The High Court has dismissed a Nigerian man’s application for leave to challenge the refusal of his request to retain residence in Ireland after separating from his British spouse. The court did not review the refusal on its merits at a full judicial review hearing; it concluded there was no good and sufficient reason to extend the time limit for bringing the case.
The judgment, delivered by Mr Justice Herbert on 28 April 2010, concerned a decision communicated in a letter dated 3 June 2008. The Minister for Justice, Equality and Law Reform refused the man’s application to retain residence and said it was intended to notify him of a proposed deportation order. The Department later wrote that the 3 June decision stood because he no longer lived with his EU national spouse, who was no longer exercising Treaty rights in Ireland, and divorce or annulment proceedings had not begun.
The man’s solicitors argued that he could not yet start divorce proceedings because Irish law required spouses to have lived apart for four of the previous five years. They asked the Department to review its decision, but received no reply. The judicial review motion issued on 1 April 2009 sought, among other relief, to quash the decision and require reconsideration under EU free-movement law.
The Minister argued that the challenge was out of time. The court held that the grounds first arose when the 3 June 2008 letter was delivered, which it presumed occurred on 6 June. It treated the request for mandamus as consequential relief and applied a six-month period. The motion was issued 3 months and 25 days beyond that period; the judgment later describes the delay as 3 months and 28 days.
The judge found the application had not been made promptly and that no affidavit evidence explained the delay. He also found that the man had not shown an arguable or prima facie case. Under the regulations then applicable, the judge said separation alone did not dissolve the marriage, and the evidence showed there had been no divorce or annulment. He concluded the man could not meet the relevant residence-retention provision on the evidence before the court.
The court dismissed the application because it found no good and sufficient reason to extend the time for seeking leave. The judgment does not grant or decide a deportation order.