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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Chenchooliah v Minister for Justice and Equality [2019] IEHC 735 (25 October 2019)
URL: http://www.bailii.org/ie/cases/IEHC/2019/2019_IEHC_735.html
Cite as: [2019] IEHC 735
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THE HIGH COURT
JUDICIAL REVIEW
[2019] IEHC 735
[2016 No. 937 J.R.]
BETWEEN
NALINI CHENCHOOLIAH
APPLICANT
AND
THE MINISTER FOR JUSTICE AND EQUALITY
RESPONDENT
JUDGMENT of Mr. Justice Richard Humphreys delivered on the 25th day of October,
2019
1. The applicant is a third country national who arrived in the State from Mauritius in
February, 2005 on a student visa. That visa was renewed from time to time but expired
on 7th February, 2012. In the meantime, she married a Portuguese national on 13th
September, 2011. Simply by his or her presence here, an EU citizen or family member
becomes a rights-holder under art. 6 of the free movement directive 2004/38, but that
only lasts for six months: see art. 6(1). The applicant then applied for a residence card
under art. 7 which allows for residence for more than three months. That application was
rejected on 11th September, 2012 as the applicant had failed to show that the spouse
was exercising EU Treaty rights. The letter sent to the applicant informing her of this was
marked not called for.
2. The applicant subsequently made contact with the Department of Justice and Equality and
sought an extension of time for seeking a review of the refusal. An extension of time was
allowed but the actual review application form was not furnished so the applicant’s case
was sent for consideration of the making of a removal order. The applicant’s spouse in
the meantime was convicted of a drugs offence in Portugal and was imprisoned there in
June, 2014.
3. On 21st October, 2016, the Department wrote to the applicant stating that it had been
decided not to proceed by way of removal order but instead that the Department was
going by way of deportation. The main point in the present proceedings was whether the
removal of a third country national who is not a beneficiary of current rights under the
free movement directive 2004/38 but formerly enjoyed such rights should be dealt with
by way of removal order under the European Communities (Free Movement of Persons)
Regulations 2015 (S.I. No. 548 of 2015) implementing the directive or under purely
national law by way of a deportation order under s. 3 of the Immigration Act 1999.
4. A secondary issue in the case was, if the removal procedure applies, are the grounds for
removal limited to the narrow grounds of public policy, public security and public health
and the corresponding procedural protections set out in Part VI (arts. 27 to 33, other than
30 and 31, which apply anyway) of the directive or can the broader circumstances that
arise, such as where the spouse is not exercising treaty rights, as set out in art. 12 to 15
of the directive, apply.
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5. The applicant filed a statement of grounds dated 8th December, 2016 seeking an order of
certiorari quashing the respondent’s decision declining to make a removal order and an
injunction restraining her deportation. The applicant did not challenge the proposal to
deport as such. MacEochaidh J. granted leave on 12th December, 2016. The matter was
listed for hearing on 20th June, 2017, before Keane J. when the first day’s hearing took
place. The matter was then listed for mention on 26th June, 2017 and 10th July, 2017
and then for a second day’s hearing on 18th July, 2017. It was then listed for mention on
27th July, 2017, 3rd, 17th and 26th October, 2017 and 7th and 24th November, 2017
and the questions in the case were then referred to the CJEU by Keane J. by means of a
reference signed on 16th January, 2018. A formal High Court order was not drawn up to
refer the proceedings, but that does not really make any difference. The reference
document was drafted by counsel for the respondent and then agreed to by both sides
following discussions and was signed by the learned Judge. It set out two questions, in
essence addressing both the main question and the subsidiary question I have referred to
above.
6. Judgment was subsequently given by the CJEU in Case C-94/18 Nalini Chenchooliah v.
Minister for Justice and Equality (10th September, 2019). In essence the court resolved
the main question in favour of the applicant and the subsidiary question in favour of the
respondent: see para. 86 of the CJEU judgment.
7. The decision of the Luxembourg court has the clear consequence that the judgment of
Court, 29th April, 2014) is to that extent wrong in EU law. Hogan J. opined at para. 30 of
his judgment in Igunma that his conclusion that the directive “applies” (present
continuous) to an art. 6 beneficiary later refused art. 7 status (as apparently opposed to
“applied” (past tense)) “seems clear beyond argument”. But the CJEU thinks otherwise
(see paras. 59, 67 of its judgment). I had previously pointed out that Igunma was wrong
in Irish law in that it failed to apply an earlier Supreme Court decision that was directly on
point (Rachki v. Governor of Cloverhill Prison (Unreported, Supreme Court, 5th
December, 2011) ex tempore (Fennelly J.)): see K.P. v. Minister for Justice and Equality
[2017] IEHC 95 [2017] 2 JIC 2006 (Unreported, High Court, 20th February, 2017) and
S.S. (Pakistan) v. Governor of Midlands Prison [2018] IEHC 442 (Unreported, High Court,
17th July, 2018)).
8. The judgment of the CJEU also seems to have the consequence (although I say so obiter
because counsel for the applicant is reserving his position) that in accordance with the
principle of conforming interpretation, art. 3(1)(b)(iii) of the 2015 regulations where it
refers to a family member who “seeks to remain with the Union citizen in the State”
should be interpreted as encompassing a case such as this where the applicant sought to
remain with the Union citizen in the State at the date on which the application was made,
even if the Union citizen has left the State by the time the application falls to be
considered. The State has made clear in any event its intention to update the 2015
regulations in line with the CJEU judgment and there may well be other situations that
may have to be considered one way or the other such as where the Union citizen has left
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the State before the application for residence is actually made (although I should not be
taken as implying any view on how such other situations should be addressed: those do
not arise for consideration here).
9. Keane J. did not propose to retain seisin of the proceedings due to a change in
assignments, so the matter reverted back to the Asylum List on 7th October, 2019 to fix a
date. The earliest available date was provided. On 22nd October, 2019, the applicant
first learned of the respondent’s change of position in written submissions delivered by
the respondent indicating that the proposal to deport is being withdrawn and that the
matter will proceed by removal order. Accordingly the actual reliefs sought in the
proceedings no longer arise and the substance of the case can be struck out by consent.
The remaining issue then is costs and in that regard I have heard helpful submissions
from Mr. Conor Power S. C. (with Mr. Ian Whelan B.L.) for the applicant and from Mr.
Noel J. Travers S.C. (with Ms. Sarah-Jane Hillery B.L.) for the respondent.
10. In accordance with the Supreme Court jurisprudence, particularly Cunningham v.
(Unreported, Supreme Court, 26th July, 2016) (MacMenamin J.), which I endeavoured to
summarise in M.K.I.A. (Palestine) v. International Protection Appeals Tribunal
[2018] IEHC 134 [2018] 2 JIC 2708 (Unreported, High Court, 27th February, 2018) there are two
key issues which arise on facts such as these.
11. The first issue is whether there is an event; and here there is an event. The proposal to
deport has been withdrawn.
12. The second question is whether there is a causal nexus between the event and the
proceedings. It is clear that the change in the respondent’s position was brought about
by the CJEU judgment. That is obvious anyway; but it can’t be doubted in the light of the
respondent’s legal submissions.
13. Mr. Travers nonetheless submitted that the applicant should not get full costs and
suggested that she should get not more than three-quarters of the costs. It is a tribute to
Mr. Travers’ intimidatingly immense learning and scholarship that each iteration of his
argument seemed to the frail judicial mind to produce new preambular subtleties and
qualifications, so that the path of reasoning which one had with difficulty managed to
glimpse on the horizon turned out to be a mirage, and a new vista opened up in a
different direction; a direction which at the same time one somehow knew would prove to
be an equally false trail. It was an argument of such fluidity that grasping the same
formulation of it twice was as futile as trying to step for a second time into Heraclitus’
river. His lengthy and detailed submissions defy summarisation any more than it would
be possible to adequately describe a command performance of kabuki theatre using mere
words. But painting with a broad brush, I don’t think that it does undue violence to that
argument to summarise it as consisting of two main prongs.
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14. The first argument was that there was no actual decision, only an implicit decision not to
remove the applicant and a proposal to deport; and that a challenge to a new proposal,
particularly on the basis of lack of reasons, was misconceived. In fairness it appears that
it is not correct to say there was no decision. There was an express decision on the face
of the letter of 21st October, 2019 not to proceed by way of removal order. Insofar as
the case was a challenge to a mere proposal, while that is generally inappropriate, one
can challenge a mere proposal if it is inherently and necessarily ultra vires. That is
essentially the situation here. If one has more refined points of administrative law to
make they are best made to the decision-maker first and then any adverse decision can
be challenged in due course. The reasons argument in the particular circumstances of
this case appears to be referable to the vires argument, or as Mr. Power quite plausibly
put it, to find out “what the vires are”. Thus it was not an entirely free-standing point on
these particular facts.
15. The second prong of Mr. Travers’ submission was that the “most important point” before
Luxembourg was the second issue on which the State prevailed. While that might have
been the most important point from the State’s perspective, on any view it was a
subsidiary issue. The wording of the two questions referred, even though they were
amalgamated by the court in the ultimate answer given, reflects that subsidiarity because
the question the State won on was question 2, which begins with the words “if the answer
to the above question is that the expulsion must be made pursuant to the provisions of
the directive …”, the State having lost on question 1, in effect. Mr. Travers’ submission
was essentially to reduce the applicant’s costs because the applicant was not successful
on all issues. That is a Veolia Water approach (see Veolia Water UK Plc v. Fingal County
Council (No. 2) [2006] IEHC 240 [2007] 2 IR 81), even though he did not originally
refer to Veolia Water when making that submission orally. Mr. Travers very fairly did not
disagree that the case probably would have gone into a second day even if the reasons
point had not been brought into the case. Mr. Power submits that the length of the
hearing would not have been substantially different if he had limited his points to the
issue he won on.
16. The case was just not long enough or complex enough to warrant a Veolia Water
approach and in any event, even if it was, on the particular facts here it is not clear that if
Mr. Power had been more economical in the points made that there would have been a
huge saving of time. If I had to apply Veolia Water to a two-day case that would be a
fairly radical extension of the circumstances in which such an exercise would be adopted.
That would be totally counter-productive. The pointlessness of such an approach is in fact
usefully demonstrated in this case in that the hearing of the contested costs matter took
the bulk of the day and well into the afternoon as opposed to being dealt with in under a
minute at 11 o’clock on an unopposed basis. The fact that the costs were hotly contested
necessitated my getting quite deeply into the issues. The vast bulk of the airtime in the
costs hearing was taken up with detailed and helpful submissions on behalf of the
respondent. I do not in any way blame counsel for that because this is a technical
matter, but the outcome shows the great practical value in rules of thumb (such as the
need for costs to follow the event) without getting into an elaborate and florid
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undergrowth of sub-rules. The net effect of the respondent’s stance on costs has really
only been to add a further day’s costs to the applicant’s tally. In principle, costs should
follow the event and should be full costs: see per Clarke J., as he then was, in A.C.C. v.
Johnston [2011] IEHC 500 (Unreported, High Court, 24th October, 2011) at para. 2.6:
“the starting position should be that the party who wins the event gets full costs”. There
is not sufficient reason to depart from that starting position here. It is certainly not a
case where the applicant’s counsel wasted the time of the court on irrelevant points.
Order
17. Consequently I will award the full costs of the proceedings to the applicant against the
respondent, including reserved costs and the costs of proceedings before the CJEU.
18. By way of postscript, having heard counsel further, the order will include the costs of the
costs hearing itself. It can be left to taxation as to whether that should be dealt with on
the basis of being a fresh hearing date and attracting fresh brief and instruction fees, or
whether it should be dealt with on the basis of a second refresher for a continued hearing.
On reflection one could make the argument for the former, because the original judge did
not retain seisin and thus a re-started hearing was required. I express no settled view
and can leave that to the taxation process. Either way it is worth clarifying that it must
be on the basis of more than a mere costs hearing because the matter was in fact listed
for substantive hearing on the day, long before the respondent threw in the towel at the
last minute.
Result: Costs awarded to the applicant