Judicial review dismissed as moot due to applicant's own actions and lack of causal nexus to proceedings.

[2018] IEHC 399

THE HIGH COURT

JUDICIAL REVIEW

[2018 No. 258 J.R.]

BETWEEN

E.E.O. (NIGERIA)

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 25th day of June, 2018

1. The applicant came to Ireland in 2006 on a tourist visa, with the conditions of which he complied, and then returned in 2009 on a

student visa. He then had a relationship with a person on stamp 4 status who subsequently had a child on 5th December, 2012. He

was granted a stamp 4 permission in September, 2013. In 2015 when the relationship was breaking down he was informed that he was

not the father of this child. In May, 2016 his previous solicitors made an application for a stamp 4 permission to remain. That

permission expired on 6th September, 2016.

2. On 31st August, 2016 the applicant, through an immigration consultant, made a further duplicative application for a stamp 4

permission. In September, 2017 he was granted a limited stamp 4 permission for a three month period which was continued for one

month and then for a further month. The most recent permission expired on 22nd February, 2018.

3. On 26th March, 2018 he attended the GNIB to renew the permission and was handed a draft s. 3 proposal to deport which was

unsigned. That incorrectly stated that the s. 4 application for permission to remain had been refused. The solicitors wrote to the

State on 30th March, 2018 requesting that the “proposal” be revoked. The present judicial review was applied for on 9th April, 2018.

Given that it related to a proposed decision rather than an actual decision, I directed that the leave application should be made on

notice and subsequently that the matter proceed by way of a telescoped hearing.

4. On 1st May, 2018 the State wrote replying to the letter of 30th March, 2018, indicating that the unsigned draft was issued in error

and should be disregarded. On 9th May, 2018, INIS gave permission to the applicant on foot of the leave to remain application to

remain in the State for twelve months on a stamp 4 basis. Thus before the matter could be heard it has become moot and the only

issue now is that of costs.

5. I have received helpful submissions from Mr. Colm O’Dwyer S.C. (with Mr. Gavin Keogh B.L.) for the applicant and from Mr. Peter

Leonard B.L. for the respondent.

6. The matter became moot because the applicant was given a stamp 4 permission on foot of the applications he made in 2016. That

was not related to the proceedings, and therefore the court should lean in favour of there being no order: see the cases discussed in

M.K.I.A. (Palestine) v. International Protection Appeals Tribunal [2018] IEHC 134 [2018] 2 JIC 2708 (Unreported, High Court, 27th

February, 2018) in particular at para. 6(v) that “If the proceedings are moot due to a factor which is within the control of one party

but that has no causal nexus with the proceedings or which relates, as it is put in Cunningham [v. President of the Circuit Court

[2012] IESC 39 [2012] 3 I.R. 222], to an underlying change in circumstances, then again there seems to be no event in the Godsil

[v. Ireland [2015] IESC 103 [2015] 4 I.R. 535] sense, so the court should lean in favour of no order (see per MacMenamin J. in Matta

[v. Minister for Justice and Equality [2016] IESC 45 (Unreported, Supreme Court, 26th July, 2016)] at para. 20).” That point is also

made by MacMenamin J. in A.S. v. Minister for Justice and Equality [2018] IESCDET 30 at para. 10.

7. It is true that the s. 3 draft letter says that a s. 4 application was refused but that was simply a mistake.

8. While that disposes of the matter there are some other points worth making at this juncture.

9. First of all, there was no proposal letter, merely a draft which was not signed. Thus, the proceedings were entirely misconceived,

albeit that the applicant was not entirely at fault in that regard.

10. More fundamentally, it seems to me the application to challenge the “proposal” was premature and indeed also was not the

appropriate remedy. The matter could have been cleared up in correspondence. The fundamental point is that while s. 5 of the Illegal

Immigrants (Trafficking) Act 2000 does in principle allow a proposal to be challenged, that does not abolish the law of prematurity or

of alternative remedies. Just because there are some conceivable circumstances where one could review a proposal does not mean

that review of a proposal is always acceptable. On the contrary, judicial review of a mere proposal is only appropriate in the most

exceptional circumstances. Had the applicant simply made submissions against his deportation pointing out the difficulties in the

correspondence, the draft proposal would have been decommissioned and no judicial review would have been necessary. In the

circumstances it seems to me it was entirely unnecessary and inappropriate to seek judicial review and that what was engaged in was

a waste of the court’s time and an improvident demand on limited judicial resources.

Order

11. I therefore make no order as to costs.