H v The Minister for Justice

• Jurisdiction: Ireland
• Judge: Ms Justice Miriam O'Regan
• Judgment Date: 21 December 2022
• Neutral Citation: [2022] IEHC 721
• Court: High Court
• Docket Number: [Record No. 2022/508JR]

Between

H

Applicant

and

The Minister for Justice

Respondent

[2022] IEHC 721

[Record No. 2022/508JR]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Credibility – Oral hearing – Appellant seeking to quash a review decision of the respondent finding that the applicant had contracted a marriage of convenience – Whether an oral hearing was required in the circumstances on the basis that central to the decision was an adverse finding of credibility against the applicant

Facts: The applicant was afforded leave on 27 June 2022 to maintain judicial review proceedings brought by way of statement of grounds of 16 June 2022. The applicant sought to quash a decision of the respondent, the Minister for Justice, being a review decision of 11 April 2022 finding that the applicant had contracted a marriage of convenience. The applicant’s complaint was to the effect that an oral hearing was required in the circumstances on the basis that central to the decision was an adverse finding of credibility against the applicant. In oral submissions the entirety of the applicant’s claim was founded on an application of the decision of Phelan J in ZK v Minister for Justice & Ors [2022] IEHC 278. It was argued that based upon judicial comity and the Worldport principles the Court must follow the decision in ZK. In written submissions it was argued that: (1) it was incumbent upon the Minister to consider the applicant’s submissions; (2) there was no interview conducted; (3) the Minister did not write to the former wife of the applicant nor was there engagement with her; and (4) the decision was based on a personal credibility assessment of the applicant. The respondent resisted the application on the basis that there was no necessity to hold any form of oral hearing and there was an interview with the applicant and contact with his former spouse. Insofar as the jurisprudence was concerned it was argued that the decision of Ferriter J in SK & JK v Minister for Justice [2022] IEHC 591 was later in time than the ZK decision, accordingly judicial comity/the Worldport principles applied to the SK & JK decision.

Held by O’Regan J that this matter could be distinguished from the facts before Phelan J in ZK namely: (1) in ZK there were substantive submissions whereas in this matter there was bare assertion only; (2) in ZK substantial documents were submitted whereas in this matter minimal documents were submitted and none at all to address the respondent’s concerns identified; (3) there was no language issue arising in the circumstances; (4) there was no engagement in the process by the applicant in the circumstances; and (5) there was an oral interview with the applicant at Dublin Airport and there were two oral conversations with the EU citizen by an official albeit by phone. In addition to the foregoing, O’Regan J held that: (a) the applicant was on full notice of the Minister’s concerns as outlined in the letter of 16 December 2019 and the response was at best minimal; and (b) there was no identification of matters which might be dealt with in an oral hearing that could not be dealt with in written submissions.

O’Regan J held that there was nothing unlawful in the process adopted by the respondent, a further oral hearing was not required and therefore the relief claimed would be refused. As the Minister had been entirely successful, it was O’Regan J’s provisional view that they should be entitled to their costs, to be adjudicated in default of agreement.

Relief refused.

JUDGMENT of Ms Justice Miriam O'Regan delivered on 21 December 2022 .

Introduction

1 . Leave was afforded to the above-named applicant on 27 June 2022 to maintain the within judicial review proceedings brought by way of statement of grounds of 16 June 2022. The applicant is seeking to quash a decision of the respondent, being a review decision of 11 April 2022 finding that the applicant had contracted a marriage of convenience. The legal grounds relied upon are to the effect that the respondent:-

It is argued that there is a high threshold in making a finding which goes to the character and conduct of the applicant and which would have lifelong consequences.

• (1) was in breach of fair procedures and due process in arriving at her decision;

• (2) had unduly focussed on peripheral and circumstantial matters without conducting a full and rigorous investigation;

• (3) the evidence relied on was wholly circumstantial and was not sufficiently strong bearing in mind the serious and severe consequences for the applicant;

• (4) took into account irrelevant matters with undue focus on discrepancies which were not directly germane;

• (5) no effort made to conduct any form of interview whatsoever with the applicant's former spouse; and

• (6) the finding was arrived on a purely paper-based assessment.

2 . Notwithstanding the particularly vague reference in the legal grounds the reality is that the applicant's complaint is to the effect that an oral hearing was required in the circumstances on the basis that central to the decision was an adverse finding of credibility against the applicant.

3 . In oral submissions the entirety of the applicant's claim was founded on an application of the decision of Phelan J in ZK v Minister for Justice & Ors. [2022] IEHC 278 being a judgment bearing date 16 May 2022. It is argued that based upon judicial comity and the Worldport principles this Court must follow the decision in ZK aforesaid.

4 . In written submissions it was argued that:-

• (1) it was incumbent upon the Minister to consider the applicant's submissions;

• (2) there was no interview conducted;

• (3) the Minister did not write to the former wife of the applicant nor was there engagement with her; and

• (4) the decision was based on a personal credibility assessment of the applicant.

5 . The respondent resists the application on the basis that there was no necessity to hold any form or oral hearing and there was an interview with the applicant and contact with his former spouse. Insofar as the jurisprudence is concerned it is argued that the decision of Ferriter J in SK & JK v Minister for Justice [2022] IEHC 591 (a decision delivered on 24 October 2022) is later in time than the ZK decision, accordingly judicial comity/the Worldport principles apply to the SK & JK decision.

Background

6 . The applicant is a Bangladeshi national born on 23 January 1987. He arrived in Ireland on 25 April 2007 on a stamp two student visa which was renewed from time to time however was due to expire permanently on 5 April 2014. The applicant met his former spouse in October 2013 who appears to have arrived in Ireland from Romania on 26 September 2013. The parties married on 15 April 2014 (although as was pointed out on behalf of the Minister in the statement of grounds and the affidavits of the applicant and his former spouse the asserted date of the marriage is 15 February 2014).

7 . On the basis of the fact that the applicant was married to an EU citizen an application for a residence card was processed bearing date 2 May 2014 and was subsequently granted for a five year period on 24 October 2014. Within the letter of grant was a paragraph to the effect that the applicant was obliged to advise the Minister of any change in his circumstances.

8 . On 18 February 2019 the applicant was returning from a visit to Bangladesh when he was stopped at Dublin Airport by Immigration officials and was interviewed. During the course of the interview two telephone conversations were had by the officials with the applicant's former spouse. Following this interview in June 2019 the applicant consulted his solicitors. By letter of 2 July 2019 the applicant's solicitor wrote to the EU Treaty Rights section identifying that the applicant married the Romanian citizen on 15 February 2014 and secured a resident's card on that basis in November 2014. It is recorded that the former spouse returned to Romania in early 2016 following which the applicant was in periodic contact with her and at an undisclosed date the former spouse informed the applicant that she had obtained a divorce in Romania (the date of the divorce is 6 July 2017, however, this date was not included in the letter). It is recorded that the applicant's marriage was then irretrievably broken down and he wished to make a full and frank disclosure to the Minister by accepting that he did not have the right then to retain his residence card based upon being married to an EU citizen exercising her EU rights in Ireland. On that basis he made an application pursuant to s.4(7) of the Immigration Act 2004 (seeking a variation of his existing right of residence). Ultimately that application was refused on the basis that the applicant did not then hold any right of residence and therefore there was no question of a variation.

By letter of 16 December 2019 the EU Treaty Rights section wrote to the applicant (at the address provided in the aforesaid solicitor's letter of 2 July 2019) in respect of his then current immigration status. It was set out that family members of a Union citizen may derive a right of residence in circumstances where the Union citizen is compliant with the regulations and resident in the State in exercise of her rights. The applicant's student visa was set out and thereafter the following several points were made in the letter relevant to the applicant's marriage to the Romanian citizen:-

• (1) In the form seeking a residence card based upon the marriage it was indicated that the EU citizen arrived in the State on 26 September 2013 and it was noted that she obtained a PPSN number on 1 October 2013. The date of marriage was noted and it was indicated that the date of obtaining the PPSN number warrants concern as the Union citizen obtained same just over three months before the parties were required to submit notice of intention to marry.

• (2) The EU citizen obtained...