Kant v The Minister for Justice and Equality; S.I. (Bangladesh) v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 22 July 2019
• Neutral Citation: [2019] IEHC 583
• Date: 22 July 2019
• Court: High Court
• Docket Number: [2018 No. 1091 J.R.] [2019 No. 14 J.R.]

[2019] IEHC 583

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2018 No. 1091 J.R.]

[2019 No. 14 J.R.]

BETWEEN

KRISHAN KANT

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

AND

BETWEEN

S.I. (BANGLADESH)

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

Judicial review – Permission – Immigration Act 2004 s. 4 – Applicants seeking judicial review – Whether the respondent was precluded from considering applications under s. 4 of the Immigration Act 2004

Facts: The applicants, Mr Kant and S.I., are both persons who received historic student permissions under s. 4 of the Immigration Act 2004. Both then married E.U. nationals and were granted permissions under the European Communities (Free Movement of Persons) Regulations 2015 (S.I. No. 548 of 2015). They then applied for permissions in their own right under s. 4 of the 2004 Act which the respondent, the Minister for Justice and Equality, refused to accept because they were not persons in possession of extant permissions under that Act. The applicants sought certiorari of the Minister’s decisions under the following grounds: (1) whether the respondent was precluded from considering the applications under s. 4 of the 2004 Act; (2) alleged lack of reasons in S.I.; (3) alleged failure to take into account relevant matters; (4) alleged acting outside of jurisdiction; (5) alleged unreasonableness and irrationality; (6) alleged capricious and arbitrary action; (7) wrongly excluding the applicants from s. 4 of the 2004 Act; (8) failure to recognise that the applicants were entitled to apply under s. 4 of the 2004 Act; (9) whether the respondent acted ultra vires s. 3 of the European Convention on Human Rights Act 2003.

Held by the High Court (Humphreys J) that: (i) an EU Fam stamp 4 permission to a qualified family member in the exercise of EU Treaty Rights is not a permission under s. 4 of the 2004 Act; (ii) where an applicant who had a permission under s. 4 of the 2004 Act but then moves on to a different permission not under s. 4, or alternatively lets that permission expire without applying to renew its currency or very shortly thereafter, and thus is not the holder of an extant permission under s. 4 of the 2004 Act, such an applicant is precluded from making a renewal application under s. 4 of the 2004 Act or a free-standing application under that section; (iii) in respect of persons not entitled to make applications under s. 4 of the 2004 Act, the Minister is not obliged to consider any application made under his residual or executive discretion in a free-standing manner, whether he is requested to do so or not, and may deal with any discretionary application in the context of submissions made under s. 3 of the Immigration Act 1999; (iv) the applicants by their misconduct and/or lack of candour disqualified themselves from discretionary relief; (v) in addition, in Kant the applicant had been found to be in a marriage of convenience which meant the permission he had was void ab initio, so even if, counterfactually, it was issued under s. 4, no injustice had been done to the applicant, albeit that he could potentially challenge that decision at some future point.

Humphreys J held that both applications would be dismissed.

Applications dismissed.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 22nd day of July, 2019

1 The applicants are both persons who received historic student permissions under s. 4 of the Immigration Act 2004. Both then married E.U. nationals and were granted permissions under the European Communities (Free Movement of Persons) Regulations 2015 ( S.I. No. 548 of 2015). They then applied for permissions in their own right under s. 4 of the 2004 Act which the Minister refused to accept because they were not persons in possession of extant permissions under that Act. The main question in the proceedings is whether the Minister was entitled to take that view.

2 The applicant in the S.I. proceedings brought a family law application in relation to his Bangladeshi divorce, so accordingly I have redacted his name in this judgment. I have received helpful submissions from Mr. Colm O'Dwyer S.C. (with Ms. Leanora Frawley B.L.) for the applicants in both cases and from Mr. David Conlan Smyth S.C. (with Ms. Sarah K.M. Cooney B.L. in Kant and with Mr. Anthony Moore B.L. in S.I.).

Facts and procedural history in Kant

3 The applicant is an Indian national who arrived in the State from that country in 2013 on foot of a student permission under s. 4 of the 2004 Act. He ‘married’ an EU national on 12th December, 2014 and obtained a residence card on foot of EU Treaty Rights based on this ‘marriage’. In August, 2016, he left the State and then came back after one month without a visa. He claims that the ‘wife’ left him in or around December, 2016. On 3rd July, 2018, the Minister wrote to the applicant informing him that the marriage was suspected to be one of convenience and that the applicant had submitted false documentation in support of the application for a residence card. On 20th July, 2018, the applicant applied under s. 4 of the 2004 Act for permission to remain in the State in his own right, albeit that that letter was addressed to the EU Treaty Rights section of the Department. On 19th November, 2018 the Minister refused to consider the application under s. 4 of the 2004 Act or pursuant to residual discretion because the applicant had an extant immigration permission. That is the decision impugned in the proceedings. The statement of grounds was filed on 18th December, 2018, the primary relief sought being certiorari of the decision of 19th November, 2018.

4 Leave was granted on 14th January, 2019, and a statement of opposition was filed on 10th April, 2019. In the meantime, on 13th March, 2019, the applicant's residence card was revoked and the ‘marriage’ was declared to be one of convenience. The permission to remain by reason of EU Treaty Rights was deemed to be void ab initio. The applicant then sought a review of that decision and on 1st July, 2019 was informed that that review had been rejected. The finding that the EU national was not exercising EU Treaty Rights and that the marriage was one of convenience, and that the application was based on information and documentation that was false and misleading, the submission of which was fraudulent, was upheld. A proposal to deport letter was also issued. The applicant was given an opportunity under s. 3 of the Immigration Act 1999 to set out reasons why a deportation order should not be made.

Facts and procedural history in S.I.

5 On 4th November, 2002 the applicant arrived in the State and was granted a stamp 2 student permission which expired on 31st December, 2011. That permission was not renewed thereafter. He claims to have met a Ms. K.C., an EU national from Latvia, in 2007. and married her on 5th July, 2010. On 29th July, 2010 he applied for a residence card under the European Communities (Free Movement of Persons) (No. 2) Regulations 2006 ( S.I. No. 656 of 2006).

6 His Irish marriage certificate stated that he was ‘never married’; however that was a falsehood. He was previously married in Bangladesh. Having made the inevitable EU Treaty Rights application, clarification was sought in that regard, and he ultimately produced a Bangladeshi divorce certificate. The Minister did not accept the validity of that certificate and refused the application on 2nd February, 2011. The Minister then issued a proposal to deport on 11th February, 2011.

7 A further application as a family member of an EU national was submitted on 23rd May, 2012, which was also refused, as was a review application. A third application was submitted on 11th October, 2013, apparently based on a durable relationship. That was granted on 23rd June, 2014, the Minister emphasising, as usual in such cases, in the letter notifying the applicant of the permission, that there was an obligation to notify the Minister of any change in circumstances.

8 On 24th July, 2014 His Honour Judge Johnson made an order by consent recognising the validity of the applicant's Bangladeshi marriage on 29th March, 2004 and divorce dated 2nd January, 2009. The State's position is that the Latvian wife stopped exercising EU Treaty Rights on 15th January, 2016, made no tax returns in the State thereafter and was receiving social assistance in Latvia after that date. The applicant did nothing in relation to the wife leaving the State until 9th July, 2018 when his solicitors made an application for permission under s. 4 of the 2004 Act. In that letter it was claimed that the wife had left the State in November, 2017.

9 On 7th December, 2018, the Minister refused the application purportedly made under s. 4 of the 2014 Act and declined to consider an application based...