High Court: Man who was refused permission to reside and work in the state loses application for costs

About this case:

• Citation:
  [2018] IEHC 490
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice David Keane

Levelling criticism at the lack of information provided to the Irish Naturalisation and Immigration Service in support of the application, Mr Justice David Keane was satisfied that the decision made by the Minister which rendered the proceedings moot was not in response to the issue of proceedings.

Chronology

The first named applicant, Mr Kingsley Okolie, is the father of an Irish citizen child who was born in the state in July 2004. Mr Okolie’s daughter is the second named applicant in the present proceedings.

Sitting in the High Court, Justice Keane said that it was not clear when Mr Okolie entered the state, but that he did so unlawfully either in October 2013 or 2014.

In October 2015, Mr Okolie applied to the Irish Naturalisation and Immigration Service for permission to reside in the State based on his parentage of an Irish citizen child as per the Zambrano principle (Case C-34/09 Gerardo Ruiz Zambrano v Office national de l’emploi EU:C:2011:124)

Justice Keane explained that the only evidence submitted to the INIS to establish ‘an exceptional situation of the kind covered by the Zambrano principle was a handwritten note’ from Mr Okolie’s wife.

In February 2016, the INIS sought documentary evidence to confirm the role Mr Okolie was playing in his daughter’s life. Justice Keane said that Mr Okolie ‘very nearly complied’ with this request, adopting ‘an entirely passive or reactive approach in providing only most, though not all, of the information or documentation that the INIS specifically requested from him’.

Justice Keane ‘it seems to me that Mr Okolie can hardly be heard to complain if, in consequence, the necessary inquiries on the part of the INIS took longer than they otherwise might have done’.

In May 2016, Mr Okolie’s legal representatives enquired about the timeframe for a decision, and on 4 July 2016, they wrote a letter threatening legal action if a decision was not made within 10 days. The INIS responded on 12 July 2016 with a request for further documentary evidence, notably evidence about any financial support Mr Okolie provided prior to his unlawful entry to the State and evidence pertaining to the circumstances of his unlawful entry. Justice Keane said he regretted to say that this sequence of events lent ‘an absurd quality to the averment made by Mr Okolie, in an affidavit that he swore on 13 July 2016, that at that stage the Minister had before her all of the information required’ to make a decision on his application.

Mr Okolie’s rationale was that he had no such documentation to offer, as financial assistance was provided by him sending cash with friends who were travelling to Ireland. In a letter to the INIS on 20 July 2016, Mr Okolie explained this situation but did not provide any evidence to support his claim – which Justice Keane said could have included Mrs Okolie’s bank statements evidencing the cash lodgements, or affidavit evidence from those involving in couriering the cash payments.

On 10 October 2016, Mr Okolie applied for leave to seek an order of mandamus compelling the Minister to issue a decision. Mr Okolie was given leave to issue an originating notice of motion returnable for 28 November 2016, which was duly done.

On 20 December 2016, the INIS wrote to Mr Okolie, informing him of the Minister’s decision to refuse him permission to reside and work in the State under the Zambrano principle, thereby rendering the proceedings moot.

Application for costs

In the present application for costs pertaining to the judicial review proceedings which were rendered moot, Mr Okolie asserted that it was reasonable to commence an application for leave to seek judicial review (considering Mansouri v Minister for Justice and Law Reform [2013] IEHC 274 and S.G. and N.G. v Minister for Justice, Equality and Law Reform & Ors [2006] IEHC 371)

Mr Okolie contended that the Minister’s failure by 10 October 2016 to make a decision on the application made in October 2015 was:

• (a) a breach of Mr Okolie’s administrative law entitlement to a decision within a reasonable time as an aspect of his entitlement to fair procedures; and
• (b) a breach of both Mr Okolie’s EU law right to good administration under Art. 41 of the CFEU and his child’s right to free movement within the EU as a Union citizen.

Dismissing both grounds, Justice Keane said that both grounds were based on misconceptions of the applicable law. Furthermore, Justice Keane was satisfied that if Mr Okolie’s application for judicial review had come on for hearing before the Minister had issued her decision, that an order of mandamus would not have been issued.

Applying the same six principles summarised in Ms Lufeyo’s case, Justice Keane was satisfied that the judicial review proceedings became moot on 20 December 2016 when Mr Okolie was refused permission to reside and work in the State.

A higher executive officer in the Immigration and Naturalisation Service of the Department of Justice and Equality, swore an affidavit which explained that the decision on Mr Okolie’s application was made on 20 December 2016 in accordance with the chronological system operating in the department – as such, Justice Keane was satisfied that the issue judicial review proceedings were not an ‘event’ which compelled the Minister to issue a decision.

• by Seosamh Gráinséir for Irish Legal News