M.K.F.S. (Pakistan) v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 06 February 2018
• Neutral Citation: [2018] IEHC 103
• Court: High Court
• Docket Number: [2017 No. 659 J.R.]
• Date: 06 February 2018

BETWEEN

M.K.F.S. (PAKISTAN)

AND

A.F.

AND

N.F.J. (AN INFANT SUING BY AND THROUGH HIS MOTHER AND NEXT FRIEND A.F.)

APPLICANTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

[2018] IEHC 103

Humphreys J.

[2017 No. 659 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Asylum, Immigration & Nationality – Marriage of convenience – Article 41 of the Constitution – Art. 8 of the European Convention on Human Rights (ECHR) – Deportation order – Judicial review – The Civil Registration (Amendment) Act 2014

Facts: The first applicant filed a judicial review application in relation to the deportation order made by the respondent against the first applicant. The first applicant claimed that the deportation order had infringed his family rights provided under art. 41 of the Constitution and art. 8 of the ECHR. The respondent contended that the marriage between the first and second applicants was of convenience and argued that a decision-maker was entitled to act on the premise that a course of action taken for fraudulent purposes remained fraudulent notwithstanding the passage of time.

Mr. Justice Richard Humphreys dismissed the relief sought by the first applicant. The Court noted that the marriage of convenience was void ab initio. The Court discharged the injunction imposed upon the first applicant's deportation order. The Court criticised sham marriages for exploiting the EU women. The Court observed that in cases where it was concluded that the relationship between the parties were based on fraud, no rights could arise from such rights and, thus, the provisions of the Constitution and the ECHR would be of no help.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 6th day of February, 2018

1 The first named applicant applied for an Irish visa to travel to the State from Pakistan on 10th August, 2005. This was refused. He appealed that refusal successfully. Any ensuing visit appears to have passed without incident. Having returned to Pakistan he then applied for another Irish visa on 18th March, 2009. That application was granted. In the application he stated that he was married. He arrived from Pakistan on 12th June, 2009. It seems to be accepted that he arrived on a visitor's permission, which presumably would have expired in September, 2009. On 9th February, 2010, three days before he got married, he applied for asylum. In a s. 8 interview under the Refugee Act 1996 he states that his wife died on 1st March, 2009. This contradiction with his visa application is the first tangible piece of toying with the immigration system on the part of the first named applicant. It is also interesting to note in passing how his actual wife, who would now be an obstacle to his getting married to an EU national, is conveniently disposed of by the claim made in the asylum application.

2 On 12th February, 2010, the first and second named applicants purportedly married in the State. The second named applicant is a citizen of Latvia. That 'marriage' took place with extraordinary rapidity given that the three month notice required would have involved notice in December, 2009, six months after the first named applicant's arrival in the State. She was at that time a 22 year old young woman, and the applicant was a 35 year old man with a wife in Pakistan, allegedly suddenly dead, and children there. He found an EU national prepared to marry him within six months of his arrival despite his arrival having been on a time limited visa, and despite having been unlawfully there at the time of the 'engagement'. He only became lawfully present three days before the 'marriage' by reason of the asylum claim, which was not pursued. One certainly wonders whether the only purpose of the asylum claim was so that he could later assert that he was lawfully present at the time of the marriage.

3 On 27th April, 2010, the first named applicant made an application for a residence card under the European Communities (Free Movement of Persons) (No. 2) Regulations 2006 ( S.I. No. 656 of 2006). He was given permission to remain for five years, commencing on 22nd October, 2010, on foot of the marriage. That permission noted that the onus was on the applicant to keep the Minister informed of changes of circumstances, and that it was established that if rights were required by fraudulent means he would cease to enjoy them immediately.

4 On 14th February, 2011, the Minister refused a declaration of refugee status, as the application for asylum was deemed to be withdrawn. This was by reason of the first named applicant's failure to complete the asylum questionnaire and his failure to attend for interview by the Refugee Applications Commissioner, a further piece of toying with the immigration system. He claims that in March, 2011, the parties separated, relatively shortly after the EU permission was obtained. He never notified the Department of Justice and Equality of this change in circumstances. The second named applicant then gave birth to the third named applicant by a different father, a man who later died. The first named applicant says that, as it is put in the papers, 'following discussions between the first and second applicants the couple reunited in April 2015'. That is a somewhat strange and bloodless formulation, but in any event the first named applicant claims that the parties have been living together since mid-2015.

5 On 21st October, 2015, he applied again for residency but failed to notify the Department at the time that the parties had been separated for a substantial period, which can only be construed as an attempt to mislead the Department. Furthermore, child benefit is being claimed by the second named applicant from an office in Dundalk despite the first named applicant's claim that the parties were allegedly living together in Dublin. The first named applicant was given a temporary permission to remain until 20th May, 2016.

6 On 4th May, 2016, he was given notice of the Minister's view that the marriage was one of convenience and given an opportunity to make submissions, which he did.

7 On 9th July, 2016, the Minister formally decided that the marriage was one of convenience under the European Communities (Free Movement of Persons) Regulations 2015 ( S.I. No. 548 of 2015). Regulation 28 of the 2015 Regulations allows the Minister to disregard any marriage as being one of convenience and provides for notice to a party of an intention to so decide and for a formal decision by the Minister deeming the marriage to be one of convenience. Notice of that decision was duly given.

8 On 29th July, 2016, the first named applicant made submissions regarding a review of that decision. On 3rd October, 2016 the District Court purportedly made an order appointing the first named applicant as a guardian of the third named applicant. The order states that it is an order appointing the ' father' as a guardian; but the first named applicant is not the father. Section 6A of the Guardianship of Infants Act 1964, under which the order is purportedly made, appears to relate to the appointment of a natural father of the child as a guardian. No other basis for the order appears from its terms. The original application by the first named applicant has not been made available but the order as produced to me does not appear to be a valid order. The District Court then made a further order providing for joint custody. That order is predicated on the prior guardianship order which refers to the first named applicant as the father. Consequently the custody order does not appear to be valid either for the reason I have outlined.

9 On 20th March, 2017, the Minister's decision that the marriage was one of convenience was upheld on review and the first named applicant was refused a permission under the 2015 Regulations. No proceedings were taken challenging that decision.

10 A proposal to deport the first named applicant was issued on the same day. The first named applicant made submissions relying inter alia on family rights under Article 41 of the Constitution and art. 8 of the ECHR. A deportation order was made on 30th June, 2017, and was notified to the first named applicant on 7th July, 2017.

11 The proceedings were issued on 8th August, 2017, and an ex parte injunction was granted by Noonan J. on 14th August, 2017.

12 I have received helpful submissions from Mr. Mel André Christle S.C. (with Mr. Ian Whelan B.L.) for the applicants and from Mr. Anthony Moore B.L. for the respondent.

There is no obligation on an administrative decision-maker to go back and review previous decisions when a later decision is made in the process.

13 Mr. Christle submitted that the decision deeming the marriage to be one of convenience was ' nothing got to do with' the deportation legislation and ' the Minister should have revisited all the facts'. This is an unsustainable submission. It would push any administrative decision into some sort of provisional zone whereby it was liable to be set aside at will at any time into the future if some further step had to be taken. No administrative system could work if there was some sort of free-floating obligation to revisit any formal and unchallenged decision merely because a further step in the process predicated on that decision had to be taken. The point made is wholly without substance. It is suggested that the passage of time and the death of the father of the third named applicant meant that there was an obligation to reconsider the question of marriage of convenience. There is no such obligation. A decision- maker is entitled to act on the premise that a course of action taken for fraudulent purposes remains fraudulent notwithstanding the passage of time.

Where an unchallenged determination is made that the marriage is one of convenience, it is not open to a party to challenge that in later proceedings.

14 Order 84 r. 21(1) of the Rules of the Superior Courts is...