Jayshreesing Saneechur and Nikolajs Samkovs v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 05 May 2021
• Neutral Citation: [2021] IEHC 356
• Docket Number: [2017 No. 850 JR]
• Year: 2021
• Court: High Court

Between

Jayshreesing Saneechur and Nikolajs Samkovs

Applicants

and

The Minister for Justice and Equality

Respondent

[2021] IEHC 356

[2017 No. 850 JR]

THE HIGH COURT

JUDGMENT of Mr Justice Max Barrett delivered on 5th May, 2021.

1 Theirs, they claim, was a simple tale of love in a cold climate. Then they filed an EU Treaty rights application.

2 The facts of this case are best detailed by way of summary chronology. These, I note, are the facts as volunteered by the applicants. As will be seen, the Minister does not believe some of their version of events. The summary chronology is as follows:

30.03.2006	Ms Saneechur arrives in Ireland on a student visa.
Dec. 2011	Ms Saneechur's student visa expires but she stays on.
Aug. 2013	Mr Samkovs meets Ms Saneechur in a Dublin nightclub.
2014	Mr Samkovs and Ms Saneechur begin living together as a couple. Mr Samkovs did not have a PPS number at this time because he was working, as he describes it, “cash-in-hand”.
Dec. 2014	Mr Samkovs and Ms Saneechur agree to marry.
Dec.2014 to Apr. 2015	Mr Samkovs works in Latvia to make money for the wedding.
23.04.2015	Ms Saneechur and Mr Samkovs marry in Ireland.
01.06.2015	Mr Samkovs commences work with Al Imran Accommodation but leaves after about ten 10 days, apparently because of a disagreement over pay.
23.06.2015	Ms Saneechur and Mr Samkovs apply for an EUTR residence card.
23.06.2015 to 2.7.2015	Mr Samkovs works briefly for a pizza shop in Crumlin.
28.08.2015	Minister responds to EUTR application with some queries.
Sept. 2015	Mr Samkovs briefly returns to Latvia to care for his cancer-afflicted mother. While there he works on various building sites.
22.03.2016	EUTR application refused. Thereafter, the applicants seek a review of the refusal.
April 2016	Mr Samkovs returns to Dublin permanently.
10.05.2016	Minister writes to applicants' solicitors seeking further information concerning Mr Samkovs to which the applicants' solicitors reply.
12.05.2016	Mr Samkovs commences work at the Ballsbridge Hotel, Dublin. Exhibited in the pleadings is a letter of 18th May 2016 from the HR Manager at the Ballsbridge Hotel stating: “This is to certify that Nikolajs Samkovs is employed by Tulane Business Management Ltd t/a Ballsbridge Hotel. He commenced employment on 12th May 2016 as an Accommodation Assistant. He is employed on a casual contract and his hours are dependent on business needs….Should you have any further queries please do not hesitate to contact me.”
14.05.2017	A letter issues from Tom Hanafin Construction Ltd, signed by Mr Tom Hanafin stating that “I can confirm that Nikolajs Samkovs is currently employed by Tom Hanafin Construction Ltd”.
04.02.2017	Applicants informed by Minister that their review is unsuccessful. This was challenged by judicial review, the decision was withdrawn, and re-consideration undertaken. Thereafter, fresh submissions are made.
18.08.2017	Minister sends a letter outlining certain concerns re. application.
08.09.2017	Respondents respond to Minister.
12.09.2017	Minister sets out further concerns. In particular the Minister expresses concern that the parties entered into a marriage of convenience and that Mr Samkovs was working in Latvia. The applicants reply.
12.10.2017	Minister refuses the applicants' application. This is the impugned decision.

3 The impugned decision is only a couple of pages long. So perhaps the best way to treat with the issues presenting is to quote relevant segments from it and then to make comment in plain text.

4 Decision: “ Your legal representatives states that when you made your application for a residence card in June 2015 your husband was working at Ali Imran Accommodation. However, they assert, he left this job after a period of about ten days because he was not happy with his employment for a number of reasons, including the fact that he was not paid the correct amounts. They maintain that he then worked for a time with ‘Tops Pizza’ but has been unable to provide documentation in respect of this employment. Your legal representatives state that the errors observed in the payslips you provided in respect of Ali Imran Accommodation cannot, by themselves, reasonably ground a finding that your application was fraudulent. It is noted that the deciding officer in your case found that the documentation you provided was false and intentionally misleading as to a material fact, and the Minister does not consider that you have adequately addressed this issue or established that the deciding officer's finding in this regard was erroneous.”

5 An error on a payslip could not, by itself, reasonably ground the serious finding that the applicant's application was fraudulent. That would be wholly unreasonable. The court considers that it can take judicial notice of the fact that, in life, payslip errors happen from time to time. A couple of months ago this Court was advised of a months-long error in its own payslips. These things happen. So one cannot point to an error in a payslip and say, ‘A-ha, that means there's fraud in your EUTR application.’ More would be required; and that ‘more’ does not present. There is mention in the documentation before the court that some effort was made to contact Mr Samkovs' employer without success. No further detail is provided, so it is not clear what contact attempts were made. As counsel for the applicants observe in their written submissions “[A] n investigation resulting in a determination that an application is fraudulent, potentially attracting criminal liability which then grounds not only a refusal to grant a specific application for a residence card but a disentitlement to apply for residency at all must be rigorous”. As Peart J. observed in Memishi v. Refugee Appeals Tribunal [2003] IEHC 65, where a decisionmaker (there the RAT) makes an adverse credibility finding “ the reasons for any such adverse finding on credibility must be substantial and not relating only to minor matters”. Given the importance of the finding as to fraud here (it was determinative of the applicants' application) the court concludes that the Minister's investigation process was disproportionately lacking in rigour and did not yield a safe finding.

6 Decision: “ Your legal representatives assert that your husband travelled back and forth between Ireland and Latvia and on a number of occasions between December 2014 and April 2016. However, they state, he has been entirely resident in Ireland since April 2016. They maintain that he worked with Tulane Business Limited t/a ‘the Ballsbridge Hotel’ for a number of months before starting work with Tom Hanafin Construction. In this connection, a contract of employment and various payslips for the Ballsbridge Hotel covering the period 15th May 2016 to 27th November 2016 have been submitted. It is noted, however, that there is little evidence on file to establish that the Union citizen is engaged in genuine and effective employment are a letter from Tom Hanafin dated 14th May 2017 and an unsigned invoice addressed to Right Work Limited featuring little information and an undecipherable date (viz. 17.07.30.07). It is acknowledged however that you have submitted a copy of the EU citizen's bank account statements which indicates that he has been receiving regular payments since June 2016 from Tulane Business Ltd and from Tom Hanafin Construction.”

[The Ballsbridge Hotel payslips commence in May 2016.]

7 Why would two Irish commercial trading entities between them continuously pay monies into a man's Irish bank account from May 2016 onwards? The overwhelmingly likely explanation is that he was, as claimed, working (and living) here in Ireland. But whatever the reason, in the face of the accepted facts concerning the payments from the two employers into a current bank account in Mr Samkovs' sole name, the Minister's investigation process in this regard was disproportionately lacking in rigour and did not yield a safe finding.

8 Decision: “ The above examination notwithstanding information received from the Latvian Embassy indicates that the [European] Union citizen has been working in Latvia continuously since 2015. He worked for ‘Permalat Ltd’ between June 2015 and July 2015 and for Rimi Latvia between January 2015 and August 2015. He has been employed by Exma Limited since August 2015. This information clearly contradicts that which was provided by you in respect of your husband's employment in the State.”

9 In truth it does not ‘clearly contradict’ it. It was stated by the applicants' solicitors that Mr Samkovs was living/working in Ireland, the relevant bank payment details for Ireland were exhibited and they stated his clients' best guess to be that a possible named somebody had been using the Latvian equivalent of Mr Samkovs' PPS number. So there is not a ‘clear contradiction’. The court would reiterate at this point its observations in para.7.

10 Decision: “If the [European] Union citizen was in full-time employment in Latvia, then he obviously could not be working full-time in Ireland. When asked to provide an explanation of this situation, you state that he believes [that] his social insurance number is being used in Latvia by ‘a man named “Alekseys”’. No further explanation of this situation has been offered, and it is not considered that your statement is credible. It is noted that you provided spurious documentation in respect of your husband's employment at Ali Imran Accommodation; no documentation in respect of his employment at Tops Pizza; and insufficient partial documentation in respect of his work with Tom Hanafin Construction. Moreover, the Latvian Embassy has informed [us] that the EU citizen has been in permanent employment in that jurisdiction since 2015. Balanced against this is the fact that you have furnished...