A consideration of the High Court judgment of Edwards J. in KM and DG V. The Minister for Justice, Equality and Law Reform, Ireland and the Attorney General
The question of delay in public decision making was considered in the case KM V Minister for Justice, Equality and Law Reform  IEHC 234. The applicant in that case had applied for permission to remain in Ireland on the basis of his marriage to an Irish citizen. At the time of the application visa permissions to remain in the State for the purpose of pursuing a course of study which permitted casual employment had expired and the applicant was therefore illegally within the State. He was therefore was unable to work. It was submitted that the applicant's inability to work caused significant hardship and prejudice and that a delay of 11 months in considering the applicant's application represented an unreasonable or unconscionable delay. An order of mandamus ordering the Minister for Justice to make a determination of the applicant's application was sought. It was also alleged that the Minister was in breach of the applicant's constitutional rights and in breach of the European Convention on Human Rights. In his judgment Mr. Justice Edwards set out the following areas for consideration in determining whether or not the delay was so unreasonable or unconscionable as to constitute a breach of the applicants' fundamental rights as follows:
- The period in question;
- The complexity of the issues to be considered;
- The amount of information to be gathered and the extent of enquires to be made;
- The reasons advanced for the time taken; and
- The likely prejudice to the applicant on account of the delay.
In this case the learned trail judge considered that a period of 9 to 12 months was considered acceptable for a process of receiving the application, making relevant enquiries and considering the application. The question of resources available to the Department was relevant to the margin of appreciation although it was noted that once the delay became gross and unconscionable, the question of resources became moot. In this case there was no automatic entitlement to a positive outcome and therefore time for consideration of the application was longer than in other comparable areas such as in the case of applications by EU citizens.
In addition the learned trial judge formed the view that the applicant was not in a position to validly complain of the hardship on account of his inability to work in circumstances where he was illegally within the State. However, the trial judge observed that any undue delay in the decision making process would add to the applicant's burden and thereby prejudice him.
It can be seen therefore and following the five areas of enquiry for the Court that the amount of time that would be permitted in public decision making can be directly linked to the complexity of the issues to be considered, the amount of information that the decision maker requires to be gathered and the extent of enquiries to be made. Cases in which a genuine decision as opposed to rubber stamping of an application would therefore require longer periods of time for consideration. Any reason for the delay or time taken will also be considered and the applicant will be unable to rely on his own delay in responding to or dealing with queries.
When considering the question of delay, Article 6 of the European Convention on Human Rights must also be taken into account. This provides that "In the determination of his civil rights and obligations.... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law..."
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