MA v Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Heslin
• Judgment Date: 06 March 2025
• Neutral Citation: [2025] IEHC 135
• Court: High Court
• Docket Number: RECORD NO. 2024/4JR

Between

MA

Applicant

and

The Minister for Justice

Respondent

[2025] IEHC 135

RECORD NO. 2024/4JR

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Residency – Irrationality – Applicant seeking to quash the decision refusing his application for residency – Whether the respondent’s decision was irrational

Facts: The applicant applied to the High Court seeking certiorari by way of an application for judicial review to quash the decision of the respondent, the Minister for Justice, to refuse the applicant’s application for residency under the Scheme to Regularise Long-Term Undocumented Migrants in Ireland (the Scheme). The applicant contended that the respondent’s conclusion that he was a person to whom permission to reside had been granted (thereby excluding him from illegibility under the Scheme) was irrational and/or unreasonable and/or based upon a material error of fact and/or arrived at in breach of fair procedures and constitutional justice. It was common case that the applicant’s claim was moot in circumstances where he had received a permission to remain in the State in a separate statutory process to the Scheme. The case was selected as a ‘test’ case and would determine some 12 cases in a cohort of similar claims. Both sides urged the Court to deliver a judgment and Heslin J was satisfied that there was utility in doing so (Odum v Minister for Justice (No.1) [2023] IESC 3).

Held by Heslin J that whereas the applicant submitted that it is consistent with EU jurisprudence that any rights grounded on an abuse would be void ab initio, the right to reside in the State pursuant to the two temporary review permissions was not grounded or based on the marriage of convenience. He held that it was a matter of fact that neither review permission was ever revoked or declared invalid by the Minister; both came to an end by expiring. Heslin J noted that the gravamen of the applicant’s case was that the finding of fraud, i.e. a marriage of convenience, “cannot conceivably allow any permission granted to the applicant to be valid”. Heslin J found that the applicant had not established that the intention or effect of any revocation was to bring him into the category covered by the Scheme. Heslin J held that the guidance given by the Supreme Court in U.M. (a minor) v The Minister for Foreign Affairs and Trade & Ors. [2022] IESC 25 makes clear that the situation was far from as simple as the proposition that ‘fraud unravels all’. He held that the legal effect and consequences of a finding of invalidity must be considered in context and will depend on the particular circumstances. He noted that from the point at which the applicant received the first European Union Treaty Rights (EUTR) permission (5-year residence card) in 2013, he possessed a series of permissions which were valid at the time; he relied on those, gaining a range of advantages not available to the category of persons to whom the Scheme is directed. Heslin J held that the applicant was not ‘undocumented’ in the sense in which that term is explained in the Scheme policy paper. Heslin J found that the applicant had not established that the rights which he enjoyed by virtue of and during the currency of his EUTR permissions must be ignored for the purpose of the Scheme, notwithstanding the fact that the applicant never faced the challenges experienced by those for whom the Scheme was introduced.

Heslin J held that the applicant had failed to establish any entitlement to relief and his claim must be dismissed.

Application refused.

JUDGMENT of Mr. Justice Heslin delivered on the 6 ^th day of March 2025

Introduction

1 . As made clear at para. d. of the applicant's statement of grounds dated 2 January 2024, the primary relief sought in this application is as follows:-

“1. Certiorari by way of an application for judicial review to quash the decision of the respondent dated the 4 ^th December 2023 to refuse the applicant's application for residency under the Scheme to Regularise Long-Term Undocumented Migrants in Ireland (“the Scheme”).”

2 . At the outset it was made clear that, despite being pleaded in the statement of grounds, the applicant does not rely on the doctrine of legitimate expectation. In essence, the applicant contends that the respondent's conclusion that he was a person to whom permission to reside had been granted (thereby excluding him from illegibility under the Scheme) was irrational and/or unreasonable and/or based upon a material error of fact and/or arrived at in breach of fair procedures and constitutional justice.

3 . It is common case that the applicant's claim is now moot in circumstances where he has received a permission to remain in the State in a separate statutory process to the Scheme. However, this case was selected as a ‘test’ case and will determine some 12 cases in a cohort of similar claims. Therefore, both sides urged this Court to deliver a judgment and I am satisfied that there is utility in doing so ( Odum v Minister for Justice (no.1) [2023] IESC 3).

The Scheme

4 . The Department of Justice has published a policy paper on the Scheme, the introduction to which states inter alia:-

“1.2 The European Migrant Network defines the undocumented, also known as irregular migrants, as non-EEA nationals who “owing to irregular entry, breach of a condition of entry or the expiry of their legal basis for entering and residing, lack legal status in a transit or host country”. The undocumented consist of both adults and children.

1.3 The creation of legal pathways for the undocumented is also known as regularisation, or granting legal status to people who lack it. The focus of the Programme for Government commitment is on people who have a significant period of residence in the State without a residence permission and, therefore, face greater challenges in integrating into society and maintaining labour market mobility.” (emphasis added).

People and particular challenges

5 . I pause to note that the Scheme is not focused on the question of whether a residence permission is technically invalid or valid in the legal sense (and, in the manner presently examined, the crux of the applicant's argument is that all his residence permissions were retrospectively invalidated). Rather, the Scheme is focused on people, and the increased challenges they face due to being undocumented i.e. “greater challenges in integrating into society and maintaining labour market mobility” (and in the manner presently explained, there is no evidence of the applicant facing such challenges).

6 . The foregoing is emphasised in the “Objectives And Scope Of The Scheme” which begin as follows:-

“3.1 This time-limited Scheme has been developed to provide residence permission to persons who are living in Ireland, and have been doing so for a long period of time without a valid residence permission in the State, irrespective of how they entered the State initially, and are therefore considered to be “long-term undocumented”. The Scheme is aimed at alleviating the particular challenges faced by those who have been “undocumented” for a long period and who face challenges in integrating into society and maintaining labour market mobility…”

Criteria

7 . Paragraph 3.2 of the Scheme makes clear that it is not open to individuals who have been undocumented for a short period, even if they have been resident in the State for a long period, whereas para. 3.3 makes clear that international protection applicants hold temporary residence certificates and are not, therefore, undocumented and do not come within the Scheme.

8 . Paragraph 4.9 of the Scheme goes onto clarify, for the avoidance of doubt, that certain categories of person do not come within the Scheme, namely:-

“Persons who have a current valid permission to reside in Ireland (including permission granted for the purposes of pursuing an application for International Protection, I.E.A. temporary residence certificate (TRC)…

Persons who have fallen out of permission but who are “undocumented” for less than the relevant minimum period set out below.” (emphasis added).

9 . In the foregoing manner, the Scheme excludes certain persons who have been granted temporary permission to reside in Ireland in order to pursue a particular process i.e. apply for International Protection (“I.P”). In the manner presently discussed, whilst the applicant did not seek I.P., he was granted temporary permission to reside whilst pursuing a review of an adverse decision.

Minimum period of undocumented residency

10 . Paragraph 4.1.0 of the Scheme specifies the requirement for a minimum period of undocumented residency, namely:-

“I. The principal applicant must have resided in the State without a valid residence permission continuously for a minimum of four years immediately prior to the opening date for this Scheme, i.e. 31 January 2022 and to have continued to do so at date of application…” (emphasis in original).

Jan 2018 – Jan 2022

11 . Thus, the relevant period for the purpose of this case is the 4 years from 31 January 2018 to 31 January 2022. At the ‘heart’ of the applicant's case is that, during the entirety of this period, he had no valid permission to remain in the State. Having referred to the backdrop, it is useful to look in some detail at relevant facts which emerge from an examination of the evidence. For ease of reference, I propose to set these out in a chronology and to refer, as appropriate, to relevant legislative provisions.

Relevant chronology

12 . The applicant is an Egyptian national, born in 1984. On or about 28 March 2008, the applicant arrived in the State on foot of C visa (visitor permission). Following the expiry of same, the applicant overstayed without permission. In February 2013, the applicant married a Lithuanian, and therefore EU—national (“the marriage”). This lady, born in 1969, was stated to have arrived in Ireland 5...