Imran v Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 22 June 2023
• Neutral Citation: [2023] IEHC 338
• Court: High Court
• Docket Number: [Record No. 2022/204 JR]

Between:-

Muhammad Imran

Applicant

and

The Minister for Justice

Respondent

[2023] IEHC 338

[Record No. 2022/204 JR]

THE HIGH COURT

JUDGMENT of Mr. Justice Barr delivered on the 22nd day of June, 2023.

Introduction.

1 . The applicant is a Pakistani national. He has resided in the State since 25 ^th November, 2003, when he originally entered under a student visa. The applicant states that he met one, E.L., a Hungarian national, online in June 2010 through a dating app. On 11 ^th January, 2011, the applicant married E.L., who had arrived in the State in August 2010.

2 . On 6 ^th July, 2011, the applicant obtained a residence card on the basis that he was a qualified family member of an EU national, who was exercising her right to work within the State. On 14 ^th July, 2016, he was issued with a permanent residence card, on the basis that he was a qualifying family member and had been resident continuously in the State for a period of five years.

3 . In 2016, the applicant's relationship with his wife broke down. While the date of her departure from the State, is a matter of some dispute between the parties, it is the applicant's case that she returned to Hungary on a permanent basis in or about August 2016.

4 . In these proceedings, the applicant challenges a decision of the respondent made on 13 ^th December, 2021, to revoke his permanent residence card, on the basis that he had submitted false and misleading information concerning the carrying on of a self-employed activity by his wife in the period January-June 2016, when it had been asserted by him that she had been self-employed in her own childminding business during that period.

5 . In particular, the respondent found that a receipt book, which contained 92 receipts that had been purportedly issued by the applicant's wife to various named individuals in respect of childminding services provided to them on various dates between 7 ^th December, 2015 and 31 ^st May, 2016, were fraudulent documents; having regard to the fact that in written submissions that were made on behalf of the applicant by his solicitor in advance of the review decision, it had been stated on behalf of the applicant that E.L. had departed from the State in January 2016. On that basis, the respondent held that the applicant had fraudulently asserted that his wife had been working in the State during the period January to May 2016, and had submitted documentation that he knew to be fraudulent and/or misleading to support that assertion.

6 . In a letter dated 12 ^th January, 2022, the applicant's solicitor made submissions in respect of the conclusions reached by the respondent in her review decision of 13 ^th December, 2021. The solicitor stated that the applicant had made an error in his instructions in relation to the date of departure of his wife from the State. The letter stated that while the applicant could not recall the exact date of her departure, he believed that she had not left the State until the middle of 2016. The letter requested the Minister to review her decision in the matter.

7 . While the applicant does not challenge the validity of the finding made by the respondent that he submitted documentation that he knew to be false and misleading in a material respect in support of his application for a residence card; the applicant challenges the decision of the Minister to revoke the residence card on the basis of the submission of such documentation, due to the fact that there was no proportionality assessment carried out by the respondent in the review decision of 13 ^th December, 2021, as the applicant submitted was required by Art. 35 of the Citizen's Rights Directive (2004/38EC) and by Reg. 27 of the European Communities (Free Movement) Regulations 2015 (SI 548/2015).

8 . That is a summary of the essential issue that arises for determination in this case. The remaining submissions made on behalf of the parties will be dealt with later in the judgment.

Chronology of Relevant Dates.

9 . While some of the relevant chronology has been given earlier in the judgment, it is necessary to set out in some detail the background to the applicant's immigration status within the State and the background to the present proceedings.

10 . As already noted, the applicant entered the State on 25 ^th November, 2003 on a student visa. He maintained that he started an internet relationship with E.L. in or about January 2010. She came to the State in August 2010. The applicant and E.L. married on 10 ^th January, 2011. On 6 ^th July, 2011, the applicant obtained a residence card as a qualifying family member.

11 . On 9 ^th February, 2016, the applicant lodged an application for citizenship. On 20 ^th May, 2016, the applicant applied for a permanent residence card on the basis of his being a qualifying family member and having resided in the State for a period of five years. With his application, the applicant submitted an amount of documentation, including a receipt book, containing 92 receipts, in respect of babysitting work done by his wife in the State in the period 7 ^th December, 2015 to 21 ^st May, 2016. On 14 ^th July, 2016, the applicant was granted a permanent residence card.

12 . As previously noted, the applicant's marriage to E.L. broke down in or about 2016. While it is a matter of some dispute, the applicant maintains that she returned to Hungary on a permanent basis in or about August 2016.

13 . On 14 ^th May, 2018, the respondent issued a letter to the applicant, informing him of a proposal to revoke his permanent residence card, on the basis that it was suspected that his marriage to E.L. had been a marriage of convenience and because he had submitted documentation which the Minister regarded as being false and misleading, due to the fact that the receipts contained in the receipt book, did not tally with the records of the Department of Employment Affairs and Social Protection (DEASP), which indicated that E.L. only worked in the State for one week in 2016.

14 . On 16 ^th August, 2018, the original first instance decision was given in the matter, which concluded that the applicant had contracted a marriage of convenience with E.L. for the purpose of obtaining a right to reside in the State. It further held that the documentation which had been submitted by him, in particular, the receipt book for the period December 2015 to May 2016, had been fraudulent and misleading. For those reasons, the respondent had reached the decision that she would revoke his permanent residence card. That decision was subsequently withdrawn on 5 ^th October, 2018, due to the fact that the applicant's solicitor had not been provided with certain documentation on foot of an FOI request.

15 . On 1 ^st October, 2018, the applicant made submissions on the Minister's proposal to revoke his residence permission.

16 . On 19 ^th November, 2018, a further first instance decision was issued, wherein the Minister reached the decision to revoke his permission to reside in the State, due to the fact that the Minister had formed the opinion that the applicant had contracted a marriage of convenience and had submitted false and misleading documentation in relation to his assertion that his wife was working in the State in the first five months of 2016. By letter dated 7 ^th December, 2018, the applicant sought a review of that decision.

17 . In February 2019, E.L. obtained a consent divorce from the applicant from the courts in Hungary. On 29 ^th March, 2019, the Minister was informed of the grant of the decree of divorce by the applicant's solicitor.

18 . On 11 ^th February, 2021, further submissions were lodged on behalf of the applicant in relation to the pending review decision. In particular, the applicant contested the assertion that he had entered into a marriage of convenience with E.L. He also contested the assertion that she had not been working in the State in the period January/May 2016, due to the fact that DEASP only had a record of one payment to her in 2016. It was explained by the applicant that that related to work that she had done in the Smyth's Toys shop, during the Christmas period of 2015. The majority of her wages had been paid during 2015, however the payment in respect of one week had got carried over into 2016, due to the fact that she was paid weekly in arrears.

19 . In the course of those submissions, a critical statement was made on behalf of the applicant, which formed the basis of the subsequent findings by the Minister in the review decision, which subsequently issued on 13 ^th December, 2021. In the course of the solicitor's letter dated 11 ^th February, 2021, the solicitor stated as follows on behalf of the applicant:

“Our client accepts that the Minister is entitled to revoke his residence card based on EU Treaty rights from a certain point in time. [Ms. L] left Ireland in January 2016. Thereafter she didn't return. Therefore our client accepts that the Minister is entitled under Article 11 of Directive 2004/38/EC, to curtail his permission from a period in time six months after his wife left the State. However, the Minister's proposal to revoke his permission in its entirety ab initio is not accepted.”

20 . On 12 ^th October, 2021, further submissions were made on behalf of the applicant.

21 . On 13 ^th December, 2021, the respondent gave her decision on review of the first instance decision. Having set out the background of the applicant's immigration status within the State, it was stated that the Minister was not satisfied that it had been adequately established that the applicant's marriage to E.L. was one of convenience in accordance with the Regulations and the Directive. The decision stated that the Minister was not satisfied that there were sufficient grounds to make a finding under Regulation 28(1) of the Regulations. Therefore the Minister had decided that that element of the first instance...