High Court of Ireland Decisions

1. The first Defendant Szilvia Gulyas aged 26 is a Hungarian national who was refused entry to this State on the 4th of September 1998, on the grounds that she was not in a position to support herself. The second Plaintiff Brenda Borchardt is her friend who invited her to come and stay with her for three months.

2. The evidence was as follows:-

3. Ms Gulyas was employed by Mrs. Borchardt’s mother, Mrs. Abrams, in London in 1995 -1996. Mrs. Abrams was not in good health and Ms. Gulyas was to live with her and help around the house. She became a friend of Mrs Borchardt who was married and living in Dublin. She had an aupair visa for twelve months from the British Authorities. Mrs. Abrams became suddenly ill and was taken to hospital in August 1996 and she died on the 2nd of October 1996. During that period and until her visa ran out Ms. Gulyas came to Dublin to stay with the Borchardts twice. She was never employed by them. When her visa expired she returned to Budapest at the beginning of November 1996. She got a job as a sales person in a stationary business, which she still has. Mrs. Abrams left her a legacy of five hundred pounds which she received in March 1997 and which she banked. The two Plaintiffs kept in touch by letters and cards and by phone. Mrs Borchardt, who has two children, invited Ms. Gulyas to come and stay for a holiday for three months. She was not coming as an aupair but as a friend. The question of the visit was first raised at the beginning of 1998. Mrs Borchardt enquired in the Aliens Office and with the Hungarian Embassy what was required to enter the country. She was told by the Aliens Office that no visa was required. All that was required was a letter inviting the person to stay and saying that she would be responsible for her keep for three months. Ms. Gulyas made the same enquiry in Budapest from the Irish Embassy and was told the same. Mrs. Borchardt wrote the necessary letter inviting Ms. Gulyas. Ms. Gulyas got leave of absence from her job; she got a three month ticket and arrived on the 4th of September 1998. The immigration officer who dealt with her was Detective Garda Halpin. There is considerable conflict of evidence between Ms. Gulyas and Mrs Borchardt on the one hand and Detective Garda Halpin on the other.

4. Ms. Gulyas said she produced the letter with her passport. She was asked if she was being met and she said Mrs. Borchardt. She said she was asked how long she was staying and how much money she had. She said one hundred and twenty five pounds sterling and staying three months. She was asked had she a credit card and she said no. She was asked the nationality of the family and she said Mrs. Borchardt was English but she was not sure what nationality Mr. Borchardt was. The immigration officer went away. When he came back with another man he had her passport and letter of invitation. He asked how much was she getting for work per week. She said she wasn't going to work, she was coming as a friend. She was asked if she would be looking after the children and she said no. They said she couldn't stay because she didn't have enough money to keep herself. She asked could she stay just for a while and then in the mean time she could get five hundred pounds sterling. They said no. After that she was on her own for two to two and a half hours on a bench. They came back and told her the plane to Frankfurt would leave in five minutes. She asked to speak to Mrs. Borchardt and they would not allow it. She asked if presents she had brought for the children could be given and was told no by Detective Garda Halpin. The second man went out and came back and said that Mrs. Borchardt had gone. She was given her passport and a form from the Aliens Office. The letter was not returned. She was put on the plane for Frankfurt which made a connection to Budapest and arrived back there the same day.

5. She was cross examined about the landing card she filled in which did not show any occupation. She said she could not remember being questioned about her occupation. At the Airport she was questioned in English but she said she understood. It was put to her that she said she was employed by the Borchardts to look after Mr. Borchardts mother. She said no. She said that the mother paid.

6. Mrs. Brenda Borchardt, who has two children, Emily now twelve and Jonathan now ten and a half, said she lived in Dublin for thirteen years. Her husband is a managing director of an import/export business. She works in the home. She went out to the Airport to meet Ms. Gulyas with Emily on the 4th of September 1998. The plane was due in at 2.30 pm and arrived on time. She waited and paged Ms. Gulyas twice. Around 4 p.m. her name was paged to go to Information. An Immigration Officer approached her; it was Detective Garda Halpin. He had the passport and the letter which she recognised as the one she had written after phoning the Aliens Office; it was in the passport. He inferred that she wanted Ms. Gulyas to work and she said she was coming as a friend. She said she would take full financial responsibility for her. She told him how she came to know Ms. Gulyas. He was with her four to five minutes. He told her to wait. She waited until 6.50 p.m.. She remained where she was except once very briefly when Emily wanted to go to the toilet. She rang her husband at some stage during the afternoon. At around 6.50 p.m. she was paged for a telephone call from her husband who told her that Ms. Gulyas was gone and to come home. She never saw Detective Garda Halpin again or anyone from immigration. She was very upset as was Emily. There was a problem to contact Ms. Gulyas’ parents who only spoke Hungarian but that was solved later that evening. She denied she ever told Detective Garda Halpin that Ms. Gulyas was going to work for her. She agreed that Detective Garda Halpin said Ms. Gulyas had not enough money but she said she would take full responsibility and give her what money she needed, give her a room and look after her totally. She was asked what she would do for three months with so little money and she said she could do whatever she wanted to do. She was going to take full financial responsibility for her but she was not going to pay her.

7. Mr. Borchardt confirmed that Ms. Gulyas was employed by his mother-in-law for company and help around the house. When she got ill and came to Dublin Ms. Gulyas was not paid by him or his wife. There was no question of Ms. Gulyas coming to work. She was a family friend. The visit was suggested at the beginning of 1998. When she came in September they were not going to pay her. She would stay with them and he’d pay outgoings. He hoped she would help his wife to settle after his mother-in-law’s death.

8. On the 4th of September he got a phone call from his wife around 3.30 - 4.00 p.m.. At that stage he didn't do anything as it was only an hour after the plane landed. She phoned later about 5.30 to 5.45 p.m. and he rang his Solicitor who said to phone Immigration. He did so and spoke to Maurice Farrell, who is a Sergeant. He outlined the situation and said his wife was still waiting. Sergeant Farrell had just come on duty. He checked the record and told him that Ms. Gulyas had been sent back and was not allowed to land because of insufficient funds; it was signed by Detective Garda Halpin. He had gone off duty. Sergeant Farrell offered to go and tell his wife but Mr. Borchardt said that he would do it. He paged his wife and told her. He was worried about Ms. Gulyas and rang Immigration at Frankfurt. They told him she had gone on to Budapest.

9. Detective Garda John Halpin was the immigration officer who dealt with Ms. Gulyas. He said no other person was involved in dealing with her. He said she presented her passport. He asked her to fill out a landing card. He pointed out she did not fill in occupation. She said it was correct, she was unemployed. He asked about money. She said she had a hundred and twenty five pounds. She said she had no credit cards. She gave the Orwell Road address. She said she was going to stay with Brenda Borchardt. There was no letter presented. He said he took the landing card, ticket and passport and went to speak to Mrs. Borchardt. He said to Mrs. Borchardt that Ms. Gulyas had very little money and Mrs. Borchardt said she would be staying with her for three months. He said the child butted in and said she was going to mind her. Mrs. Borchardt pushed the child away. She was asked if she would be giving financial assistance and she said no. He said one pound ninety a day was not enough and she said “we do have television”. When he went back to question Szilvia he spoke about the stamp in her passport as an aupair. She told him that she worked for an old woman who died and eventually said she was Ms. Borchardt’s mother. He asked her if she had access to any other finance or credit and she said no, all she had was one hundred and twenty five pounds. The first mention he heard of five hundred pounds was in Court. She said Mrs. Borchardt was giving no financial assistance. He decided £1-45 per day was not sufficient funds. He told her he was refusing her. She did not protest and he served a Notice on her. He then arranged to get her back the same route and got the ticket changed. When going out to the desk Mrs. Borchardt was not there. He went in and out more than once and didn’t see Mrs. Borchardt. The flight left at five thirty. He went out and did not see Mrs. Borchardt. He left around 6 p.m.. Sergeant Farrell would have seen the Refusals book. In cross-examination he said that Ms. Gulyas said the Borchardts paid her. He also said Mrs. Borchardt said she would provide no financial assistance. He said there was no mention of any letter. He said £125-00 was not enough for ninety days. There was the return ticket and Mrs. Borchardt said she would not provide financial assistance. He said that was the basis of his refusal. It was made clear that no money was provided other than the hundred and twenty five pounds. He did not page Mrs. Borchardt as he was through the arrival hall numerous times and he couldn’t find her when leaving. He said there was no mention of presents for the children. If there was he would have no problem delivering them. She did not tell him about the five hundred pounds. As to asking whether she could stay and withdraw it he said it was never mentioned. He agreed five hundred pounds would probably be enough for three months. There is provision in the rules to allow a person to stay for a shorter time. He was asked why not do that and he said that she said she had come for ninety days. It was never mentioned coming for a shorter time and he did not suggest it.

10. As can be seen from the above there is considerable conflict of evidence between the two Plaintiffs and Detective Garda Halpin. On the balance of probabilities I accept the Plaintiffs’ version. I am quite satisfied there was indeed a friendship between Ms. Gulyas and Mrs. Borchardt, evidenced by letters and phone calls after Mrs. Abrams died; that she was invited as a friend for three months; that following advice, she got the letter inviting her saying that Mrs. Borchardt would take responsibility for her; that she did have a job from which she got leave of absence (she is still in the same job); that she did have five hundred pounds sterling which was in a bank (evidenced by the letter from the English Solicitors and bank documents); that she presented the letter with her passport; that Mrs. Borchardt said she was not employing Ms.Gulyas, that she came as a friend and that she would take full financial responsibility for her; that Ms. Gulyas asked if she could stay a shorter time in order to get the five hundred pounds and was refused; that she was refused her request to see Mrs. Borchardt; and that her request to pass on presents was refused.

11. Detective Garda Halpin said he based his decision on the fact that she only had one hundred and twenty five pounds sterling with her and the fact that Mrs. Borchardt said she would provide no financial assistance. This was incorrect. Mrs. Borchardt said the exact opposite; that she would take full financial responsibility for her and give her any money she needed. It has never been suggested that the Borchardts were not in the position to give any financial assistance needed. Since the decision was based on a mistake of fact it can not be viewed as a valid decision.

12. It was submitted on behalf of the Defendants that there was no evidence to support the contention that the decision to refuse Ms. Gulyas leave to land was unreasonable or to support an error in law or fact. This is not so. The decision was based on an error of fact that Mrs. Borchardt said she would provide no financial support when in fact she said the opposite. It is not a case of drawing an inference from facts as found. It is a case of a decision based on an error of fact itself. An Immigration Officer is entitled to refuse leave to land where he forms a view that the alien is not in a position to support himself. But he is not entitled to form the view based on a mistake of fact.

13. The first named Plaintiff is entitled to a Declaration that the refusal of the first Defendant his servant or agent dated the 4th of September 1998, whereby the first Plaintiff was refused leave to land in Ireland was at variance with reason and common sense by reason of the fact that it was based on a mistake of fact. This also means that there was a lack of fair procedures.

14. I am also satisfied that the refusal breached the first Plaintiff’s legitimate expectation that any decision based on accurate facts would have resulted in permission to land.

15. It was pleaded that even if the second Plaintiff informed the Immigration Officer that she would take responsibility for the first named Plaintiff the Immigration Officer was not prevented from acting pursuant to paragraph 5 (2) of the Aliens Order 1946. This provides that leave to enter may be refused where the Immigration Officer is satisfied that the alien (a) is not in a position to support himself or any accompanying Defendant.

16. That argument could be made where the only basis for the decision was based on the alien’s own ability to support himself/herself. But that argument can not hold good where one of the reasons on which the decision was based was that Mrs. Borchardt would not provide any financial assistance, which was incorrect. One can only assume that if the Immigration Officer was satisfied that Mrs. Borchardt would supply financial assistance, permission to land would be granted. Otherwise it would be irrelevant to consider it at all.

17. There is no claim to be made in misrepresentation as regards what the Plaintiffs were told by the Aliens Office or the Irish Embassy in Budapest. The case does not depend on their advice. The case depends on the decision by the immigration officer based on a wrong fact.

18. In my opinion Ms. Gulyas is entitled to damages amounting to four hundred pounds special damage for her air ticket and general damages of two thousand pounds for disappointment and stress caused by the decision in respect of the constitutional tort of lack of fair procedures.

19. In Mrs. Borchardt’s case she was treated very badly. While waiting for Ms. Gulyas she was left sitting until 6.50 p.m. without being told that Ms. Gulyas had already been sent back. Detective Garda Halpin said he did not page her because he didn’t see her. This is not an acceptable excuse in a busy airport. She was there waiting to hear.

20. It was submitted that Mrs. Borchardt could not base a claim for breach of legitimate expectation on the legitimate expectation of another person. Mrs. Borchardt’s expectation was that the decision affecting her invited guest would be made in accordance with fair procedures and would be based on accurate facts. So it is the same expectation as Ms. Gulyas but at one remove. I accept that it cannot form the basis of a claim.

21. But Mrs. Borchardt too played a part in the fair procedures required under the Constitution. She was not treated fairly. I am not prepared to say that she has no claim. Ubi Ius Ibi Remedium. I find that her constitutional rights were also breached and she is entitled to damages amounting to one thousand pounds for constitutional tort.

22. I do not find it necessary to decide whether any claim lies in negligence.