A v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Ms. Justice Bolger
• Judgment Date: 04 July 2022
• Neutral Citation: [2022] IEHC 408
• Court: High Court
• Docket Number: [2021/285/JR]

In the Matter of Section 5 of the Illegal Immigrants (Trafficking) Act, 2000 (As Amended)

Between

A.

Applicant

and

The Minister for Justice

Respondent

[2022] IEHC 408

[2021/285/JR]

THE HIGH COURT

DECISION of Ms. Justice Bolger delivered on the 4th day of July, 2022

Introduction

1 In these proceedings the applicant seeks an order of certiorari quashing the decision of the Minister dated 22 February 2021. The effect of the decision dated 22 February 2021 was a refusal to renew the applicant's Stamp 4 permission that had previously been granted by the Minister on a discretionary basis. The impugned decision noted a change in circumstances arising from an earlier decision of 5 September 2019, wherein the Minister found that the permission held by the applicant under EU Treaty Rights was invalid ab initio upon a finding that he had engaged in a marriage of convenience. An order of certiorari is not being sought, and cannot be sought, for the decision of 5 September 2019.

2 For the reasons set out below I refuse this application.

Background

3 The applicant is a citizen of Pakistan who arrived in the State on a student permission in December 2006. On 11 June 2009 he married a Latvian national, whom he says he met first in February 2007, and on the basis of that marriage he was granted a residence card pursuant to Directive 2004/38/EC (“the Directive”) on 2 December 2009 for a period of five years. During that five-year period in July 2013 his wife was granted a divorce in Latvia. He informed the Minister of this on 12 September 2014, and sought retention of his residence card, which was refused by letter dated 7 April 2016 because the Minister said there was no evidence that the applicant's ex-wife had exercised her EU Treaty Rights in the State since 14 January 2010 and that his derived rights ceased to be valid from then. However the Minister did exercise her executive discretionary power to grant him a Stamp 4 permission for a period of 12 months.

4 By letter dated 26 April 2016, the applicant sought a review of the Minister's refusal to grant him retention of his residence card. The Minister confirmed her decision to uphold the refusal of his residence card by letter dated 8 May 2017. He was granted permission to remain in the State on a Stamp 4 basis pursuant to the Minister's executive discretionary power for a further period of 12 months and was informed that this permission could be extended provided his circumstances did not change. This Stamp 4 permission was extended by the Minister on two further occasions.

5 On 5 June 2019, the Minister informed the applicant that it was proposed to revoke his EU residence card as his marriage to his ex-wife was now found to be one of convenience for the following reasons:

• i. The applicant and his ex-wife married on 11 June 2009 but there were no records from the Department of Employment Affairs and Social Protection showing any income for the applicant's ex-wife until 2009 which suggests that she entered employment in the State around the time of the marriage solely to facilitate his application for a residence card.

• ii. The short period of time between the marriage, the approval of the application for a residence card, and the applicant's ex-wife ceasing employment in 2010.

• iii. The applicant had never provided an explanation as to how the applicant's ex-wife supported herself in the State between the period in which she obtained her PPSN in March 2007 and her alleged entry into employment in June 2009.

• iv. The applicant had never addressed the fact that the applicant's ex-wife had left the State in 2009 and moved to the Netherlands where, according to her Facebook profile, she continues to reside. The Minister maintained that the applicant “sought to create the illusion” that his ex-wife had remained resident in the State exercising her rights until 2013.

6 The applicant was advised that if it was found that he entered into a marriage of convenience, the other permissions granted pursuant to the Minister's discretionary powers (i.e. his Stamp 4 right of residence) may also be re-examined. He was allowed 21 days to make representations to the Minister's concerns about his marriage.

7 The applicant submitted representations by letter dated 17 June 2019 through his solicitors in which he disputed the Minister's claim that his marriage was one of convenience and asserted that he had entered into a genuine marriage that had unfortunately later broken down. He submitted documents including Facebook correspondence and posts with his ex-wife, letters, prescriptions, bills, his ex-wife's employment contract and a tenancy agreement addressed to and signed by him and his ex-wife.

8 By letter dated 5 September 2019, the Minister informed the applicant that she had considered his representations and concluded that he failed to fully address the concerns. His residence card was revoked on the basis that it was found to have been obtained through a marriage of convenience. The letter went on to state:

“In addition, the permission issued to you on 08/05/2017, pursuant to the Minister['s] discretionary [power] will now be considered separately”.

The applicant was also advised that if he felt that the decision maker had erred in law or fact that he could apply for a review. The applicant, who still had the Stamp 4 permission given to him in August 2019 (which he had been advised was to be considered separately) did not apply for a review or take any further steps at that time.

9 On 18 September 2019, the applicant's Stamp 4 permission was renewed for one further year. On 30 October 2020 he was informed that the decision of 5 September 2019, that he had entered into a marriage of convenience, represented a change in his circumstances and had this information been available to the Minister at the time of the Minister's exercise of her discretionary executive power, that it was unlikely he would have been granted that permission. The Minister confirmed her intention not to renew the applicant's permission and he was allowed 21 days within which to submit representations.

10 By letter dated 18 November 2020, the applicant submitted representations through his solicitors which can be summarised as follows:

• i. There was no change in circumstances because the Minister was aware of the material information at the time the permissions were granted on an exceptional basis.

• ii. The findings made on 5 September 2019 were res judicata.

11 By decision dated 22 February 2021 (‘the impugned decision’) the Minister refused the applicant further permission to remain in the State. As his marriage had since been found not to be genuine the Minister asserted that he did not have a legal right of residence in the State and therefore between September 2009 and December 2014 he was illegally present in the State. The Minister stated that had she been aware of this in April 2016, consideration would have been given to this factor, together with the fact that the applicant only held a precarious student permission and thereafter had been illegally present in the State for five years.

12 The impugned decision then states:

“The permission granted to you in April 2016, was granted on consideration of the permission held by you which also includes the permission which was considered valid at that time on the basis of his marriage. When the information now before the Minister is considered, it is not justified to provide you with further permission on the basis of your conduct which the Minister is now aware of. You should not continue to enjoy the benefit of permission granted on the circumstances particular to his case at that time where it has now become apparent that the Minister was deceived by you in order to obtain an immigration advantage”. [sic]

Legal issues

13 The applicant sets out the following legal questions/issues to be resolved in this case:

• i. Was a full, proper and individual consideration given to the applicant's case, prior to a decision being made to revoke the permission previously granted to him?

• ii. Was the Minister's finding that the marriage of convenience had been contracted, made in accordance with due process and fair procedures?

• iii. Was the Minister correct to retrospectively void permissions that were granted to the applicant subsequent to the refusal to extend/renew his residence card, in circumstances where the Minister relied on purportedly new facts that were, in fact, matters already known to the Minister and, therefore, res judicata?

14 The Minister added a fourth legal issue:

iv. Should relief be refused on a discretionary basis?

The applicant's case

15 The applicant is the former spouse of an EU citizen and while he accepts that this marriage has ended and that he is therefore not entitled to a residence card, he does not accept the Minister's finding that his marriage was one of convenience.

16 The applicant submits that it is incumbent on the Minister to consider the submissions made by the applicant in a meaningful manner, and to do otherwise renders meaningless the principle of audi alterem partem. He submits that the consideration given to the representations he made fell short of the requisite thresholds as there was only a “perfunctory engagement” with his specific circumstances. He also claims that the Minister failed in her obligation to give reasons for the decision and to address the relevant statutory criteria.

17 The applicant suggests that the sequencing of events was unusual, where the Minister refused to grant a retention of the residence card which the applicant had previously obtained when he applied for it “on a personal basis,” and informed the Minister of the fact that his marriage had ended. The Minister instead granted the applicant a “free-standing” Stamp 4 status based on his overall circumstances, including the fact that he had a work...