S.K. & Anor -v- Minister for Justice Equality & Law Reform & Ors, [2007] IEHC 216 (2007)

Docket Number:2006 758 JR
Party Name:S.K. & Anor, Minister for Justice Equality & Law Reform & Ors
Judge:Hanna J.

The High Court

Judicial Review [2006 No 758 JR]Between/S. K. and T.T. Applicants and

The Minister for Justice, Equality and Law Reform and

Ireland and the Attorney General respondents

Judgment of Mr. Justice Hanna delivered on the 28th day of May, 2007

This is an application for judicial review on behalf of the applicants to whom leave to bring this application was granted in the form of the amended statement of grounds. The said leave was obtained from Finlay Geoghegan J. on the 31st July, 2006.

The first named applicant claims that he has a right of residency in this jurisdiction, being married to an EU citizen who is resident and working in Ireland. The applicants complain that the instrument under which the first named applicant's right of residency was refused, The European Communities (Freedom of Movement of Persons) Regulations 2006, S.I. No. 226/2006, is ultra vires Directive 2004/38/EC which deals with the rights of citizens of the European Union and their family members to move and reside freely within the territory of the Member States. Specifically, the applicants contend that the requirement in the said Regulations, that a spouse or family member who is a national of a non-EU state be lawfully resident in another Member State before entering Ireland either with or without a view to joining a spouse who is a national of another EU state, goes beyond the provisions of the Directive to such extent as would require primary legislation to be enacted into law. Further, the applicants argue, in the given circumstances of S.K.'s case, refusal of the right of residency and his removal from the State to the Kingdom of Belgium is contrary both to their respective rights under the Irish Constitution and under the European Convention of Human Rights and Article 8 thereof in particular.

The first named applicant is a citizen of India. The second named applicant is a national of Estonia, a Member State of the European Union. The applicants were married in this State on 18th May, 2006, having been in a relationship, according to the applicants, since 2003. Unsurprisingly, the description of the applicants' prior relationship is not challenged since it occurred mostly out of the jurisdiction. Further, no issue has been raised with regard to the validity in legal terms of the marriage.

Background facts

The relevant history of the case is as follows. Whilst still a minor aged fifteen, the first named applicant applied for asylum in Belgium and was refused. He then somehow or other entered the United Kingdom and resided there illegally for a period of approximately three years. It was during this time, we are told, that the relationship between the applicants grew. According to applicants' solicitor, Mr. Derek Stewart, who swore an affidavit on behalf of and on the instructions of the applicants, the applicants formed an intention to marry when in the United Kingdom and he was instructed that some contact was made with the Home Office in the UK on their behalf, seeking permission for their marriage. Mr. Stewart in para. 6 of his affidavit sworn on 27th June, 2006, says as follows:-"It seems that in frustration with the length of time it was taking to regularise their position and formalise their marriage, the applicants travelled to Ireland in or about January, 2006, with the intention of the second named applicant finding employment in the State, formalising their marriage and setting up their family home here." What the difficulties and delays were in the United Kingdom are not specified. Nor is any single item of correspondence to or from the British Home Office exhibited. Nor is there any evidence that the frustration which they felt caused them to visit a solicitor to enquire as to the reason for the alleged delay and possible steps to do something about it.

In any event, the applicants then entered this State, set up home here and an asylum application was made by the first named applicant on 15th February, 2006. I should observe at this point (and I will return to it later) that, in his application for asylum, he made no reference to his unsuccessful application for asylum in Belgium or the fact that he was illegally resident in the United Kingdom for a period of three years prior to coming to this State.

Upon applying for asylum in this jurisdiction, he was given an information leaflet which advised him, inter alia, that he could make written representations to the Refugee Applications Commissioner. This particular leaflet was a leaflet presented to applicants for such status, informing them of their various rights. It is not in issue that the applicant was aware that he could have his case examined did he wish to do so.

Thereafter, the applicants say that they set up home together and the second applicant secured employment at a service station in the midlands prior to their marriage on 18th May, 2006.

This, according to the respondents, was part of the applicants' overall plan to circumvent the immigration laws of this State. The first named applicant was a person who would in ordinary circumstances require a valid visa to enter the State. It was the applicants' intention and understanding that their marriage would obviate the need for an asylum application because the first named applicant would then have the status of a spouse from a non-Member State of a national of a Member State of the EU and would thus be entitled to residency in Ireland.

In the meantime, the first named applicant's fingerprints, which had been taken when he arrived in this country, were checked by means of a Eurodac search and this revealed that the first named applicant had previously applied for asylum in Belgium. The Irish immigration authorities then made a take back request to Belgium on 2nd May, 2006. A letter from the Belgian authorities dated 31st May, 2006, indicated that the Belgian authorities were agreeable to taking the first named applicant back, pursuant to Article 16(1)(e) of the Council Regulation (EEC) No. 343/2003. This Article provides that:-"The Member State responsible for examining an application for asylum under this Regulation shall be obliged to: … take back … a third country national whose application it has rejected and who is in the territory of another Member State without permission." Mr. Stewart tells us that the applicants proceeded to lodge papers with the first named respondent, for the purpose of mounting an application for residency on the basis of their marriage and the fact that the second named applicant was an EU national who was employed in the State. The applicants instructed Mr. Stewart that their original marriage certificate, original birth certificates with translations, a copy extract from the first named applicant's passport and a copy of the second named applicant's passport were delivered by hand to the first named respondent's offices at 13-14 Burgh Quay, Dublin 2, in early June, 2006.

By letter of 2nd June, 2006, the first named applicant was advised that the office of the Refugee Applications Commissioner had determined that Belgium was the country responsible for dealing with his application for asylum pursuant to the provisions of the Dublin Convention known as "Dublin II". Article 8 of that Convention provides that:"Where no Member State responsible for examining the application can be designated on the basis of the other criteria listed in this Convention, the first Member State with which the application for asylum was lodged shall be responsible for examining it." The first named applicant was duly notified of the determination to transfer him to the Kingdom of Belgium. He did not challenge this determination and a transfer order dated 14th June, 2006, was made transferring him to Belgium. A letter of 20th June, 2006, informed the applicant of the making of the transfer order and requesting his attendance at the Garda National Immigration Bureau on 26th June, 2006, to make arrangements for his removal from the State.

In the meantime, the first named applicant had written to the office of the Refugee Applications Commissioners by letter dated 15th June, 2006, which said letter was received on 19th June, 2006. The letter states as follows:-

"Re: Withdrawal of my application for asylum.

Your Ref: 69/398/06

To whom it may concern, I am writing (sic) my application for asylum in this State. I have married an EU national and made an application for a resident's card as a non-EEA family member.

Will you kindly acknowledge receipt of this letter?

Yours faithfully

S.K.." Up to this point the applicants had no legal representation in the State. The second named applicant had, of course, the same rights as any other EU citizen to reside and work in this State. As for the first named applicant, he brought his presence to the attention of the authorities by applying for asylum, albeit that this had the effect of maintaining him in the State while his asylum application was being processed. However, serious questions arise with regard to a significant shortfall in terms of openness of disclosure and truthfulness in his application, to which I shall return.

The first named applicant sought legal advice and this he received from Mr. Stewart, who wrote a letter on 23rd June, 2006, which, Mr. Stewart tells us, was delivered by hand to the first named respondent's office. It informed the said respondent that the first named applicant had abandoned his claim for asylum and was applying for residency on the basis of his marriage to an EU national. Mr. Stewart contended, that the issue of the first named applicant's removal for the purpose of an examination of a claim that no longer existed was redundant. Mr. Stewart invited the authorities to inform either himself or his client that it was no longer necessary for the first named applicant to attend at the Garda Immigration Bureau Headquarters as had been requested of him. Mr. Stewart advised his client that it would be...

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