The High Court refused an application for an order compelling the Minister for Justice, Equality and Law Reform to decide a Romanian man’s application for residence in Ireland. Mr Justice Cooke held that, after Romania joined the European Union, the Minister no longer had power under the relevant deportation law to make the decision sought.
The applicant entered Ireland in October 1996 and claimed asylum. He later withdrew that application and sought residence as the father of an Irish citizen child. The judgment refers to a second applicant, a minor, but says her presence was unnecessary to the application and does not consider her further.
In 2006, the Minister made a deportation order. The applicant brought judicial review proceedings to have it quashed. Those proceedings were settled: the Minister revoked the order, the applicant could make fresh representations, and the Minister agreed to issue a decision within 21 days of receiving them. The Minister also agreed to contribute €25,500 plus VAT to the applicant’s costs. The order was revoked, the costs were paid, and fresh representations were submitted.
In June 2008, the Minister wrote that no decision would be made on the application for “Humanitarian Leave to remain” because such applications by Romanian nationals were no longer valid. The applicant argued that the application remained outstanding and that the Minister was bound to decide it, including under the settlement agreement. His solicitors also said that without unrestricted permission to remain, he could be unable to obtain an employment permit as an unskilled worker.
The judge explained that “humanitarian leave” was not a separate statutory residence category. It referred to the Minister’s discretionary decision to postpone or refrain temporarily from making a deportation order on humanitarian grounds. The court considered that Romania’s EU accession on 1 January 2007 changed the legal regime applying to the applicant. Under the arrangements described in the judgment, Romanian nationals could exercise EU movement rights but faced transitional restrictions on access to the labour market.
The court held that, from that date, section 3 of the Immigration Act 1999 no longer applied to the applicant. The Minister therefore had no power under that section to grant the temporary leave or make the decision he sought. The earlier settlement did not change that, because the Minister’s competence to perform that part of the agreement had ceased when the legal regime changed.
Mandamus could not compel a decision the Minister lacked power to make. The court refused the application. It did not order the applicant’s removal from Ireland or determine any application under the separate procedure for removing EU citizens.