S.K. and Another v The Minister for Justice

• Jurisdiction: Ireland
• Judge: Ms. Justice Power
• Judgment Date: 12 December 2023
• Neutral Citation: [2023] IECA 309
• Court: Court of Appeal (Ireland)
• Docket Number: Record Number: 2022/284

Between:

S.K. and J.K.

Applicants/Appellants

and

The Minister for Justice

Respondent

[2023] IECA 309

Donnelly J.

Ní Raifeartaigh J.

Power J.

Record Number: 2022/284

High Court Record No.: 2021/1018 JR

THE COURT OF APPEAL

CIVIL

Residence card – Renewal – Marriage of convenience – Appellants seeking renewal of a residence card – Whether the first appellant’s marriage to the second appellant was one of convenience

Facts: The first appellant claimed a derived right of free movement and residence in the State on the basis of marriage to the second appellant, a European Union (EU) citizen, under the provisions of Directive 2004/38/EC (the Directive), transposed into Irish Law by the European Communities (Free Movement of Persons) Regulations 2015 (SI No. 548/2015). The respondent, the Minister for Justice (the Minister), in making her determination on the first appellant’s application for a renewal of a residence card, ‘disregarded’ the first appellant’s marriage to an EU citizen as a factor bearing upon that determination, because, in the Minister’s view, the marriage was one of convenience. The principal complaint of the appellants was that the process by which the Minister reached her decision to refuse residence permission to the non-EU spouse and to revoke a previously issued residence card, was not in accordance with law. In their view, the Minister, wrongly, placed upon them the onus to prove ‘the validity of their marriage’. They said that natural and constitutional justice required that the first appellant be given an oral hearing or an interview prior to the Minister’s determination of her application for the renewal of her residence card. The High Court (Ferriter J) refused to grant an order of certiorari quashing the Minister’s decision of 12 November 2021 wherein the Minister affirmed an earlier decision of 25 July 2018 to refuse the first appellant’s application for renewal of residence and to revoke the one that had, previously, been issued to her. The appellants appealed to the Court of Appeal against the entirety of the High Court’s judgment of 24 October 2022: [2022] IEHC 591.

Held by Power J that the trial judge was correct in his finding that the first appellant was not entitled, as a matter of fair procedures, to the exceptional measure of an oral interview prior to the Minister’s decision in this case. Power J held that the approach adopted by the Minister did not constitute an improper reversal of the burden of proof. Power J held that the Minister’s decision to reject the first appellant’s application for a renewal of a residence card and to revoke the one previously issued, was not vitiated by error for having been made in the absence of an oral process or for any want of engagement with the appellants’ case. Power J held that the legal basis of the Minister’s decision was clear, and the procedural safeguards required by law were observed. Power J noted that the first appellant was notified of the Minister’s proposed decision, in writing, and in such a way as to enable her to comprehend its content and its implications; she was informed of the matters which gave rise to the Minister’s well-founded suspicion that her marriage may have been one of convenience and was afforded a meaningful opportunity to provide additional information and evidence to dispel the Minister’s concerns and to furnish any explanations or representations she wished to make in relation thereto. Having been notified of the Minister’s well-founded suspicion as to the genuineness of the marriage, Power J held that the first appellant was under an obligation to provide the Minister with information or evidence to dispel her concerns; that the evidence and explanations provided were found, reasonably, to be unconvincing was not a reason to impugn the Minister’s decision. Power J held that the trial judge was correct to find that the appellants had not established that the Minister’s decision was vitiated by error because of a failure to engage with their case.

Power J refused the appeal. It was her provisional view that the Minister was entitled to her costs.

Appeal dismissed.

Unapproved

JUDGMENT of Ms. Justice Power delivered on the 12th day of December 2023

Introduction

1 . This case raises a question concerning the procedural requirements to be observed when permission to reside in the State is refused to an applicant who had claimed a derived right of free movement and residence on the basis of marriage to a European Union (‘EU’) citizen under the provisions of Directive 2004/38/EC (hereinafter, ‘the Directive’). 1 The Directive has been transposed into Irish Law by the European Communities (Free Movement of Persons) Regulations of 2015 (SI No. 548/2015) (‘the 2015 Regulations’).

2 . Central to this appeal is the fact that the respondent (hereinafter, ‘the Minister’), in making her determination on the first appellant's application for a renewal of a residence card, ‘ disregarded’ the first named appellant's marriage to an EU citizen as a factor bearing upon that determination, because, in the Minister's view, the marriage was one of convenience.

3 . The principal complaint of the appellants is that the process by which the Minister reached her decision to refuse residence permission to the non-EU spouse (hereinafter ‘SK’ or ‘the first appellant’) and to revoke a previously issued residence card, was not in accordance with law. 2 In their view, the Minister, wrongly, placed upon them the onus to prove ‘ the validity of their marriage’. They say that natural and constitutional justice required that SK be given an oral hearing or an interview 3 prior to the Minister's determination of her application for the renewal of her residence card (hereinafter, ‘renewal of residence’).

4 . The High Court (Ferriter J.) refused to grant an Order of Certiorari quashing the Minister's decision of 12 November 2021 (hereinafter, ‘the impugned decision’) wherein the Minister affirmed an earlier decision of 25 July 2018 to refuse SK's application for renewal of residence and to revoke the one that had, previously, been issued to her.

5 . This is an appeal against the entirety of the High Court's judgment ( [2022] IEHC 591) of 24 October 2022. There is no cross-appeal by the Minister in respect of any aspect of the High Court's findings.

Background Facts

6 . SK is an Indian national who entered the State on a student visa on 10 September 2006. She was, thereafter, granted a Stamp 2 permission to remain, which she retained until 12 September 2012.

7 . The second appellant (hereinafter, ‘JK’) is an EU national who lived and worked in Ireland since October 2011 in the exercise of his rights under the Treaty on European Union (‘the EU Treaty’). The appellants claim to have met in February 2012, while working together, and to have begun a relationship shortly thereafter. They say that they began residing together in SK's house in April 2012. In the same year, they married on 19 September, which was one week after the expiry of SK's Stamp 2 permission to remain. Based on her marriage to an EU citizen, SK then applied for a residence card which was granted to her on 10 April 2013, and which remained valid for five years.

8 . On 31 August 2017, SK applied for renewal of residence as the spouse of an EU citizen.

9 . The record shows that, whilst that application was pending, JK was interviewed by members of the Garda National Immigration Bureau (‘GNIB’) on 1 February 2018. A typed memo of that interview records JK's admission that he had married SK because she needed a

visa, that he and SK had never lived together, that JK had continued to sign documents for SK because she was a friend, that the marriage was one of convenience, that whilst married to SK, he was in a relationship with his Latvian girlfriend who became pregnant, and that the memo was a true and accurate reflection of what JK had said in the interview

The ‘Fair Procedures’ Letter Proposing to Refuse the Application

10 . On 26 March 2018, the Minister wrote to SK and informed her that she proposed to refuse the application for a residence card pursuant to Regulation 27(1) of the 2015 Regulations. The Minister stated that whilst processing the application, information had come to her attention which gave rise to several concerns and that she was providing SK with an opportunity to address those concerns prior to the application being determined. Specifically, the Minister noted that SK had submitted a marriage certificate dated seven days after the expiry of her Stamp 2 visa. The letter continued:

“Information available to the Minister through An Garda Síochána states that your relationship to the EU citizen was not a tangible relationship and that the marriage was based on helping you to obtain a visa in order to reside and work in the state. Further information available to the Minister through An Garda Siochana and the Department of Social Protection and Employment Affairs states that the EU citizen is in a subsisting relationship with a third party dating back to 2012, to which there was a child born in 2013.”

Based on the foregoing, the Minister indicated that she had ‘ significant concerns as to the authenticity of the marriage’ and was of the opinion that the marriage may be one of convenience, contracted for the purposes of obtaining an immigration permission in the State to which SK would not otherwise have been entitled. SK was invited to make representations to the Minister as to why her application should not be refused.

Submissions Addressing the Proposal to Refuse

11 . By letter dated 20 April 2018, SK replied, through her solicitor, asserting that her relationship and marriage to the EU citizen were genuine. A history of the relationship was outlined. It was said that the couple met in February 2012 while working for the same employer and a P21 confirming the...