Muhammad Imran v The Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice O'Donnell
• Judgment Date: 27 June 2025
• Neutral Citation: [2025] IESC 29
• Court: Supreme Court
• Docket Number: S:AP:IE:2024:000123

Between/

Muhammad Imran

Appellant/Applicant

and

The Minister for Justice

Respondent

[2025] IESC 29

O'Donnell C.J.

Dunne J.

Hogan J.

Murray J.

Donnelly J.

S:AP:IE:2024:000123

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Permanent residency – Revocation – Fraud – Appellant appealing against the revocation of his entitlement to permanent residency in the State – Whether there was only one interpretation of the proportionality requirement in Article 35 of Directive 2004/38/EC which was reasonably open

Facts: The respondent, the Minister for Justice (the Minister), revoked the entitlement of the appellant, Mr Imran, to permanent residency in the State in accordance with Article 35 of Directive 2004/38/EC (the Citizenship Directive) by reason of a finding that he committed fraud in the course of the making of that application. The appellant raised two issues in the judicial review proceedings: the adequacy of the reasons provided by the Minister and the question of the proportionality assessment. The High Court (Barr J) found against the appellant on the issue of reasons, but concluded that the Minister was required by the terms of Article 35 to conduct an individualised proportionality assessment: [2023] IEHC 338. On appeal, the Court of Appeal (Burns J) found that whereas Barr J had been correct on the reasons issue, he had been wrong to hold that Article 35 required an individualised assessment on proportionality grounds prior to the revocation of the permanent residence card: [2024] IECA 83. The Supreme Court granted the appellant leave to appeal from the decision of the Court of Appeal pursuant to Article 34.5.3⁰ of the Constitution on the single issue of the proper interpretation of Article 35 in cases of fraud.

Held by O'Donnell J that the Court was a court of last resort for the purposes of the third paragraph of Article 267 of the Treaty on the Functioning of the European Union (TFEU). In view of the decision of the Court of Justice of the European Union (CJEU) in Consorzio Italian Management (Case C-561/19, EU:C:2021:799) and the comments of that Court (at paragraph 51 of the judgment) regarding the nature of the obligation to refer which is imposed on courts of last resort, O’Donnell J concluded that an Article 267 reference was necessary. O’Donnell J found that it was not obvious that there was only one interpretation of the proportionality requirement in Article 35 which was reasonably open. O’Donnell J noted that questions of fraud are particularly significant in immigration decisions of this kind. Given that the Court of Justice had not had the opportunity of pronouncing on the interpretation of Article 35 of the Citizenship Directive, O’Donnell J held that it was important that the matter be authoritatively resolved.

O'Donnell J held that it was appropriate to refer the following inter-related questions to the CJEU pursuant to Article 267 TFEU: Where it has been established in the course of a review decision in which the applicant has participated that an applicant who sought and obtained permanent residence in the host State in accordance with Article 16 of Directive 2004/38/EC has supplied materially misleading and fraudulent documentation in support of that application and which has materially affected the decision to grant such permanent residence, may that host State revoke the decision to grant permanent residence on that ground alone? Or does Article 35 of Directive 2004/38/EC require that the host State conduct an individualised proportionality assessment regarding the potential impact of any decision to revoke the permanent residence on the applicant in question?

Reference to CJEU.

JUDGMENT of the Court delivered by Mr. Justice O'Donnell, Chief Justice on the 27 ^th day of June, 2025.

Part I — Introduction

1 . The net question presented in this appeal is whether the Minister for Justice was entitled to revoke the Appellant's entitlement to permanent residency in this State in accordance with Article 35 of Directive 2004/38/EC (“the Citizenship Directive”) by reason of an (uncontested) finding that he committed fraud in the course of the making of that application. The Appellant for his part contends that in order to comply with the Article 35 requirement that such a decision be proportionate, it was necessary for the Minister to conduct a proportionality analysis concerning the impact of that decision to revoke on the Appellant which would have had regard to personal factors bearing on the consequences of that decision for him were the residency entitlement to be revoked. It is common case that no such broader proportionality assessment was conducted by the Minister. The essential question in this appeal is whether he was in fact under such an obligation to do so. That obligation can only arise if there are cases in which notwithstanding a significant and causative fraud by an applicant for permanent residency, the Minister would be – by reason of the personal circumstances which the Appellant alleges must be taken into account – required to grant the applicant such residency.

2 . This is a matter of some practical importance in the administration of not only our own immigration law, but that of the immigration laws of the other Member States of the European Union. It is perhaps surprising that this aspect at least of Article 35 of the Citizenship Directive does not appear to have ever been considered by the Court of Justice of the European Union. But before considering these issues, it is necessary first to set out the background facts and the Minister's decision to revoke the Appellant's entitlement to permanent residency.

Part II – The Background Facts and the Minister's Decision

3 . The Appellant is a Pakistani national who arrived in the State on a student visa no later than April 2004. It appears that he did not come to adverse Garda notice during the course of this period and that he was employed for much of the time. On 10 January 2011 he married Ms. Evelin Lango, a Hungarian national. It is not entirely clear when Ms. Lango entered the State, but she appears to have done so at some stage in 2010. In any event, on 6 July 2011 the Appellant obtained a residence card based on the fact that his wife was exercising her EU Treaty rights.

4 . On 20 May 2016 the Appellant made an application to the Minister for Justice for a permanent residence card in accordance with the provisions of the European Communities (Free Movement of Persons) Regulations 2006 and 2008. Article 16(2) of the Citizenship Directive envisages that the third country spouse of a Member State citizen exercising their free movement rights who has “ legally resided” with that Union citizen will be entitled to permanent residence in the host State after a stay of five years. Proof of residence and work by Ms. Lango for the five-year period was, of course, essential for this purpose. To this end the Appellant furnished the Minister with an invoice book with some 92 entries and some utility bills which purported to show that Ms. Lango had been working as a self-employed childminder up to the date of application (May 2016). That was untrue. The invoices were dated from 7 December 2015 to 21 May 2016, and they purported to show earnings of approximately €3,000 from the period 4 January 2016 to 21 May 2016. The Appellant was then granted a permanent residence card on 14 July 2016.

5 . In May 2018 the Minister notified the Appellant of his opinion that these invoices were false and misleading and that the marriage to Ms. Lango may have been a marriage of convenience. This conclusion was affirmed by a first instance decision taken by the Minister's officials on 19 November 2018.

6 . The Appellant then duly applied for review of this decision in accordance with Article 25 of the European Communities (Free Movement of Persons) Regulations 2015 ( S.I. No. 548 of 2015) (“the 2015 Regulations”). In the course of submissions made by the Appellant for the purposes of the review it was stated that Ms. Lango had in fact left Ireland on an unspecified date in January 2016. The precise date of her departure was clearly of importance because the parties had married on 10 January 2011. The lack of clarity in respect of that date must be ascribed to the Appellant. This was a vital piece of information which was entirely within his knowledge and yet he gave a number of different accounts of that date to the Minister.

7 . By a review decision of 13 December 2021 the decision to revoke the permanent residence card was upheld, albeit on somewhat different grounds. The Minister accepted that it had not been established that the marriage was in fact a marriage of convenience. He nonetheless determined that it had not been established that Ms. Lango had in fact been engaged in the self-employed business of child-minding in 2016 and that most of the invoices submitted by the Appellant in support of that application were fraudulent.

8 . The Minister pointed to the fact that it had been stated on behalf of the Appellant in the course of the review submissions that Ms. Lango had left Ireland in January 2016. In those circumstances it would not have been possible to show child-minding invoices up to May 2016. Records from the Department of Employment Affairs and Social Protection (“DEASP”) showed that Ms. Lango had received payment for one week's work in 2016 and that this appeared to reflect a payment she had received for working in a toy shop over the Christmas period in December 2015. The Minister accordingly stated that he was not satisfied that Ms. Lango had engaged in genuine self-employment as a childminder in 2016 and nor was this reflected in the relevant DEASP records.

9 . The Minister accordingly found that the Appellant had submitted records which he knew to be false and misleading. It followed that by reason of this fraud that the five-year period had not been...