M v Minister for Justice

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Mark Heslin
• Judgment Date: 12 September 2025
• Neutral Citation: [2025] IEHC 494
• Docket Number: RECORD NO. 2024/33 JR

Between

M

Applicant

and

The Minister for Justice

Respondent

[2025] IEHC 494

RECORD NO. 2024/33 JR

THE HIGH COURT

JUDICIAL REVIEW

Order of mandamus – Separation of powers – Alternative remedies – Applicant seeking an order of mandamus – Whether the application was premature

Facts: The applicant sought “to prevent [the respondent, the Minister for Justice (the Minister)] from exercising a means of his removal from the State which will, if put into action, be much more difficult for him to resist” (para. 27 of the applicant’s written legal submissions, dated 3 December 2024). As regards his exclusion from the State, the applicant submitted that “the respondent has already decided the means she would use for that purpose is deportation” and “the Respondent has decided that the appropriate mechanism is deportation, not removal” (para. 19 of the applicant’s written legal submissions). The primary relief which the applicant had obtained leave to seek was “an order of mandamus compelling the respondent to consider the Applicant’s case as one falling within the ambit of [case C–94/18 Chenchooliah v Minister for Justice & Equality]”.

Held by the High Court (Heslin J) that whereas Chenchooliah deals with the manner in which someone can be removed from the State, no decision had been made by the respondent which engages the principles in Chenchooliah; thus, the applicant’s reliance on Chenchooliah was misplaced. Guided by Damache v Minister for Justice [2022] 1 IR 669 and Leng v Minister for Justice [2015] IEHC 681, it seemed to Heslin J that the application was entirely premature; the Minister had made neither any decision nor any proposal and, therefore, the applicant could not make the case that he fell within the “extremely limited” cases contemplated in Leng, which permit the challenging of a proposal to deport on the basis of a lack of jurisdiction. In Heslin J’s view, the case was not about whether the applicant came within Chenchooliah; rather, it was about whether the applicant had a right to tell the Minister what decisions to make, and when to make them. The applicant was, in Heslin J’s view, impermissibly seeking to prescribe a particular procedure or approach, and to exercise control over the process of the Minister’s decision-making, in the manner deprecated in A.B. v Minister for Justice [2016] IECA 48. Heslin J held that whereas the applicant averred (at para. 10 of his affidavit) that “my main concern is that I will end up being the subject of a deportation order”, were a deportation process to be commenced in the future, the alternative remedies available to the applicant would be: (i) a right to argue, by reference to the principal articulated in Leng, that the courts should quash a deportation proposal for want of jurisdiction, were one to issue (per s. 3(3) of the Immigration Act 1999); (ii) a right, under s. 3(4) of the 1999 Act, to make representations to the Minister in the event of being issued with a s. 3(3) proposal to deport, which representations the Minister is required to have regard to; (iii) a right to challenge a deportation order were it ultimately to be made; (iv) a right to apply for revocation of any such deportation order; and (v) a right to challenge any failure to revoke such a deportation order.

Heslin J was satisfied that the applicant was not entitled to any relief and the claim must be dismissed.

Claim dismissed.

JUDGMENT of Mr. Justice Mark Heslin delivered on 12 ^th day of September 2025

Introduction

1 . In the present case, the applicant is seeking “… to prevent the Minister from exercising a means of his removal from the State which will, if put into action, be much more difficult for him to resist” (para. 27 of the applicant's written legal submissions, dated 3 December 2024).

2 . As regards his exclusion from the State, the applicant submits that “ …the respondent has already decided the means she would use for that purpose is deportation” and “ the Respondent has decided that the appropriate mechanism is deportation, not removal” (para. 19 of the applicant's written legal submissions).

3 . At the ex parte stage the applicant sought the following relief which is pleaded at para. (d) of their statement of grounds:

“(i) An order of certiorari quashing the Minister's decision to refuse to consider the applicant's application to be considered under the terms and provisions of the procedure established by the Respondents Department to deal with cases coming within the ambit of cases captured by the judgment of the CJEU in the case of Chenchooliah v. The Minister for Justice & Equality C – 94/18 – hereinafter referred to as the Chenchooliah judgment.

(ii) Further or in the alternative, an order of mandamus compelling the respondent to the (sic) consider the Applicant's case as one falling within the ambit of the Chenchooliah judgment.

(iii) Such other declaration(s) of the legal rights and/or legal position of the applicants and/or persons similarly situated as the court considers appropriate.

(iv) An interim or interlocutory injunction or a stay restraining/prohibiting the Respondent from taking any further steps in relation to the removal of the Applicant from the State pending the termination of the within proceedings or leave to apply for same.

(v) An extension of time, should same be necessary.

(vi) An Order providing for the costs of and incidental to the within proceedings;

(viii) Such further or other Order as this Honourable Court deems fit.” (emphasis added).

4 . As the applicant's counsel made clear, very appropriately, during the hearing before me, leave was not granted to seek certiorari quashing any decision. Rather, by order made on 19 February 2024 (Hyland J.) the applicant was granted leave to seek only the reliefs set out at para. (d)(ii) to (d)(vii), on the grounds pleaded at para. (e) of the applicant's statement of grounds.

Mandamus

5 . Thus, the primary relief which the applicant has obtained leave to seek is “… an order of mandamus compelling the respondent to consider the Applicant's case as one falling within the ambit of the Chenchooliah judgment”. An order of Mandamus compels a party to perform a legally—imposed duty and is typically sought against the respondent where the Minister has failed, or delayed unreasonably, to make a decision, which they are under a duty to make. In the manner explained in this judgment, this is not such a situation.

Chenchooliah

6 . The sole authority which the applicant relies on is case C–94/18 Chenchooliah v. Minister for Justice & Equality (“ Chenchooliah”). I will presently look more closely at this judgment but, to understand the nature of the applicant's claim, it seems appropriate to attempt to summarise what was addressed and decided in Chenchooliah. The CJEU addressed the question of whether domestic law could be used to seek the removal of an individual from a Member State who had previously enjoyed rights derived under Directive 2004/38/EC (“the Citizens' Rights Directive” or “the Directive”). The Court answered that question in the negative, deciding that domestic law cannot be used to remove such an individual unless their current situation falls outside the scope of the Directive. In circumstances where the Directive establishes an exhaustive set of conditions for the entry, residence and expulsion of Union citizens and their family members, the CJEU held that once rights under the Directive have been acquired, any measure seeking to restrict or remove those rights must be in strict conformity with the provisions, including safeguards, in the Directive. This approach avoids a Member State relying on domestic legislation which contains grounds for expulsion not provided for in the Directive.

Relevant facts

7 . To understand the context in which the applicant makes his claim, I now propose to set out relevant facts which emerge from the evidence before me.

8 . The applicant was born in 1984 and is a citizen of Pakistan, who arrived in this State, via Belfast, in May 2016 and married a UK citizen, in July 2017 (the “marriage”) prior to the UK exiting the EU.

9 . On the basis of the marriage, the applicant sought a Residence Card pursuant to the Citizens' Rights Directive and the European Communities (Free Movement of Persons) Regulations (the “2015 Regulations”).

10 . Exhibit “M1” to the applicant's grounding affidavit, sworn on 10 January 2024, includes inter alia copies of the correspondence which passed between the applicant's then solicitors and the ‘Irish Naturalisation & Immigration Service’ within the respondent's department, in relation to the said application.

October 2017 — Residence Card refused

11 . The application for a Residence Card was refused, by letter dated 06 October 2017. A copy of this letter is also included in Exhibit “M1” where in the respondent stated inter alia that the “…application does not meet the requirements of Regulation 7(3) of the Regulations as you failed to submit the necessary supporting documentation as set out in Schedule 2 of the Regulations” and went on to state inter alia that the evidence proffered “…does not satisfy the Minister that the EU citizen is exercising their rights through employment, self-employment, the pursuit of a course of study, in voluntary employment or the possession of sufficient resources in accordance with the requirements of Regulation 6(3) of the Regulations”.

Review requested

12 . The applicant requested a review of this decision and completed a ‘Form EU 4’, on 18 October 2017, in which the applicant submitted inter alia that:

“The deciding officer erred, as a matter of fact, in finding that the applicant had failed to establish that his EU citizen spouse is exercising her EU Treaty rights here. The applicant's EU citizen spouse is self-employed and runs a business here. Evidence of this has been provided. The applicant has provided sufficient proof of...