The Irish High Court has declared moot a woman’s Article 40 application for an inquiry into the lawfulness of her detention, and has subsequently refused her application for costs.
The Delsoz family had been living in Ireland since June 2015. Mrs Delsoz and her children are Afghan nationals but her husband is a UK citizen. This allowed the family benefit from EU free movement and residence rights as per the Citizen’s Rights Directive.
This directive was implemented by the European Communities (Free Movement of Persons) Regulations 2015, under which Mrs Delsoz was granted an EU residence card by the Irish Naturalisation and Immigration Service (INIS) in September 2016. A person residing under these regulations is only permitted to do so once they fulfil the relevant conditions for residency and provided they do not become an unnecessary burden on State social assistance. Any changes to a person’s circumstances which may affect their right to reside must be communicated to the State. Failure to do so could result in a revocation of these rights.
In April 2016 and June 2017 respectively, Mrs Delsoz had moved house and her husband lost his job without informing INIS. In October 2017, INIS wrote to the Delsoz family declaring that the 2015 Regulations had not been adhered to, as it became apparent that Mr Delsoz had left the State. Therefore, the family’s derived residency rights had been rescinded. Mrs Delsoz failed to reply to any invitations to contest or review this.
As it transpired, the Delsoz family had travelled to Afghanistan following the death of a family member who died in a car bomb. Mr Delsoz had then returned to Ireland in August 2017, although he did not receive jobseekers allowance to avoid being a burden on the State and eventually became employed in November 2017. When Mrs Delsoz and her children attempted to return to Ireland in December 2017, they were denied entry and detained under the Immigration Act 2004.
An application for an Article 40 inquiry into the lawfulness of the family’s detention was made to the High Court. The family asserted that their failure to notify the State of any change in their situation was merely an administrative oversight that did not warrant refusal of leave to land.
However on the morning of the application, the Minister for Justice and Equality stated his willingness to review the decision to revoke the family’s right of reside and allow for the release of the family from detention on the condition that they apply for such a review within seven days. This subsequently made the Article 40 inquiry moot.
Mrs Delsoz sought an order for costs of the Article 40 inquiry, however this was denied on the basis that the inquiry was deemed not reasonable. The Court found that had INIS been made aware of the relevant changes to the family’s circumstances, there would have been no need for the matter to be brought to court. In particular, the solicitor for the family was criticised for setting out the relevant legislation rather than the facts in question.
This decision is the latest in a trend of recent judgements that have seen the refusal to grant costs in immigration law cases, which has given rise to concerns regarding access to justice. In addition to the Delsoz case, there were two other recent decisions (Lufeyo & anor -v- The Minister for Justice and Equality and Okolie & anor -v- The Minister for Justice and Equality) where the High Court also refused applications for costs where the proceedings were rendered moot.
Click here to read the full judgement in the Delsoz case.