High Court dismisses judicial review where applicant failed to maintain work permit and legal residence required for long-term residency scheme.

Neutral Citation Number: [2011] IEHC 223

THE HIGH COURT

JUDICIAL REVIEW

2010 774 JR

BETWEEN

MUHAMMED SALEEM

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

JUDGMENT of Mr. Justice Cooke delivered the 2nd day of June 2011

1. By Order of the Court (Clark J.) of the 28th June, 2010, leave was granted to the applicant to bring the present application for

judicial review of a decision made by the respondent on the 12th May, 2010, in which the Minister refused an application for “long

term residency” which the applicant had made in July 2008. (“The contested decision”).

2. The applicant is a native of Pakistan who had originally come to Ireland in December 2001, having obtained a visa and work permit

for the purpose of taking up employment in this country. In the case of a non-EEA national, work permits are issued by the

Department of Enterprise, Trade and Employment for limited periods of time. They are issued to a named non-EEA national and cover

employment with a specific employer during that period of time. In the case of the applicant, his first work permit was valid from 1st

December, 2001, until the 30th November, 2002. The applicant’s final work permit was issued as valid from 1st December, 2007, until

the 30th November, 2009.

3. Similarly, permission to remain for the purpose of the immigration laws is issued by the respondent Minister to migrant workers for

limited periods and takes the form of an endorsement stamped in the passport of the migrant concerned. It falls to each migrant

worker who continues to reside and work in the State to ensure that the permissions to work and to remain in the State are

constantly valid by being renewed from time to time as necessary.

4. As this Court pointed out in an interlocutory ruling given in this case on the 4th February, 2011 (Saleem v Minister for Justice,

Equality and Law Reform, Unreported High Court, Cooke J., 4 February 2011 [2011] IEHC 55), the expression “long term residency” is

not one used in the Immigration Act 2004, although it does appear in the Long Term Residency (Fees) Regulations 2009, (SI No.

287/2009). If one leaves aside the special arrangements applicable to migrant workers who are nationals of a Member State of the

European Union or of a state in the European Economic Area, the arrangements governing an entitlement to enter or land in the State

and to remain within the jurisdiction thereafter, derive in effect from ss. 4 and 5 of the Immigration Act 2004. Section 5 of that Act

provides that no non-national may be in the State other than in accordance with the terms of a permission given under the Act by or

on behalf of the Minister, or given before the passing of that Act. Section 4 provides that an Immigration Officer may on behalf of the

Minister give a non-national, either by means of a document or by placing a stamp on his or her passport, “an authorisation to land or

be in the State”. No general conditions are prescribed by s. 4 in relation to the grant of such permissions. Subsection (3), however,

prescribes a series of circumstances in which an immigration officer on behalf of the Minister may refuse to give permission and

subsection (6) provides that a permission can be given subject to such conditions as to duration of stay and engagement in

employment, business or profession as may be thought fit. Accordingly, the combined effect of the stamping of the passport with

permission to remain for a given duration with reference to the terms of a specific work permit, is that the non-EEA national has

permission to be in the State for the purposes of s. 5 upon the conditions as to duration and engagement in a particular employment

as are specified in the endorsement on the passport.

5. It follows, accordingly, that in s. 4(1) of the Immigration Act 2004, the Oireachtas has conferred on the Minister a discretion

exercisable through his immigration officers to grant to non-nationals (that is, non-EEA nationals in present circumstances,)

permission to land or remain in the State and to prescribe conditions for such permissions including those as to the length of stay and

the employment, business or profession that might be engaged in.

6. The Act does not otherwise distinguish between standard forms of permission to remain by reference to specific periods of time.

The term “long term residency” effectively derives from the way in which the discretion under s. 4 is exercised in practice. While

permissions issued to migrant workers are for short periods of, typically, two years, the respondent has published a scheme which is

given the title “Long Term Residency” and which sets out the circumstances in which the Minster will be prepared to entertain and

decide upon applications for continued residency in the State for a period of five years before further renewal is required. The

publication appears to take the exclusive form of its presentation on the website of the Irish Naturalisation and Immigration Service,

(INIS). The terms of the scheme appear to be changed from time to time and neither party has been able to put in evidence the

version which was in operation in July 2008, when the applicant made his application. Nevertheless, it is not disputed that one of the

essential conditions laid down as to the basis upon which an application might be made was that such applications were confined to

“persons who have been legally resident in the State for a minimum of five years (ie. 60 months) on work permit/work

authorisation/working visa conditions”. Nor does it appear to be disputed that the published conditions for the scheme at all material

times stipulated that to be valid, an applicant had to have a permission to remain in the State which was valid when the application

was made and be in gainful employment and that both the permission to remain and the employment continued during the application

process. In ground No. 3 of the statement of grounds in the this case, it was acknowledged:-

“It is a criteria (sic) under the scheme that an applicant keep his permission to remain up to date at all times, including

the period while their application is being processed.”

7. As already mentioned, the applicant made the application for long term residency to the respondent by letter dated the 4th July,

2008. The application was acknowledged by letter to the applicant’s solicitor of the 17th July, 2008, containing the advice: “Please

ensure that your client keeps their permission to remain on work permit conditions/work authorisation conditions remains (sic) up to

date at all times while their application is under consideration”. A police clearance certificate on behalf of the applicant was forwarded

on the 22nd April, 2009 and acknowledged on the 30th of that month. In the original acknowledgment of the 17th July, 2008, the INIS

had warned that there was a large volume of such applications and that the service was at that point processing applications which

had been received in October 2006. When the letter of the 30th April, 2009, was written the process was dealing with those lodged in

August 2007.

8. In early September 2009, the applicant’s solicitor again wrote inquiring as to the delay in dealing with the application and was

informed by letter of the 15th September, 2009, that the processing of applications had then reached those lodged in January 2008.

By letter of the 24th September, 2009, the solicitor called upon the respondent to issue a decision and threatened proceedings. Such

proceedings were commenced on the 5th October, 2009, (Record No. 2009 No. 100 J.R.) and leave to seek relief by way of mandamus

was granted by the Court by order of the 5th October, 2009. The substantive hearing of that application was subsequently listed on

the 22nd April, 2010, but the proceedings were compromised, the respondent having agreed to give a decision on the application

within 21 days.

9. It was in those circumstances that the decision on the application was communicated to the applicant’s solicitor by a letter of the

12th May, 2010 and the essential reason for refusing the application was stated in the following terms:-

“The position in relation to granting long term residency is as follows:

At the date of application, persons who have been legally resident in the State for over five years (ie. 60 months)

on the basis of work permit/work authorisation/working visa conditions may apply to this office for a five year

residency extension. In that context they may also apply to be exempt from employment permit requirements. . . .

Information provided by the Garda National Immigration Bureau indicates that you client’s permission to remain in the

State expired on the 17th October, 2009. As stated in our letter to you of the 7th April, 2010, it is not possible to

offer long term residency to an applicant whose permission to remain is not valid and up to date. Accordingly, as

your client is no longer legally resident in the State, his application is refused. If you believe that the Garda National

Immigration Bureau have incorrect information on their records concerning your client, you should contact them

directly regarding same. We would certainly reassess your client’s application in the light of any redirection from

them. If no such redirection is forthcoming, then the Minister’s original decision will stand.”

10. In the order of the 28th June, 2010, leave was granted to seek a number of reliefs. Apart from the order of certiorari, damages

and an order for costs, leave was granted to seek the following declarations:

“(2) A declaration that the Applicant had a legitimate expectation that his application for Long Term Residency . . . would

be considered and determined by the respondent within a reasonable length of time;

(3) A declaration that the Applicant had a legitimate expectation that in considering his application the respondent would

take account of the prejudice arising to the applicant by reason of the respondent’s delay in considering the application;

(5) A declaration that the respondent has unlawfully fettered his statutory discretion by putting in place a scheme to

decide applications for Long Term Residency in chronological order.

11. Declarations had also been sought to the effect that the Minister was exercising his statutory discretion under ss. 4 and 5 of the

Act of 2004 and that the scheme as a long term residency scheme is an extra statutory scheme and ultra vires s. 5 of that Act.

These two declarations are no longer relevant having regard to the arguments advanced at the hearing and following a clarification of

the stance adopted by the respondent in amended grounds of opposition which the court directed be filed following a hearing on the

applicant’s motion to strike out the statement. (See the judgment of the Court of the 4th February, 2011, referred to above).

12. The grounds upon which the application was to be brought were set out in eleven paragraphs of the original statement of grounds

but it is fair to say that the essential grievance raised on behalf of the applicant is based upon the fact that when he made his

application in July 2008, he complied with the apparent terms of the scheme but the refusal has been based upon events, namely, the

expiry of his permission to remain and his loss of his work permit, which occurred during what is said to have been the unlawfully long

period taken by the respondent to process the application. When the present application for judicial review was initiated, the

supporting evidence gave the impression that the applicant had been made redundant in the employment to which his work permit

related and that this had occurred in October 2009. The point made was that having lost that employment in October 2009, the

applicant was unable to renew his permission to remain when it expired the following month. As appears below and as is now

admitted, this evidence was incorrect. The applicant had been made redundant by the employer covered by his work permit in

October of the previous year, 2008 and in June 2009 he had commenced a new job with a different employer without reporting the

fact to the relevant authority or obtaining a new work permit. This discrepancy raises a particular problem to which the Court will

return in a moment.

13. Before doing so, it is appropriate to mention an attempt made at the hearing to introduce an entirely new ground as the basis for

obtaining an order quashing the refusal decision. Without there being any need for the applicant to apply to amend the existing

statement of grounds, counsel argued that the Court was entitled and ought of its own motion, to rule that the refusal in the

contested decision was unlawful as being incompatible with Article 20 of the Treaty on the Functioning of the European Union on the

basis of the interpretation of that Article in a judgment of the Court of Justice of the European Union in Case C34/09 Ruiz Zambrano.

[Unreported, 8th March, 2011].

14. In that case the Court replied to a reference for preliminary ruling lodged by a Belgian employment tribunal (Tribunal du Travail de

Bruxelles) arising out of a case of the impending deportation and the refusal of work permits to a Columbian couple, parents of two

minor children who had Belgian citizenship and were therefore to be treated as citizens of the European Union. The Court’s reply to

the question from the referring Tribunal was as follows:

“Article 20 TFEU is to be interpreted as meaning that it precludes a Member State from refusing a third country national

upon whom his minor children, who are European citizens, are dependent, a right of residence in the Member State of

residence and nationality of those children, and from refusing to grant a work permit to that third country national, insofar

as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status

of European Union citizen.”

15. In an affidavit sworn on the 28th April, 2011 and sought to be filed at the hearing of the case, the applicant’s solicitor deposed

that in a letter of 1st March, 2010, he had written on behalf of the applicant to the INIS inquiring about the non-receipt of a decision

on the application in which he had said: “Also, you should note that this man’s circumstances have changed in that his wife recently

gave birth to their first child who is an Irish citizen”.

16. It was submitted by counsel that the Minister, having been put on notice of this fact before the contested decision was given on

the 12th May, 2010, was obliged to take account of European Union law and to ensure that his decision was compatible with it. In

support of the proposition that this Court was entitled to apply that interpretation of Article 20 TFEU of its own motion, reliance was

placed upon the well known passage from the judgment of the Court of Justice in Case 106-77, Simmenthal Spa: [1978] ECR 629

“21. It follows . . . that every national Court must, in a case within its jurisdiction, apply Community law in its entirety and

protect rights which the latter confers on individuals and must accordingly set aside any provision of national law which

may conflict with it, whether prior or subsequent to the community rule.

22. Accordingly, any provision of a national legal system and any legislative, administrative or judicial practice which might

impair the effectiveness of Community law by withholding from the national court having jurisdiction to apply such law the

power to do everything necessary at the moment of its application to set aside national legislative provisions which might

prevent community rules from having full force and effect are incompatible with those requirements which are the very

essence of community law.

...

24. The first question should therefore be answered to the effect that a national court which is called upon, within the

limits of its jurisdiction, to apply provisions of community law is under a duty to give full effect to those provisions, if

necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted

subsequently, and it is not necessary for the Court to request or await the prior setting aside of such provision by

legislative or other constitutional means.”

17. In the judgment of the Court this ground is misconceived and could not in any event be entertained and ruled upon in the present

proceedings.

18. First, quite apart from the fact that the interpretation of Article 20 TFEU does not appear to have arisen as a possibility until

raised in the opinion of the Advocate General in Zambrano of the 20th September, 2010, that is, after the contested decision had

been made, the Minister has not decided and was never asked to decide whether the applicant should be entitled to remain in the

State as the father of a minor Irish (and therefore Union) citizen. Indeed, the Court was informed at the hearing that since the

delivery of the judgment in the Zambrano case, the respondent has through INIS given a public indication that the Repatriation

Division of the Department will be examining all cases capable of coming within the terms of that judgment and principle, including

cases of parents who may be awaiting a decision under s. 3 of the Immigration Act 1999, i.e., a possible deportation. Given that the

applicant in the present case has not yet received even a letter proposing such a deportation, it is clearly open to him to apply to be

considered by the respondent on that basis.

19. Secondly, the principle of the Simmenthal case is concerned with confirming the jurisdiction of a national court to refuse to apply

a provision of national law which is incompatible with a directly applicable provision of Union law. The jurisdiction of this court in that

regard is not in doubt. The principle was adopted and applied thirty years ago in Pigs and Bacon Commission v. McCarren and Co.

[1981] I.R. 451. Neither the relevant provisions of the 2004 Act nor the contested decision involves as such a measure incompatible

with directly applicable Union law. The contested decision was a refusal to grant a five year permission to remain in response to a

particular application made on the 4th July, 2008 and according to the terms and conditions of the scheme as they stood when the

decision was made. It does not, as such, amount to a decision that the applicant must leave the state nor preclude, for example, the

applicant seeking to obtain a new work permit and a renewal of the short term residency quite apart from the new possibility of

obtaining leave to remain on foot of the Zambrano case.

20. Thirdly, the principle of the Simmenthal case only applies, in the view of this Court, where a national court is called upon to give

effect to directly applicable Union law and thereby disregard an incompatible provision of national law in a case where the matter

comes within its jurisdiction. That is the significance of the expression “within the limits of its jurisdiction” in para. 24 of that judgment

as quoted above.

21. The jurisdiction of this Court under O. 84 of the Rules of the Superior Courts is circumscribed by the provisions of the order

granting leave for the substantive application now before it. Its jurisdiction is to rule upon the legality of the contested decision

having regard to the grounds upon which leave was granted to challenge it and by reference to the reasons for which the contested

decision was made; the legislative and administrative framework and the facts upon which it was based at the time it was taken.

Apart from the passing reference in the letter of the 1st March, 2010, to the “recent” birth of the applicant’s child, the Minster was

never asked to grant long term residence to the applicant upon the basis of his being the parent of an Irish citizen minor. To strike

down now the contested decision upon that basis would be to treat the Minister as having acted unlawfully by unknowingly making a

decision he was never asked to consider.

22. Finally, the ground cannot be entertained for the very basic reason that it was raised for the first time at the hearing, no notice

having been given to the Minister in respect of it quite apart from its being outside the terms upon which leave was granted.

23. It is necessary therefore to return to the significance of the evidential problem raised by the admitted error on the part of the

applicant in the grounding affidavit. It is significant for a number of reasons.

24. The issue only came to light when, in support of the opposition to the application, an affidavit was sworn by Detective Inspector

Andrew Tallon, an officer attached to the Garda National Immigration Bureau (GNIB). He recounts that the applicant called to the

GNIB on the 10th September, 2009, seeking to renew his permission to remain in the State. Inspector Tallon says that the applicant

had no P60 form for the year 2008 but did produce a P45 from an employer, Sean O’Loughlin, trading as the San Giovanni Restaurant.

This is the employer and place of employment to which the applicant’s pre-existing work permit applied. Inspector Tallon explained

that the applicant said he had ceased working for that employer on the 19th October, 2008, but had commenced work with a new

employer in June 2009 and had done so without informing the GNIB or obtaining a new work permit in respect of that employment. In

the light of this, the GNIB refused to renew his permission and referred the applicant to the Department of Justice, Equality and Law

Reform. The applicant again came to the GNIB on the 14th October, 2009 to register but he was refused registration because he was

working with an employer for whom he had no work permit.

25. The significance of this information lies firstly in the fact that in the earlier judicial review proceedings mentioned above (see para.

8,) the applicant had sworn an affidavit on the 1st October, 2009, stating that since arrival in the State he had been working with

and was “currently working as a chef in San Giovanni’s Restaurant in Tallaght, Dublin 24, earning a wage of €337.35 gross per week”.

He had lost that job in October 2008.

26. In the grounding affidavit sworn for the present proceedings filed on 11 June 2010, he testified that “my current permit expired

30th November, 2009, however I lost my job in October 2009 . . .” The second significance of the discrepancy, therefore, lies in the

fact that although throughout 2009 the applicant was complaining of the delay in taking the decision on the long term residence

application and he ultimately threatened judicial review proceedings in September 2009, no attempt was made to correct the basis

upon which the application had originally been made by drawing attention to the fact that the job had been lost in October 2008.

Furthermore, although the applicant had admitted the true situation to Inspector Tallon in September 2009, including the unlawful

employment taken up in June 2009, the application for an order of mandamus was commenced in October 2009, and then prosecuted

upon a basis which was at least in one particular respect false.

27. Secondly and perhaps of greatest significance is the fact that although Inspector Tallon’s affidavit had been furnished at the end

of 2010, it was not until very shortly before the hearing of the substantive application that the applicant, on the 28th April, 2011,

swore a further affidavit by way of explanation. In this he admits the correctness of the information given by Inspector Tallon and

confirms that he had taken up employment with the Kundun Indian Restaurant in Tallaght in June 2009. He says:

“I say that the only explanation I can give as to why I swore this incorrect affidavit is that there may be been an error in

communication between my friend who was translating for me in the solicitors office and myself. I say that my friend Mr.

Ghulam Murtaza was translating for me. I say that after the passage of two years I cannot say what I said to Mr.

Murtaza to be translated but it was never my intention to mislead anyone.”

28. It is not immediately clear what is meant by this. One would have assumed that if the applicant was at the solicitor’s office to

swear this affidavit that he had previously given instructions upon which the draft would have been prepared in English and which the

friend was then reading in English and translating orally to the applicant in his own language. If that is so, it is difficult to understand

why the applicant should not have immediately reacted to the mention of the named restaurant and the particular wage figure. On

the other hand he actually says: “I cannot say what I said to Mr. Murtaza to be translated etc.” This seems to suggest that there

was no draft affidavit yet drawn up and that the friend was translating the applicant’s instructions. If so, why would the applicant

then mention that restaurant and wage when three weeks earlier he had given the correct information to Inspector Tallon?

Unfortunately, neither the Commissioner for Oaths who took all of these affidavits (including that of the 1st October, 2009) nor any

solicitor present at the swearing of the affidavit or who was involved in drafting, has contributed to the clarification of these events.

29. This raises a major problem for the present application in that it indicates that the grounding affidavit and, for that matter, the

affidavit giving this explanation sworn on the 28th April, 2011, are inadmissible as sources of evidence in this case. It is clear to the

Court both from the excuse given by the applicant and from the explanation expanded upon by counsel on his behalf at the hearing,

that the applicant does not speak English or, at least, speaks insufficient English to read the text of a draft affidavit put before him

for swearing. It is said that a friend accompanied him to the solicitor’s office for some purpose and that some form of informal

translation took place. What the qualifications of the friend for the purpose of interpretation or translation were has not been

explained. No indication is given as to what language was used in that translation and, above all, no affidavit has been sworn by the

translator or interpreter and nothing has been included in the jurat of either affidavit indicating the basis upon which the oath was

administered for the purpose of taking the affidavit.

30. Unfortunately, this is not the first occasion upon which this problem has arisen in cases in this list. In a judgment of Clark J. of, in

M. v. RAT [Unreported, High Court, 16th July, 2009] the difficulty was pointed to in these terms at para. 13:

“A further difficulty is that the applicant’s evidence was that he speaks Lingala and French – a French interpreter was

present at the s. 11 interview and a Lingala interpreter was present at the RAT hearing. The applicant’s grounding

affidavit however is in English and it contains no averment to the effect that it has been translated. No affidavit of

translation is before the Court.”

31. While the question as to the correct procedure for adducing evidence on affidavit from a witness who speaks neither English nor

Irish does not appear to have been the subject of direct statutory regulation or provided for in the Rules of the Superior Courts and

has not been addressed so far as the Court has been able to ascertain in any modern case law, the correct position in the view of

the court would appear to be as follows.

32. In the first place, O. 40, r. 14 of the Rules of the Superior Courts provides (in part) as follows:

“…Where an affidavit is sworn by any person who appears to the officer taking the affidavit to be illiterate or blind, the

officer shall certify in the jurat that the affidavit was read in his presence to the deponent, that the deponent seemed

perfectly to understand it, and that the deponent made his signature or mark in the presence of the officer. No such

affidavit shall be used in evidence in the absence of this certificate, unless the Court is otherwise satisfied that the

affidavit was read over to and appeared to be perfectly understood by the deponent.”

33. The Court has not been informed whether the applicant can read and write any language other than English, but it is clear that he

is illiterate so as far as concerns an affidavit in the English language. On that basis alone, the requirement of r. 14 applied in this case

and the jurat should have contained an appropriate certificate. That not having been done, the affidavit could not be used unless the

Court was satisfied that it had been read over and “perfectly understood” by the applicant. Obviously, this Court could not be so

satisfied given the applicant’s admission that the affidavit contained an incorrect statement which he did not understand to be there.

34. Secondly, as the applicant appears to have little or no understanding of English, this was not a case in which the affidavit should

in any event have been sworn in the English language. The correct approach is that the affidavit should be sworn originally by the

applicant in the language he speaks. This should be translated by an appropriately qualified translator and both the original and the

certified translation should be put in evidence as exhibits to an affidavit in English sworn by the translator. It is true that there does

not appear to be any direct authority in this jurisdiction on this point in modern times. It is also possibly the case that there has been

a practice whereby a non-English speaking deponent swears an affidavit in English containing an averment or a certificate in the jurat

to the effect that it has been first read over to the deponent in translation and a separate affidavit is filed by the interpreter to that

effect. This latter practice appears to have been based upon a precedent in an old edition of Daniel’s Chancery Forms, but was

criticised by Vaisey J. in the English High Court in Re. Sarazin’s Letters Patent [1947] 64 R.P.C. 51. That judgment approved on the

other hand the practice indicated for the swearing of an affidavit in a foreign language in the commentary on O. 41 of the Rules of

the Supreme Court (England and Wales) and the note appears to have been continued in all subsequent editions: “When it is desired

to file an affidavit in a foreign language the usual course is to obtain a translation by a qualified translator, and to annex the foreign

affidavit and the translation as exhibits to an affidavit by the translator verifying the translation. The three documents are filed

together”.

35. In the view of this Court, a solicitor or Commissioner for Oaths administering an oath for the purpose of taking an affidavit owes a

duty to the Court to be satisfied that the deponent is competent to make the affidavit in English. Such a duty is inherent in the

nature of the function being performed and the authority conferred by law on such officers to administer an oath for that purpose. If

the deponent is illiterate the procedure of r. 14 must be followed and if the deponent does not speak English the affidavit must be

sworn first in the foreign language.

36. Having regard to the fact that the applicant in this case admits having sworn an affidavit which was inaccurate in a material

particular and has sought to explain it on the basis that his English was insufficient to enable him to understand what the affidavit

contained in that regard, these two affidavits are, in the judgment of the Court, inadmissible in evidence. This finding on its own is

sufficient to require this application to be dismissed. There is no grounding affidavit. However, as the application is unfounded for

other reasons and the terms upon which the application to the Minister for long term residency were made and refused are sufficiently

established from the evidence lodged on behalf of the respondent, the Court will explain why certiorari ought not, in any event, to

issue in respect of the contested decision in order to avoid further unnecessary litigation.

37. In the first place, it is necessary to point out that a migrant worker does not have a “right” to a permission issued under s. 4 of

the Act of 2004, for long term residency or to any period of continuing residency upon renewal of an existing permission. The grant of

permission for continued presence in the State is a matter for the discretion of the respondent under that section. The effect of the

publication of a particular scheme such as the long term residency scheme is, at most, to give rise to an expectation on the part of a

migrant worker that an application made on foot of the scheme will be considered and either granted or rejected in accordance with

the terms and conditions of the scheme. As already mentioned, it is undisputed that the primary condition in this Long Term Residency

scheme at all material times was that an applicant must have been legally resident for a minimum period of five years (or 60 months)

on the basis of work permit conditions. The scheme did not change in that regard.

38. Secondly, contrary to the argument made on behalf of the applicant, the Court is also satisfied that it was always a condition of

the scheme that an applicant be in gainful employment and legally resident in the State both at the date when the application is

lodged and throughout the period when it was being processed. This is clear from the explicit statement to that effect in the original

acknowledgment of the present application to the respondent and the repetition of the same advice on each occasion when a reply

was given to a query about the progress of the application. The applicant’s compliance with these conditions ceased in respect of the

work permit condition in October 2008 and in respect of the legal residence upon the expiry of the existing permission in October

2009. Accordingly, when refusing the application by reference to the fact that legal residence had ceased in October 2009, the

Minister was not relying upon any changed provision of the scheme introduced since July 2008.

39. Thirdly, so far as certiorari is concerned, the grounds advanced as to the illegality of the contested decision are essentially that

the Minister delayed unlawfully long in making the decision; that the applicant had a legitimate expectation of a decision within a

reasonable time and that had the decision been so taken it would have been favourable to the applicant because the basis of the

eventual refusal would not then have existed. In the view of the Court this is too speculative a proposition to constitute the basis for

the grant of an order of certiorari.

40. A finding to that effect would require the Court to determine that the time actually taken was so unreasonable as to have been

unlawful and to fix a period that would have been reasonable; and then to find that the decision would necessarily have been

different had it been taken at that point.

41. Having regard to the evidence as to the volume of such applications received and processed by the Department and to the

absence of any basis for concluding that the resources applied for that purpose were so manifestly inadequate as to amount to a

breach of duty on the part of the respondent, it would, in the judgment of the Court, be impossible to make such a determination.

Moreover and in any event, the Court is satisfied that no case has or could be made that there had already been an unlawful delay in

making a decision by the end of October 2008, the application having been made in July of that year less than four months earlier.

Thereafter the applicant no longer fulfilled the condition as to continued employment so that it could not be said that if the decision

had been taken at any time after the end of October 2008 it would have been different.

42. For all of these reasons the application for judicial review is refused.