S.K. v The Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Cian Ferriter
• Judgment Date: 24 October 2022
• Neutral Citation: [2022] IEHC 591
• Court: High Court
• Docket Number: [2021/1018 JR]

Between

S.K. and J.K.

Applicants

and

The Minister for Justice

Respondent

[2022] IEHC 591

[2021/1018 JR]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Residence card – Marriage of convenience – Applicants seeking an order of certiorari quashing the respondent’s decision refusing the first applicant a residence card arising from the finding that the applicants had contracted a marriage of convenience – Whether the respondent’s decision was arrived at in breach of fair procedures and due process

Facts: The applicants, in judicial review proceedings, applied to the High Court seeking an order of certiorari quashing the decision of 12 November 2021 in which the respondent, the Minister for Justice (the Minister), refused the first applicant a residence card pursuant to the provisions of 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 the member states (the Directive) and the European Communities (Free Movement of Persons) Regulations 2015 (which implement the Directive into Irish law) arising from the finding that the applicants had contracted a marriage of convenience (the decision). The applicants’ case was that the decision was arrived at in breach of fair procedures and due process. The applicants laid particular emphasis on the fact that, while the second applicant was interviewed by members of the Garda National Immigration Bureau (GNIB) as part of the process that led to the finding of a marriage of convenience, the first applicant (the non-EU national claiming EU residence rights as a result of her marriage to the second applicant, an EU national) was not interviewed or otherwise afforded any oral process in the decision-making process that led to the decision. The applicants also contended that the decision was arrived at by the misapplication of the appropriate burden of proof and in the absence of a sufficiently robust engagement with the evidence and submissions put forward on behalf of the applicants in refutation of the Minister’s case that the applicants’ marriage was one of convenience.

Held by Ferriter J that the contention that the Minister improperly imposed a burden of proof on the applicants was not borne out by the facts. Ferriter J held that there was no failure of the Minister, through her official, to properly engage with the evidence before the decision-maker or the case made on behalf of the applicants, including the case made as to why the Minister should not rely on the contents of the second applicant’s interview with GNIB. Ferriter J held that, on the very particular facts of this case, the first applicant was not entitled as a matter of fair procedures to the exceptional measure of an oral interview (or other oral process) in order for the decision to be lawfully arrived at.

Ferriter J held that the applicants had not made out a case in unlawfulness in the decision or the decision-making process. Accordingly, Ferriter J refused the relief sought.

Relief refused.

JUDGMENT of Mr. Justice Cian Ferriter delivered on the 24th day of October 2022

Introduction

1 In these judicial review proceedings, the applicants seek an order of certiorari quashing the decision of 12 November 2021 in which the respondent (“the Minister”) refused the first applicant a residence card pursuant to the provisions of 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 the member states (“the Directive”) and the European Communities (Free Movement of Persons) Regulations 2015 (the “2015 Regulations”) (which implement the Directive into Irish law) arising from the finding that the applicants had contracted a marriage of convenience (“the decision”).

2 The applicants' case is that the decision was arrived at in breach of fair procedures and due process. The applicants lay particular emphasis on the fact that, while the second applicant was interviewed by members of the Garda National Immigration Bureau (“GNIB”) as part of the process that led to the finding of a marriage of convenience, the first applicant (the non-EU national claiming EU residence rights as a result of her marriage to the second applicant, an EU national) was not interviewed or otherwise afforded any oral process in the decision-making process that led to the decision. The applicants also contend that the decision was arrived at by the misapplication of the appropriate burden of proof and in the absence of a sufficiently robust engagement with the evidence and submissions put forward on behalf of the applicants in refutation of the Minister's case that the applicants' marriage was one of convenience.

3 I should note that the first applicant has also issued separate judicial review proceedings challenging a decision of the Minister refusing her permission to reside in the State pursuant to a special scheme for non-EEA nationals who previously held student permissions, on the basis that she has demonstrated bad character by engaging in a marriage of convenience. Those separate judicial review proceedings have been adjourned pending the determination of this judicial review on the basis that the determination of this judicial review as to the lawfulness of the marriage of convenience decision is likely to be dispositive of those separate judicial review proceedings.

Background

4 The first applicant is a citizen of India. She arrived in the State on 10 September 2006 on foot of a student visa. She was thereafter granted a “stamp 2” permission to remain in the State, a status which she retained until 12 September 2012. One week after expiry of that permission, on 19 September 2012, she married the second applicant, a national of Latvia. The first applicant says that she met the second applicant in February 2012, while they were working together in the same place of employment, and they formed a relationship shortly thereafter. The first applicant says that they began living together in April 2012 before marrying in September 2012.

5 As a result of her marriage to the second applicant, the first applicant was prima facie entitled to apply pursuant to the 2015 Regulations for a permission to reside in the State as a family member of an EU citizen also residing here. The first applicant was granted her residence card as a family member of an EU citizen on 10 April 2013, pursuant to the provisions of the 2015 Regulations.

6 It is useful at this juncture to briefly sketch the rights afforded by the Directive and the 2015 Regulations to non-EU national members of the family of an EU citizen. In broad terms, the Directive secures the right of EU citizens to be joined in a member state by family members (such as spouses), including those family members who are third country nationals. The 2015 Regulations provides, subject to satisfaction of certain criteria, that a family member of an EU citizen who is not a national of a member state may be granted permission to reside in the State. Pursuant to regulation 27 of the 2015 Regulations, the Minister may revoke a residence card of a non-EU national where the card was claimed on the basis of fraud or abuse of rights. Abuse of rights includes a marriage of convenience. A marriage of convenience is defined by regulation 28 of the 2015 Regulations as meaning a marriage contracted for the sole purpose of obtaining an entitlement (such as a residence card) under, inter alia, the Directive or the 2015 Regulations.

7 On 1 September 2017, the first applicant applied for a renewal of the residence card that had been issued to her pursuant to the 2015 Regulations. It appears that, in the context of an assessment of that application, the second applicant was interviewed voluntarily and under caution by members of the GNIB on 1 February 2018. During the course of that interview, a typed note of which was in evidence before the Court, the second applicant admitted that the marriage was a sham marriage, that he had not been in a real relationship with the first applicant, that he had married her to enable her get visa papers and that they had not lived together. He also admitted that, during the currency of the marriage to the first applicant, he had been in a relationship with a Latvian woman and that she had become pregnant following his marriage to the first applicant. This child was born in August 2013, making it clear that this child was conceived during the course of the second applicant's marriage to the first applicant.

8 Specifically, in answer to a question as to why the marriage happened so fast, the typed note of the interview records that the second applicant said that it was because the first applicant “needed a visa.” He said that the first applicant said to him when they first met that they could get married so that she could get a visa. In answer to the question “ were you in a relationship with [the first applicant]”, the second applicant answered “ no”. He admitted that while he was married to the first applicant, he was in a relationship with his Latvian girlfriend. In answer to a question as to whether he accepted that his marriage the first applicant was a marriage of convenience, he answered “ yes”, saying it was to allow her get a visa and that he explained to his Latvian girlfriend that the marriage to the first applicant was not real. The interview note also records him as saying that he and the first applicant had never lived together.

9 Following this interview, the EU Treaty Rights Unit of the Irish Naturalisation and Immigration Service Division of the Minister's Department (for ease, “the Department”) wrote to the first applicant by letter of 26 March 2018. This letter informed the first applicant that the Minister proposed to refuse her application for a residence permit, under regulation 27(1) of the 2015 Regulations i.e. the regulation that permits...