The High Court made no order as to costs after judicial review proceedings brought by Kingsley Okolie and his Irish citizen daughter became moot when the Minister for Justice and Equality refused him permission to reside and work in Ireland under the Zambrano principle.
Mr Justice David Keane delivered the judgment on 3 September 2018. The proceedings had sought an order compelling the Minister to decide Mr Okolie’s application. The court was considering only who should bear the costs of those now-moot proceedings; it did not decide whether the underlying application for residence permission should have succeeded.
The Minister’s refusal was communicated on 20 December 2016. The court accepted evidence from a Department of Justice official that the application was decided when it reached the top of a queue processed in chronological order, and that issuing the judicial review had not affected its processing. It concluded that the refusal was not made in direct response to the proceedings and that there was no “event” to which the usual rule that costs follow the event could apply.
The judgment set out the evidential context for the delay. Mr Okolie had applied in October 2015, relying on his relationship with his daughter and the Zambrano principle. The court described the material he supplied about his role in her life and their dependency as limited, and noted that he provided further information in stages after requests from the immigration service. It also recorded that he did not produce documentary evidence to support his account of sending about €4,000 to his family over eight years before he entered Ireland.
The court said the time needed to consider a Zambrano claim depends on the circumstances and on the evidence provided. It rejected Mr Okolie’s submission that such an application could not reasonably take longer than six months. It also rejected his arguments that EU law required a decision within that period, including an argument comparing his application with residence-card applications under separate free-movement rules.
Mr Okolie entered the State unlawfully, but the judgment is internally inconsistent about whether this occurred in October 2013 or October 2015. It records that the Minister’s refusal rendered the proceedings moot and notes that a proposal to deport him was issued the same day; it does not determine the outcome of any deportation process.
The court held it would be inappropriate to treat the Minister’s decision as unilateral action making the case moot: it was a response to the application reaching the top of the queue. It therefore made no order as to costs.