Shyllon v Min for Justice

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Herbert
• Judgment Date: 28 April 2010
• Neutral Citation: [2010] IEHC 153
• Docket Number: [No. 392 J.R./2009]
• Date: 28 April 2010

[2010] IEHC 153

THE HIGH COURT

[No. 392 J.R./2009]

Shyllon v Min for Justice

JUDICIAL REVIEW

BETWEEN

OLALEKAN OLUWAGBEMINIYI SHYLLON

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

IMMIGRATION ACT 1999 S3(4)

FAMILY LAW (DIVORCE) ACT 1996 S5

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(1)

RSC O.84 r21(1)

RSC O.122 r1

A (J) v REFUGEE APPLICATIONS CMSR & ORS UNREP HEDIGAN 18.12.2008 2008/1/27 2008 IEHC 431

K (G) & ORS v MIN FOR JUSTICE & ORS 2002 1 ILRM 81 2001/13/3546

S (C) & ORS v MIN FOR JUSTICE & AG 2005 1 IR 343 2005 1 ILRM 81 2004/45/10305 2004 IESC 44

K (G) & ORS v MIN FOR JUSTICE & APPEALS AUTHORITY & ORS 2002 2 IR 418 2002 1 ILRM 401 2001/13/3557

EEC DIR 2004/38 ART 13(2)

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO 2) REGS 2006 SI 656/2006 REG 10(2)(A)

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (AMDT) REGS 2008 SI 310/2008

DIATTA v LAND BERLIN 1985 ECR 567 1986 2 CMLR 164

EEC REG 1612/68 ART 10

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO 2) REGS 2006 SI 656/2006 REG 6

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO 2) REGS 2006 SI 656/2006 REG 10(2)(B)

IMMIGRATION

Residence

Leave - Extension of time - Delay - No explanation or excuse - No good and sufficient reason to extend time - Retention of right of residence - Failed asylum application - Deportation order - Subsequent marriage to European Union national - Temporary residency - Separation from European Union national spouse - Refusal to renew residence card - No divorce or annulment proceedings in being - Whether renewal of permission to remain in State on basis of marriage required applicant to have successfully concluded or started divorce or annulment proceedings - Whether requirements of family law imposed impossible condition - Whether separated non-national spouse of European Union national no longer in host Member State, retained right to reside in host Member State until such time as decree of divorce or nullity obtained - A(J) v Refugee Applications Commissioner [2008] IEHC 431 (Unrep, Hedigan J, 18/12/2008), K(G) v Minister for Justice, Equality and Law Reform [2002] 2 IR 419 and S(C) v Minister for Justice [2005] 1 IR 343 followed - Diatta v Land Berlin Case 267/83 [1985] 2 ECR 567 considered - European Communities (Free Movement of Persons) (No 2) Regulations 2006 (SI 656/2006), reg 6 and 10(2) - European Communities (Free Movement of Persons) (Amendment) Regulations 2008 (SI 310/2008) - Immigration Act 1999 (No 22), s 3(4) - Family Law (Divorce) Act 1996 (No 33), s 5 - Council Directive 2004/38/EC, art 13(2) - Rules of the Superior Courts 1986 (SI 15/1986), O 84, 21(1) - Leave refused (2009/392JR - Herbert J - 28/04/2010) [2010] IEHC 153

Shyllon v Minister for Justice, Equality and Law Reform

Mr. Justice Herbert

1 The following facts were agreed in the course of this application.

2 The applicant is not a national of any Member State of the European Union. He entered this Member State of the European Union on the 26^th August, 2000. An application by him for asylum in this State was refused. A Deportation Order was made in respect of him on the 3^rd June, 2005. On the 26^th July, 2005, he married, in this State, a United Kingdom national then residing and employed here in exercise of her Treaty rights as a Union Citizen.

3 On the 22^nd February, 2006, the applicant was granted a one year Residence Card on the basis of his marriage to this Union Citizen in employment in the State. It is stated that unhappy differences subsequently arose between the applicant and his spouse. He states that he has had no contact with her since February 2007. On the 19^th October, 2007, the applicant sought retention of the right of residence in this State on an individual and permanent basis.

4 By a letter dated the 3^rd June, 2008, admitted into evidence, the applicant was advised by the respondent that his application was refused and that it was intended to issue notification that the respondent proposed to make a Deportation Order in respect of him. This notification took the form of a letter dated 13^th June, 2008, sent by registered post to the applicant and by ordinary pre-paid post to his solicitors. This letter, admitted into evidence, advised the applicant that under the provisions of s. 3(4) of the Immigration Act 1999, (as amended), he had to choose one of three options:

Leave the State voluntarily,

Consent to the making of a Deportation Order or,

5 Apply for Subsidiary Protection or make representations to remain temporarily in the State, -

6 And respond in 15 working days, failing which a Deportation Order would be made in respect of him.

7 By a letter dated the 21^st July, 2008, admitted into evidence the solicitors for the applicant responded as follows:-

"Mr. Shyllon is married to a UK National and has been granted residency in the State on a previous occasion based upon his entitlements under EU Treaty Law."

8 We submit that he retains this entitlement to residency in a personal capacity under EU Law. We have been instructed to issue Judicial Review proceedings in connection with a recent refusal of his present permission to remain in the State.

9 Under these circumstances and because the Minister for Justice, Equality and Law Reform is named in those proceedings we believe that we reserve the right to make further submissions at a later date."

10 This letter was acknowledged on the 30^th July, 2008. By a letter dated the 21^st October, 2008, admitted into evidence, the EU Treaty Rights Section of the Irish Naturalisation and Immigration Section of the Department of Justice, Equality and Law Reform wrote to the solicitors for the applicant in the following terms:-

"Dear Sir/Madam,

I am directed by the Minister for Justice, Equality and Law Reform to refer to your above named client. As your client is separated from his EU national spouse in order for him to renew his permission to remain (Stamp 4 based on his marriage to an EU citizen) one of the qualifying criteria is that he must have started legal divorce proceedings or must be already legally divorced from his spouse, provided that prior to the initiation of divorce or annulment proceedings the marriage lasted at least three years including one in this State.

Our decision letter of 03 June 2008 stands as your client no longer resides with his EU national spouse who is no longer exercising her EU Treaty Rights within the State and divorce or annulment proceedings have not been initiated. All further correspondence in relation to this matter should be addressed to: The Repatriation Unit, Irish Naturalisation and Immigration Service, Department of Justice, Equality and Law Reform, 13/14 Burgh Quay, Dublin 2. Please find your client's Nigerian passport enclosed."

11 A letter in response from the solicitors for the applicant, dated the 20^th January, 2009, admitted into evidence, refers to the first paragraph of the above letter of the 21^st October, 2008 and then states as follows:-

"We refer to our above named client and to your letter of the 21^st October, 2008, refusing to review the decision of 3^rd June 2008, whereby the Minister refused our client's application for renewal of his permission to reside in the State on the basis of marriage to an EU national.

It is stated in your letter of the 21^st October 2008 that: (cites the first paragraph of that letter).

Our client married Ms. Olufunke Omotola Oshibami, a British national, on the 26^th July 2005 in Cork. Our client subsequently made an application for residency in the State on the basis of marriage to an EU national on or about 27^th July 2005. Our client was granted one year's residency pursuant to Regulation 1612/68 by decision dated 22^nd February, 2006. Unfortunately unhappy differences arose in the marriage between our client and his wife, which was notified to the Department by letter dated 19^th October 2007 along with an application for renewal of our client's permission to reside the State on a personal basis. As noted above, the Department refused that application on 3^rd June 2008 on the basis of failure to furnish EU spouse's passport or ID, failure of the EU national to sign the EU 1 form, and lack of evidence of EU national exercising Treaty rights.

Our client is at present unable to institute divorce proceedings against his wife, who has deserted him, as it is a requirement pursuant to s. 5 of the Family Law (Divorce) Act 1996, that spouses must live apart for four of the previous five years prior to the institution of divorce proceedings. As unhappy differences arose in our client's marriage in 2007, our client is not entitled as a matter of Irish law to institute divorce proceedings until 2011 at the earliest. Our client further instructs us that he is not currently aware of his wife's whereabouts although he believes she may have returned to the United Kingdom. Our client further instructs that there are no grounds upon which he can seek an annulment of his marriage, which was a valid and subsisting marriage up to the time of...