Mandeep Singh and W.W. v The Minister for Justice and Equality
| Jurisdiction | Ireland |
| Judge | Mr. Justice Barr |
| Judgment Date | 10 May 2022 |
| Neutral Citation | [2022] IEHC 284 |
| Court | High Court |
| Docket Number | [Record No. 2021/632 JR] |
[2022] IEHC 284
[Record No. 2021/632 JR]
THE HIGH COURT
Residency – European Communities (Free Movement of Persons) Regulations 2015 – Extension of time – Applicant seeking residence in the State as a family member of an EU citizen – Whether there was good and sufficient reason to extend the time allowed to challenge the decisions of the respondent
Facts: The first applicant, Mr Singh, an Indian national, on 14th December, 2016, applied for residence in the State as a family member of an EU citizen, being the second applicant, a Polish national, with whom he claimed to be in a loving and durable relationship. By letter dated 19th April, 2018, the respondent, the Minister for Justice and Equality, refused the first applicant’s application for residency in the State. On or about 8th June, 2018, the first applicant sought to review that decision. By letter dated 29th March, 2021, the respondent affirmed its earlier decision of 19th April, 2018 to refuse the first applicant residency in the State. The applicants applied to the High Court seeking to have set aside both the decisions of 19th April, 2018 and 29th March, 2021. The applicants also sought an extension of time within which to bring the proceedings, as they were initiated outside of the time limit provided for in the Rules of the Superior Courts. Counsel submitted that the decisions of the respondent to refuse the first applicant a residence card on the basis of his relationship with the second applicant were unreasonable and/or in breach of EU law and the European Communities (Free Movement of Persons) Regulations 2015. In that regard, it was submitted that the extensive reference to the first applicant’s marriage to Ms Sousa, a Portuguese national, in both decisions was an irrelevant consideration, which should not have been taken into account when deciding on the credibility of his relationship with the second applicant.
Held by Barr J that the court was not satisfied that there was good and sufficient reason to extend the time within which a challenge may be brought to the first decision. Barr J held that the delay period represented a time of over three years, which was very significant; furthermore, the court had not been given any concrete reasons as to why the commencement of the proceedings was delayed for such a significant period of time. The court was satisfied that there was good and sufficient reason to extend the time allowed to challenge the second decision of the respondent. In reaching this conclusion, the court was mindful that the country had been in and out of Covid-19 lockdowns at that time, which may have created difficulty in bringing the proceedings; furthermore, the Whit vacation period fell within that three month time frame. The court was also mindful that a delay of less than two weeks was unlikely to have caused the respondent any significant prejudice. Accordingly, the court extended the time allowed to bring the proceedings against the second decision of the respondent, pursuant to Order 84, rule 21(3) of the Rules of the Superior Courts.
Barr J held that the court was satisfied that the impugned decision of 29th March, 2021, would have to be set aside, due to the fact that the Minister did not engage with the evidence that had been produced and did not carry out an extensive examination of the applicants’ personal circumstances, as required by 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 2015 Regulations and the principles set down in Pervaiz v Minister for Justice [2020] IESC 27. Accordingly, the court made an order setting aside the decision of the Minister dated 29th March, 2021 and remitting the matter back to the Minister for a fresh consideration.
Application granted in part.
JUDGMENT of Mr. Justice Barr delivered electronically on the day 10th of May, 2022.
The first named applicant in these proceedings is an Indian national, born 30th December, 1989. The first applicant entered the State in or about 2013. He married a Portuguese national, Ms. Sousa, in February 2015.
By letter dated 14th November, 2014, the first applicant was granted permission to remain in the State for a period of five years as a family member of an EU citizen, being Ms. Sousa, residing in the State and in exercise of her EU Treaty Rights.
On 28th November, 2016, that membership status was revoked by the respondent on the basis that the first applicant's marriage to Ms. Sousa was a marriage of convenience, contracted for the sole purpose of obtaining residence status in the State. This decision was later affirmed on review.
On 14th December, 2016, the first named applicant applied for residence in the State as a family member of an EU citizen, being the second named applicant in these proceedings, with whom he claimed to be in a loving and durable relationship. The second named applicant is a Polish national born in 1995. The name of the second applicant has been redacted, as it will be necessary later in the judgment to refer to her medical history.
By letter dated 19th April, 2018, the respondent refused the first applicant's application for residency in the State. The grounds upon which this decision was reached will be elaborated upon later in the judgment. On or about 8th June, 2018, the first applicant sought to review this decision.
By letter dated 29th March, 2021, the respondent affirmed its earlier decision of 19th April, 2018 to refuse the first applicant residency in the State. The reasons for this decision will be elaborated upon later in the judgment.
It is both the decisions of 19th April, 2018 and 29th March, 2021, that the applicants seek to have set aside by the court. The applicants also seek an extension of time within which to bring the present proceedings, as they were initiated outside of the time limit provided for in the Rules of the Superior Courts.
The first applicant entered the State in or around March 2013. On or about 7th March, 2013, he was granted a student permission to remain in the State, valid until 27th January, 2014. This permission was renewed on 31st January, 2014 to 30th September, 2014.
On or around 15th April, 2015, the first applicant applied for a residence card as the spouse of a European Union citizen, Ms. Sousa. The couple had married on 9th February, 2015. As previously mentioned, the first applicant was granted residency on 14th November, 2015 on foot of this application.
The first applicant and Ms. Sousa attended at the office of the Garda National Immigration Bureau on 27th November, 2015, for the purpose of registering the first applicant's permission to remain in the State (and obtaining the issue of a residence card). Ms Sousa was interviewed as part of that process. During the interview, Ms. Sousa admitted to marrying the first applicant for money. Under caution, she told Detective Garda Keith Cleary and Sergeant David Kennedy that the first applicant had asked her to come to Ireland from Portugal to enter into a marriage contract. She stated that he had promised to pay her in exchange for the marriage, so that he could obtain residency in the State.
Ms Sousa further stated that she had never been in a relationship with the first applicant. Her visits to Ireland were solely for the purpose of helping the first applicant to obtain a residence card, in exchange for payment. She stated that after he obtained residency, she was to return to Portugal and had no intention of returning to Ireland. Ms. Sousa returned to Portugal the day after that interview.
In light of that interview, the respondent decided on 1st December, 2015 to defer the registration of the first applicant's residence card.
By letter dated 18th June, 2016, the respondent indicated to the first applicant that the interview given by Ms. Sousa had led her to believe that the first applicant's marriage may have been one of convenience, as set out in Regulation 28(2) of the European Communities (Free Movement of Persons) Regulations 2015 (“the 2015 Regulations”). In light of this, the respondent proposed to revoke the first applicant's permission to remain in the State in accordance with the provisions of Regulation 27(1)(b) of the 2015 Regulations.
In response, on 19th July, 2016, the first applicant's solicitors wrote to the respondent and indicated that Ms. Sousa spoke very poor English and had been both confused and upset while being interviewed. It was stated that she was forced to sign a document she did not understand and was forced to return to Portugal, or her husband would be arrested. The solicitors stated that the decision of the respondent had been made unfairly and unreasonably.
By letter dated 26th July, 2016, the respondent refuted the claims made on behalf of the first applicant in the letter of 19th July, 2016.
On 28th November, 2016, the respondent notified the first applicant that she had been satisfied that his marriage to Ms. Sousa was one of convenience in accordance with Regulation 28(2) of the 2015 Regulations. The respondent revoked the first applicant's permission to reside in the State as a family member of an EU citizen residing in the State. In light of that finding, the respondent was satisfied that the first named applicant no longer enjoyed any right of residence in the State.
On 14th December, 2016, the first applicant sought a review of the decision to revoke his permission to remain. On the same day, he applied for a residence card as a “permitted family member” of the second named applicant, an EU citizen, on the basis that he was her de facto partner.
By letter dated 13th April, 2017, the respondent informed the first applicant...
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