High Court: Article 40 inquiry into lawfulness of detention was not reasonable

About this case:

• Citation:
  [2018] IEHC 492
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice David Keane

Considering the personal circumstances of the family, the Minister for Justice and Equality reviewed the revocation and the Article 40 Inquiry was rendered moot. Finding that the Article 40 Inquiry was not reasonable, Mr Justice David Keane was satisfied that if the authorities had been made aware of the relevant facts of the family’s situation then the issue could have been resolved without recourse to litigation.

Background

The applicant,  Mrs Gulsanga Delsoz, has been residing in the State with her husband and five children since June 2015. Mrs Delsoz and her children are nationals of Afghanistan, and her husband is a citizen of the United Kingdom, as such they are beneficiaries of the free movement and residence rights conferred by Directive 2004/38/EC (‘the Citizens’ Rights Directive’), currently transposed by the European Communities (Free Movement of Persons) Regulations 2015.

In September 2016, the Irish Naturalisation and Immigration Service (INIS) informed Mrs Delsoz that her application for a residence card as a Union citizen family member entitled to reside in the State under Reg. 6 of the 2015 Regulations had been approved.

At this stage, Mrs Delsoz was also informed that ‘the onus was on her to advise the INIS of any change in circumstance that may affect her right to reside in the State under the 2015 Regulations’.

The requirements of the 2015 Regulations stipulate, inter alia, that a person residing under Regulation 6, 9 or 10 is only so entitled for as long as he/she satisfies the relevant provisions ‘…and does not become an unreasonable burden on the social assistance system of the State’; that the INIS must be informed within 7 days of ‘a change in his or her place of residence in the State’ pursuant to Regulation 11(2)(a)(i); and that the INIS must be informed within 7 days of any absence from the state for longer than a month pursuant to Regulation 11(2)(b).

In April 2016 the Delsoz family moved house without notifying the INIS, and in June 2017 it became apparent to the INIS that Mr Delsoz had lost his job.

On 11 October 2017, the INIS wrote to Mrs Delsoz enquiring about the family’s employment status however the letter was returned as the INIS did not have an up-to-date address for the family. On 31 October he INIS wrote again to inform Mrs Delsoz that the aforementioned requirements of the 2015 Regulations had not been complied with; and that furthermore, evidence available to the Minister for Justice and Equality appeared to establish that Mr Delsoz had left the state in June 2017. Since Mr Delsoz ceased to exercise his free-movement rights in the State, the rest of the family members’ derived residence rights had ceased.

Mrs Delsoz was invited to make representations within 15 working days on why her permission to remain should not be revoked, however the INIS did not receive a reply, and consequently wrote to her on 21 November 2017 informing her that her permission to reside had been revoked.

Pursuant to Reg 25(2), Mrs Delsoz had 15 working days to apply for a review of that revocation – meaning that she had until 15 December 2017 to seek as a right of review.

Return to the State and detention

Against this background, Mrs Delsoz and her two daughters, Masoma (22) and Wahida (15), sought to enter the State through Dublin Airport on 11 December 2017. They were refused permission to land or be in the state pursuant to s.4(3)(e) of the Immigration Act 2004.

Pending removal from the State, Masoma was detained in the Dóchas Centre in Mountjoy Prison, pursuant to s. 5(2) of the Immigration Act 2003. As Wahida was under 18, she and Mrs Delsoz were brought to Balseskin Accommodation and Reception Centre.

The following day, a solicitor on behalf of the Delsoz family wrote to the Garda National Immigration Bureau setting out ‘at considerable length the text of various provisions of the 2015 Regulations, the Citizens’ Rights Directive and, indeed, the Treaty on the Functioning of the European Union’. Justice Kearns said that it could ‘hardly have been imagined that the INIS and the Minister were unfamiliar with the relevant law’.

Justice Kearns said the letter was ‘much less forthcoming about the factual basis upon which Mr Delsoz and his family members claimed a continuing entitlement to the benefit of the relevant rights under EU law’. Further, any ‘acknowledgment of any onus on the Delsoz family to provide the relevant authorities with the limited information necessary to establish that they continued to satisfy the conditions for the exercise of the relevant EU law free movement and residence rights’ was absent from the extensive submissions made on behalf of the Delsoz family.

Tragic death

As it became apparent in submissions made on the morning of the proposed Article 40 Inquiry on the 14 December, Mr Delsoz and his family had travelled to Afghanistan following the tragic death of Mrs Delsoz’ parents in a car bomb. Mr Delsoz had returned in August 2017 and actively sought work, getting a job in a takeaway in November 2017. He did not claim jobseeker’s allowance at any time as he did not wish to be a burden on the State. The family said that the failure to notify the relevant authorities of their change of circumstance was an administrative oversight.

Just as the present Article 40 Inquiry into the lawfulness of detention was due to commence, the court was informed that, ‘on considering the information that had been furnished to the INIS that morning, the Minister was prepared, as an exceptional measure, to review the decision to revoke the residence cards that had been given to Mrs Delsoz and the couple’s children and to allow the release of Mrs Delsoz and her other daughter from detention’.

As such, this rendered the proposed Article 40 inquiry moot.  

In considering whether Mrs Delsoz was entitled to costs, Justice Kearns said that it was not in dispute that the Delsoz family had failed to comply with the requirements of the Regulations. Criticising the family’s solicitor for setting out the legislation rather than the relevant facts of the family’s situation – Justice Kearns was satisfied that the situation could have been resolved without recourse to litigation if the relevant information had been provided to review the Minister’s decision to revoke the permission to remain.

Stating that he would make no order on the costs of the Article 40 Inquiry, Justice Kearns said that it was not reasonable for Mrs Delsoz to seek the Inquiry.

• by Seosamh Gráinséir for Irish Legal News