A.R (Pakistan) v The Minister for Justice, Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 12 December 2018
• Neutral Citation: [2018] IEHC 785
• Docket Number: [2018 No. 365 J.R.]
• Court: High Court
• Date: 12 December 2018

[2018] IEHC 785

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2018 No. 365 J.R.]

BETWEEN

A.R. (PAKISTAN)

AND

M.K.

APPLICANTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

Immigration – Residence card – Judicial review – Applicants seeking certiorari – Whether the applicants’ failure to engage with the review process precluded the grant of relief by judicial review

Facts: The first applicant, on 1st May, 2017, applied for a residence card. On 24th July, 2017, that application was refused. On 2nd August, 2017, the applicants’ solicitors sought review of the refusal under reg. 25 of the European Union (Free Movement of Persons) Regulations 2015 (S.I. No. 548 of 2015). On 9th February, 2018, the first respondent, the Minister for Justice and Equality, wrote to the first applicant proposing to uphold the first instance decision. On 8th March, 2018, the review application was refused. On 14th May, 2018, the High Court (Humphreys J) granted leave in these proceedings, the primary relief being certiorari of the decision of 8th March, 2018.

Held by Humphreys J that the applicants’ complete failure to engage with the review process precluded the grant of relief by judicial review.

Humphreys J held that the application would be dismissed.

Application dismissed.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 11th day of December, 2018

1 The first-named applicant claims to have been born in 1993 in Pakistan. In para. 3 of his affidavit he claims to have lived in the U.K on student permissions between June, 2012 and August, 2015, although at other times he appears to have claimed to have arrived in the State in July, 2015, and in that regard has produced three versions of a lease dated 31st July, 2015, signed by him. He never claimed asylum or subsidiary protection in the U.K, which makes the fact he remembered being the subject of persecution and serious harm only after the event, when his UK student visa ran out and after he came to Ireland, one that does not inspire huge confidence.

2 He claims to have met the second-named applicant in the U.K. No date for this alleged meeting is specified in his grounding affidavit. She seems on the papers to have been born in or around August, 1989. In her affidavit in the family law proceedings (challenging the ultimate refusal to solemnise the marriage, papers which the respondents have undertaken to formally put on affidavit in these proceedings), she says that her relationship began on 14th June, 2014, a very specific date given that the first-named applicant's version is that the relationship got going gradually as a result of banter in a shop where he worked. She says that she had little English initially (see her affidavit in the family law proceedings, para. 11). She claims that the parties cohabited since August, 2014. The first-named applicant says he moved to Ireland without lawful permission in August, 2015, although the Department of Justice and Equality records referred to in the review decision say that he entered the State on 26th July, 2015. She claims that she moved to Ireland in September, 2015, although also claims that she had been in Ireland for a short period in August, 2015 before that. The lease of 31st July, 2015, provided in three versions, includes two versions which she signed on a purported date of 31st July, 2015. If she was not present in the State on that date she would therefore appear to have engaged in some form of deception one way or the other.

3 In her affidavit in the family law proceedings, she says came to Ireland for a day on 31st August, 2015, and travelled with the first-named applicant by ferry. She says that the first-named applicant moved to Ireland in or about 26th August, 2015. The story set out in that affidavit is not altogether self-explanatory. Oddly enough, when interviewed later for the purpose of the application to marry, the second-named applicant was unaware of the reason for shifting the centre of operations of the alleged couple from the U.K to Ireland.

4 The first-named applicant made an asylum application on 27th August, 2015, which is still ongoing. That purely precarious basis of being an asylum seeker was the only basis for his presence in this State. Strangely, the second-named applicant avers in her family law affidavit that ‘ the fact that the first appellant has applied for asylum is coincidental’ (para. 11(j)). In the asylum application, the first-named applicant listed a number of family members, but failed to state that he was in a de facto relationship with the second-named applicant, one which on her account had been ongoing for well over a year at that stage. The parties claim that they were engaged in January, 2017, and that they gave immediate notice of intention to marry on 8th February, 2017, to take effect on 11th May, 2017. The second-named applicant is a Hungarian national, although the respondents had stated in written submissions that she was British, but this has been clarified as a typographical error. In July, 2016, the parties went through a non-legally binding Islamic ceremony. They gave notice of intention to marry in Wicklow (for some reason) despite living in Dublin. The applicants had an interview on 24th April, 2017 with the Registrar, and the Minister has noted that ‘there were a number of inconsistencies between responses from the applicant and EU citizen when interviewed’, and that on that date, ‘both the applicant and the EU citizen made statements as to how and when they both entered the State that are inconsistent, statements made regarding the duration of the relationship with Ms. [K.] are inconsistent. The applicants” account of how they met and their first date are conflicting and when asked about the EU citizen's employment prior to entry into the State, the applicant was not able to answer. This is not indicative of a couple in a durable relationship’.

5 On 17th November, 2016, the asylum claim was refused. On 25th November, 2016, the first-named applicant appealed to the Refugee Appeals Tribunal. What appears to have happened then with the protection claim is that, following the commencement of the International Protection Act 2015, the matter was referred back to the International Protection Office, which was presumably because the first-named applicant must have made a claim for subsidiary protection. On 1st May, 2017, the first-named applicant applied for a residence card. On 24th July, 2017, that application was refused. In the refusal decision, a number of points were noted:

(i) The tenancy agreement of 31st July, 2015, was in the first-named applicant's name only, at least in one of the versions.

(ii) Letters from utility companies were inconsistent.

(iii) The application for asylum on 27th August, 2015, made no reference to a de facto partner.

(iv) The parties submitted an Islamic wedding certificate of 9th July, 2016, but a receipt for a wedding dress nine months later, of 24th April, 2017.

(v) There is no evidence of a joint bank account or shared assets.

(vi) There is no evidence of joint travel or starting a family.

6 On 2nd August, 2017, the applicants” solicitors sought review of the refusal under reg. 25 of the European Union (Free Movement of Persons) Regulations 2015 ( S.I. No. 548 of 2015). On 8th August, 2017, the first-named respondent wrote to the first-named applicant's solicitor, acknowledging that application, and also wrote to the applicant pointing out their failure to complete s. 6 of the review form EU 4, and requiring completion of that form within 30 days. That was submitted on 15th August, 2017. On 9th February, 2018, the Minister wrote to the first-named applicant proposing to uphold the first instance decision. The Minister set out a number of concerns:

(i) Inconsistencies between the responses from the applicants.

(ii) When asked about the second-named applicant's employment, the first-named applicant was unable to answer.

(iii) No evidence of the EU citizen's movements prior to 13th August, 2015 was provided.

(iv) The lease agreements indicated the second-named applicant entered the State prior to the date submitted for entry into the State.

(v) The first-named applicant claimed that the second-named applicant accompanied him in July, 2015, whereas she said that he entered first and separately.

(vi) She was unaware of the reason for moving the centre of interest from the U.K. to Ireland.

(vii) The utility bills were inconsistent.

7 That letter was never responded to. Sinead Murphy, on behalf of the respondent, avers at para. 17 of her affidavit that the Minister wrote to the first-named applicant. The first-named applicant contends at para. 9 of the written submissions that he did not get the letter and says it was sent to the solicitor only. That was repeated in oral submissions. However, the first-named applicant's affidavit does not specifically aver that he did not get the letter, only that he did not reply to it. He says his solicitor emailed him a copy of the letter on 14th February, 2018, but claims he only saw the email on 1st March, 2018. He then says he emailed his solicitor looking for an appointment on 1st March, 2018, but ‘we did not arrange to meet before the decision issued’.

8 It is strange, if the applicant did not review his emails except on the sort of haphazard basis that would be consistent with his affidavit, that he would have used email to set up this...