M.H. v Minister for Justice and Equality
| Jurisdiction | Ireland |
| Judge | Ms. Justice Donnelly |
| Judgment Date | 03 November 2023 |
| Neutral Citation | [2023] IECA 267 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record No.: 2023/21 |
[2023] IECA 267
Donnelly J.
Ní Raifeartaigh J.
Power J.
Record No.: 2023/21
THE COURT OF APPEAL
JUDGMENT of Ms. Justice Donnelly delivered on this 3 rd day of November, 2023 .
. This is an appeal against a decision of the High Court ( [2022] IEHC 721, O'Regan J.) refusing the application for judicial review of the Minister's decision of the 11 April 2022 that the appellant had contracted a marriage of convenience within the meaning of the Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (the “2004 Directive”), as implemented by the Regulation 27 of the European Communities (Free Movement of Persons) Regulations, 2015, S.I. 548/2015 (the “2015 Regulations”). The term ‘ marriage of convenience’ refers to a marriage contracted ‘ for the sole purpose of obtaining an entitlement’ under the 2004 Directive or the 2015 Regulations or under any measure adopted by a Member State to transpose the Directive, or under any national law concerning the entry and residence of foreign nationals. This judgment deals with the question of whether the Minister ought to have held an oral process/hearing prior to making her decision.
. The appellant is a Bangladeshi national who came to Ireland on 25 April 2007 on a student visa. This visa was regularly renewed up to the point in time when the student visa scheme was amended to prevent such repeated renewals of student visas. He remained in the State on foot of a Stamp 2 permission. His student visa was due to expire on 5 May 2014 and could thereafter not be renewed.
. The appellant claims that in October 2013 he met a Romanian national at a party in Dublin. The Romanian national had arrived in Ireland in September 2013 and the two got married on 15 April 2014 in Dublin. The appellant subsequently applied for and was granted a residence card on the foot of his status as the spouse of an EU national pursuant to the provisions of the Directive as implemented by the Regulation 27 of the 2015 Regulations. His application for that residence card was approved by the Minister on 24 October 2014, and was valid for five years with an expiry date of 23 October 2019. In that letter notifying him of the grant of the residence card, the appellant was informed that he was obliged to advise the Minister of any change in his circumstances.
. On 18 February 2019, the appellant was stopped at Dublin Airport by an Immigration Control Officer. The appellant was questioned by the Border Management Unit about the status of his marriage, the whereabouts of his EU national spouse, her employment status, as well as details of his last contact with his spouse. He was then asked to provide contact information for his spouse, specifically, a phone number. Contact was made with her by the Immigration Control Officer. The EU national stated that she had been divorced from the appellant for three years (the actual date of the divorce is 6 July 2017), that she did not know that he continued to live in Ireland and had not spoken to him since the divorce.
. The exact exchange which occurred between the Immigration Officials and the appellant, as well as with his former spouse over the phone, remains in dispute. However, the appellant accepted that, ultimately, he told the immigration officers that his marriage was no longer subsisting. The appellant was allowed to proceed through Immigration having been held there for a period of hours, and he was informed that the information gathered by the Immigration Officials at the Airport would be forwarded to the EU Treaty Rights Investigation Unit.
. The appellant than engaged a solicitor who wrote to the Minister in July 2019 seeking to vary the basis for his permission to remain in the State. He accepted that he was no longer entitled to a residence card on the basis of his status as the spouse of an EU citizen. The appellant had, by that time, been living in Ireland for over 12 years. Over the following months, there was an exchange of correspondence between the appellant and the Minister.
. On 16 December 2019, the Minister wrote to the appellant outlining matters of concern regarding the granting of the appellant's residence card and the nature of his marriage. The letter referred to the proximity between the arrival in the State of the EU citizen and the marriage, the highly accelerated nature of their relationship, the fact that the appellant's student permission was due to expire on 5 May 2014 and the unpredictable nature of his residence status thereafter. The concerns of the Minister in respect of these were set out. It was noted that, in the application for the residence card, two payslips dated April and May 2014 for the EU citizen were provided, and her P60 certificate for the year ending 2013. There was no record of any employment in the State for the EU citizen in 2015 and no further record of her in the State after 2017. The Minister was not satisfied his former wife was exercising her EU Treaty rights. The 2013 P60 of the EU Citizen had been issued to a different address from the information provided in the residence application of May 2014 which was also different from the letting agreement document of October 2013 addressed to both the appellant and his former spouse being for a 12-month period. The interview between the Immigration Officials and the applicant was also referenced, it being noted that the applicant had said he was still married and that the EU citizen was at home in the address of the letting agreement. The appellant was unable to provide any evidence of communication between himself and his (now) former spouse. The failure to inform the Minister of any change of circumstances was noted. The letter indicated that the Minister was, inter alia, of the opinion that the marriage may be one of convenience and if so found, it was stated that the Minister will disregard the marriage for the purpose of the 2015 Regulations. The appellant was given 21 days in which to respond and was invited to provide any other information or documentary evidence that he might wish to provide.
. The appellant's solicitor responded on 8 January 2020 emphatically denying that the appellant's marriage was one of convenience. The letter did not contain any documentation. It was stated, however, that the appellant had made a full and frank disclosure in his letter of 2 July 2019 in respect of his marriage and breakdown.
. On 22 January 2020, the appellant was notified by the Minister that his application to vary a permission to reside under s. 4(7) of the Immigration Act 2004 could not be accepted for consideration as he did not hold a permission under that Act capable of being renewed or varied; thus, his application was misconceived from the outset.
. By letter dated 24 January 2020, the appellant was informed that a finding had been made that he had contracted a marriage of convenience and the Minister had revoked his residence card on the basis of Regulations 27(1) and 28(1) of the 2015 Regulations. In that letter (“the first instance decision letter”) the Minister said she was satisfied that the information and/or documentation submitted in 2014 in respect of the EU citizen's residence and employment in the State was false and/or misleading as to material fact.
. The appellant sought a review of the finding that his marriage was one of convenience by letter dated 15 February 2020. He did not seek to review the revocation of his EU Treaty residence permission. He submitted, however, that the finding of a marriage of convenience had been far reaching and had drastic implications for the appellant. He said due process ought to have been followed and, at the very least, the basis upon which the Minister proposed to make such a finding ought to have been put to him and an opportunity ought to have been provided for himself and his former spouse to respond. At no point did the appellant or his legal representatives request an oral hearing as part of the first instance decision-making or review processes.
. The solicitor's letter went on to state that much of the basis for the finding emanated from the phone call with his former wife in February 2019 in which she said that they had not been in contact for three years. It was submitted that this was not particularly germane to the marriage of convenience finding. It was argued that the totality of the evidence was circumstantial, based upon the relatively early marriage and the immigration position of the appellant. The appellant expressed regret at not having informed the Minister at an earlier stage of the breakup of his marriage.
. The Minister informed the appellant by letter dated 11 April 2022 that the first instance decision had been upheld. That letter discussed the reasons given by the Minister in the first instance decision letter for her conclusion that the appellant's marriage was one of convenience. The reasons given included the accelerated nature of the relationship, the lack of shared assets, the precarious immigration status of the appellant given that his residence card was due to expire shortly after the date of their marriage, and concerns regarding false and/or misleading representations made by him at the time of the initial application. The review decision maintained the finding of a marriage of convenience, stating that the marriage was never genuine in light of the accelerated nature of the relationship with the EU citizen (a decision to marry was made within three months of meeting), the precariousness of the immigration status and the little documentation or information in respect of the relationship in the case. The Minister, however, set aside the finding that the documentation submitted...
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