The High Court has dismissed the Minister for Justice and Equality’s application for security for costs in a judicial review brought by A.K. (Somalia) over the refusal to issue him a temporary travel document.
Mr Justice Richard Humphreys ruled on 25 June 2018 that the applicant was ordinarily resident in Ireland despite being in Tanzania, and that the balance of justice did not favour requiring him to provide security. The ruling concerned only the Minister’s preliminary motion; it did not determine the substantive judicial review challenge.
The judgment says the applicant had unsuccessfully sought asylum in Ireland in 2005 and was later refused subsidiary protection. He received humanitarian leave to remain in 2010 and, in 2016, a three-year permission to reside on a Stamp 4 basis, backdated to 31 January 2016 and valid until 30 January 2019.
The applicant had travelled to Tanzania for a friend’s wedding using a Somali passport that the judgment describes as false. On 8 November 2016, during his return journey, he was stopped in Addis Ababa, Ethiopia. The passport was confiscated as fraudulent; he was detained for 12 days and deported to Tanzania.
He sought an emergency travel document from the Minister in February 2017. After an initial refusal and a refused review, the Minister invited him to provide original documents concerning his identity and nationality. The applicant replied that he could not do so. The Minister refused again in September 2017. The applicant was granted leave to seek judicial review in November 2017.
The Minister later sought security for costs. The judge accepted that the State’s affidavit established a prima facie defence on the merits, one of the criteria for such an order. But he found the applicant’s current Stamp 4 permission and the circumstances of his absence supported treating him as ordinarily resident in Ireland. The judgment notes that the Minister’s refusal to facilitate his return was among the factors keeping him outside the State.
The judge also found that the applicant had no assets and that an order for security would determine the case. He considered the human-rights nature of the application and the relationship between the applicant’s continued absence and the alleged wrong being challenged. He concluded that the balance of justice did not favour the motion.
The court dismissed the application for security for costs. The judgment said that the absence of both the required residence criterion and a favourable balance of justice was fatal to the motion, which had delayed progress of the substantive case.