Sangeeta Rana and Lehrasib Ali v The Minister for Justice

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Ms Justice Iseult O'Malley
• Judgment Date: 18 October 2024
• Neutral Citation: [2024] IESC 46
• Docket Number: Record Nos: S:AP:IE:2023:000152

Between:

Sangeeta Rana

and

Lehrasib Ali

Respondents

and

The Minister for Justice

Appellant

[2024] IESC 46

Dunne J.

O'Malley J.

Hogan J.

Collins J.

Donnelly J.

Record Nos: S:AP:IE:2023:000152

S:AP:IE:2023:000153

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Refusal of permission to appeal - marriasge of convenience - fixed policy

In these judicial proceedings, Ms Rana and Mr Ali contended that the refusal to grant permission to appeal. Ms Rana was refused because the minister found the appellant had entered into a marriage of convenience, and Mr Ali it was based on a finding that he had submitted misleading documentation related to his spouse’s presence and economic activity. The respondents submitted that in taking this response the Minister did not properly assess the issue of “good character”. The statement of grounds pleaded that the Minister was operating a fixed policy and had fettered her discretion in determining that a previous finding of a marriage of convenience automatically disentitled an applicant under the Scheme. The Minister submitted that the Court of Appeal erred in its understanding of the nature of the Special Scheme and failed to appreciate the importance distinctions between the operation of the Scheme and that of s.15(1)(b) of the Irish Naturalisation and Citizenship Act 1956 as amended. Judge found in the circumstances of the case that nothing in the new material could have warranted setting aside the first decision.

Appeal refused

Judgment of Ms Justice Iseult O'Malley delivered the 18 ^th day of October 2024

Introduction

1 These two cases have been heard together throughout and were the subject of composite judgments in the High Court and the Court of Appeal. They concern the refusal of the appellant (“the Minister”) to grant permission to the respondents (Ms Rana and Mr Ali) to reside in the State pursuant to the terms of a particular administrative scheme. This was a “Special Scheme” for non-EEA nationals who had held a student permission at some stage during the period 1 ^st January 2005 to 31 ^st December 2010 but whose permission to be in the State had expired.

2 The refusals were in each case grounded on a finding that the person was not of good character and conduct. That determination was, in turn, grounded upon the fact that each of the respondents had, after the expiry of their student permissions, held a residence permission, on foot of marriage to a non-Irish citizen of the European Union, which had in both cases been revoked by the Minister. In the case of Ms Rana this was because of a finding by the Minister that she had entered into a marriage of convenience in order to obtain a derived right of residence under European Union law. In the case of Mr Ali it was based on a finding that he had submitted misleading documentation relating to his spouse's presence and economic activity in the State, in order to conceal the fact that she had departed from the State and was not exercising her EU rights here. When considering the applications under the Special Scheme, the Minister relied upon those earlier determinations in finding that the respondents had not been of good character and conduct and therefore did not meet the terms of the scheme.

3 In these judicial review proceedings, the respondents contend that, in taking that approach, the Minister did not properly assess the issue of “good character”. Although unsuccessful in the High Court (Phelan J. – see R. v Minister for Justice and Equality, A. v Minister for Justice and Equality [2022] IEHC 142), they were granted orders of certiorari on appeal (Faherty and Haughton JJ, Costello J. dissenting – see S.R. and L.A. v Minister for Justice and Equality [2023] IECA 227). The Court of Appeal held that the Minister could not be said to have engaged sufficiently with the submissions made by the respondents at the review stage provided for under the Special Scheme. The Minister was directed to reconsider the applications.

4 Both of the respondents have subsequently been granted permission to remain under a different scheme, aimed at the regularisation of long-term undocumented migrants. However, the Minister sought leave to appeal to this Court on the basis of the significance of the decision of the Court of Appeal in relation to the extent of the “duty to engage” with all of the material submitted by an applicant. An issue was also raised on the question whether it was for the Minister (in the absence of irrationality) to determine the meaning of the Scheme or whether a court could impose its own interpretation. In granting leave, the Court requested the parties to address an additional issue – the status of the two unchallenged revocation decisions in respect of the respondents.

5 It may be noted here that although the respondents were anonymised in the judgments of the courts below, no reason has been offered to this Court as to why that should happen. Article 34.1 of the Constitution requires that justice be administered in public, meaning that identification is the norm. The case does not appear to come within any of the categories where identification of a party is prohibited by statute. Nor has it been suggested that there are any features that would justify the exercise of the jurisdiction of the court, identified and discussed in Sunday Newspapers Limited v. Gilchrist [2017] IESC 18; [2017] 2 I.R. 284, to prohibit or limit the reporting of a litigant's identity in order to ensure that justice can be done in the case, or to protect weighty constitutional interests that would otherwise be damaged or destroyed.

Relevant aspects of the Free Movement of Persons Regulations

6 As noted already, each of the respondents entered into a marriage with a non-Irish citizen of the European Union, each of whom was at the time of the marriage exercising their right under EU law to reside and work in the State. Such a marriage confers considerable benefit on a non-EU spouse in terms of entitlements to move about and reside in the EU. It is not necessary for the purposes of these appeals to consider the detailed rules relating to that status, but three aspects are relevant.

7 At the times relevant to these appeals, the principal regulations applicable were the European Union (Free Movement of Persons) Regulations 2006 – 2008 (S.I.s 656/2006 and 226/2006). These regulations implemented 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 of the EU. They have since been revoked and replaced by the European Communities (Free Movement of Persons) Regulations 2015 ( S.I. No 548/2015).

8 The first relevant point is that under regulation 21 a person to whom the regulations applied was entitled to seek a review of any decision concerning their entitlement, or claimed entitlement, to enter or reside in the State. The review was to be carried out by an officer of a grade senior to that of the person who made the original adverse decision. The reviewing officer could confirm the decision on the same or other grounds “ having regard to the information provided for the review”, or substitute their own decision, or set the decision aside and substitute their own determination.

9 The second point of relevance is that it was provided in regulation 24(1) that where it was established that a person to whom the regulations applied had acquired any rights or entitlements under the regulations by fraudulent means then that person would immediately cease to enjoy such rights or entitlements. Regulation 24(2) expressly provided that the terms “ fraudulent means” included marriages of convenience.

10 Finally, under regulation 25 it was an offence (punishable by imprisonment for up to 12 months) to assert an entitlement to any rights under the regulations on the basis of information which the person in question knew to be false or misleading in a material particular. That continues to be an offence under the 2015 Regulations.

The Special Scheme

11 The Special Scheme was introduced in the wake of the decision of this Court in Luximon v. Minister for Justice and Equality [2018] IESC 24, [2018] 2 I.R. 542. That case concerned persons who had lawfully entered and remained in the State on foot of the terms of the then-extant administrative scheme under which visas could be obtained by non-EEA citizens for the purpose of taking up an educational course, with permission to take up limited employment. The scheme in question operated for several years but in 2011 new time limits were introduced, with the result that a number of people lost the right to remain in circumstances where they had resided and worked here – lawfully – over a considerable period of time. In many cases the individuals concerned were in relationships and/or were bringing up children in the State. The decision of this Court was that the Minister was obliged to consider any rights of such persons under Article 8 of the European Convention on Human Rights in deciding whether or not to grant further leave to remain.

12 The new Special Scheme was intended to make provision for further residence permission for people who had previously resided here on the basis of a student permission granted between 2005 and 2010 (i.e., before the 2011 changes). It was time limited, in that applications had to be made before the 20 ^th January 2019. Although occasionally referred to as “the Special Student Scheme” its beneficiaries did not have to engage in a further course of study and were entitled to work.

13 The terms of the Special Scheme relevant to this appeal included the following. Applicants were required to have commenced their residence lawfully with a student-type permission and to have maintained a lawful presence for at least two years. To be successful an applicant must also have attempted to avoid being unlawful in...