Uche v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 23 April 2018
• Neutral Citation: [2018] IEHC 391
• Docket Number: [2017 No. 495 J.R.]
• Court: High Court
• Date: 23 April 2018

BETWEEN

NDUBUISI UCHE

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

[2018] IEHC 391

[2017 No. 495 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Mootness – Costs – Permanent residence – Applicant seeking permanent residence – Whether the case was moot

Facts: The applicant, Mr Uche, a Nigerian national, married a Czech citizen in 2011. In December, 2011, he was granted a five-year permission to be present in the State based on the marriage. In August, 2016 his wife left the State. His permission expired on 6th December, 2016. He then made a retention-of-rights application and a permanent residence application. In April, 2017, the retention-of-rights application was refused. On 30th June, 2017, the application for permanent residence was refused. Administrative review of that decision was then sought. The CSSO wrote to the applicant offering him a right to work pending the determination of the application but stating that it was to be agreed that “the applicant undertakes that a plea of mootness will not be raised by him in relation to the substantive proceedings on account of the grant of discretionary permission”. It also expressly stated that the grant was not to be construed as a concession that the Minister had a legal obligation to grant the temporary permission and agreement to those terms was sought. Those conditions were not alluded to on behalf of the applicant when an application for costs was made. On 18th December, 2017, the applicant’s application for review of the refusal of permanent residence was also refused. On 27th February, 2018, the applicant wrote to the CSSO asking whether the respondent regarded the case as moot; he said that if the respondent did accept the case was moot then clause 4 of the previous letter was no longer effective.

Held by the High Court (Humphreys J) that the applicant completely misstated and misunderstood the effect of clause 4; that was an undertaking that mootness would not be asserted by the applicant based on the grant of temporary permission and that undertaking was not affected by the case becoming moot on some other basis, namely that permission had been finally refused. Humphreys J held that this rendered the case moot save potentially as to damages, but the applicant had expressly disclaimed that plea according to counsel’s submission.

Humphreys J held that since the proceedings were moot he would strike them out and refuse the applicant’s application for costs in light of the Supreme Court judgments in Cunningham v President of the Circuit Court [2012] IESC 39, Godsil v Ireland [2015] IESC 103 and Matta v Minister for Justice and Equality [2015] IESC 45.

Application refused.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 23rd day of April, 2018

1 The applicant is a Nigerian national who married a Czech citizen in 2011. She had no employment as of the date of her marriage certificate and the State is disputing the extent to which she was exercising EU Treaty rights thereafter. In December, 2011, the applicant was granted a five-year permission to be present in the State based on the marriage. In August, 2016 his wife left the State and thereafter no contact seems to have occurred. The applicant's permission expired on 6th December, 2016. The applicant then made a retention-of-rights application and a permanent residence application. In April, 2017, the retention-of-rights application was refused. A review was sought but was ultimately withdrawn. At that point consideration was given to the permanent residence application.

2 The applicant applied for leave to seek judicial review on 19th June, 2017. The reliefs sought in the...