K v Minister for Justice

• Jurisdiction: Ireland
• Judge: Ms. Justice Bolger
• Judgment Date: 21 October 2022
• Neutral Citation: [2022] IEHC 582
• Court: High Court
• Docket Number: [2020/965 JR]

Between

K.

Applicant

and

Minister for Justice

Respondent

[2022] IEHC 582

[2020/965 JR]

THE HIGH COURT

Residence card – Marriage of convenience – False and misleading documentation – Applicant seeking an order of certiorari quashing the review decision of the respondent – Whether the respondent’s review decision was unreasonable, irrational and a breach of fair procedures

Facts: The applicant, a national of Pakistan, applied to the High Court seeking an order of certiorari quashing the review decision of the respondent, the Minister for Justice, dated 18 September 2020 which found firstly that the applicant’s marriage to an EU citizen was a marriage of convenience in breach of Regulation 28 of the European Communities (Free Movement Of Persons) Regulations 2015 and secondly that the applicant had submitted false and misleading documentation in support of his application in February 2015 for a residence card which constituted a fraudulent act. The Minister therefore affirmed an earlier decision to revoke the applicant’s residence card in accordance with Regulation 27(1) and Article 35 of Directive 2004/38/EC. The applicant challenged the Minister’s review decision as unreasonable, irrational and a breach of fair procedures on the following grounds: (1) the review decision wrongly claimed that the applicant did not assert that his marriage was not one of convenience or that the documents he submitted were not false and misleading; (2) the applicant did not know what documents and information were found to be false and misleading or how they were deemed to have been false and misleading; and (3) the review decision failed to provide reasons or cogent reasoning and/or was void for uncertainty.

Held by Bolger J that: (i) the review officer did not comply with his statutory obligation pursuant to Regulation 25(5) to have regard to the information contained in the applicant’s application for a review; (ii) the decision maker’s error was a material error of fact, the decision maker acted irrationally and unreasonably in making it, and the explanation afforded for it was made retrospectively by a person other than the decision maker; (iii) the Minister’s criticism of the applicant’s lack of engagement with the process was not well founded and whilst his engagement may have been far from perfect, it was not at the minimum or non-existent level such as would justify such a criticism; (iv) the decision maker did not afford the applicant fair procedures in failing to have regard to the applicant’s submissions and failing to give a detailed statement of reasons for his decision that documentation and information submitted by the applicant in support of his application for a residence card in 2015 was false and misleading; (v) the decision maker did not engage with or have proper regard to the applicant’s submissions; and (vi) the decision maker did not give adequate reasons for his decision. Bolger J was satisfied that the applicant was entitled to an order for certiorari quashing the review decision of 21 January 2019.

Bolger J granted an order for certiorari quashing the decision of 18 September 2020. As the applicant had succeeded in his claim, it seemed to Bolger J, in principle, that this was a case in accordance with s. 169 of the Legal Services Regulation Act, in which costs should follow the event and the applicant was entitled to his costs.

Application granted.

JUDGMENT of Ms. Justice Bolger delivered on the 21st day of October 2022

1 The applicant is a national of Pakistan who seeks an order of certiorari quashing the review decision of the Minister dated 18 September 2020 which found firstly that the applicant's marriage to an EU citizen was a marriage of convenience in breach of Regulation 28 of the European Communities (Free Movement Of Persons) Regulations 2015 and secondly that the applicant had submitted false and misleading documentation in support of his application in February 2015 for a residence card which constituted a fraudulent act. The Minister therefore affirmed an earlier decision to revoke the applicant's residence card in accordance with Regulation 27 (1) and Article 35 of the Directive 2004/38/EC.

2 For the reasons set out below I am granting an order for certiorari quashing the decision of 18 September 2020.

Background

3 The applicant is a national of Pakistan and has been in the State since 16 June 2004, having arrived here first on a student visa. He married a Latvian citizen of the EU on 15 November 2005 and applied for a residence card on 12 June 2006. In May 2007 he was granted a five-year permission to reside in the State.

4 The applicant was divorced by his then wife by way of an application to the District Court in Riga on 26 May 2008 which was finalised on 26 January 2009. In September 2012 the Minister made a deportation order against him.

5 On 14 May 2014 the applicant married another Latvian citizen in Dublin and on 23 April 2014 he made a further application for a residence card. He was notified in September 2014 that the deportation order made against him had been revoked and on 16 October 2019 he received his five-year permission to reside in the State. This residence card expired in October 2019 and on 1 November 2019 the applicant made an application for a further permission. On 11 December 2019 the Minister advised him of her intention to revoke his expired residence card due to his spouse not having exercised her rights in the State since 2015, and the Minister's opinion that the information furnished by the applicant to evidence his spouse's residence in the State and her exercise of her rights in the State were false and misleading, and that the marriage was one of convenience. On 21 January 2020, the applicant's residence permission was revoked by a deciding officer on the basis that his spouse had not exercised her rights in the State since 2015, that he had entered into a marriage of convenience contrary to Regulation 28, and had given false and misleading information contrary to Regulation 27.

6 On 11 February 2020 the applicant sought a review of the deciding officer decision and furnished a submission via his solicitors on 8 February 2020 and a later personal letter in which he refuted that his marriage was one of convenience and explained why his spouse had left Ireland in 2015. He included documentation confirming his spouse's residence and employment in Ireland up to 2015. His submission challenged the Minister's requirement for him to discharge the burden of proving that his marriage was a genuine one and highlighted the Minister's failure to have regard to Regulation 28 (5) which identifies matters to determine a marriage to be one of convenience.

7 The review decision issued on 18 November 2020 and confirmed that the applicant had submitted additional documentation and that all of the documents and information in the applicant's files had been considered. The decision found:

The earlier decision of the deciding officer to revoke the applicant's residence card was affirmed in accordance with Regulation 27 (1) and Article 35 of the Directive.

• i. That the applicant's marriage was one of convenience in accordance with Regulation 28 and

• ii. That the applicant had submitted false and misleading documentation in support of his application February 2016 for a residence card and this constituted a fraudulent act.

8 It is significant that the review decision contained a number of factual errors which the parties agreed are as follows:

• i. Paragraph 3 of page 2, where the Minister noted that at no time throughout the review process has the applicant asserted that his marriage to the EU citizen was not one of convenience nor has he asserted that the documentation and information submitted was not false and misleading.

• ii. Paragraph 4 on page 2 incorrectly identifies the date of the deciding officer decision as 21/02/2020. The correct date was 21/01/2020.

• iii. Paragraph 6 on p. 2 incorrectly identifies the date of the applicant's application for residence card as 27/02/2015. The correct date was 23/04/2014.

9 The error at i. above was addressed by the Minister at para. 4 of her statement of opposition which states as follows:

“While it is accepted that the Respondent's statement that the Applicant had not asserted the validity of his marriage for the purpose of the review process is not correct, any error contained there is not material in the context of these proceedings given that the respondent, in the decision dated 18th September, 2020, confirmed that the finding was based on the decision making having considered all of the documentation and informed of all of the [the Applicant's] files”.

The applicant's submissions

10 The applicant challenges the Minister's review decision as unreasonable, irrational and a breach of fair procedures on the following grounds.

• 1. The review decision wrongly claims that the applicant did not assert that his marriage was not one of convenience or that the documents he submitted were not false and misleading. The applicant had furnished submissions in which he expressly refuted the finding of the deciding officer that the marriage entered into was one of convenience and that false and misleading documentation was submitted. The Minister either ignored the submissions or proceeded on the basis that they were never made.

• 2. The applicant does not know what documents and information were found to be false and misleading or how they were deemed to have been false and misleading. The applicant relies on the decisions of Hill v. Criminal Injuries Compensation Tribunal [1990] ILRM 36, AMT v. Revenue Appeals Tribunal [2004] 2 IR 607, L. v. Minister for Justice, Equality and Law Reform [2020] IEHC 362 and HR v. Refugee Appeals Tribunal [2011] IEHC 151 in submitting that a court can quash a decision in judicial review for material errors of fact.

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