S v Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice William M. McKechnie
• Judgment Date: 24 July 2020
• Neutral Citation: [2020] IESC 48
• Date: 24 July 2020
• Court: Supreme Court
• Docket Number: Supreme Court Appeal No. 2018/69

Between/

M.K.F.S. (PAKISTAN)

and

A.F. and N.F.J. (an infant suing by and through his mother and next friend A.F.)

Appellants

-and-

THE MINISTER FOR JUSTICE AND EQUALITY

Respondent

-and-

THE IRISH HUMAN RIGHTS AND EQUALITY COMMISSION

Amicus Curiae

[2020] IESC 48

O'Donnell J.

McKechnie J.

MacMenamin J.

Charleton J.

Irvine J.

Supreme Court Appeal No. 2018/69

High Court Record No. 2017/659 JR

THE SUPREME COURT

Residency card – Marriage of convenience – Deportation – Appellant seeking judicial review – Whether the trial judge’s finding that a marriage of convenience is a nullity at law for all purposes and that no rights could arise there from was sustainable as a matter of law

Facts: The respondent, the Minister for Justice and Equality, in July, 2016, refused an application by the first appellant for a residency card under the European Communities (Free Movement of Persons) Regulations 2015 (S.I. No. 548/2015) on the basis that his marriage to the second appellant was a “marriage of convenience”. That finding was upheld on review in March, 2017. On the same date, the required procedural steps were activated by the Minister with a view to the making of a deportation order in respect of the first appellant, which ultimately he did on the 30th June, 2017. Judicial review proceedings followed, with Humphreys J dismissing each of the asserted claims in February, 2018; in so doing, the judge held that a marriage of convenience is a nullity at law for all purposes and that no rights could arise there from. He also refused leave to appeal. The Supreme Court granted such leave in its determination dated the 26th February, 2019, with the central question for resolution being whether that particular finding by the trial judge was sustainable as a matter of law, and how the same should be dealt with on this appeal.

Held by McKechnie J that: (i) the Minister’s determination (made in the context of the residence application under the 2015 Regulations) that a marriage was one of convenience, may be relied upon by the Minister in the context of the subsequent deportation process; (ii) the said determination made by the Minister under the 2015 Regulations did not have the effect of rendering that marriage a nullity at law – rather, such determination was limited to the immigration/deportation context the sole consequence thereof was that it entitled the Minister to “disregard” the marriage in a very specific context; and (iii) although the Minister was entitled to import the earlier decision into the deportation process, he must nonetheless have regard, in operating that process, to the Article 8 rights of the appellants as founded on the underlying relationship between the parties – it did not appear that he did so here.

McKechnie J held that he would allow the appeal in part.

Appeal allowed in part.

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 24 ^th day of July, 2020

Introduction

1 Whilst this case is technically an immigration case, it also has a direct impact on the status of marriage, not only within that context but also more generally. As will be explained a little later, in July. 2016 the Respondent refused an application by the First Appellant for a residency card under the European Communities (Free Movement of Persons) Regulations 2015 (S.I. No. 548/2015) (“the 2015 Regulations”) on the basis that his marriage to the Second Appellant was a “marriage of convenience”. That finding was upheld on review in March, 2017. On the same date, the required procedural steps were activated by the Minister with a view to the making of a deportation order in respect of the First Appellant, which ultimately he did on the 30 ^th June, 2017. These judicial review proceedings followed, with Humphreys J. dismissing each of the asserted claims in February, 2018: in so doing, the learned judge held that a marriage of convenience is a nullity at law for all purposes and that no rights could arise therefrom. He also refused leave to appeal. This Court, however, granted such leave in its Determination referred to at para. 31 below, with the central question for resolution being whether that particular finding by the trial judge was sustainable as a matter of law, and how should the same be dealt with on this appeal. Some associated issues must also be discussed. As a result, it will be necessary to scrutinise different pieces of legislation as these touch upon that issue. It would be convenient to set the relevant legislation out at the commencement of this judgment.

Legal Framework

2 Council 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 defines the right of citizens of the Union and their family members, as so defined but irrespective of nationality, to move and reside freely, inter alia, within the territory of the Member States; it is also sometimes referred to as the “European Citizen Directive” or the “Free Movement Directive”. Recital (28) provides that “To guard against abuse of rights or fraud, notably marriages of convenience or any other form of relationships contracted for the sole purpose of enjoying the right of free movement and residence, Member States should have the possibility to adopt the necessary measures.” Article 35 of the Directive, headed “Abuse of rights”, provides as follows:

“Member States may adopt the necessary measures to refuse, terminate or withdraw any right conferred by this Directive in the case of abuse of rights or fraud, such as marriages of convenience. Any such measure shall be proportionate and subject to the procedural safeguards provided for in Articles 30 and 31.”

As can be seen, the Directive permits, but does not require, Member States to adopt measures to regulate marriages of convenience: Articles 30 and 31 thereof have no direct relevance in this case.

3 The 2015 Regulations, which give effect to the Directive, contain such measures.

4 Pursuant to Regulation 2 thereof, “ ‘spouse’ does not include a party to a marriage of convenience” (similar provision is made in respect of parties to a civil partnership). Regulations 27 and 28 will feature in the discussion below, and so should be set out in full. Regulation 27 is headed “Cessation of entitlements” and provides as follows:

“27. (1) The Minister may revoke, refuse to make or refuse to grant, as the case may be, any of the following where he or she decides, in accordance with this Regulation, that the right, entitlement or status, as the case may be, concerned is being claimed on the basis of fraud or abuse of rights:

(a) a decision under Regulation 5(3) that a person be treated as a permitted family member;

(b) a residence card, a permanent residence certificate or permanent residence card;

(c) a right of residence under Regulation 9(1);

(d) a right of residence under Regulation 9(2);

(e) a right of residence under Regulation 9(3);

(f) a right of residence under Regulation 10(1);

(g) a right of residence under Regulation 10(2);

(h) a right of residence under Regulation 12(1).

(2) Where the Minister suspects, on reasonable grounds, that a right, entitlement or status of being treated as a permitted family member conferred by these Regulations is being claimed, or has been obtained, on the basis of fraud or abuse of rights, he. or she. shall be entitled to make such enquiries and to obtain such information as is reasonably necessary to investigate the matter.

(3) Where the Minister proposes to exercise his or her power under paragraph (1), he or she shall—

(a) give notice in writing to the person concerned, which shall set out the reasons for his proposal and shall give the person concerned a period of 21 days within which to give reasons as to why the right, entitlement or status concerned should not be revoked, and

(b) consider any submissions made in accordance with subparagraph (a).

(4) In this Regulation, ‘abuse of rights’ shall include a marriage of convenience or civil partnership of convenience.”

5 Regulation 28 is headed “Marriages of convenience”. It states the following:

“28. (1) The Minister, in making his or her determination of any matter relevant to these Regulations, may disregard a particular marriage as a factor bearing on that determination where the Minister deems or determines that marriage to be a marriage of convenience.

(2) Where the Minister, in taking into account a marriage for the purpose of making a determination of any matter relevant to these Regulations, has reasonable grounds for considering that the marriage is a marriage of convenience, he or she may send a notice to the parties to the marriage requiring the persons concerned to provide, within the time limit specified in that notice, such information as is reasonably necessary, either in writing or in person, to satisfy the Minister that the marriage is not a marriage of convenience.

(3) Where a person who is subject to a requirement under paragraph (2) fails to provide the information concerned within the time limit specified in the relevant notice, the Minister may deem the marriage to be a marriage of convenience.

(4) The Minister may exercise the power under paragraph (2) in respect of a particular marriage whether or not—

(a) that marriage has previously been taken into account in determining any matter relevant to these Regulations or the Regulations of 2006, or

(b) that paragraph has previously been invoked in respect of that marriage.

(5) The Minister shall determine whether a marriage referred to in paragraph (2) is a marriage of convenience having regard to—

(a) any information furnished under these Regulations, and

(b) such of the following matters as appear to the Minister to be relevant in the circumstances:

(i) the nature of the ceremony on the basis of which the parties assert that they are married;

(ii) whether the...