I and Another v Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Conleth Bradley
• Judgment Date: 29 May 2024
• Neutral Citation: [2024] IEHC 333
• Court: High Court
• Docket Number: Record No. 2023/100JR

Between/

I and PI

Applicants

and

The Minister for Justice

Respondent

[2024] IEHC 333

Record No. 2023/100JR

THE HIGH COURT

Judicial review – Residence card – Derived rights of free movement and residence – First applicant seeking a residence card – Whether derived rights of free movement and residence accrued to the first applicant

Facts: The respondent, the Minister for Justice (the Minister), and officials on her behalf, were not satisfied that the second applicant, an EU citizen, was exercising her Treaty Rights – in the context of employment – and accordingly it was determined that no derived right or entitlement to reside, and move freely in the State (as a qualifying family member of an EU citizen) accrued to the first applicant, a third country national family member, and his application for a residence card was refused. The applicants applied to the High Court for judicial review. On behalf of the applicants, issue was taken with the finding that the first applicant submitted and sought to rely upon information and/or documentation that he knew to be false and/or misleading in order to obtain a derived right of free movement and residence under EU law to which he would not otherwise be entitled and that this was an abuse of rights in accordance with Regulation 27 of the European Communities (Free Movement of Persons) Regulations 2015. Mr Power SC (on behalf of the applicants) made two central points: first, there had been no finding that ‘the documents’ relied on by the first applicant were themselves false or were forgeries; second, in the previous decisions of 15th July 2019 and 29th August 2019, a similar contention was made which at that time also included the alleged marriage of convenience which finding was subsequently set aside and there had been no distinction made as to what ‘documents’ were being referred to.

Held by Bradley J that, insofar as the first applicant had claimed a failure to provide reasons at paragraph (e)(ii) of his statement of grounds dated 7th February 2023, the Minister has stated that because there was no record of the second applicant’s employment on Department of Employment Affairs and Social Protection records since 2019 and as a consequence there was nothing to suggest that the second applicant was exercising her Treaty Rights in the State, consequently the first applicant did not have an entitlement to a derived right of residence and therefore his residence card application was refused. Therefore, Bradley J found that the reasons for refusal were furnished. Further, Bradley J noted that the Minister had held that the documentary failure to establish the exercise of a Treaty Right by the second applicant in order to subtend a derived right to reside and move freely on behalf of the first applicant had not been satisfied and the documents and information furnished amounted to an abuse of rights under Regulation 27 of the 2015 Regulations. Bradley J did not consider that there was an error in the Minister’s decision dated 5th December 2022 in her recognition and consideration of the question of sufficiency of resources. Bradley J held that the question of involuntary unemployment is predicated on the question of employment and it was clear that the Minister addressed this issue and the information which was furnished by the first applicant.

Bradley J made an order refusing the first applicant’s application for reliefs claimed by way of judicial review.

Application refused.

REDACTED

JUDGMENT ofMr. Justice Conleth Bradleydelivered on the 29 ^th day of May 2024

INTRODUCTION

Preliminary

1 This application for judicial review is concerned with claims surrounding the derived rights of free movement and residence of a third country national family member 1 to join an EU citizen 2 in Ireland, 3 with such derived rights being based on whether or not that EU citizen residing in the State has exercised their Treaty Rights in accordance with law.

2 In summary, the Minister for Justice (“the Minister”), and officials on her behalf, were not satisfied that the Second Named Applicant was exercising her Treaty Rights – in this case, in the context of employment – and accordingly it was determined that no derived right or entitlement to reside, and move freely in the State (as a qualifying family member of an EU citizen) accrued to the First Named Applicant and his application for a residence card was refused.

3 This judicial review challenge, therefore, centres on the manner in which that decision to refuse a residence card was made by the departmental officials on behalf of the Minister.

4 Conor Power SC, together with Ian Whelan BL, appeared for the Applicants. Alexander Caffrey BL appeared for the Minister.

Background

5 The First Named Applicant, a Nigerian national, and the Second Named Applicant, a British national, were married in Malaysia on 9 ^th February 2012 and have been living in Ireland since in or around May 2018. In the correspondence referred to in this judgment, the reference to “EU citizen” or “UK citizen” is a reference to the Second Named Applicant.

6 On 15 ^th October 2018, the First Named Applicant – on the basis of his marriage to the Second Named Applicant, who was at that time (pre-Brexit) 4 an EU citizen alleged to be working in a hair salon and therefore, by virtue of the Citizens' Rights Directive (2004/38/EC) was exercising her EU Treaty rights – applied for a Residence Card, as a family member of an EU national pursuant to the provisions of the European Communities (Free Movement of Persons) Regulations 2015 (“the 2015 Regulations”). The Minister refused the Residence Card application by decision dated 29 ^th August 2019.

7 The First Named Applicant sought a review of this decision and a ministerial refusal of the Residence Card application, as part of this review, issued on 5 ^th December 2022. It is the lawfulness of that ‘ reviewed decision’ on 5 ^th December 2022 which is challenged in this application for judicial review.

THE PROCESS

8 The application for a Residence Card is made pursuant to the 2015 Regulations. The timeline in this application addressed the following matters.

15th July 2019

9 Consequent upon the First Named Applicant's application for a Residence Card, by letter or ministerial notice of intention to refuse under Regulation 27(1) of the 2015 Regulations dated 15 ^th July 2019 (referred to on behalf of the Applicant as “ the minded-to-refuse” letter) an official in the EU Treaty Rights Division of the Irish Naturalisation & Immigration Service notified the Applicant, on behalf of the Minister, inter alia stating that having

examined the application based on the documentation on file, the Minister proposed to refuse his application for a Residence Card

10 The reasons given were that during the processing of the application, information had come to the Minister's attention which had led to a number of concerns and the letter added that “[i] n this regard, the Minister will provide you with an opportunity to address these concerns prior to making a determination”.

11 The letter then detailed what those concerns were. First, upon examination of the following documentation, which the First Named Applicant had supplied in support of his application, the letter advised that same were found to be false, fraudulent or intentionally misleading as to a material fact: three numbered payslips in the name of the EU citizen; a letter of employment in the name of the EU citizen dated 2 ^nd October 2018 and 7 ^th May 2019; an amended Tax Credit Certificate in the name of the EU citizen dated 8 ^th May 2019; a sworn declaration given in the High Commission of the Federal Republic of Nigeria in Malaysia in the name of the First Named Applicant dated 31 ^st January 2012; a letter confirming residency in the names of the First Named Applicant and an EU citizen.

12 Second, the letter sought clarification in relation to information available to the Minister from the UK authorities during his visa application in the UK dated 13 ^th December 2017, which indicated that the First Named Applicant was married to a third party in Nigeria and had a child born in 2012, whereas he had provided a sworn declaration given in the High Commission of the Federal Republic of Nigeria in Malaysia on 31 ^st January 2012 stating that he was not married in Nigeria or elsewhere. In terms of their relationship, the letter stated that the First Named Applicant had provided 13 undated photographs of his relationship with the Second Named Applicant and two dated photographs of their wedding in Malaysia which referred to 16 ^th July 2013, despite the Applicants' wedding taking place on 9 ^th February 2012. The letter advised that the First Named Applicant had failed to provide any written details of his “ relationship, immigration history of the EU citizen, photographs with verifiable dates, evidence of joint travel, dated email or text correspondence as requested by letter dated 27/05/2019” and added that “[b] ased on the information above, the Minister is of the opinion that the Marriage may be one of convenience in accordance with Regulation 28, contracted for the purposes of obtaining an immigration permission in the State, which you would otherwise not have an entitlement to and that the documentation supplied in support of this application is false and misleading as to material fact.”

13 Third, the letter requested clarification on any revenue returns for 2018 for the EU citizen and payments from her employer and as to whether the named hair salon, which the Second Named Applicant was stated to be in the employment of, was registered in the Companies Registration Office.

14 Fourth, the letter stated that upon contacting the First Named Applicant's landlord on 13 ^th June 2019, the landlord was able to confirm the First Named Applicant as a tenant but did not know his wife's name “ despite...