F.A.Y [Nigeria] v The Minister for Justice [No. 2]

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms Justice Nessa Cahill
• Judgment Date: 25 February 2026
• Neutral Citation: [2026] IEHC 112
• Docket Number: RECORD NO: JR 2024/1284

Between:

F.A.Y. (Nigeria) (No. 2)

Applicant

and

The Minister for Justice

Respondent

[2026] IEHC 112

RECORD NO: JR 2024/1284

THE HIGH COURT

Strike out – Abuse of process – Bound to fail – Applicant challenging the respondent’s conclusion that the applicant was lawfully resident in the State on specified dates – Whether all rights to reside were rendered invalid when the applicant’s residence card was revoked

Facts: The respondent, the Minister for Justice (the Minister), concluded that the applicant was lawfully resident in the State on specified dates during the four-year period from 31 January 2018 to 31 January 2022. The central question in this case was whether the Minister erred in so deciding. The significance of that question lay in the fact that it was only if the applicant was undocumented for that continuous period that he would be eligible to avail of an administrative scheme that was put in place by the Minister to regularise the status of long-term undocumented residents in the State: the scheme for long-term undocumented people and their dependents to regularise their status (the scheme). The answer to that question hinged in turn on the status of certain temporary permissions to reside in the State that were given to the applicant while he was challenging a refusal to grant him a residence card. The applicant contended that all rights to reside (including temporary rights) were rendered invalid from the outset when his residence card was revoked, such that he was never lawfully resident in the State and met the criteria of the scheme. An alternative argument advanced by the applicant was that, if he was lawfully resident in the State, this was on the basis of rights conferred by the EU law and he could not be deported under domestic law.

Held by Cahill J that the correct interpretation of the facts in light of the applicable law (most particularly the judgment in M.A. v Minister for Justice [2025] IEHC 135) was that the temporary permissions were granted as a matter of discretion, rather than statutory right, they were not based on the validity of the applicant’s marriage to a Latvian national who was resident in the State, and they were not revoked. Cahill J held that the Minister was entitled to form the view that the grant of those temporary rights of residence excluded the applicant from the ambit of the scheme and did not err in so deciding. Cahill J rejected the alternative EU ground on several standalone grounds: it was an impermissible collateral attack on the deportation order; the only EU treaty-based rights to reside in the State which had been conferred on the applicant were revoked ab initio; the temporary permissions were discretionary and not granted as an entitlement under EU law; and in any event Case C-69411 8, Nalini Chenchooliah v Minister for Justice and Equality, Judgment of the Court (Grand Chamber) of 10 September 2019 was not an authority that may be relied upon by the applicant to challenge the basis for the deportation order, given the finding that he had engaged in an abuse of rights.

Cahill J rejected each of the grounds relied upon by the applicant in the proceedings. Cahill J found that the applicant had failed to demonstrate a basis for any of the relief sought by the amended statement of grounds. Cahill J dismissed the claim.

Application refused.

JUDGMENT of Ms Justice Nessa Cahill delivered on 25 February 2026

OVERVIEW

1 The central question in this case is whether the Minister for Justice (“ the Minister”) erred in concluding that the Applicant was lawfully resident in the State on specified dates during the four-year period from 31 January 2018 to 31 January 2022. The significance of this question lies in the fact that it is only if the Applicant was undocumented for that continuous period that he would be eligible to avail of an administrative scheme that was put in place by the Minister to regularise the status of long-term undocumented residents in the State.

2 The answer to this question hinges in turn on the status of certain temporary permissions to reside in the State that were given to the Applicant while he was challenging a refusal to grant him a residence card. The Applicant contends that all rights to reside (including temporary rights) were rendered invalid from the outset when his residence card was revoked, such that he was never lawfully resident in the State and meets the criteria of the Scheme.

3 An alternative argument advanced by the Applicant is that, if he was lawfully resident in the State, this was on the basis of rights conferred by the EU law and he cannot now be deported under domestic law.

BACKGROUND

4 The events and their precise chronology are not substantially in dispute and are important in these proceedings. The relevant dates and events are set out here:

• — The Applicant was born in Nigeria in 1982.

• — On 23 October 2009 the Applicant arrived in the State and applied for asylum.

• — On 17 November 2009, the asylum application was refused and the Applicant was informed of his right to appeal but did not exercise that right.

• — On 11 January 2010 he gave notification of an intention to marry Latvian national who was resident in the State.

• — On 28 January 2011, the marriage took place.

• — In April 2011, the Applicant applied for a residence card as the spouse of an EU national pursuant to the European Communities (Free Movement of Persons) (No 2) Regulations 2006 (“ the 2006 Regulations”).

• — On 12 October 2011, a five-year residence card was granted (a stamp 4 EUFAM permission) (“ the Residence Card”).

• — On 1 September 2015, a deed of separation formalised the separation of the Applicant from his spouse (the parties having separated in February 2015).

• — On 11 August 2016, the Applicant applied for a new residence card on the basis of the marriage pursuant to the European Communities (Free Movement of Persons) Regulations 2015 (“ the 2015 Regulations”) and Directive 2004/38/EC. No mention was made of the fact that the parties had separated (“ the 2016 Application”).

• — On 12 October 2016, the five-year Residence Card expired.

• — On 14 April 2017, the 2016 Application was refused.

• — On 28 April 2017, the Applicant submitted a review application in relation to the refusal of the 2016 Application together with some supporting documentation and also requested permission to reside the State while the decision on the review application was pending.

• — On 12 July 2017, a temporary permission to reside in the State until 2 March 2018 was given to the Applicant (having initially been refused on 31 May 2017). This letter stated, “ Please note that receipt of a Stamp 4 for this period is not an acknowledgement of having an entitlement to residence under EU Treaty Rights. This will be determined in due course when your application will be either approved or refused.”

• — On 2 March 2018, the first temporary permission expired.

• — On 20 March 2018, the Applicant requested an extension of the temporary permission to remain.

• — On 10 April 2018, the Applicant was informed in writing that the Minister was proposing to uphold the decision to refuse the 2016 Application.

• — On 1 May 2018, the Applicant made further submissions to the Minister regarding the proposed decision and requested an extension of the temporary permission to remain.

• — On 4 May 2018, the Applicant was given a second temporary permission to remain in the State until 4 August 2018 while the review of the decision to refuse the 2016 Application was considered. That letter expressly states “ This stamp will enable you to enter employment for this period. Please note receipt of a Stamp 4 for this period is not an acknowledgement of having an entitlement to residence under EU Treaty Rights. This will be determined in due course when your review will be either approved or refused.”

• — On 26 July 2018 the Applicant was informed that the review which had been undertaken under regulation 25 had been refused on the basis of findings of fraud or abuse of rights under regulation 27(1), as the Minister had formed the view that the marriage was not a genuine subsisting marriage.

• — On 4 August 2018, the second temporary permission to reside in the State expired.

• — On 25 September 2018, the Applicant's solicitors made an application on behalf of the Applicant for permanent residence, on the basis of EU treaty rights.

• — On 9 October 2018 the Applicant was informed that such an application would not be accepted because the Applicant did not comply with the 2015 Regulations.

• — On 22 October 2018, leave was granted to bring judicial review proceedings challenging the decision of 26 July 2018 and the alleged decision of October 2018.

• — On 2 November 2018, a clarification was issued by the Minister to the effect that the original Residence Card “ shall be deemed to be invalid from the outset” and was revoked under regulation 27.

• — On 6 June 2019, the High Court (Humphreys J) gave judgment dismissing the proceedings and refusing the relief sought, finding that it was open to the Minister to find that the marriage was a marriage of convenience and the Applicant was accordingly not entitled to exercise EU treaty rights ( F.A.Y. (Nigeria) v. Minister for Justice [2019] IEHC 373).

• — On 17 February 2020, a deportation order was issued pursuant to section 3 of the Immigration Act 1999 (as amended) (“ the Deportation Order”).

• — On 21 August 2020, a letter was issued by the Minister notifying the Applicant of the deportation order and requiring the Applicantto leave the State by 18 September 2020.

• — On 31 January 2022, the scheme for long-term undocumented people and their dependents to regularise their status (“ the Scheme”) came into effect. The Scheme was available to persons who demonstrated residence in the State without a valid residence permission (undocumented) continuously for a minimum period of...