The Court of Appeal has dismissed Ammad Mahfooz’s appeal against the refusal of orders compelling the Minister for Justice and Equality to decide applications concerning his deportation order and a residence card. The court held that the judicial review proceedings were premature and had not established egregious or unjustified delay.
Mahfooz, a Pakistani national, was deported to Pakistan on 13 June 2019 under a deportation order. Before his removal, he had applied to have the order revoked and sought a residence card as the “permitted family member” of an EU national. The Minister refused the residence-card application in March 2019, and Mahfooz sought a review. His partner, a Latvian national, married him in Pakistan in July 2019; the Minister contested the marriage.
The present proceedings sought orders of mandamus requiring decisions on the revocation application and the residence-card review, along with declaratory and injunctive relief. The High Court refused relief in December 2019. Mahfooz appealed, arguing in part that the later Court of Justice of the European Union ruling in Chenchooliah made a prompt decision necessary and that the time taken was unreasonable.
The Court of Appeal said the claim that Mahfooz had a procedural right to remain in Ireland while his review was pending had already been decided against him in separate Article 40 proceedings. The appeal court also found that the pleaded grounds did not allege delay or unreasonable delay. They instead asserted that fundamental rights had not been considered in decisions the Minister had yet to make.
The court accepted that the High Court had nevertheless considered delay. It found no basis to overturn the conclusion that the periods involved were not egregious or unjustified: the revocation application had been made about five and a half months before the High Court hearing, and the review application about two months before proceedings were issued. Mahfooz had also sent further material for consideration, and the issues were complex.
The appeal court did not decide whether Chenchooliah gave Mahfooz the EU-law rights he claimed, including an automatic right to residence or revocation of the deportation order. It said those matters first required consideration by the Minister, making the mandamus proceedings premature. It also ruled that proposed questions for referral to the EU court were unnecessary to resolve the appeal.
The court said it would dismiss the appeal and proposed that the Minister receive appeal costs, subject to any application by Mahfooz within 14 days for a supplemental hearing on the form of the order, including costs.