A.K.S (A Minor Suing by Her Mother and Next Friend J.K.) and Guardian S.S v The Minister for Justice, Ireland and The Attorney General

• Jurisdiction: Ireland
• Judge: Ms. Justice Siobhán Phelan
• Judgment Date: 11 January 2023
• Neutral Citation: [2023] IEHC 1
• Court: High Court
• Docket Number: [Record No. 2021/613 JR]

Between:

A.K.S (A Minor Suing by Her Mother and Next Friend J.K.) and Guardian S.S

Applicants

and

The Minister for Justice, Ireland and The Attorney General

Respondents

[2023] IEHC 1

[Record No. 2021/613 JR]

THE HIGH COURT

JUDICIAL REVIEW

Settlement agreement – Consent – Substitution – Plaintiff seeking an order substituting the plaintiff in the proceedings – Whether it was open to the fourth defendant to withdraw consent

Facts: The plaintiff, Allied Irish Banks plc (AIB), and a non-party to the proceedings, Everyday Finance DAC (Everyday), in February 2020, applied to the High Court for various orders arising out of a Settlement Agreement dated 31st January, 2020, made between a number of parties, including some of the parties to these proceedings and to related proceedings, including AIB, Everyday and the fourth defendant, Mr Morrissey (the AIB/Everyday application).

Held by Barniville P that he should make the various orders sought in the notice of motion in respect of the AIB/Everyday application to which Mr Morrissey consented in the Consent Letter signed by him on 31st January, 2020. Barniville P did not accept that the objections advanced by the first to third defendants, Mr Bradley, Mr Doyle and Ms Byrne (the Malcomson Law Defendants), to some of those orders afforded any basis on which he should refuse to make them. Barniville P made an order noting Mr Morrissey’s consent to the orders set out in schedule 1 of the notice of motion. Barniville P made the orders set out in schedule 2 of the notice of motion on consent of AIB, Everyday and Mr Morrissey together with the orders sought at paras. 10 and 11 of the notice of motion. Barniville P directed that the sum of €1.5m be withheld by the receivers of Dan Morrissey (IRL) Ltd (In receivership), namely, Mr McCann and Mr Tennant (the Receivers) from the proceeds of sale of the relevant property. Barniville P required an undertaking from the Receivers that in the event that that sum was not sufficient to meet any sums properly secured by the alleged charge granted by Mr Morrissey in favour of the Malcomson Law Defendants on 17th December, 2015 (the Malcomson Law Charge), they would ensure that the full amount found to be due and owing to the Malcomson Law Defendants was paid to them.

Barniville P made: (a) an order substituting Everyday for AIB as plaintiff in the proceedings and not an order joining Everyday as a further plaintiff to the proceedings; (b) a declaration that the letter of 3rd May, 2011, constituted an equitable mortgage by Mr Morrissey in favour of AIB over the lands described as the “Clonmelsh Property”, but excluding Mr Morrissey’s family home; (c) a declaration that the sum of €24,970,000 (together with costs and interest) (or such other sum as may be found due and owing on inquiry) stands well charged against Mr Morrissey’s interest in the Clonmelsh Property but excluding his family home and the lands described as the “retained lands” pursuant to the judgment mortgages registered by AIB in January 2016; and (d) an order appointing Mr McCann and Mr Tennant as Receivers over the interest of Mr Morrissey in the Clonmelsh Property but excluding his family home and the lands described as the “retained lands” and conferring on them, the powers referred to at para. 10(I) to (XII) of the notice of motion. Barniville P made an order removing the fifth defendant, the Property Registration Authority, as a defendant to the proceedings and giving Everyday liberty to deliver an amended summons and statement of claim. Barniville P held that it was not open to Mr Morrissey to withdraw the consent to the orders set out in the Consent Letter signed by him on 31st January, 2020 and in the agreed to Settlement Agreement and as communicated to the court by Mr Morrissey’s counsel on at least two occasions, 31st January, 2020 and 10th February, 2020. Barniville P held that the withdrawal of Mr Morrissey’s consent would involve a breach of an express term of the Settlement Agreement or, alternatively, a breach of certain terms which would otherwise be implied into the agreement between the parties.

Application granted.

JUDGMENT of Ms. Justice Siobhán Phelan, delivered on the 11 ^th day of January. 2023

INTRODUCTION

1 . These proceedings concern the lawfulness of the decision-making process and decision of the First Respondent to revoke the Second Applicant's permanent residence card with purported retrospective effect on grounds of alleged fraud perpetrated in the course of securing residency on foot of a marriage of convenience.

2 . The impugned decision was taken pursuant to the provisions of the European Communities (Free Movement of Persons) Regulations, 2015 [hereinafter “the 2015 Regulations”], giving effect to Directive 2004/38 EC [hereinafter referred to as “the Directive”].

3 . The Second Applicant enjoyed residency rights deriving from his marriage to an EU citizen exercising free movement rights in the State since early 2010, with his initial applications being processed pursuant to the provisions of the now revoked European Communities (Free Movement of Persons)(No.2) Regulations, 2006 (as amended) [hereinafter “the 2006 Regulations”]. The 2006 Regulations were revoked in December, 2015 and stand replaced by the 2015 Regulations.

4 . The impugned decision was made on the 1 ^st of April, 2021. The decision was to the effect that as the First Respondent had concluded that the marriage between the Second Applicant, the EU citizen, was one of convenience contracted in order to obtain immigration permission, the marriage could be “ disregarded” for the purposes of the Regulations. The Second Applicant was advised that in consequence previous permissions were “deemed invalid from the outset” and the residence card held was revoked in accordance with Regulation 27[1] of the 2015 Regulations.

5 . At the time of the impugned decision the Second Applicant had been residing in the State since 2006 (some fifteen years), having divorced his EU citizen wife before subsequently securing permanent residency in the State derived from his then dissolved marriage. Thereafter he remarried a non-EU national in 2014, becoming a father to the First Applicant, a child of that second marriage, in 2019. As a child whose parent had been lawfully resident in the State for the requisite period, the First Applicant was then entitled to Irish citizenship at birth and was issued with an Irish passport in recognition of this fact.

6 . The First Respondent has confirmed her position as being that where residence is revoked on grounds of fraud and marriage of convenience, the First Applicant's citizenship would also be void ab initio because neither of her parents would be considered to have had the requisite lawful residence at the time of her birth arising from the retrospective decision to nullify the Second Applicant's residency. Notwithstanding the First Respondent's acceptance of the consequences for the First Applicant of a retrospective nullification of her father's residence status, the First Respondent maintains that the First Applicant's rights are not engaged.

7 . The First Applicant's position was not considered in the impugned decision.

8 . Although a review process is provided under Regulation 25 of the 2015 Regulations by way of appeal against the first instance decision, the Applicants have not proceeded with that review principally on the basis that the First Applicant's rights are not adequately safeguarded in that process.

BACKGROUND

9 . The Second Applicant is a non-EU/third country national who came to the State on the 8 ^th of October, 2006 with a stamp 2 permission (student visa), which was valid until the 31 ^st of October 2009. In 2009 well-documented changes to the student visa system were introduced with the effect that a person resident on foot of a student visa in the State found themselves in a precarious immigration position ( Luximon v Minister for Justice & Equality Bachand v Minister for Justice & Equality [2018] 2 I.R. 542).

10 . The Second Applicant married a non-Irish EU national, Ms. SB, on the 3 ^rd of September, 2009 in Ireland. The said Ms. SB had initially entered the State in January 2009 and was issued with a PPSN that same month.

11 . The Second Applicant applied for a residence card (using a Form EU1) as the spouse of Ms. SB, following his marriage in September 2009. This application was granted in February 2010. For the purpose of the initial application for a residence card, the Second Applicant submitted an undated letter from a named company (controlled or managed by one Mr. D), which stated that his wife Ms. SB was employed as a cleaning supervisor from May, 2009. Payslips for three weeks were also provided which referred to 25 weeks insurable employment, and gross cumulative pay of €8,750 up to the 9 ^th of October, 2009. The Second Applicant also submitted another letter from the same Mr. D, stating that the Second Applicant and Ms. SB were tenants of his property at a specified address in an apartment building in North Inner-City Dublin. File documentation exhibited in the proceedings suggest that an officer in the EU Treaty Rights Division of the First Respondent's Department had contacted the company and spoke with Mr. D who confirmed that Ms. SB was employed there.

12 . The Second Applicant and Ms. SB were divorced in her country of nationality in February, 2013. The Second Applicant applied for recognition of the retention of his EU Treaty Rights in July 2013 (using a Form EU5). In this application, he submitted evidence of divorce but also claimed that Ms. SB was still living with him in the State (at the same apartment complex in North Inner-City Dublin given as their address on the first application) and was still working in the State. He submitted six payslips purporting to show that Ms. SB was working for a different named company to that...