Mascarenhas v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Max Barrett
• Judgment Date: 18 February 2020
• Neutral Citation: [2020] IEHC 64
• Docket Number: [2019 No. 247 JR]
• Court: High Court
• Date: 18 February 2020

IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000

BETWEEN

TIAGO DA SILVA MASCARENHAS

APPLICANT

– AND –

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

[2020] IEHC 64

Max Barrett J.

[2019 No. 247 JR]

THE HIGH COURT

Judicial review – Residence permission – Deportation – Applicant seeking an order of certiorari quashing the notification of the respondent refusing the applicant a residence permission to remain in Ireland – Whether the respondent assessed the weight to be attached to the applicant’s Art. 8 ECHR rights on incorrect and/or mischaracterised facts and associated legal principles

Facts: The applicant, Mr Mascarenhas, applied to the High Court seeking the following two principal reliefs: (1) an order of certiorari quashing the notification of the respondent, the Minister for Justice and Equality, dated 26 March 2019, whereby he refused Mr Mascarenhas a residence permission to remain in Ireland; and (2) an order of certiorari quashing the notification of 26 March 2019 proposing to deport Mr Mascarenhas. The grounds upon which the said reliefs were sought were identified in the following terms in the statement of grounds: (i) the respondent assessed the weight to be attached to the applicant’s Art. 8 ECHR rights on incorrect and/or mischaracterised facts and associated legal principles and/or erred in law in his consideration of Art. 8; (ii) the respondent erred in particular in (a) not appropriately weighing periods of residence in the State which were not based on a student-type permission, (b) wrongly construing the permissions granted on 13 June 2016 as being based upon an understanding by the Minister that the prior permission based upon marriage to an EU national was fully valid in circumstances in which the decision of 13 June 2016 was specifically made on the basis that the right to residence based upon marriage was “a derived right dependent on the EU citizen residing in the State in exercise of their EU Treaty rights”, and “there is no evidence to show that your EU citizen spouse has exercised her EU Treaty rights in the State in compliance with Regulation 6(3) (i.e. SI 548 of 2015)”, (c) not considering the passage of time between the most recent permission of the applicant which expired in October 2017 up to the date of the impugned decision, as constituting a period of time in which Art. 8 ECHR rights accrued, and (d) wrongly finding that the decision not to renew the residence permission of the applicant was a justified interference with Art 8 ECHR rights by reference to it being in accordance with s. 4(7) of the Immigration Act 2004 in circumstances in which the Minister was in fact exercising an executive discretion, as expressly stated in the decision that “For the sake of clarity, it should be noted that the permission granted in June 2016 was granted pursuant to the Minister’s executive powers”; (iii) the respondent erred in law in treating the period in which the applicant was present in the State (but for which his permission was retrospectively considered to be based upon a marriage of convenience) as if it did not give rise to any rights pursuant to Art. 8 ECHR; (vii) the respondent erred in placing undue weight upon the alleged marriage of convenience and/or upon his deeming that the relevant residence permissions thereunder were never valid in circumstances where those permissions were spent; (ix) the manner in which the respondent applied Art. 8 ECHR was in error; (iv) the respondent failed to consider and/or did not comply with, or justify non-compliance with, the Council of Europe Recommendation Rec (2000)15 Concerning the Security of Long-Term Migrants, 13 September 2000; (v) the decision of the respondent failed to show that it was in fact proportionately made by reference to the rights of the applicant as weighed against those of the State; (vi) the respondent failed to consider relevant matters and/or considered irrelevant matters in reaching the impugned decision; (viii) the respondent did not give proper reasons for the decision reached or provide adequate clarity as to whether all relevant matters were considered and irrelevant considerations were not taken into account; (x) the respondent’s proposal to deport the applicant is based upon an error of fact; (xi) because the respondent’s proposal to deport the applicant is ancillary to, or otherwise contingent upon the decision of the respondent to refuse to renew the residence permission of the applicant, the former should be quashed by reason of any infirmity in the latter decision.

Held by Barrett J that there was no basis in the foregoing on which the court could conceivably grant any of the reliefs sought.

Barrett J held that he would refuse the reliefs sought.

Reliefs refused.

JUDGMENT of Mr. Justice Max Barrett delivered on 18th February 2020.

1 This is a challenge to the Minister's decision (a) to refuse Mr. Mascarenhas permission to reside in Ireland, and (b) to propose Mr. Mascarenhas' deportation from Ireland.

2 Mr. Mascarenhas is a Brazilian national. He was born in 1983 and appears to have come here in June 2006. He was given a short-term permission to be here from 9 June 2006 to 3 August 2006. He received a Stamp 2 student permission from 3 August 2006 to 18 January 2008 and then a Stamp 1 working permission to 18 September 2009. He was again granted a Stamp 2 permission from 18 September 2009 to 13 July 2011.

3 Mr. Mascarenhas married an EU national on 14 May 2011 and was granted a temporary permission pending a decision on a related EU Treaty Rights (“EUTR”) application. This application was granted and registered on 13 December 2011 for a five-year period. That EUTR permission has since been revoked by decision of 18 May 2018 on the basis that the marriage was one of convenience and also based on false and misleading material. On 22 July 2015, Mr. Mascarenhas' solicitor applied for retention of Mr. Mascarenhas' former EUTR permission. This application had not yet been decided by the Minister when Mr. Mascarenhas' solicitor made application on 11 May 2016 for a Stamp 4 permission for Mr. Mascarenhas.

4 On 13 June 2016, Mr. Mascarenhas' application for retention of his permission, based on his marriage, was rejected on the basis that Mr. Mascarenhas' EU citizen spouse had ceased to exercise her EU Treaty Rights in Ireland. Notwithstanding this, however, the Minister, as an exceptional measure, granted Mr. Mascarenhas a Stamp 4 permission to reside in Ireland for one year; this permission was stated to be granted under national law. The decision of 13 June 2016 was not challenged by way of judicial review and, of course, cannot be challenged in the within proceedings.

5 On 3 May 2017, Mr. Mascarenhas attended at the Garda National Immigration Bureau (“GNIB”) and was given a three-month residence permission. It is the undisputed evidence before the court that Mr. Mascarenhas admitted to the GNIB, on that date, that he had been in a marriage of convenience. Thereafter, on 11 October 2017, Mr. Mascarenhas was invited to make representations as to why the Minister should not set aside the permission of 13 June 2016, and to dismiss concerns that Mr. Mascarenhas had engaged in a marriage of convenience.

6 On 8 February 2018, new correspondence issued from the Minister, which correspondence was stated to supersede his previous correspondence. In this new correspondence the Minister proposed to disregard Mr. Mascarenhas' marriage as offering a founding basis for Mr. Mascarenhas' previous EUTR applications, and to revoke the permission granted to Mr. Mascarenhas back in 2011. The letter also indicates the Minister's intention not to grant a further renewal of the permission of 13 June 2016.

7 Mr. Mascarenhas' solicitors responded to the correspondence of 8 February and thereafter, by decision of 31 March 2018, the Minister made a decision to revoke and disregard the former EUTR permission granted to Mr. Mascarenhas on foot of his marriage. The Minister also decided not to grant further renewals of the exceptional Stamp 4 permission granted on 13 June 2016. Mr. Mascarenhas' solicitor sought a review of this decision in correspondence dated 19 April 2018.

8 By decision of 18 May 2018, the Minister upheld the decisions of 31 March 2018. This decision refers to Mr. Mascarenhas' exceptional permission granted under national law and, although it does not clearly state that the decision to renew same was not upheld, it states that the other findings in the decision constitute a significant change in material circumstances and notes that the decision of 2016 was premised on there being no change of circumstances. The decision specifies that a refusal of a residence card for a family member of an EU citizen does not interfere with any constitutional/ECHR rights and that, in any subsequent decision where such an interference might arise, that would be the subject of full and proper consideration. The decision also enclosed a proposal to deport.

9 Neither the decisions of 31 March 2018 nor of 18 May 2018 were challenged by Mr. Mascarenhas by way of judicial review. As a result, as a matter of law there can be no challenge to the Minister's finding that there was a marriage of convenience, a finding which has the consequences identified in M.K.F.S. (Pakistan) v. The Minister for Justice and Equality [2018] IEHC 103, at para. 16, as applied in Bundhooa v. The Minister for Justice and Equality [2018] IEHC 756. So, Mr. Mascarenhas is left with a decision that clearly has very serious consequences when it comes to seeking a fresh permission, in that he presents to the Minister as a person who has been here lawfully for a number of years and also as a person who, for a number of years, perpetrated a deceit on the authorities.

10 In passing, the court notes that Mr. Mascarenhas was under an absolute obligation, following receipt of his EUTR...