The woman had not complied with her visa requirements prior to taking the legal challenge and failed to respond to repeated correspondence on the matter, Mr Justice Keane commented.
Critical of failure to keep authorities informed
In his judgment, he was critical of the failure to keep authorities informed of the family’s movements, and said the case could have been resolved without recourse to litigation.
He stated: “By fax and email sent at 5.32pm on 12 December 2017 (that is to say, just after close of business on that date), a solicitor on behalf of the Delsoz family wrote to the Garda National Immigration Bureau, asserting that Mrs Delsoz and the couple’s two daughters were entitled to avail of free movement and residence rights under EU law as family members of Mr Delsoz.
'Unfamiliar'
“As happens peculiarly often in cases of this kind, the letter set 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, although it can hardly have been imagined that the INIS [Irish Naturalisation and Immigration Service] and the minister were unfamiliar with the relevant law.”
The judgment continued: “As also happens surprisingly frequently in such cases, 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.
The letter asserted that Mr Delsoz continued to exercise those rights in the State, but provided only very limited information in support of that assertion.”
Fundamental misunderstandings
Mr Justice Keane said that the solicitor’s letter demonstrates “two fundamental misunderstandings” – that EU free movement and residence rights are “somehow unconditional”, and that the removal of their permission to remain in the State was as a result of the relevant minister’s “unwarranted interference”, rather than the family’s failure to comply with conditions.
The judgment stated that any acknowledgement of the onus on the family to provide the relevant authorities with the limited information necessary was “starkly absent” from the legal submissions.
The judge said that when problems inevitably arose at the airport on 11 December 2017, “instead of urgently addressing the limited evidential requirements necessary to establish their continuing entitlement to exercise EU law entry and residence rights, the family, through their legal representatives, first chose to write to the minister on 12 December 2017, addressing him at length on the nature and scope of such rights in principle; next sought an inquiry into the lawfulness of the detention of Mrs Delsoz on 13 December 2017; and only finally sought to provide the necessary evidence to establish an entitlement to those rights in practice by email on the morning of 14 December 2017, the day of the proposed inquiry”.
Mr Justice Keane concluded that, given how easily the situation could have been resolved without recourse to litigation, he would make no order as to costs.
Moot point
In the second case, Mr Justice Keane refused an application for costs from Kingsley Okolie, a Nigerian man who was refused permission to remain in Ireland.
Mr Justice Keane said that a judicial review case taken by Okolie became moot when, in December 2016, the minister refused him permission to remain in the country.
This decision was taken in chronological order, and not in response to judicial proceedings, “therefore, it would be inappropriate to describe the proceedings as having become moot due to the unilateral actions of the minister”.
For these reasons, the judge made no order as to costs.
In the third case, a woman from Malawi named Maria Lufeyo sought the costs for a legal challenge against the Department of Justice in 2016, on her application for residency as the mother of an Irish-born child.
'Peculiar'
Mr Justice Keane said it was “peculiar” that the case was taken, despite a previous indication from the department that it was considering her application.
Lufeyo entered the State in October 2013 on a student visa. In June 2016, she was granted permission to remain until June 2019, to join her Irish citizen minor child. She then sought costs for the proceedings against the minister.
Mr Justice Keane, in his judgment, said that Lufeyo’s legal representatives adopted the position that it was for the minister to conduct an enquiry from scratch, within a limited timeframe, as to whether her child was dependent upon her.
Secondly, he stated that the provision by her of evidence for that inquiry seemed to be “entirely reactive rather than proactive in the smallest degree”.
Implicit assumption
He remarked that there is an “implicit assumption” that it is for the minister to advise Lufeyo from the outset concerning the evidence she should present in support of her claim.
Despite a May 2016 letter from the National Immigration Service stating that there would be “no delay” in finalising the case, which would be dealt with in chronological order, Maria Lufeyo’s solicitors wrote three days later “threatening judicial review proceedings to compel a decision if one was not made within 14 days”, on the basis that there had been a breach of her fundamental rights.
Mr Justice Keane said that these judicial review proceedings became moot on 22 June 2016, when the INIS wrote to Maria Lufeyo, informing her that the minister had granted her permission to reside and work in the State.
He said that it was the application arriving at the top of the queue, and not the threat of proceedings, that gave rise to the minister’s decision. “It would be inappropriate, therefore, to characterise the proceedings as having become moot by the unilateral action of the minister.”
For those reasons, he made no order on the costs of the proceedings.