Asif v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr Justice David Keane
• Judgment Date: 09 August 2019
• Neutral Citation: [2019] IEHC 616
• Court: High Court
• Docket Number: [2017 No. 528 JR]
• Date: 09 August 2019

[2019] IEHC 616

THE HIGH COURT

JUDICIAL REVIEW

Keane J.

[2017 No. 528 JR]

BETWEEN

MUHAMMAD ASIF

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

Judicial review – Residence card – Revocation – Applicant seeking judicial review – Whether the applicant could only be removed from the State in accordance with the removal procedure under the European Communities (Free Movement of Persons) Regulations 2015

Facts: The applicant, Mr Asif, sought judicial review of a decision by the first respondent, the Minister for Justice and Equality, dated 7 June 2017, under Reg. 25 of the European Communities (Free Movement of Persons) Regulations 2015, to uphold on review a first instance decision of 1 June 2016, under Reg. 27(1) of the 2015 Regulations, to revoke the residence card granted to the applicant, a national of Pakistan, as the spouse of Ms Tavares, a Portuguese – and, hence, European Union – citizen, exercising free movement rights in the State, on the basis that the entitlement concerned had been claimed through a marriage of convenience, amounting to an abuse of rights. Mr Asif submitted that, until the 2015 Regulations came into operation on 1 February 2016, the term ‘marriage of convenience’ had no meaning or effect in Irish law and that the concept of a marriage of convenience was not known to the laws of the State at the relevant time. Mr Asif argued that the Minister retrospectively applied the 2015 Regulations to his marriage of 11 November 2014, the residence card application that he made on 13 March 2015, or the Minister’s decision of 10 September 2015 to grant that application under the European Communities (Free Movement of Persons) Regulations 2006 and 2008, in a manner that breached the principle against the retroactive application of Community law. Mr Asif contended that the Minister’s power under Regs. 27 and 28 of the 2015 Regulations to disregard a marriage deemed to be a marriage of convenience and to revoke the residence rights obtained by the spouse of a Union citizen through a marriage of convenience as an abuse of those rights, was an attack on the institution of marriage, prohibited under Article 41.3.1° of the Constitution of Ireland. Mr Asif submitted that, in reciting that it did not interfere with any rights Mr Asif may wish to assert under the Constitution or Art. 8 of the European Convention on Human Rights (ECHR), the review decision wrongly disregarded those rights. Mr Asif relied upon the decision of the Court of Appeal in Luximon v Minister for Justice [2016] 2 IR 725 as authority, by analogy, for the proposition that in considering the decision to revoke his residence card under Reg. 27 of the 2015 Regulations, the Minister was obliged to take into consideration the effect of that decision on Mr Asif’s right to respect for his private and family life under Art. 8 of the ECHR. Mr Asif submitted that he could only be removed from the State in accordance with the removal procedure under the 2015 Regulations and not the deportation procedure under the Immigration Act 1999.

Held by the High Court (Keane J) that the term ‘marriage of convenience’ as it appeared in the 2006 Regulations did have a specific meaning and effect in the law of the State at the time when Mr Asif entered into a marriage on 11 November 2014, when he applied for a residence card on 13 March 2015 and when he initially obtained a favourable decision on that application on 10 September 2015. Keane J held that Mr Asif had failed to establish any breach of the principle against the retroactive application of Community law. Keane J was satisfied that the powers of the Minister under Regs. 27 and 28 of the 2015 Regulations do not constitute an attack on the institution of marriage, contrary to Art. 41.3.1° of the Constitution, and that the exercise of those powers is not a usurpation of any judicial function, contrary to Art.34.1 of the Constitution. Keane J held that the facts in Luximon were distinguishable from those of this case in two fundamental ways: first, Luximon was not an abuse of rights case; and second, the applicant did not invoke the right to respect for family and private life in seeking the review of the Minister’s decision. Keane J found nothing inconsistent with the Minister’s finding that Mr Asif’s marriage was for the sole purpose of obtaining the relevant residence entitlement, much less anything capable of rendering the Minister’s decision, or the review decision, ultra vires the 2015 Regulations.

Keane J held that the application would be refused.

Application refused.

JUDGMENT of Mr Justice David Keane delivered on the 9th August 2019

Introduction

1 This is the judicial review of a decision by the Minister for Justice and Equality (“the Minister”), dated 7 June 2017 (“the review decision”), under Reg. 25 of the European Communities (Free Movement of Persons) Regulations 2015 (“the 2015 Regulations”), to uphold on review a first instance decision of 1 June 2016, under Reg. 27(1) of the 2015 Regulations, to revoke the residence card granted to Muhammad Asif, a national of Pakistan, as the spouse of Andreia Patricia Pereira Tavares, a Portuguese – and, hence, European Union – citizen, exercising free movement rights in the State, on the basis that the entitlement concerned had been claimed through a marriage of convenience, amounting to an abuse of rights.

2 The 2015 Regulations were made, in exercise of the powers conferred on the Minister by s. 3 of the European Communities Act 1972, to give effect to Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the rights of the citizens of the Union and their family members to move and reside freely within the territory of the Member States (“the Citizens” Rights Directive”). They came into operation on 1 February 2016.

Procedural history and grounds of challenge

3 The application is based on a statement of grounds, dated 22 June 2017, supported by an affidavit of Mr Asif, sworn on the same day.

4 By order made on 9 October 2017, Humphreys J granted Mr Asif leave to seek the following substantive reliefs:

(a) an order of certiorari quashing the review decision;

(b) a declaration that the review decision is unlawful in applying the 2015 Regulations with retrospective effect to a decision to grant a residence card, made on 10 September 2015, under the European Communities (Free Movement of Persons) Regulations 2006 and 2008 (“the 2006 Regulations”);

(c) a declaration that Reg. 28 of the 2015 Regulations, which permits the Minister to disregard a marriage of convenience in any determination under those regulations, is an attack on the institution of marriage, contrary to Art. 41.3.1° of the Constitution of Ireland;

(d) a declaration that Reg. 28(2) of the 2015 Regulations, whereby the parties to a marriage relied on under those regulations may be required to satisfy the Minister that it is not a marriage of convenience when the Minister has reasonable grounds to consider otherwise, is a usurpation by the Minister of the judicial power of the State, under s. 29 of the Family Law Act 1995, to determine the validity of a marriage and, hence, a breach of the separation of powers under the Constitution of Ireland;

(e) alternatively, a declaration that the finding that Mr Asif's marriage was one of convenience is ultra vires or unreasonable, or both;

(f) an order of certiorari quashing the Minister's proposal of the same date, pursuant to s. 3(3) of the Immigration Act 1999, as amended (“the Act of 1999”), to make a deportation order against Mr Asif; and

(g) an order of mandamus compelling the Minister to determine an application that Mr Asif made on 12 January 2017, under s. 4 of the Immigration Act 2004, as amended (“the Act of 2004”) for permission to be in the State.

5 The Minister delivered an undated statement of opposition in early 2018. It is supported by an affidavit of verification, sworn on 12 January 2018 by Sinead Murphy, a higher executive officer in the Department of Justice and Equality.

6 In that statement of opposition, the Minister raises the following preliminary objections. First, a notification of a proposal to deport, under s. 3(3)(a) of the Act of 1999, is not a decision amenable to judicial review. Second, Mr Asif no longer has any sufficient interest in the Minister's decision to uphold the revocation of his residence card, as he contends that his marriage to the EU citizen concerned has broken down; that she is no longer resident in the State; and that, accordingly, he no longer has a derived right of residence in the State as the spouse of an EU citizen exercising free movement rights here. Third, there is no obligation on the Minister to consider or determine Mr Asif's residence permission application under s. 4 of the Act of 2004, while the issue of his derived entitlement to reside in the State under the 2015 Regulations is under judicial review. And fourth, Mr Asif does not have a sufficient interest to pursue the declarations he seeks concerning the unlawful retrospective application of the 2015 Regulations, the unlawful attack on the institution of marriage, contrary to Art. 41.3.1° of the Constitution of Ireland, or the breach of the separation powers represented by Reg. 28(2) of the 2015 Regulations, because he no longer has a derived right of residence in the State based upon his marriage to an EU citizen exercising free movement rights here.

7 Without prejudice to those preliminary objections, the Minister joins issue with Mr Asif on each one of the grounds that he has raised in support of the various reliefs he seeks.

Background

8 Mr Asif is a citizen of Pakistan, born in 1980, who arrived in Ireland on 10 November 2006 on a student entry visa. On 22 January 2007, he registered with the Garda National Immigration Bureau (‘GNIB’) under s. 9 of the Immigration Act 2004, as...