Supreme Court allows appeal on permanent residency rights, rejecting High Court's preclusion of EU Directive arguments.

THE SUPREME COURT

RECORD NO. 2012/116

Fennelly J.

Clarke J.

MacMenamin J.

BETWEEN

OLAJIDE BABINGTON

APPLICANT

AND

THE MINISTER FOR JUSTICE AND LAW REFORM, IRELAND AND ATTORNEY GENERAL

RESPONDENTS

JUDGMENT of Mr. Justice MacMenamin dated the 18th day of December 2012.

1. On the 8th day of November, 2012, this Court (Clarke J.) delivered an ex tempore judgment in this appeal, brought against an order

of Cooke J. in the High Court. The Court held that the learned High Court judge, when granting the appellant leave to seek judicial

review of a decision of the respondent, made on the 6th December, 2011, refusing him permanent residency, had in this instance,

while quite properly reformulating the grounds for relief so as to identify the true points at issue, erred in precluding the appellant from

arguing that, by reason of his marriage to an EU citizen and his residence in the State for in excess of five years, he was now entitled

to a right of permanent residency by virtue of Directive 2004/38/EC.

2. The order of the High Court had set out three grounds upon which the appellant was granted leave to apply for judicial review

(grounds 2 – 4 below). This Court has permitted the appellant to add two further grounds (grounds 1 and 5). The amended grounds in

full are:-

1. The first named respondent erred as a matter of law (having regard to the European Communities (Free Movement of

Persons) Regulations 2006 and 2008, interpreted, if necessary, in accordance with Directive 2004/38/ EC) in considering

the circumstances in which the applicant’s EU spouse exercised her right of residence (to determine whether such right

was exercised in conformity with those Regulations) and in thereafter concluding that that said EU citizen wife had failed

to comply with one or more of the conditions required under the aforementioned Regulations where no attempt had been

made to enquire into such circumstances or determine such lack of conformity during the continuous residence of said

spouse in the State for the relevant period of 5 years specified in those Regulations.

2. The first named respondent erred in law and misdirected himself in assessing the factual circumstances upon which the

application and review request were based by failing to have regard to the fact that the applicant and his EU citizen

spouse had established an entitlement to permanent residence on the basis of five years continuous residence in the

State in conformity with the Regulations which had accrued and become exercisable prior to the 21st December, 2010.

3. In circumstances where the entitlement to permanent residence on the part of the applicant and his wife had thus

accrued prior to that date, the respondent erred in law relying upon the information that due to marital difficulties, the

applicant’s wife had left the State in May 2011.

4. The first named respondent made a fundamental error of fact and misdirected himself in the assessment of the weight

and effect of the documentary evidence submitted in deciding that the applicant’s EU citizen wife not been shown to

comply with one or more of the conditions required under Regulation 6(2)(a) of the 2006 Regulations during their

continued period of residence in the State since May 2005.

5. If, contrary to the assertion contained in ground (1) above, the first named respondent is entitled to consider the

circumstances of residency referred to in that ground, the first named respondent failed to conduct the said enquiry in

accordance with the law (including EU law) by failing to provide the applicant with a sufficient account of those matters

which were of concern and which might lead to an adverse finding thus depriving the applicant of a reasonable

opportunity to seek to deal with such concerns or argue that such concerns did not provide a sufficient or proportionate

basis for an adverse decision.

3. The circumstances of the case now allow the opportunity of making a number of observations regarding the procedure and practice

in applications for judicial review generally, and (specifically in this case) immigration and asylum law.

4. On the 1st January, 2012, an amendment to Order 84 of the Rules of the Superior Courts was promulgated. This amendment was

contained in S.I. No. 691 of 2011. These new Rules were to be construed together with the Rules of the Superior Courts 1986. These

amended Rules were promulgated because of a concern that judicial review applications for leave were being brought on grounds

which were over lengthy, repetitive, and which failed to properly focus on the real issues.

5. Order 20 of the amended Rules provides:-

“(1) No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with

this rule.

(2) An application for such leave shall be made by motion ex parte grounded upon—

(a) a notice in Form No. 13 in Appendix T…

(b) an affidavit, in Form No. 14 in Appendix T, which verifies the facts relied on….

(3) It shall not be sufficient for an applicant to give as any of his grounds for the purposes of paragraphs (ii) or (iii) of

sub-rule (2)(a) an assertion in general terms of the ground concerned, but the applicant should state precisely each such

ground, giving particulars where appropriate, and identify in respect of each ground the facts or matters relied upon as

supporting that ground.” (emphasis added)

6. Form No. 13 referred to above, explicitly reiterates that, in a recital of the grounds upon which relief is sought, the applicant:

“should state precisely each such ground giving particulars where appropriate, and identify in respect of each ground the

facts or matters relied upon as supporting that ground”.

7. Regrettably, these explicit stipulations are frequently not complied with, and the same grounds are set out in as many different,

varying, (and wearying) reformulations of the same point as can be conceived. Practitioners should realise that, in this entirely

counterproductive and unnecessary process, there is a real risk of not being able to see the wood for the trees. A good point does

not gain force by repetition. In fact, the contrary is true. What is required is simply a succinct statement of the grounds. It is open to

an applicant to furnish particulars of each ground so as to ensure that the court will be aware of the precise details of the case.

What is not required, however, is that each ground should be reformulated in a number of different ways. Once the precise grounds

are set out, succinctly, practitioners should then, simply set out and identify in respect of each ground, “the facts or matters relied

upon as supporting that ground”. Thus, no material issue will be omitted.

8. It is wrong to indict any one legal representative for what is a widespread practice. What follows, therefore, should not be taken

as a criticism confined to counsel in this case. However, the statement of grounds in this case, drafted on the 1st March, 2012, after

the new rules had come into effect, illustrates the difficulties which have arisen. The applicant seeks relief under a total of nineteen

headings, including certiorari, mandamus, declarations and injunctions. The grounds upon which the relief is sought number thirty four

in total, and extend over some three and a half A4 pages. This practice, in the area of judicial review, could exasperate even the

most tolerant of judges. A point actually reaching the requisite standard for a grant of leave can be lost in a fog of reformulations. It

is hardly surprising here then that the learned High Court judge, entirely properly, sought to reformulate the grounds so as to render

them more comprehensible and succinct. It is quite understandable when a statement of grounds is over-lengthy that points are

missed. I would make the general comment that the word processor cannot be a substitute for thought.

9. Time which is wasted in court is the public’s time. Judges of the Superior Courts have a broad discretion in dealing with costs

issues, subject to precedent and guidelines occasionally laid down by this Court. The fact that leave is granted on a more limited

basis, when over-extensive grounds have been pleaded by an applicant, may be met with a sanction in costs. The fact that an

applicant obtains leave on a broad range of grounds, and then abandons some of these only at the start of the hearing may also meet

the same outcome. But litigation is a two way street. The duty of reasonableness falls on respondents as well as applicants. If a

court is satisfied that there are good grounds for taking the view that the costs of proceedings as a whole (including any

interlocutory applications) have been clearly increased by reason of an unreasonable position adopted by even a successful party,

that fact may be taken into account by a trial judge in awarding costs.

10. Thus, applying the two-way principle of reasonable conduct in litigation, respondents (and notice parties) need to be aware that,

if they are unreasonable, they too may risk a costs penalty where a decision which they make on a procedural question (such as

whether a formal leave hearing is required), may add unnecessarily to the costs (see the judgments of Finlay Geoghegan J. in Usk

District Residents Association v Environmental Protection Agency [2006] IEHC 296 and Clarke J. in Veolia Water UK plc v Fingal County

Council (No.2) [2007] 2 I.R. 81; and, generally, Delaney and McGrath, Civil Procedure of the Superior Courts, 3rd Ed. (Dublin, 2012),

at p. 769 – 771).