MSB v The Minister for Justice

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms Justice Miriam O'Regan
• Judgment Date: 30 October 2025
• Neutral Citation: [2025] IEHC 566
• Docket Number: [Record No. 2024/39JR]

Between:

MSB

Applicant

and

The Minister for Justice

Respondent

[2025] IEHC 566

[Record No. 2024/39JR]

THE HIGH COURT

Permission to remain – Reasons – Judicial comity – Applicant seeking permission to remain in the State – Whether the respondent treated like cases differently

Facts: The applicant secured leave on 19 February 2024 in respect of a statement of grounds dated 11 January 2024 in which the principal relief sought was an order quashing the decision of the respondent, the Minister for Justice (the Minister), made on review bearing date 21 November 2023 wherein the Minister upheld the first instance decision bearing date 14 April 2023 to refuse the applicant permission to remain in the State under the Regularisation of Long-Term Undocumented Migrant Scheme 2022. The decision was based on the finding that the applicant was not eligible under the Scheme as he held temporary Stamp 4 permissions from 6 August 2020 until 18 February 2022, which permissions were not revoked as they were granted on foot of the review as opposed on foot of the marriage; therefore, the applicant did not satisfy the required period of undocumented residence for the Scheme. The applicant sought to distinguish himself from the applicant in MA v The Minister for Justice [2025] IEHC 135 and to avoid the application of MA on his set of circumstances. He argued that there were additional matters raised in his proceedings than in the MA proceedings and that two relevant decisions were not open to Heslin J during the course of MA.

Held by the High Court (O'Regan J) that there was no basis to support a proposition that a declaration should be afforded that retrospective invalidation of the applicant's EU residence card granted on 16 October 2015 on the basis of Reg. 27(1) of the 2015 Regulations and Article 35 of Directive 2004/38/EEC applied equally to any ancillary permission granted on the same basis. O'Regan J was satisfied that the applicant could not succeed in having the impugned decision quashed on the basis of an asserted lack of reasons for the granting of the sought temporary permissions which were clearly made by the exercise of ministerial discretion and in any event were not revoked by the Minister in the review decision of 29 March 2022; in those circumstances even if the applicant was correct in respect of the reasons there would be no utility in the granting of the declaration sought. O'Regan J held that the applicant had not established that the Minister treated like cases differently. O'Regan J held that the applicant had not in any submission demonstrated any basis to the effect that the decision of Heslin J in MA was any way incorrect. Accordingly in accordance with the principle of judicial comity as discussed in Hughes v Worldport Communications Inc. [2005] IEHC 189, O'Regan J followed the decision of Heslin J in MA in all respects.

O'Regan J refused the relief sought.

Relief refused.

JUDGMENT of Ms Justice Miriam O'Regan, delivered on the 30 ^th day of October 2025.

Introduction

1 . The within applicant secured leave on 19 February 2024 in respect of a Statement of Grounds dated 11 January 2024 in which the principal relief sought is an order quashing the decision of the respondent, made on review bearing date 21 November 2023 wherein the Minister upheld the first instance decision bearing date 14 April 2023 to refuse the applicant permission to remain in the State under the Regularisation of Long-Term Undocumented Migrant Scheme 2022 (‘the Scheme’). The decision is based on the finding that the applicant was not eligible under the Scheme as he held temporary Stamp 4 permissions from 6 August 2020 until 18 February 2022, which permissions were not revoked as they were granted on foot of the review as opposed on foot of the marriage. Therefore, the applicant did not satisfy the required period of undocumented residence for the Scheme.

Background

2 . The applicant arrived in Ireland on 9 September 2013 pursuant to student permission which expired on 30 September 2014. On 20 August 2014 the applicant married an EU citizen and on 13 October 2014 the applicant applied for a residence card pursuant to the provisions of Directive 2004/38/EEC (‘the 2004 Directive’) and the EU Free Movement of Persons Regulations ( SI 656/2006) (‘the 2006 Regulations’). Pending the determination of such application the applicant was on 3 November 2014 granted temporary permission to reside on a Stamp 4 permission however without acknowledgement of any entitlement to reside under the EU treaty rights. On 13 April 2015 the application was refused as there was no evidence of the activities of the applicant's wife working in the State and he was also advised of a right of review under Regulation 21 of the 2006 Regulations. A request for such a review was made on 22 April 2015 which was successful by decision of 16 October 2015 whereupon the applicant was afforded a five-year substantive residence card permission from that date.

3 . By letter of 7 May 2019 from the respondent to the applicant, the applicant was advised that the respondent believed that his marriage was a marriage of convenience and if, following consideration, the Minister deemed the marriage to be one of convenience then the Stamp 4 EU FAM permission of 16 October 2015 will be deemed “never valid” and also the permission granted pending the decision of 16 October 2015 would also be deemed never to have been valid.

4 . On 22 June 2019 the Minister deemed the applicant's marriage to be one of convenience and advised that any previous permission, that is the permission from 3 November 2014 to 13 May 2015 and the substantive permission commencing on 16 October 2015 until 15 October 2020, were deemed invalid.

5 . On 17 July 2019 the applicant requested a review of the decision of 22 June 2019 pursuant to Regulation 25 of the 2015 Regulations. On 6 August 2020 the applicant obtained a temporary Stamp 4 permission to 18 February 2022 pending the review decision. (The above reflects the history given in the Statement of Grounds although, as hereafter set out, significant correspondence is omitted. Furthermore, the initial stamp 4 permission was valid until 10 May, 2021 and subsequently extended on 27 May, 2021 until 18 February, 2022.) In the permissions so granted it was indicated that such permission was not an acknowledgement of the rights of the applicant under the EU treaty rights. On 29 March 2022 the Minister upheld the first instance decision of 22 June 2019 and revoked the residence card and permission held between 16 October 2015 and 22 June 2019.

6 . On 22 April 2022 the applicant applied under the Scheme for permanent residence in the State. On 14 April 2023 this was refused as the applicant did not meet the eligibility criteria of being undocumented for at least four years prior to 31 January 2022, by reason of his Stamp 4 permission from 6 August, 2022 to10 May 2021 and again from 27 May 2021 to 18 February 2022.

On 15 May 2023 the applicant appealed the refusal decision aforesaid on the basis that the Stamp 4 permission therein referred to had previously been deemed invalid. On 21 November 2023 the first instance decision of 14 April 2023 was upheld, on the basis that such permissions were not revoked, and it is this appeal decision which the applicant seeks to quash.

7 . The applicant's proceedings herein comprised one of a number of sets of proceedings with similar factual backgrounds (save in respect of dates) which were pending before the asylum list when one was identified to be heard as a test case. This test case is the matter of MA v The Minister for Justice 2024/4JR (‘ MA’) and the judgment therein [2025] IEHC 135, was delivered by Heslin J on 6 March 2025. MA sought an order of certiorari quashing the decision of the respondent of 4 December 2023 wherein the application for residency under the Scheme was refused. As in the present case MA had his marriage deemed to be a marriage of convenience following which the Minister, in a decision, indicated that MA's prior residence card and permission based thereon was deemed never to have been valid. MA sought a review of such decision on 7 September 2020 and was afforded temporary permission pending the outcome of the review. In MA's application under the Scheme, he was found to be ineligible as he did not fulfil the criteria thereunder of being without permission to reside in the State from 31 January 2018 to 31 January 2022 at a minimum. The subsequent judicial review proceedings were based on this finding and the certiorari claim was made in respect the review decision.

Submissions

8 . In oral submissions the applicant sought to distinguish himself from the applicant in MA and further sought to avoid the application of MA on his set of circumstances. The applicant argues that there are additional matters raised in his proceedings than in the MA proceedings and further argues that two relevant decisions that the applicant is relying on were not open to Heslin J during the course of MA.

Additional Jurisprudence

9 . The Applicant makes reference to the matter of Druzinins & Anor v Minister for Justice Equality and Law Reform [2010] IEHC 84 (hereafter ‘ Druzinins’) being a judgment of Cooke J delivered on 16 March 2010. In that decision Cooke J was dealing with Regulation 7(1)(c) of the 2010 Regulations (now replaced by the 2015 Regulations) engaging Regulation 7(1) and 7(6). In that matter, Cooke J noted that the provision provides that when an application for a family member residence card is made, the Minister shall immediately cause to be issued a notice acknowledging receipt of an application and Cooke J felt that this is clearly designated to legitimise the presence of the family member in the State pending a decision. Cooke J was of the view that where a negative decision had been made, and a review requested and accepted the Minister is...