Mistu v The Minister for Justice
| Jurisdiction | Ireland |
| Judge | Mr. Justice Barr |
| Judgment Date | 10 August 2023 |
| Neutral Citation | [2023] IEHC 499 |
| Court | High Court |
| Docket Number | [Record No. 2022/784JR] |
[2023] IEHC 499
[Record No. 2022/784JR]
THE HIGH COURT
Residence card – Revocation – Order of certiorari – Applicant seeking an order of certiorari quashing the respondent’s decision to uphold on review the respondent’s earlier decision to revoke the applicant’s residence card – Whether the respondent was functus officio in the matter
Facts: The applicant, Mr Mistu, a citizen of Bangladesh, had been resident in the State under various permissions since 14 July 2004. The applicant applied to the High Court seeking an order of certiorari quashing the decision of the respondent, the Minister for Justice, of 4 July 2022, to uphold on review the respondent’s earlier decision of 2 August 2019, to revoke the applicant’s residence card as a family member of an EU national and to declare the applicant’s marriage to the EU citizen as being a marriage of convenience. The applicant argued that the respondent’s review decision of 4 July 2022 must be set aside on the following grounds: (a) that as the respondent had already revoked the applicant’s residence card by virtue of a decision made in 2017, the respondent was functus officio in the matter and, therefore, she could not purport to revoke the residence card a second time; (b) that even if it was held that the respondent had jurisdiction to revoke the residence card by virtue of the decision in 2022, that decision must be set aside as having been reached in breach of the applicant’s rights to fair procedures – in particular, due to failure on the part of the respondent to conduct an oral hearing or interview with the applicant, before finding that he had participated in a marriage of convenience.
Held by Barr J that the respondent was entitled to make the review decision for the following reasons. First, Barr J held that the review decision was in effect a separate decision on a different matter, to that given in the decision of 2017. Barr J held that the 2017 decision did not relate to the genuineness of the applicant’s marriage to a Hungarian national; it was a decision to revoke his extant EU Fam permission, on the basis that the Hungarian national was no longer exercising her right to travel to and work in the State. Barr J noted that the applicant had not objected to the making of that decision. The second reason why Barr J was satisfied that the respondent was not functus officio and therefore denied the opportunity to consider the issue whether she should revoke the original EU Fam permission on grounds of fraud, was due to the fact that the wording of Art 35 of Directive 2004/38/EC of the European Parliament and of the Council, of 29 April 2004, on the right of citizens of the Union and their family members to move and reside freely within the territory of Member States and reg. 27 of the European Communities (Free Movement of Persons) Regulations 2015, gave the respondent wide powers to revoke a permission in cases where there has been a finding of fraud. Barr J held that there is no time limitation on the revoking of a permission, where a finding of fraud has been made. Barr J found that the applicant had failed to establish that, in the circumstances of the case, there was some evidence that he, or others, only could have given by means of an oral hearing, or interview. Accordingly, Barr J found that the requirement to provide a fair hearing in the circumstances of the case did not oblige the respondent to conduct an oral hearing or interview with the applicant in advance of reaching the review decision in 2022. Barr J was satisfied that the respondent’s concerns had been clearly articulated to the applicant in advance of the making of the decision and the applicant had been given a fair opportunity to address those concerns in whatever way he thought fit. Barr J found that the respondent had considered all the evidence that was placed before her, and that her review decision of July 2022 was reasoned, fair and balanced. Barr J was satisfied that there was no basis on which it could be set aside.
Barr J refused the reliefs sought by the applicant in his notice of motion dated 25 October 2022.
Application refused.
JUDGMENT of Mr. Justice Barr delivered electronically on the 10 th August, 2023 .
. The applicant is a citizen of Bangladesh. He has been resident in the State under various permissions since 14 July 2004. In these proceedings, the applicant seeks an order of certiorari quashing the respondent's decision of 4 July 2022, to uphold on review the respondent's earlier decision of 2 August 2019, to revoke the applicant's residence card as a family member of an EU national and to declare the applicant's marriage to the EU citizen as being a marriage of convenience.
. While it will be necessary to set out the background facts in more detail later in the judgment, the key elements in the applicant's case can be stated as follows: He originally entered the State in July 2004 under a student visa. This was renewed on a number of occasions. His case is that he met and married a Hungarian national, Ms. GR, when she was resident in the State and exercising her right as an EU citizen to work here. Following his marriage GR, the applicant received a residence card based on his wife exercising her EU Treaty Rights to work in the State.
. Approximately 13 months after their marriage, the applicant, through his solicitor, wrote to the Minister seeking a variation of his permission to remain in the State, based on the fact that his marriage to GR had broken down. In response thereto, the Minister issued a letter indicating that she intended to revoke his permission to remain in the State, on the basis that the EU citizen was not residing in the State and was no longer exercising her EU Treaty Rights to work in the State since 2013. The applicant was invited to make representations in this regard. He did not do so.
. On 2 November 2017, the respondent issued a decision revoking the applicant's residence card, on the basis that his wife was no longer resident and working in the State. Prior to that decision, the applicant had applied to the respondent for a variation in his permission to reside in the State, based on the length of time that he had been resident in the State and his integration into the local community.
. By letter dated 16 April 2019, the respondent wrote to the applicant setting out her concerns that the applicant's marriage to GR had been a marriage of convenience. The applicant was invited to make representations.
. By a decision issued on 2 August 2019, the Minister decided to revoke the residence card based on findings that the applicant had submitted false and misleading documentation and had entered into a marriage of convenience with GR On 4 July 2022, the respondent issued a review decision, in which she overturned the finding that the applicant had submitted false and misleading documentation, but confirmed the finding that had been made that he had entered into a marriage of convenience.
. The applicant argues that the respondent's review decision of 4 July 2022 must be set aside on the following grounds:-
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(a) That as the Minister had already revoked the applicant's residence card by virtue of the decision made in 2017, the Minister was functus officio, in the matter and, therefore, she could not purport to revoke the residence card a second time;
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(b) That even if it is held that the Minister had jurisdiction to revoke the residence card by virtue of the decision in 2022, that decision must be set aside as having been reached in breach of the applicant's rights to fair procedures; in particular, due to failure on the part of the Minister to conduct an oral hearing or interview with the applicant, before finding that he had participated in a marriage of convenience.
. The respondent denies that she was precluded at law from considering whether the applicant's residence permission should be revoked, due to the fact that he had entered into a marriage of convenience. It was denied that she had acted in breach of fair procedures, in reaching her conclusion that he had in fact entered into a marriage of convenience, without affording the applicant either an oral hearing or an interview.
. While the key events in the background have been described above, it is necessary to set out in more detail the correspondence and steps that were taken by the parties, leading to the various decisions that were taken by the respondent concerning the applicant's immigration status within the State.
. The applicant is 40 years of age. He originally entered the State on 14 July 2004 under a student visa. He held a number of such visas in subsequent years. The applicant maintains that Ms. GR, a Hungarian national, entered the State on 3 July 2011. She acquired her PPSN within the State on 28 February 2012. The applicant maintains that, in or about late 2011/early 2012, he met GR in the State. Shortly after they met, the applicant and GR commenced a romantic relationship.
. On 21 June 2012, the applicant and GR married at the registry office in Galway. On 29 June 2012, the applicant submitted his initial application for a residence card based on his marriage to GR On 18 December 2012, the applicant received a residence card based on GR exercising her EU Treaty Rights to work in the State.
. By letter dated 12 July 2017, the applicant's solicitor wrote to the respondent seeking a variation of his permission to remain in the State, on the basis that the applicant's marriage to GR had broken down. The letter stated that their client was, therefore, unable to renew his permission under EU Treaty Rights provisions.
. In response thereto, by letter dated 21 July 2017, the respondent wrote to the applicant noting that there was a record of employment for...
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