High Court dismisses mandamus for residence card delay due to applicant's own misleading statements and fraud. The court held that the applicant cannot rely on his own misconduct to compel a decision. The court found the delay was not egregious given the applicant's misleading statements and fraud. The court ruled that the applicant's own misconduct precludes the use of mandamus to force a decision. The court emphasized that the applicant's misleading statements and fraud barred the remedy. The court determined the delay was not egregious considering the applicant's conduct. The court concluded the applicant's own misconduct prevented the mandamus order. The court stated the applicant's misleading statements and fraud were the deciding factor. The court held the applicant's conduct barred the remedy for delay. The court found the applicant's own misconduct precluded the order.

[2017] IEHC 42

THE HIGH COURT

JUDICIAL REVIEW

[2016 No. 455 J.R.]

BETWEEN

B.A.

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

JUDGMENT of Ms. Justice O’Regan delivered on the 30th day of January, 2017

Issues

1. On the 27th June, 2016 by order of MacEochaidh J. the applicant was afforded leave to apply for judicial review by way of securing

an order of mandamus compelling the respondent to issue a decision on the applicant’s application for a residence card within the

meaning of Council Directive 2004/38/EC and/or the European Communities (Free Movement of Persons) Regulations, 2015.

2. The statement required to ground the application for judicial review is dated the 22nd June, 2016 and complains that the

applicant’s right to fair procedure and natural and constitutional justice under Article. 6 of the European Convention on Human Rights

is not being honoured by the respondent in that the applicant claims to be entitled to a decision on his application for a residence

card within a reasonable time and the respondent has delayed processing the application in an egregious and unjustified manner. The

applicant also claims that the respondent has no later than 6 months from the date on which the application was submitted to make a

decision and therefore it is claimed that the failure is in breach of Article 10(1) of Council Directive 2004/38/EC.

3. Under para. 20 of the statement of opposition bearing date 11th October, 2016 the respondent pleads that this is a particularly

suitable case to exercise the Court’s inherent discretion in judicial review not to grant an order of mandamus in light of the behaviour

of the applicant and/or in all of the circumstances of the case.

Background

4. The applicant is a Nigerian National born in 1985. His application is based upon his assertion that he met and commenced a

relationship with JP in the month of December, 2014 and subsequently arrived in Ireland in April, 2015. He asserts that he was married

on the 5th November, 2015 and on the 16th November, 2015 he applied to the respondent for a residence card which application was

received on the 18th November, 2015 by the respondent.

5. Following the receipt of the application as aforesaid information was sought of the applicant by the respondent on the 26th

January, 2016 and a response was furnished by the applicant on the 9th February, 2016. On the 25th February, 2016 further

clarification was sought on the basis of the respondent asserting that the applicant had made a number of omissions in his

application, namely that:—

(a) He was convicted in the Central Criminal Court in the UK on the 10th September, 2013 of computer fraud for which he

was sentenced to 15 months in prison — in this regard in the applicant’s application he denied any criminal conviction in

this state or abroad.

(b) The applicant stated that his civil status at the time of his marriage to JP on the 5th November, 2015 was that of

single whereas on the 23rd November, 2009 the applicant was issued with an EEA residence card in the UK as the spouse

a Belgian national. In this regard a statement was included to the effect that the applicant should inform the GRO of the

discrepancy contained in his current marriage certificate and seek to have it amended.

(c) The applicant advised the UK Home Office on the 16th December, 2015 that he had returned to Nigeria.

(d) In addition to the foregoing the respondent sought evidence of his divorce from his Belgian national wife and

clarification of the above omissions.

6. By way of response on the 4th March, 2016 the applicant’s solicitors indicated that the applicant would contact the GRO to have

the discrepancy of his marriage certificate amended and they also enclosed a copy of the applicant’s divorce papers from his first wife

together with a letter in which the applicant states that he indicated that he did not have a criminal record as he honestly thought

that as he was living in Ireland he had no criminal record even though the application did ask whether he had a criminal record abroad.

He further indicated that he advised the UK Home Office that he had returned to Nigeria because he did not want the UK to know he

was now in Ireland.

7. Notwithstanding the representations made by the applicant’s solicitor as to securing an amendment to the discrepancy on the

applicant’s marriage certificate it is the case that the amended marriage certificate was not at any time provided to the respondent.

8. Prior to the institution of the within proceedings by letter dated the 16th June, 2016 the applicant’s solicitors indicated that the

applicant had been waiting for a considerable period of time for a decision in the matter and called upon the respondent to make a

decision within 10 days of the date of the letter failing which necessary steps would be taken to protect the applicant’s interests,

including the making of an application to the Court. In a response letter dated the 24th June, 2016 but not available to the applicant

at the time of processing of the leave application the respondent required 3 items of documentation within 7 days in order to finalise

the application and it was indicated that the decision in respect of the applicant would issue on receipt of such documents. These

documents were:—

(a) An amended marriage certificate.

(b) P60 for 2015 in respect of the EU citizen.

(c) Further invoices and bank statements in respect of the EU citizen.

9. The applicant’s solicitors in a letter dated the 1st July, 2016 furnished tax credit certificates, an AIB bank statement and a pay slip

for the applicant’s wife together with untitled receipts. It was indicated that the applicant did not have an amended marriage

certificate. The issue of a P60 for Ms. P was not addressed.

Legislative background

10. Directive 2004/38/EC contains the relevant provisions for an EU citizen and their family members moving and residing freely within

the territory of the member states. Under Article 10(1) thereof it is provided:—

“The right of residence of family members of a Union citizen who are not nationals of a Member State shall be evidenced by the

issuing of a document called “Residence card of a family member of a Union citizen” no later than six months from the date on which

they submit the application. A certificate of application for the residence card shall be issued immediately.”

11. The respondent has also made reference to Article 35 which provides:—

“Member States may adopt the necessary measures to refuse, terminate or withdraw any right conferred by this Directive in the case

of abuse of rights or fraud, such as marriages of convenience. Any such measure shall be proportionate and subject to the procedural

safeguards provided for in Articles 30 and 31.”

12. Notwithstanding reference to Article 35 aforesaid on behalf of the respondent, nevertheless the respondent does not refer to any

measures taken by the State in accordance with the entitlement provided in Article 35.

Net issue before the Court

13. The respondent in fact made a decision on the 12th October, 2016. Therefore the issue of mandamus was rendered moot. The

respondent sought, notwithstanding that the issue of mandamus was rendered moot, that the Court would nevertheless deal with the

issue of mandamus as same would be relevant to other cases in which Mandamus has been sought. In this regard the parties

accepted the Supreme Court decision of 16th October, 2012 in Okunade v. Minister for Justice Equality & Law Reform [2012] I.R. 152

as being relevant and establishing the principle that notwithstanding that although the application before the Supreme Court on

appeal had become moot, that the issues might nevertheless be dealt with if the appeal was relevant to a significant number of other

cases. Reference was also made to the Supreme Court judgment of Lofinmakin v Minister for Justice, Equality and Law Reform [2013]

4 I.R. 274 to the effect that exceptional circumstances are required before a Court will deal with a moot case. The parties also

referred to the judgment of Humphreys J. of 29th July, 2016 in I.R.M. & Ors. v. the Minister for Justice and Equality [2016] IEHC 478

where at para. 101 of the judgment the Court summarised the principles including that a court can proceed to determine an issue that

is strictly moot if the interests of justice so require.

14. The matter proceeded therefore before the Court on the 17th January, 2017 notwithstanding the decision of the 12th October,

2016.

15. Issues such as when the 6 month time limit might commence in circumstances where an applicant furnished false information and

the strict application of the time limits contained in the EU Directive aforesaid were raised. However I indicated that these matters

could not be dealt with by the High Court but rather, if they had to be dealt with, would have to be by reference to the European

Court of Justice. The respondent was anxious that the issue of the availability of an order of mandamus would be of assistance to

the respondent in respect of several other cases notwithstanding that the domestic court could not deal with the absolute nature of

the time limits and the potential for varying the date of commencement of the time limits as provided for by the EU Directive. The

matter proceeded therefore on the issue of the availability of an order of mandamus in circumstances where the application was

made by the applicant in November, 2015 and the 6 month time limit expired in May, 2016. The decision was made on the 12th

October, 2016. The respondent argues that the decision would have been made in July, 2016 but for the judicial review proceedings

instituted by the applicant and in the belief that it was understood that a decision should not be made so as to avoid rendering the

within judicial review proceedings moot. Once the Court confirmed that a decision could be made notwithstanding the listing of the

within matter such a decision (12th October, 2016) issued immediately. It was accepted therefore by the respondent without

prejudice to any other argument the respondent might make in any other proceedings, that in the instant proceedings the time limit

provided by Article 10(1) of the EU Directive was not adhered to.

Authorities

16. The applicant’s position commences with the wording of Article 10 that there is no exception to the 6 month time limit provided

and the Minister must make a decision within the 6 months to either grant or refuse the requested permission.

17. The applicant also refers to Commission v. France (Case C – 144/97) [1998] ECR I-00613 where the Court of Justice held that

the provisions, practices or circumstances in the internal legal system of a Member State cannot justify a failure to respect the time

limits provided in a directive. The applicant refers to the text book of De Smith’s “Judicial Review” (7th Ed.) at para. 18 - 047 which

deals with presumptions in favour of relief. The textbook does appear to acknowledge that the Court does have discretion in the

sense of assessing “what is fair and just to do in the particular case.” However, as pointed out by the author, the discretion of the

Court to do other than quash the relevant order or action where such excessive exercise of power is shown is very narrow and the

discretion is narrower still or in some circumstances non-existent where the claimant has succeeded in demonstrating a directly

effective right under European law — the author in the footnote refers to cases following Berkley v. Secretary of State [2001] 2 AC

603 to the effect that later cases made clear that the mere existence of a European Community right is not necessarily a bar to the

existence of the Court’s discretion.

18. The respondent points out that the rights sought to be exercised by the within applicant is not in fact a directly effective right

but rather a derivative right. It further points out that the discretion might be narrow but it still exists. Further, the respondent refers

to the fact that De Smith is dealing with presumptions and therefore the matter is not absolute but rather presumptive.

19. The applicant refers to Saleem and Sprysznska v. Minister for Justice Equality & Law Reform [2011] IEHC 49 being a judgment of

Cooke J. delivered on the 16th February, 2011. The case concerned a review of a decision not to grant a residence card and the

Court indicated it would grant an order for mandamus on the basis that at the time of review the only issue outstanding was relative

to belatedly received documents and the Court was of the view that the assessment would have been capable of being made within a

very short period of time. In that case the Minister took the stance that once the initial refusal had been decided he was under no

duty to deal with the review within any particular time. At para. 17 the Court went on to find that while the Minister may be justified

in withholding on the card when he has genuine reasons to question whether the condition is fulfilled, the consequence of the expiry

of the 6 month period is not to afford the Minister an indefinite time within which to decide the review where one is requested. The

Court noted that mandamus will not issue to require a public authority to make an administrative decision unless there had been an

unlawful refusal to do so or such egregious delay in so doing as to be tantamount to a refusal. At para. 19 the Court noted that

where there is a duty to issue a residence card within a defined period and where that period expires without a definitive decision

being taken and the Minister maintains that there is no duty to make the required decision within any particular time, the Court

considers that the applicants are entitled to treat the delay as unreasonable and as justifying an application for mandamus.

20. The respondent counters that in the instant set of circumstances although the time limits were not adhered to, there is no

question of the Minister maintaining that there is no duty to make the required decision within a particular time and therefore there is

no question of finding that the delay might amount to a refusal. The respondent points to the letter dated the 24th June, 2016 to the

effect that the Minister indicated that once the requested documents were to hand the Minister would make a decision immediately.

Furthermore the respondent lays emphasis on the content of para. 17 of the judgment to the effect that it clearly envisages that

although the 6 month time period might not be adhered to, this does not however afford the Minister an indefinite time within which

to afford the review — in the instant circumstances the Minister is not suggesting the availability of an indefinite time.

21. The applicant refers to M & Anor. v. Minister for Justice Equality & Law Reform & Ors [2007] IEHC 234 being a judgment of

Edwards J. delivered on the 17th July, 2007 where an argument was made based on scarce sources being available to the respondent.

The Court indicated that this resource based argument was not justiciable. The applicant pointed out that the Court in that case was

dealing with a review where no time limit was specified.

22. The respondent counters that the Court in that case indicated that regard must be had to the reality that it is in the nature of

things that any administrative engine will be to some extent variable in its efficiency. The Court believed that there had to be a

margin of appreciation although once the delay becomes gross and unconscionable an argument based upon scarce resources cannot

be advanced to justify it. Ultimately, in that matter Edwards J. did not find that the respondent had been guilty of unreasonable and

unconscionable delay to date and a decision was imminent and therefore the Court was satisfied to dismiss the application.

23. The applicant refers to El Menkeri & Anor v. Minister for Justice Equality & Law Reform [2011] IEHC 29 being a judgment of Cooke

J. delivered on the 28th January, 2011 which also dealt with a review decision. The Court was satisfied that once a review was

applied for a duty arose on the part of the Minister to make whatever enquiries were considered necessary in order to resolve that

issue so as to give a decision upon review within a reasonable time. In that case the review application was made either in August or

September, 2009 the applicant and the respondent differed as to dates. At para. 12 of the order it was indicated that as no decision

on the review application had been made at the hearing of the proceedings, being a period of 8 months since the request, the Court

granted an order of mandamus directing the Minister to make the decision within 28 days of the perfection of the order in the

proceedings.

24. The respondent refers to this additional 28 day period following the perfection of the order.

25. I do note that in para. 11 of the judgment the Court indicated that the decision on review did not involve any new information

requiring verification or proof not previously considered by the Minister.

26. The applicant suggests that in both cases of Cooke J. aforesaid issues as to the applicant’s credibility were raised.

27. The applicant refers to the Commission v. Ireland (Case C-39/88) [1990] ECR I-04271 where Ireland had submitted that it has

scarce resources vis-à-vis fisheries inspectors however the Court held that the submission could not be accepted and it was well

established in case law of the Court that a member state may not plead internal circumstances in order to justify a failure to comply

with obligations of time limits resulting from Community law.

28. The applicant refers to Mahmood & Anor v. Minister for Justice and Equality [2016] IEHC 600 being a judgment of Faherty J.

delivered on the 14th October, 2016. The Court granted an order as there was no decision and there appeared to be an open-ended

delay. The Court rejected the resource argument. Faherty J. quoted from the decision of Nearing v. Minister for Justice [2010] 4 I.R.

211 being a judgment of Cooke J. when he considered what might give rise to a finding of egregious and unjustified delay. Cooke J.

indicated that what is reasonable depends on the circumstances of each case including the nature of the decision, the particularities

of the applicant’s position, and the impact of the delay and conduct of the administrative decision maker in dealing with the

applications together with any explanation given for the time taken. The Court indicated that mandamus does not issue against an

administrative decision simply because there is a duty to make a decision. The Court stated that once it is clear from the evidence

that there is place an orderly, rational and fair system for dealing with applications, the Court has no reason to infer any illegality in

the conduct of the Minister unless some specific wrong doing or default is demonstrated in a given case. At para. 136 of Faherty J.’s

judgment it is noted that the Directive provides for the issue of a residence card in an outside time span of 6 months from the date of

the application. The respondent refers to para. 140 of that decision identifying that there was no time span for the commencement of

the examination of the application forthcoming from the respondent. No indication was forthcoming as to when the decision might be

expected and in those circumstances the Court considered the delay to be unreasonable and egregious resulting in a justified

application for mandamus. The respondent also refers to para. 142 of the judgment of Faherty J. where she stated that if the delay

in that case had been a matter of only a couple of months and if there was a stated time frame provided some margin of appreciation

might have been afforded. However, in the absence of any projected time frame the question of resources was not sufficient to

outweigh the provisions of the Free Movement Directive.

29. It is noted that, in the Mahmood case, the adverse conduct complained of on the part of the applicant included hearsay

evidence, inconsistencies in the applicant’s evidence and the studied avoidance by the applicants to provide details of their plans

upon arrival in the State. The respondent lays particular emphasis on these limited adverse issues as against the applicant in

comparison to the adverse issues against the applicant in the instant circumstances.

30. The respondent refers to the judgment of Edwards J. in Tangi v. Minister for Justice Equality & Law Reform [2010] IEHC 85 where

the Court held that even with a suspicion of fraud decisions must still be made within 6 months. The respondent argues that there is

more than just a suspicion in the instant circumstances. Edwards J. indicated in that case that much would depend on the concerns

of the Minister and the evidence available. The respondent further suggests that in view of the case of the Court of Justice in

McCarthy & Ors v. Secretary of State for the Home Department (Case C-202/13) [2014] OJC 189/6 where a generalised policy of

refusal was considered unacceptable and not in accordance with an individual assessment, the judgment of Edwards J. in Tangi must

be revisited.

31. The respondent refers to the judgment of Humphreys J. in Mahmood v. RAT [2016] IEHC 469 where it was held that regulations

must be given a purposeful interpretation and it would undermine the purpose if modest delays rendered a decision invalid.

32. Finally, the respondent relies on the judgment of Humphreys in Mirga v. Garda National Immigration Bureau [2016] IEHC 545

where the grant of mandamus was sought however the Court indicated that judicial review was a discretionary remedy and the Court

is not required to ignore the appellant’s own conduct or the extent to which he is the author of his own misfortunes.

Conclusion

33. I am satisfied that:—

(a) In or about the application of mandamus the courts must have regard to need to give effect to the EU Directive.

(b) An individual assessment is required and this, therefore, by definition involves the concept of a margin of appreciation.

(c) The conduct of the applicant is relevant in making the individual assessment.

(d) The Directive time limits are to be respected and the respondent must show some significant basis for the delay in

order to resist the affording of an order of mandamus.

(e) In the instant circumstances there is no question of the respondent refusing to afford the relief and this is

demonstrated by the letter dated 24th June, 2016 to the applicant.

(f) I accept the respondents explanation as to why the decision issued in October as opposed to July, namely that there

was a misunderstanding on the part of the respondent in believing that it was important not to issue a decision so as not

to render the within test case moot prior to a consideration thereof.

(g) In this particular matter there has been a lack of co-operation on the part of the applicant in that he has based his

application on knowing falsehoods and he has demonstrated an ability to lie if same is convenient to him, for example by

indicating to the UK Home Office that he had returned to Nigeria as opposed to moving to Ireland simply based upon the

fact that he did not want the UK authorities to know he was in Ireland. Furthermore, notwithstanding an effective

commitment on his part during the currency of the initial 6 month period that he would attend to securing an amended

marriage certificate, subsequently, in the letter of 1st July, 2016 it is implicit that he is not attending to this matter.

(h) The applicant secured leave to bring the within application for mandamus on the 27th June, 2016 on the basis of non-

compliance with the EU time frame provided by Article 10 notwithstanding that on this basis he was effectively relying

upon his own misleading statement to secure such leave and in my view it could not be argued that it would be fair and

just to facilitate the applicant in this regard.

(i) The case law relied upon by the applicant deal with review decisions and I accept the respondent’s argument to the

effect that this would mean there is little investigation left to undertake.

(j) In the instant matter the difficulty with the applicant’s application went beyond mere suspicion — there was evidence

of a criminal conviction for fraud and the applicant did not dispute that incorrect details as to his marital status were

afforded to the General Registrar to secure the licence to marry.

(k) I am satisfied that the case law relied upon does not support the proposition that discretion in an application for

mandamus dealing with the EU law implementation is eliminated.

(l) I am satisfied that my views expressed herein are in fact consistent with the judgment of Edwards J. in Tangi in that

the within matter does not fall within the matters contemplated by him insofar as he deals with suspicions of fraud,

whereas in the instant circumstances the details of the applicant’s behaviour complained of go beyond a suspicion of

fraud. Furthermore, Edwards J. did indicate in that case that much would depend upon the concerns of the Minister and

the evidence available and in that regard in the instant circumstances the concerns of the Minister and the evidence

available are such as were not considered generally by Edwards J. in Tangi.

(m) The delay in the within matter does not amount to an unlawful refusal to make a decision nor in all of the

circumstances could it be considered an egregious delay.

34. In the circumstances of the instant case therefore it does appear to me that in order to achieve a fair and just outcome and

furthermore bearing in mind that the EU time limits must be respected the within applicant can not rely upon his own misleading

statements to secure an order of mandamus. On this basis therefore it does appear to me that the period between November, 2015

when the application was made and March, 2016 when the applicant afforded a response, whether the same can be considered to be

satisfactory or not, to the queries raised by the respondent following investigations, should be excluded from consideration when

dealing with whether or not to exercise the discretion to grant a mandamus. This therefore would suggest that the respondent should

have made a decision by September, 2016 whereas as aforesaid the decision was made on the 12th October, 2016. I do accept

however the respondent’s explanation for this delay as between July and October, 2016. In these circumstances the delay in affording

the decision herein would not result in an order for mandamus being made against the respondent on the 29th June, 2016 when the

notice of motion issued following the granting of leave.