded to the Minister and there had been no request for any further photographic evidence or for any originals of documents already submitted. No explanation has been furnished as to why the information, which was sought between July and August, 2015, was not sought earlier, all of which could have been speedily furnished to the Minister had a request for same been made in 2014.
Following the provision, in September, 2015, of the requested information, it nevertheless took another three months for the Minister's decision to issue. No explanation for this delay has been forthcoming.
It is submitted that the first named applicant was entitled to a decision within a reasonable time. By the time the within proceedings issued, the decision was outstanding some eleven months from the time the Minister was advised of the second named applicant's birth and some twenty months from the date upon which the application for leave to remain was first filed.
It is submitted that the within proceedings became moot because of the unilateral action of the respondent in granting the permission to remain.
Insofar as the respondent contends that the proceedings became moot through the unilateral actions of the first named applicant in submitting the requested documents, counsel argues that that cannot be the case; the applicant never...
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