High Court of Ireland Decisions

Judgment Title: Saleem -v- MJELR

Neutral Citation: [2011] IEHC 223


High Court Record Number: 2010 774 JR

Date of Delivery: 02/06/2011

Court: High Court

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.”

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.”

“(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.

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.”

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.”

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.”

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.”

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.”

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.