R v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Ms. Justice Siobhán Phelan
• Judgment Date: 15 March 2022
• Neutral Citation: [2022] IEHC 142
• Court: High Court
• Docket Number: [Record No. 2020/882 JR]

Between

R.

Applicant

and

Minister for Justice and Equality

Respondent

Between

A.

Applicant

and

Minister for Justice and Equality

Respondent

[2022] IEHC 142

[Record No. 2020/882 JR]

[Record No. 2020/881 JR]

THE HIGH COURT

Special Student Scheme – Permission – Conduct – Applicant seeking a permission under the Special Student Scheme – Whether the respondent erred in law in failing to properly assess the applicant’s character and conduct

Facts: Each case concerned a decision of the respondent, the Minister for Justice and Equality, to refuse the applicant a permission under the Special Student Scheme (the Scheme) by reference to a good character and conduct ground provided for under the Scheme. Both cases concerned applicants who had long residence in the State, initially on foot of student visas which had been renewed periodically and subsequently by reason of a residency permission granted on foot of marriage to an EU citizen (pursuant to the provisions of the EC (Free Movement of Persons) Regulations 2006 and 2008 (the Regulations). In both cases the residency permission had been revoked. In one of the cases the Minister invoked the entitlement under Regulations 27(1) and 28(1) to revoke permission to remain in the State on the basis that the marriage was one of convenience and in the second case under Regulations 24 and 25 that documentation submitted was false and misleading as to material fact. The Scheme provided for a review in the event of an unsuccessful application. Both applicants sought a review and made submissions in support of their applications for review. Both applications for review were determined in identical terms by reference to criterion 3.7 of the Scheme. The decisions were challenged in similar terms: (i) the Minister operated a fixed policy such that a previous finding leading to the revocation of residence permission automatically precluded the applicant from consideration under the Scheme and that the application of this policy resulted in a failure to properly consider the application; (ii) the Minister erred in law in failing to properly assess the applicant’s character and conduct by relying exclusively on the finding which led to the revocation of the EU residence permission and failing to weigh the other evidence of good character against the evidence relied upon to revoke EU residency permission in assessing whether the applicant had been of good character and conduct for the purpose of the Scheme.

Held by Phelan J that it was clear from the decision in each case that the applicants were refused because of behaviour which constituted a fraud on the immigration system. Phelan J held that while there are degrees of culpability when it comes to the wrongdoing involved in perpetrating such a fraud, a finding in the immigration context that there has been a fraud is a weighty, significant and relevant one when assessing character and conduct also in the immigration context. Phelan J found that nothing in the material submitted on behalf of either applicant was of sufficient substance or moment to require further explanation from the respondent as to why, on full assessment of the material before her, she did not consider that good character and conduct had been demonstrated in accordance with the Scheme criterion. Phelan J held that this was clearly a decision which was supported by the evidence and was one which it was open to the respondent to take.

Phelan J dismissed the applications in each case. As the applicants had been entirely unsuccessful, she proposed an order for costs against the applicants in favour of the respondent, such costs to be adjudicated in default of agreement.

Applications dismissed.

JUDGMENT of Ms. Justice Siobhán Phelan delivered on the 15 ^th March, 2022.

INTRODUCTION

1 . This is a composite judgment in two cases which were heard together. Each case concerns a decision of the Minister to refuse the applicant a permission under the Special Student Scheme (hereinafter “the Scheme”) by reference to a good character and conduct ground provided for under the Scheme..

2 . The Scheme was introduced to address the situation of non-EEA nationals who held a student permission in the State during the period 1 January, 2005 and 31 December, 2010 and were affected by the decision of the Supreme Court in Luximon v. Minister for Justice, Equality and Law Reform [2018] 2 I.R. 542, [2018] IESC 24. The Scheme identified eligibility criteria. In relevant part, eligibility criterion 3.7 of the Scheme provides that application could be made for permission where applicants:

“have been of good character and conduct prior to your arrival and since your arrival in this State”.

3 . Both cases concern applicants who had long residence in the State, initially on foot of student visas which had been renewed periodically and subsequently by reason of a residency permission granted on foot of marriage to an EU citizen (pursuant to the provisions of the EC (Free Movement of Persons) Regulations 2006 and 2008 (“the Regulations”). In both cases the residency permission had been revoked. In one of the cases the Minister invoked the entitlement under Regulations 27(1) and 28(1) to revoke permission to remain in the State on the basis that the marriage was one of convenience and in the second case under Regulations 24 and 25 that documentation submitted was false and misleading as to material fact.

4 . The Scheme provides for a review in the event of an unsuccessful application. Both applicants sought a review and made submissions in support of their applications for review. Both applications for review were determined in identical terms by reference to criterion 3.7 above.

FACTUAL BAGKGROUND AND REVOCATION OF RESIDENCY

The R. Case

5 . In the R. case, the applicant is an Indian national who entered the State on a student visa in October, 2009. She married a Lithuanian national in September, 2014. She was granted a residence card in March, 2015 by reason of her marriage. In October, 2016 she gave birth to a baby girl whose father was an Indian national. Her Lithuanian husband was believed to be living with his long-term partner and had a child in that relationship.

6 . The Minister corresponded with the applicant at her last known address alerting her to concerns based on this information, specifically that the documentation she had provided to evidence the exercise of rights by her spouse in the State were false and misleading as to a material fact and that she had knowingly submitted this documentation in order to obtain a right of residence which she would not otherwise enjoy. The applicant did not respond to these concerns. By letter dated the 18 ^th May, 2018, the Minister advised the applicant of a decision to revoke her residency in reliance on Regulations 27(1) and 28(1). She was advised of a right to seek a review within fifteen working days. No review was sought. Instead, she proceeded to make an application under the Scheme.

7 . By letter dated the 12 ^th April, 2018, she was advised that her application was refused because her permission type had changed contrary to condition 3.4 of the Scheme when she was granted residency on foot of her marriage to an EU citizen. This refusal was the subject to an application for review. On review the Minister referred to the fact that the fact that there had been a change of permission contrary to the eligibility conditions under the Scheme and that the permission granted had been determined to have been claimed on the basis of fraud. The decision on review was then the subject of an application by way of judicial review. These judicial review proceedings were compromised on the basis that the Minister would reconsider the application without regard to this condition.

8 . The decision following fresh consideration was communicated by letter dated the 4 ^th September, 2020. In this letter the applicant was referred to section 3.7 of the Scheme and the permission granted under the Regulations and Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of Member States which had been revoked in May, 2018 on the basis that the Minister was of the opinion that her marriage had been one of convenience contracted for the sole purpose of obtaining a derived right of free movement and residence under EU law as a spouse who would not otherwise have such a right. The applicant was advised of a right to seek a review.

9 . It is clear from the Decision letter that the basis for refusal was that she was not considered to have been of good character and conduct since her arrival in the State because she had been determined by the Minister to have contracted a marriage of convenience for the sole purpose of obtaining a derived right of free movement and residence under EU law.

10 . By letter dated the 28 ^th September, 2020, a review of this Decision to refuse under the Scheme was sought. It was claimed in the review letter that the decision was unreasonable in the circumstances. It was contended that there was an onus on the Minister to do a balancing act between the marriage of convenience finding and other evidence as to the good character of the applicant. It was contended that the evidence relied upon to make the finding was “ circumstantial” and that the finding in the absence of any other consideration being given is in breach of the laws of natural justice and fair procedures. The letter proceeded to outline the applicant's work history and her employment in a management position for over ten years with the same employer. For the first time since the revocation decision some two years earlier, it was contended that the marriage was based on a genuine relationship and whilst the regularisation of her visa status was a consideration, it was not the only consideration. It was contended that the...