KP v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 20 February 2017
• Neutral Citation: [2017] IEHC 95
• Date: 20 February 2017
• Court: High Court
• Docket Number: [2016 No. 888 J.R.]

BETWEEN

K.P.

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

BETWEEN

S.P.P.

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

[2017] IEHC 95

Humphreys J.

[2016 No. 888 J.R.]

[2016 No. 893 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Asylum, Immigration & Nationality – Directive 2004/38/EC – European Communities (Free Movement of Persons) Regulations 2015 – Marriage to EU national for procurement of visa – Marriage of convenience – Deportation

Facts: The applicants, in two set of proceedings, sought leave to apply for judicial review to challenge the deportation order made against them. The applicants asserted their right to remain in the State because of being EU national members under art. 35 of the Directive 2004/38/EC. The defendant argued that the applicants had contracted their marriage only with the purpose of obtaining a residence card and thus, it was a marriage of convenience.

Mr. Justice Richard Humphreys refused to grant the desired relief to the applicants. The Court criticized the applicants for playing fraud with the constitutional machinery and the judicial system. The Court pointed out that despite the enforcement mechanism in force, the incidents of such sham marriages were on the rise. The Court found that in both the cases, each applicant had procured marriage for his/her benefit and made false statements before the respondent. The Court found that the spouse of the first applicant had been a permanent resident of Latvia and was in receipt of employment benefits there and thus, there was no basis to invoke the relevant provisions of art. 35 of the Directive 2004/38/EC. The Court observed that the second applicant had provided false employment details of her spouse to the respondent in support of her assertion for the EU Treaty rights.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 20th day of February, 2017

1 Directive 2004/38/EC of the European Parliament and of the Council of 29th April, 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States is explicit that ' to guard against abuse of rights or fraud, notably marriages of convenience or any other form of relationships contracted for the sole purpose of enjoying the right of free movement and residence, Member States should have the possibility to adopt the necessary measures' (recital 28).

2 Article 35 of the directive is entitled ' Abuse of rights' and provides that ' Member States may adopt the necessary measures to refuse, terminate or withdraw any right conferred by this Directive in the case of abuse of rights or fraud, such as marriages of convenience. Any such measure shall be proportionate and subject to the procedural safeguards provided for in Articles 30 and 31.' The procedural safeguards in arts. 30 and 31 involve notification and redress procedures and are not such as to preclude the person being proceeded against by means of deportation order rather than removal order.

3 Giving effect to that provision, the European Communities (Free Movement of Persons) Regulations 2015 provide in reg. 27(1) that ' The Minister may revoke, refuse to make or refuse to grant, as the case may be, any of the following where he or she decides, in accordance with this Regulation, that the right, entitlement or status, as the case may be, concerned is being claimed on the basis of fraud or abuse of rights: ... a residence card, a permanent residence certificate or permanent residence card ... [or] a right of residence [under regs. 9, 10 or 12]'.

4 More specifically, reg. 28 is headed ' Marriages of convenience' and para. (1) provides that ' The Minister, in making his or her determination of any matter relevant to these Regulations, may disregard a particular marriage as a factor bearing on that determination where the Minister deems or determines that marriage to be a marriage of convenience.'

Facts in relation to Mr. K.P.

5 Mr. K.P. (for whom Mr. Ian Whelan B.L. appears) enjoyed a student permission between October, 2008 and October, 2013. On 10th September, 2013, when his permission was about to expire, he entered into what the Minister has held to have been a marriage of convenience with a Latvian woman.

6 In September, 2013, the applicant sought permission to remain in the State on the basis of alleged EU Treaty Rights arising from the marriage of convenience. That application was initially approved in March, 2014, and the applicant was issued with a residence card. By letter dated 1st June, 2016, the residence card was revoked.

7 In that letter it was noted that the Latvian woman in question had been residing permanently in Latvia since at least January, 2015. She had been in receipt of a number of benefits in Latvia including jobseeker's benefits since 1st January, 2015. She commenced employment with a company in Latvia on 7th October, 2015, and has changed jobs a number of times up to 1st June, 2016. The letter noted that the applicant had failed to notify the Department of this change in his circumstances. It was also noted that the Minister had outlined her concerns in writing on 22nd March, 2016, but the responses received to date have been minimal and failed to address the Minister's concerns that the marriage was contracted for the sole purpose of obtaining a residence card.

8 The Minister was satisfied that the applicant should cease to be entitled to any right of residence in accordance with reg. 27(1) of the 2015 regulations and art. 35 of the directive. The applicant's permission to remain by virtue of EU Treaty Rights was therefore revoked.

9 By letter dated 8th July, 2016, the respondent made a proposal to deport the applicant. The applicant's former solicitors then replied by letter dated 25th July, 2016, relying on a jurisdictional argument that the Minister should proceed by way of removal order rather than deportation order (citing a decision of Hogan J. to which I will return). It was also submitted that he should not be deported until an application for leave to remain under s. 4 of the Immigration Act 2004 was processed. The somewhat convenient point was made that ' he was unable to review the refusal of his application to remain under the Regulations because his estranged wife has left the jurisdiction and a review could not be submitted without her signature'.

10 On foot of the proposal letter, the Minister made a deportation order in October, 2016. The applicant now seeks leave to apply for judicial review to challenge the deportation order.

11 The sole ground of challenge is that the applicant is the spouse of an EU national and has been given a residence card pursuant to the directive and the European Communities (Free Movement of Persons) Regulations 2006 and 2015. On that premise he submits that he can only be removed from the State in accordance with art. 27 of the directive and reg. 20 of the regulations by way of removal order, and not on foot of a deportation order.

Facts in relation to Ms. S.P.P.

12 Ms. S.P.P. (for whom Mr. Whelan also appears) has resided in the State since March, 2009 on student permissions which continued until July, 2012. On 14th January, 2014, when illegally present in the State, she married an EU national. She applied for permission to remain in the State on the basis of EU Treaty rights in November, 2014. This was refused at first instance (on the grounds of the marriage being a marriage of convenience) and again on review. Prior to finalising the review the Minister wrote by letter dated 17th May, 2016, stating that employment information provided in respect of the applicant's EU spouse was false and the applicant ' knowingly submitted information which is false and misleading as to a material fact' which if sustained meant that she had ' committed fraud'.

13 The reply on behalf of the applicant dated 20th May, 2016, referred conveniently to a statement that the EU spouse had left the applicant, without a forwarding address. In terms of substantive content the reply was minimal. On 13th July, 2016, the respondent proposed to deport the applicant. No representations were made. A deportation order was made in September, 2016, and was received on 20th October, 2016. The present application for leave to seek judicial review is out of time, but I will assume for present purposes (without so deciding) that time would be extended.

14 Again, the sole ground of challenge is the one jurisdictional ground raised in Mr. K.P.'s case.

Belated application to amend

15 Judgment in these leave applications was reserved on 28th November, 2016. On 15th December, 2016, the Court of Appeal delivered judgment in Luximon v. Minister for Justice and Equality [2016] IECA 382 and Balchand v Minister for Justice and Equality [2016] IECA 383, in relation to the issue of the extent to which art. 8 rights should be considered in a decision on permissions under the Immigration Act 2004. This was clearly not an issue that arose in this case.

16 Following judgment being reserved in both cases, in order to ensure that the applicants had a full opportunity to address issues I was considering, I notified counsel on 10th February, 2017 of a number of authorities that might be relevant and invited submissions. The cases were listed on 13th February, 2017 for that purpose. Subsequently, in Ms. S.P.P.'s case only, Mr. Whelan added to the submissions (delivered on 16th February, 2017) a request to amend the proceedings based on the decisions in Luximon and Balchand which had been delivered over two months beforehand. Some features of this request are notable.

(i) Such a request to amend was not signalled to the court at any prior point.

(ii) The delay of two months in raising the issue was not acknowledged, still less explained; a delay made all the more problematic by the fact that judgment...