F.A.Y. (Nigeria) v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 06 June 2019
• Neutral Citation: [2019] IEHC 373
• Docket Number: [2018 No. 861 J.R.]
• Court: High Court
• Date: 06 June 2019

BETWEEN

F.A.Y. (NIGERIA)

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

[2019] IEHC 373

Humphreys J.

[2018 No. 861 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Residence card – Permanent residence – Applicant seeking judicial review – Whether the respondent was entitled to refuse the review application

Facts: The applicant, in April, 2011, applied for a residence card as the spouse of an EU national. That was granted on 12th October, 2011 for a five-year period. In February, 2015 the parties separated. This was formalised by a deed of separation dated 1st September, 2015. On 11th August, 2016, the applicant applied for a new residence card on the basis of the marriage and enclosed a form EU1 signed by both of the parties to the marriage, but no mention was made of the fact that the parties had separated. On 14th April, 2017 the application for a residence card was refused, the main reason being that the applicant failed to submit satisfactory evidence of the EU national’s activity in the state. On 28th April, 2017, the applicant submitted a review application in relation to the residence card together with some supporting documentation. On 26th July, 2018 the applicant was informed that the review application had been refused. The view of the respondent, the Minister for Justice and Equality, was that the marriage was not a bona fide subsisting marriage and that the concerns set out by the Minister had not been adequately addressed. Consequently, the application was refused on the basis of fraud or abuse of rights under reg. 27(1) of the European Communities (Free Movement of Persons) Regulations 2015. On 25th September, 2018, the applicant’s solicitors made an application for permanent residence for the applicant on the basis of EU treaty rights. On 9th October, 2018 the applicant was informed that such an application would not be accepted because the applicant did not comply with the 2015 regulations. Leave in these proceedings was granted on 22nd October, 2018. The main relief sought, at reliefs 1 and 2 were orders of certiorari of the decision of July, 2018 and the so-called decision of October, 2018.

Held by the High Court (Humphreys J) that, on the facts before him, the Minister was entitled to conclude that the marriage was one of convenience and accordingly was entitled to refuse the review application. Humphreys J held that the key grounds advanced were misunderstandings or misstatements, some tendentious, of the impugned decisions. Humphreys J held that the remaining grounds were derivative and did not arise because the key grounds failed.

Humphreys J held that the proceedings would be dismissed.

Proceedings dismissed.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 6th day of June, 2019

1 The applicant's ‘wife’, Ms. I.P., a national of Latvia, was born in 1956. She appears to have arrived in the State in or about November, 2006, and has been here ever since. She appears to have been in receipt of jobseekers allowance since 1st January 2009, according to a summary of social welfare payments furnished by the applicant which he has undertaken to put on affidavit. Thus she doesn't seem to have worked since 2008.

2 The applicant was born in 1982 and arrived in the State from Nigeria on or about 23rd October, 2009. He applied for asylum on that date. On 10th November, 2009 the Refugee Applications Commissioner's office received a phone call from the Civil Registrar's office in Cavan to check the applicant's identity as he had applied for permission to marry a Hungarian national.

3 On 17th November, 2009, the applicant's asylum application was refused by the commissioner and the applicant was informed of his right to appeal but did not exercise that right. Pretty much simultaneously with the application to marry a Hungarian national, the applicant claims to have met Ms. I.P. in November, 2009 and on 11th January, 2010 gave notification of an intention to marry her instead, in the Registrar's Office in Sligo. The parties to that the proposed marriage had no ostensible connection with Sligo, a matter commented on adversely by the Minister at a later stage in the process.

4 The GNIB lodged an objection to the proposed marriage, so it did not initially proceed pending the investigation by the Registrar-General. On 30th November, 2010 the Registrar-General decided that the marriage could go ahead, and the applicant was informed of this on 2nd December, 2010. The marriage then took place on 28th January, 2011. The applicant was then 28; the ‘wife’ was 54.

5 In April, 2011 the applicant applied for a residence card as the spouse of an EU national. That was granted on 12th October, 2011 for a five-year period.

6 In February, 2015 the applicant claims that the parties separated and this appears to have been formalised by a deed of separation dated 1st September, 2015.

7 On 11th August, 2016, the applicant applied for a new residence card on the basis on the marriage and enclosed a form EU1 signed by both of the parties to the marriage, but no mention was made of the fact that the parties had separated.

8 Further information was submitted on 15th August, 2016. The applicant applied for Irish citizenship on 25th October, 2016 and in that application stated that he had ‘ been approved for further stamp four residency permission by letter dated 19th August, 2016’. However, the permission he had at that point was only temporary pending the renewal application.

9 Further information was sought on 10th November, 2016 and the applicant replied on 18th November, 2016 confirming his address and the separate address of his wife being in Dublin and Louth respectively. Specific mention of the parties having separated wasn't made at that stage and the matter was left to be inferred from the two addresses provided.

10 The wife applied for disability allowance on 14th March, 2017. According to the medical report submitted, the illness was expected to continue indefinitely.

11 On 14th April, 2017 the application for a residence card was refused, the main reason being that the applicant failed to submit satisfactory evidence of the EU national's activity in the state.

12 On 28th April, 2017, the applicant submitted a review application in relation to the residence card together with some supporting documentation.

13 On 12th May, 2017, the ‘wife’ was refused disability allowance. She appealed that decision to the Social Welfare Appeals Office.

14 Further documents were sought by the Minister in relation to the review application regarding the residence card on 19th May, 2017, a request that was replied to on 26th May, 2017 and 26th June, 2017.

15 On 6th October, 2017, the wife was granted disability allowance on appeal. Counsel claims that this was retrospective to 15th March, 2017 although that is something less than crystal-clear on the papers.

16 On 10th April, 2018, the applicant was written to and was informed that the Minister was proposing to uphold the decision to refuse the application under the European Communities (Free Movement of Persons) Regulations 2015 ( S.I. 548 of 2015). Various aspects of concern in relation to the marriage were put to the applicant, including the fact that it took place in Sligo although the applicant lived in Dublin, the wife lived in Louth and they had no links to Sligo. Information available to the Minister indicated that the EU citizen resided continuously with a different individual in Dundalk from 2007 to 2013, which was said to contradict information provided by the applicant. Information in relation to the EU citizen's divorce was also sought and the applicant was informed that the Minister had concerns that the marriage may have been one of convenience in accordance with reg. 28(2) of the 2015 regulations. The applicant was also informed that the Minister was of the opinion that documentation supplied was false and misleading and was submitted in order to assert a right of residence to which the applicant would not otherwise be entitled.

17 On 1st May, 2018 the applicant made submissions to the Minister in response to that letter. On 26th July, 2018 the applicant was informed that the review application had been refused. That decision is challenged in the proceedings.

18 The reasons for the refusal of the review application were set out in a letter to the applicant, with the Minister noting that the applicant applied to renew his residence card on the same basis as the original application at a time when the parties had separated. Issues relating to the EU citizen's activities in the State were also outlined. The Minister's view was that the marriage was not a bona fide subsisting marriage and that the concerns set out by the Minister had not been adequately addressed. Consequently, the application was refused on the basis of fraud or abuse of rights under reg. 27(1) of the 2015 regulations. The letter also noted that any rights of the applicant under the Constitution or art. 8 of the ECHR as impliedly applied by the European Convention on Human Rights Act 2003 would be considered in full at a subsequent stage.

19 On 25th September, 2018, the applicant's solicitors made an application for permanent residence for the applicant on the basis of EU treaty rights. On 9th October, 2018 the applicant was informed that such an application would not be accepted because the applicant did not comply with the 2015 regulations. That letter, which is characterised by the applicant as a ‘ decision’ (although it is little more than a reiteration or consequence of the previous decision), is also challenged in the proceedings. The basis of that letter was that the applicant was not entitled to assert such rights under the 2015 regulations, primarily because of the findings in relation to the marriage of convenience and the previous decision.

20 Leave in the present...