Tadeusz Stach's Application
| Jurisdiction | Northern Ireland |
| Judge | Sir Girvan |
| Judgment Date | 30 November 2018 |
| Neutral Citation | [2018] NIQB 93 |
| Court | Queen's Bench Division (Northern Ireland) |
| Date | 30 November 2018 |
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Neutral Citation No: [2018] NIQB 93
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: GIR10762
Delivered: 30/11/2018
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
________
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
________
IN THE MATTER OF AN APPLICATION BY TADEUSZ STACH
FOR JUDICIAL REVIEW
IN THE MATTER OF DECISIONS BY THE DEPARTMENT FOR
COMMUNITIES AND THE DEPARTMENT FOR WORK AND PENSIONS
________
THE RT. HON. SIR PAUL GIRVAN
Introduction
[1] This is a judicial review application brought by Tadeusz Stach, a Polish
national and EU citizen, who entered Northern Ireland pursuant to his right to free
movement within the EU with a view to finding employment in Northern Ireland.
The application raises a number of very complex questions relating to the question
whether his rights as an EU citizen exercising his right to freedom of movement as a
jobseeker had been infringed by the United Kingdom authorities. More particularly
the issue for ultimate determination relates to the validity of the Housing Benefit
(Habitual Residence) Amendment Regulations (Northern Ireland) 2014 (“the 2014
Regulations”). It is the applicant’s case that the failure of the United Kingdom
authorities to provide him with access to housing benefit as a jobseeker from
February 2017 was unlawful and in breach of Articles 2, 3, 8 and 14 of the European
Convention on Human Rights. Although in its original form the application raised a
myriad of questions (including a challenge to an administrative removal decision, a
notice of liability to detention and a challenge to a refusal to grant unemployment
and support allowance) it is common case that the issue for determination in the case
as it currently stands relates solely to the question of the unavailability of housing
benefit to persons finding themselves in the position of the applicant. As set out in
the Notice of Motion of 7 November 2017 the relief sought is (a) an order of certiorari
quashing Article 10 of the 2014 Regulations as amended; (b) a declaration that the
ongoing failure to provide the applicant with access to housing benefit from
February 2017 is unlawful and in breach of Articles 2, 3, 8, and 14 of the European
Convention on Human Rights (ECHR); (c) damages; (d) costs; and (e) such further
and other relief as the Court may deem appropriate.
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[2] In the course of proceedings the Order 53 statement developed and was
amended from time to time. However, the parties are agreed that the relevant
Order 53 Statement is the third amended Statement of Claim. It must be recorded
that the pleadings in this application are untidy and confusing. They exemplify the
dangers that arise when judicial review applications are allowed to grow, develop,
change and take on a life of their own. The lack of clarity in identifying the relevant
and core issues has made the task of managing the judicial review application far
from an easy one. However, the tighter framework brought to the case in its later
stages now enables the parties and the court to focus on the key central issues. It is
necessary also to point out that the organisation of the papers in the case did not
ease the task of the court. As has often been pointed out by courts care needs to be
taken to ensure that papers are reduced to what is relevant to the case omitting
material which is not going to be cited or relied on. Parties should always endeavour
to prepare core bundles with care. In relation to exhibited documents often only the
relevant portions need to be exhibited and if another party considers that more
needs to be seen it can call for the production of the entire document or other
allegedly relevant portions. As it was many authorities which were of peripheral or
no relevance were copied and pressed into over bulging files. In the course of the
hearing authorities were quite properly added to the bundle of cases but in a
piecemeal way. If the initial core bundle of authorities had been presented omitting
many pages of irrelevant cases the new authorities could have been incorporated
into the appropriate bundle with the index then updated. Practitioners should be
aware that over weighty files containing surplusage have to be dragged round court
rooms and chambers and constitute a waste of manpower and paper. Files come
apart because of excess contents. None of this assists the court in resolving the
issues. Such an approach to the presentation of cases increases costs unnecessarily
and is contrary to the overriding principle of efficiency and the avoidance of
unnecessary costs.
[3] In this application the applicant is represented by Mr Southey QC and
Mr McGowan. Dr McGleenan QC and Mr Best appeared for the Department of
Work and Pensions. Dr McGleenan QC and Mr Corkey appeared on behalf of the
Department of Communities. The court is grateful to counsel for their very full and
detailed written and oral submissions.
The Devolution Notice
[4] A devolution notice pursuant to Schedule 10 paragraph 10 of the
Northern Ireland Act 1998 was issued on 13 February 2018. The applicant gave
notice that he claimed (a) an order of certiorari quashing regulation 2 of the Housing
Benefit (Habitual Residence) (Amendment) Regulations (NI) 2014; (b) a declaration
that the failure to provide the applicant with access to housing benefit from February
2017 until he ceased to be an EU jobseeker was unlawful and in breach of Articles 2,
3, 8, and 14 of the European Convention on Human Rights and European Union law
and hence contrary to section 24 of the Northern Ireland Act 1998; (c) in the
alternative, a declaration that the failure to make provision to avoid the applicant
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