Tangi v Minister for Justice, Equality & Law Reform
| Jurisdiction | Ireland |
| Judge | Mr Justice John Edwards |
| Judgment Date | 12 March 2010 |
| Neutral Citation | [2010] IEHC 85 |
| Court | High Court |
| Date | 12 March 2010 |
[2010] IEHC 85
THE HIGH COURT
EUROPEAN UNION
Free movement of persons
Residence card - Delay - Failure to make decision within time limit - Cameroon national - Marriage to Polish national exercising EU Treaty rights - Refusal of application - Request for immediate grant of residency card in light of ruling of European Court of Justice - Request for information - Correspondence between solicitors and EU Treaty Rights section - Marital difficulties - Residence apart - Entitlement to seek verification of circumstances - Mandatory nature of six month time limit - Onus on applicant to cooperate with verification process - Obligation to render decision on review within reasonable time - Whether fresh application or review - Delay of applicant - Metock v Minister for Justice, Equality and Law Reform (Case C-127/08); Allastou Diatta v Land Berlin (Case 267/83); Merck Sharp Dohme BV v Belgian State (Case C-245/03) [2005] ECR 100652; Housieaux v Dèlègues du conseil de la Règion de Bruxelles-Capital (Case C-186/04) [2005] ECR I-03299; Compagnie Maritime Belge SA v Commission (Case T-276/04); CGM v Commission (Case T-213/00) [2003] ECR I-6171; Handlbauer (Case C-218/02) [2004] ECR I-6171; Illium Properties Ltd v Dublin City Council [2004] IEHC 327 (Unrep, O'Leary J, 15/10/2004); Laub (Case C-428/05) [2007] ECR I-5069; Nederlands Fedeative Vereniging de Groothandei v Commission (Case T-5/00) [2003] ECR II 576 and M & G v Minister for Justice, Equality and Law Reform [2007] IEHC 234 (Unrep, Edwards J, 17/7/2007) considered - European Communities (Free Movement of Persons) Regulations 2006 (SI 226/2006) - Declaration of failure to render decision on review within reasonable time (2009/598JR - Edwards J - 12/3/2010) [2010] IEHC 85
Tagni v Minister for Justice, Equality and Law Reform
Facts: The applicant was a national of Cameroon and had married a Polish national working in Ireland in 2005. The applicant and his then spouse had made an application for his residence pursuant to EC (Freedom of Movement of Persons) Regulations 2006. The residence application for the applicant was refused but had granted his residence as the spouse of an EU citizen for one year, which was subsequently renewed. Prior to its expiry, the Irish Regulations were the subject of litigation at domestic and EU level. The applicant then sought residency pursuant to Case C-127/08 Metock v. Minister for Justice and sought a Stamp 4 EU Fam Residency Card. Documentation was provided for the purposes of the application but the applicant also disclosed the marital difficulties that he was experiencing with his spouse which led to the refusal of his application in 2008. The applicant contended that the delay experienced by the applicant in obtaining a decision from the respondent was in clear breach of the provisions of Article 10 Directive 2004/ 38/EC and the relevant Irish regulations. The applicant sought leave by way of judicial revision, including an order of mandamus or an injunction compelling the respondent to reach a lawful decision on the residence card of the applicant and / or a declaration that the respondent had acted ultra vires Article 10 Directive 2004/38/EC for failing to decide the residence card application of the applicant within six months of the application being made.
Held by Edwards J. That on the substantive question of delay, that the requirements of Article 10 were addressed to the Member States and the six month time limit had to be respected. The applicant was correct that they could not be left in limbo on the grounds of a mere suspicion. The fact that the decision was not rendered within the time limit would not have any implications for the legal validity of the decision itself. A declaration would be granted that the respondent was guilty of failing to render a decision within a reoansable time and all other aspects of the claim of the applicant would be rejected.
Reporter: E.F.
TREATY OF ROME ART 10
EEC REG 1612/68
EUROPEAN COMMUNITIES (FREEDOM OF MOVEMENT OF PERSONS) REGS 2006 SI 226/2006 S3(2)
TREATY ESTABLISHING THE EUROPEAN UNION ART 234
METOCK & ORS v MIN FOR JUSTICE & ORS 2009 1 QB 318 2009 2 WLR 821
EEC DIR 2004/38 ART 13(2)(A)
EC (FREEDOM OF MOVEMENT OF PERSONS) (NO.2) REGS 2006 SI 656/2006 REG 10(2)(B) (I)
CONSTITUTION ART 41
CONSTITUTION ART 41.31
DIATTA v LAND BERLIN 1985 ECR 567
EC (FREEDOM OF MOVEMENT OF PERSONS) (NO.2) REGS 2006 SI 656/2006 REG 7
EEC DIR 2004/38 RECITAL 31
CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 41
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6
RSC O.84 r21(1)
TREATY ESTABLISHING THE EUROPEAN UNION ART 39
EUROPEAN COMMUNITIES: EEC TREATY ART 48
TREATY ESTABLISHING THE EUROPEAN UNION ART 6
CRAIG & DE BURCA EU LAW TEXT CASES & MATERIALS 2ED OXFORD 1998
TREATY ESTABLISHING THE EUROPEAN UNION ART 40
EEC DIR 64/221
EEC DIR 68/360
EEC DIR 72/194
EEC DIR 73/148
EEC DIR 75/34
EEC DIR 75/35
EEC DIR 90/364
EEC DIR 90/365
EEC DIR 93/96
EEC DIR 2004/38 RECITAL 5
EEC DIR 2004/38 RECITAL 7
EEC DIR 2004/38 RECITAL 10
EEC DIR 2004/38 RECITAL 11
EEC DIR 2004/38 RECITAL 12
EEC DIR 2004/38 RECITAL 13
EEC DIR 2004/38 RECITAL 14
EEC DIR 2004/38 RECITAL 15
EEC DIR 2004/38 RECITAL 17
EEC DIR 2004/38 RECITAL 23
EEC DIR 2004/38 RECITAL 25
EEC DIR 2004/38 RECITAL 26
EEC DIR 2004/38 RECITAL 28
EEC DIR 2004/38 ART 35
EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (AMDT) REG 2008 SI 310/2008
EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO2) REG 2006 SI 656/2006 REG 6(2)
EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO2) REG 2006 SI 656/2006 REG 7
EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO2) REG 2006 SI 656/2006 REG 10
EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO2) REG 2006 SI 656/2006 REG 11
EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO2) REG 2006 SI 656/2006 REG 21
EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO2) REG 2006 SI 656/2006 REG 24
EEC DIR 2004/38 RECITAL 14
EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO2) REG 2006 SI 656/2006 REG 7(2)
MERCK SHARP & DOHME BV v BELGIUM STATE C-245/03 2005 ECR I-637
HOUSIEAUX v DELEGUES DU CONSEIL DE LA REGION DE BRUXELLES-CAPITAL 2005 2 CMLR 53 2006 ENVLR 2
COMPAGNIE MARITIME BELGE SA v COMMISSION T-213/00 2009 4 CMLR 21
CMA CGM & ORS v COMMISSION 2003 5 CMLR 4
HANDBAUER 2004 ECR 1-6171 C278/02
ILLIUM PROPERTIES LTD v DUBLIN CITY COUNCIL 2004 IEHC 327 UNREP O'LEARY 15.10.2004 2004/22/5201
CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 41
FIRMA LAUB GMBH & CO v HAUPTZOLLAMT HAMBURG-JONAS C428/05 UNREP 2007 ECR 1-5069
NEDERLANDSE FEDEATIVE VERENIGING DE GROOTHANDEI v COMMISSION 2003 ECR II 576 2004 5 CMLR 19
M (K) & G (D) v MIN FOR JUSTICE & ORS UNREP EDWARDS 17.7.2007 2007/38/7754 2007 IEHC 234
EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO2) REG 2006 SI 656/2006 REG 24
EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO2) REG 2006 SI 656/2006 REG 21(1)
EEC DIR 2004/38 ART 31.3
2 1.1 In this case the applicant successfully applied for and obtained the leave of the High Court (Peart J), on the 15 th of June 2009 to apply by way of judical review for the reliefs now claimed in paragraph D of his Statement of Grounds (as amended). The reliefs so claimed are:
An Order of Mandamus or an Injunction compelling the Respondent, his servants or agents, to reach a lawful decision on the applicant's residence card application and/or the reconsideration of application.
Interim and/or Interlocutory relief granting the applicant temporary residency pending the decision on his application for a residence card and/or the reconsideration of the application.
If necessary, an Order of Certiorari, quashing the decisions of the Respondent, his servants or agents, herein, dated 13 September 2006, and dated 10 November 2007/8, and extensions of time.
Such further or other Order has to this Honourable Court shall consider appropriate.
An Order for costs.
A Declaration that the Respondent, his servants or agents, has acted ultra vires and reached EC (Freedom of Movement and Persons) Regulations 2006 - 2008 and/or Directive 2004/38/EC and/or article 10 of the EC Treaty by failing and/or refusing to decide the Applicant's residence card application within six months of the application being made and/or within a reasonable time in all the circumstances of the case.
3 1.2 The applicant was out of time before making his leave application but the Court extended the time up to and including the date on which the ex parte application was made, i.e., the 15th of June 2009.
2 2.1 The background to this matter is to be gleaned from a grounding affidavit of the applicant, John Mbeng Tagni, sworn on the 9th of June 2009; two affidavits of his Solicitor, Mikayla Sherlock, also sworn on the 9th of June 2009; an affidavit of John Warren, Higher Executive Officer in the EU Treaty Rights Section of the Department of Justice, Equality & Law Reform, sworn on the 31st of July 2009 on behalf of the respondent and, finally, an affidavit sworn on the 2 nd of October 2009 by Margaret White, Higher Executive Officer in the Department of Justice, Equality and Law Reform, also on behalf of the respondent. Both Mr Warren's and Ms White's respective affidavits are expressed to have...
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