The High Court dismissed a couple’s judicial review challenge over the time taken to decide an application for permission to remain in Ireland, finding that the delay had not yet breached their rights.
Mr Justice John Edwards said an estimated minimum wait of 11 months was “sub optimal and close to the limits of what is reasonable”. But he concluded that, at the time of the hearing, the delay was not unreasonable or unconscionable. The court did not decide whether an order compelling a decision would have been an appropriate remedy, because it found no breach to date and was assured that a decision was likely shortly.
The first applicant, whose nationality is redacted in the judgment, entered Ireland on a student visa in January 2004. His permission to remain expired on 30 June 2006 and was not renewed. He remained in Ireland and married the second applicant, an Irish citizen, in July 2006. In September 2006, he applied for permission to remain on the basis of the marriage.
The Department initially said applications of this kind were taking at least 12 to 14 months to process. In January 2007, it revised its estimate to a minimum of 11 months. A departmental officer’s affidavit said applications were handled chronologically and required checks, including on the marriage and whether the couple lived together as a family unit. The Department also cited increased demand and the resources available to process applications. It expected to deal with this application around August 2007, subject to receiving required documents and information on time.
The applicants sought an order requiring a decision within a reasonable time, declaratory relief and damages. They argued that delay was unfair, caused financial hardship because the first applicant could not work while his application was pending, and affected their constitutional and Convention rights. They proposed six months as a reasonable decision period, drawing a comparison with residence-card applications under an EU directive. They did not ask the court to require a favourable outcome.
The Minister’s position was that the application involved discretion and required inquiries and consideration, unlike an eligible EU residence-card application where a favourable outcome could be required by law. The respondents also argued that the first applicant had no permission to remain while the application was being considered and that the Minister could require an application to be made from outside Ireland.
Justice Edwards considered six months reasonable for gathering information and making inquiries, followed by a further three to six months for the Minister’s decision. That produced a reasonable overall period of nine to 12 months. He said he would have regarded a wait beyond 12 months as unreasonable and, without justification, unconscionable. But he made no such finding in this case. He rejected the claims of breaches of constitutional justice, Article 3 of the European Convention on Human Rights, Article 41 of the Constitution and Article 8 of the Convention. The application was dismissed; the court left costs for further argument.