Islam (A Minor) v The Minister for Foreign Affairs

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 24 June 2019
• Neutral Citation: [2019] IEHC 559
• Court: High Court
• Docket Number: [2018 No. 1078 J.R.]
• Date: 24 June 2019

[2019] IEHC 559

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2018 No. 1078 J.R.]

BETWEEN

SARFRAZ ISLAM (A MINOR SUING THROUGH HIS FATHER AND NEXT FRIEND SAIFUL ISLAM)

AND

SAFREEN ISLAM (A MINOR SUING THROUGH HER FATHER AND NEXT FRIEND SAIFUL ISLAM)

APPLICANT

AND

THE MINISTER FOR FOREIGN AFFAIRS AND TRADE

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

Asylum Immigration and Nationality – Citizenship – Cancellation of Passport – Applicants seeking order of certiorari quashing notice of decision to cancel passport – Whether the applicants were entitled to notice and an opportunity to make submissions before a decision could be made to cancel their Irish passports

Facts: The applicants’ father took part in a fraudulent scheme to gain EU Treaty rights by entering into a marriage of convenience with an EU national. The father subsequently brought his ‘real’ wife to Ireland and they had two children who were born in Ireland in 2015 and 2016 respectively. The father was granted a 10-year residence permit under the 2015 Regulations, however, when his marriage was determined to be one of convenience, this permission was revoked on 10th October 2017. On 6th December 2018, the Minister of Foreign Affairs sent a letter indicating that a decision had been made to cancel the children’s passports. The applicants sought to quash this decision citing nine grounds, including, inter alia, that the applicants were not given adequate notice.

Held by Humphries J that the Minister’s letter of 6th December was more than a notice of intention and was the announcement of a decision by the Minister to cancel the passports, albeit one that could be reviewed if submissions were made by the applicants. Humphries J held that at all times the passport remains the Minister’s property and should he form the view that a person is not entitled to an Irish passport, he must be entitled to take appropriate interim measures. There may be circumstances which arise where it is not in the public interest to afford notice to the passport holder. As such, Humphries J held the proper approach to be one where when the Minister is considering cancellation of a passport, and the public interest permits the giving of advance notice, such notice should be provided.

Humphries J held that the letter of the 6th December 2018 should be quashed and that should the Minister consider that the public interest permits notice to be given to the applicants, he should write to them informing of his intention to cancel the passports and provide them 28 days to make submissions as to why the passports should not be cancelled before he makes such a decision. The 28 day period was held to specific to the facts at hand and the Minister is entitled to fix a shorter period should it be appropriate.

Relief denied.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 24th day of June, 2019

1 The father of this family arrived in the State in September, 2003 and was given a student permission between 2003 and 2010. He bogusly married a Ms. S., an EU national, and was given permission under the European Communities (Free Movement) (No. 2) Regulations 2006 ( S.I. No. 656 of 2006) from April, 2011 to April, 2016. An elaborate fraudulent scheme was created by the father to obtain EU Treaty rights. The ‘wife’ flew in and out of the Irish State for immigration-related events. The father paid for the flights himself and signed much of the bogus employment paperwork.

2 A recurring feature of such cases is that once the treaty rights arising from a marriage of convenience are in place, the ‘real wife’ emerges from the shadows, and something similar to that happened here. The latter arrived on 9th June, 2014 on a student visa and the father assisted with the consequent immigration arrangements. The Minister's subsequent correspondence put it to the father that it was his case that ‘ when you met you fell in love with her immediately’. The father and mother then had two children who are the applicants in the present proceedings.

3 The children applied for Irish citizenship on the basis of the father's long-term residence as at the dates of the birth. The first child was born on 13th January, 2015. The father divorced the first ‘wife’ in Hungary on 9th June, 2015. The European Union (Free Movement of Persons) Regulations 2015 ( S.I. No. 548 of 2015) commenced on 1st February, 2016. The father was then granted a ten-year residence permission under the 2015 regulations on 14th March, 2016. The first permission hadn't expired at that stage, but the 2016 permission superseded it. The father then applied for Irish citizenship on 22nd March, 2016 and the second child was born on 25th March, 2016.

4 The father then came under scrutiny in the context of Operation Vantage and on 3rd June, 2017 was written to and informed that if the marriage was found to have been one of convenience, then the Minister would proceed to disregard it as ‘ ever being foundation for EU residence applications’. Representations were made in which it was never positively asserted that the marriage was not one of convenience, nor was there evidence to the contrary adduced. On 25th August, 2016 the applicant's solicitors were written to seeking any further submissions from the father. On 10th October, 2017 the father's 2016 permission was revoked retrospectively based on an abuse of rights and a finding of a marriage of convenience having regard to reg. 28 of the 2015 regulations, which entitles the Minister to ‘ disregard a particular marriage’ as a factor in the decision-making process. That letter set out a litany of concerns including the ‘wife's’ immediate return to Hungary after obtaining a PPSN, noting that the administrator of the ‘wife's’ alleged employer never encountered the ‘wife’ during the alleged employment, noting that the ‘wife’ returned to Dublin to assist the father in obtaining a stamp 4 permission and returned back to Budapest the following day with the father paying for the flights, noting that the ‘wife’ hadn't returned to Dublin since 12th May, 2011 and has four children in Hungary, three of those being with the same father and two of them born during the ostensible marriage.

5 The permission that was in force when the second child was born was in effect the successor permission to that in force when the first child was born. Counsel for the applicants complained that the 2011 permission hadn't been revoked but in the procedure initiated in 2017 it didn't have to be revoked as it had expired at that point. The important point in the Minister's decision was that the marriage should be disregarded as a factor in the decision-making process.

6 A review was sought by the father in relation to the decision of October, 2017 and again the finding of a marriage of convenience was not directly challenged. That decision was upheld on review on 15th May, 2018. The review decision refers to false information having been provided in the EU Treaty Rights ‘ applications’ (plural).

7 The review decision found that the father had failed to adequately address issues raised by the Minister and failed to allay concerns that he had provided false and misleading information. It found that the father had asserted a right based on documentation that was intentionally misleading as to material fact and stated that ‘ the Minister finds that you have failed to establish that the deciding officer erred in fact or law when finding that you provided false and misleading information in respect of your EU Treaty Rights applications and that your marriage to [Ms. S] was one of convenience’.

8 It stated that the father ceased to be entitled to any right of residence in accordance with reg. 27 of the 2015 regulations and art. 35 of the free movement directive. The review decision was not challenged and thus is effective for all purposes in the present proceedings.

9 On 22nd May, 2018 the Minister for Justice and Equality wrote to the Minister for Foreign and Trade on foot of that review decision, and presumably to inform the latter of it. That letter was not exhibited, although the applicants didn't in fact go looking for it but there is nothing to suggest that it did anything dramatically more than indicate the outcome of the review decision and possibly stimulate any and all appropriate action on foot of that.

10 On 23rd May, 2018 and again in August, 2018 the Minister wrote to the mother giving an opportunity to address the basis of the citizenship ostensibly afforded to the children.

11 On 2nd July, 2018 the father was given notice of intention to deport, which was subsequently withdrawn. The mother's permission under the Irish Born Child Scheme expired in 2018 and the father's in February, 2019. Both applied for renewal which is under consideration, although currently neither have a positive permission to be in the State. There doesn't appear to be a current proposal to deport either parent although obviously, as persons present in the State without permission, both parents are vulnerable to such a proposal.

12 The Minister for Foreign Affairs himself then wrote on 6th December, 2018 regarding cancellation of the children's passports. There is an issue about the status of that letter, a point I will come back to. The applicant's solicitors replied on 13th December, 2018 seeking an extension of time to make submissions and on 17th December, 2018, complaining about a lack of prior notice.

13 On 19th December, 2018 the present proceedings were issued. The primary relief sought in the present proceedings is, ‘An order of certiorari quashing the first Respondent's decision of 6th December, 2018 to cancel the passports of the first and second Applicants’. Strictly speaking, certiorari is directed to documents rather than unembodied decisions, and counsel accepts that this ground should refer to certiorari of the notice of the...