A v Minister for Justice

• Jurisdiction: Ireland
• Judge: Ms Justice Bolger
• Judgment Date: 17 January 2023
• Neutral Citation: [2023] IEHC 32
• Court: High Court
• Docket Number: [Record No. 2022/130 JR]

Between

S.S.A.

Applicant

and

Minister for Justice

Respondent

[2023] IEHC 32

[Record No. 2022/130 JR]

THE HIGH COURT

JUDGMENT of Ms Justice Bolger delivered on the 17th day of January, 2023.

1 This is an application for an order for certiorari quashing the respondent's decision of 1 December 2021 to uphold a decision to revoke the applicant's residence card on the basis that he had entered into a marriage of convenience. For the reasons set out below I am refusing this application.

Background

2 The applicant is a national of Egypt who arrived in the State in 2008 and commenced to reside here without permission. In December 2011, he met a Lithuanian national who, he said, had been in the State since August of that year. In March 2012 they gave notice of their intention to marry and got married in June. The applicant applied for residence based on his marriage to an EU citizen in July and furnished a lease agreement, a bank statement in joint names, and employment details of his spouse, including two payslips for June 2012. On 23 July 2012, the Department requested further tax documentation and utility bills which the applicant furnished. Those documents asserted that the applicant's spouse had worked in the State from 11 June 2012 until 24 August 2012. On 10 January 2013 the Department gave the applicant an EU-1 form confirming firstly that they were satisfied of a family relationship between him and the EU citizen and of their residence, and secondly that they had checked that the EU citizen was employed at that time having commenced employment on 11 June 2012, received her P45 on 24 August 2012 and recommenced employment on 19 November 2012. On that basis, the Department approved the applicant for a Stamp 4 for a period of five years. By letter dated 4 July 2013, the Department sought further information from the applicant in relation to his spouse's employment in the State to evidence her “current activities” in the State. The applicant replied by letter from his solicitor dated 12 August 2013 in which he attached evidence of his spouse's employment in the form of three payslips from July 2013, an undated letter that was not on headed notepaper from his spouse's accountant confirming that she had been working part-time three days a week from 1 July 2013, a P60 for his spouse from 2012 and a utility bill in both their names dated 7 August 2013. The Department returned the documents to him by letter dated 20 September 2013 and asked for confirmation that his spouse remained employed with that same employer. The applicant's solicitor responded by letter dated 30 September 2013 stating that they were instructed that the EU citizen remained in that same employment.

3 Nothing further occurred until 21 December 2017 when the applicant's solicitors wrote to the Department applying for a further permission for the applicant to reside in the State and advising that he could not renew his permission on the basis of his marriage as he and his wife were estranged. A letter dated 22 October 2018 set out the Minister's concerns arising from the applicant's immigration history, which can be summarised as follows:-

• (1) The applicant's spouse obtained a PPS number on 20 February 2012 and, in the absence of any documentation evidencing her presence in the State prior to that date, the Minister was of the opinion that she first entered the State on or shortly before the date on which her PPS number was allocated.

• (2) The Minister was concerned about the relationship given the short time between the applicant's spouse's entry into the State, the marriage, and the applicant's application for residence.

• (3) The Minister was concerned about contradictory information in relation to the applicant's spouse's payslips, P60, and the start date on her contract of employment.

• (4) Information available to the Minister showed that the applicant's spouse worked in the State for seventeen weeks in 2012 and for five weeks in 2013, and that she had ceased employment on 1 February 2013 and had not held employment since, which showed that the applicant's spouse is not exercising her rights in the State and that the applicant had engaged in a contrived activity.

• (5) The Minister said that the applicant's spouse only engaged in employment to facilitate the applicant's application, leading to significant concerns that the relationship is a marriage of convenience.

• (6) When the applicant was asked for evidence of the then activities and residence of him and the EU citizen in July 2013, he supplied two payslips dated 12 and 19 July 2013, a P45, a letter confirming employment, noted not to be on headed paper or dated, and a utility bill. In fact the applicant's spouse had ceased employment on 1 February 2013 and has not held employment since. The Minister said that the payslips and letter confirming employment provided are false and misleading as to material facts and that the applicant knowingly submitted false documentation to receive a right of residence he would otherwise not enjoy.

4 Based on the above information, the Minister was of the opinion that the documentation the applicant provided in support of his application to evidence the residence of him and his spouse in the State was false and misleading as to material facts which he knowingly submitted to obtain a right of residence which he would otherwise not enjoy. The Minister required the applicant to provide comprehensive representations stating why his permission to remain should not be revoked, to dismiss concerns that he had engaged in a contrived activity in order to obtain a residence card and to address his submission of false and misleading information. Any representation was to include a detailed immigration history of the EU citizen, including dates of travel to and from the State in the period from January 2013 to present and should state the purpose of such travel, a detailed relationship history and any other information/documentary evidence the applicant may wish to provide as to why his application for permission to remain in the State should not be revoked.

5 By letter dated 22 October 2018, the applicant was advised of the Minister's intention to revoke the permission to remain and was allowed 21 days to make representations. A letter dated 21 November 2018 from the applicant's solicitors enclosing the applicant's responses to the issues raised has been exhibited. The deciding officer issued a decision on 10 December 2018 essentially along the same lines as the Minister's concerns as set out above. That letter said that no submissions or correspondence had been received. The applicant's solicitor applied for a review on 22 December 2018, furnished written legal submissions on the burden of proof, and argued that the Minister's concerns all related to matters known when the applicant was granted a residence card in 2013, and that the absence of his spouse from the State disadvantaged him as his spouse was a “potentially crucial witness”. They criticised the lack of adequate investigation, asked for copies of the spouse's tax records available to the Minister, furnished the applicant's personal letter which the solicitor said set out the history of the relationship, responded to the factual issues raised and set out his spouse's travel record. The personal letter submitted was the same as the personal letter the applicant's solicitor said they had previously submitted but which the deciding officer's decision said had not been received. Attached to the letter was a history of his spouse's travel between October 2012 and July 2015 as well as undated text messages between the applicant and an unidentified person. The applicant's letter referred to enclosing other documents which were not included. By letter dated 7 January 2019, the applicant was advised that a review would be carried out under the provisions of Regulation 25 of the European Communities (Free Movement of Persons) Regulations 2015 and informed that the onus was on him to ensure that any documentation, information or relevant facts that he wished to have considered were contained in his application for a review.

The impugned decision

6 The review decision (which the applicant seeks to quash), issued on 1 December 2021, found the following:-

The applicant seeks to quash that decision.

• (1) The applicant's spouse first entered the State on or shortly before 20 February 2012 when her PPS number was allocated.

• (2) The absence of verifiable evidence of the development of the relationship prior to the marriage and the short time between the applicant's spouse's entry to the State, the marriage, and the applicant's submission of the residence application raised concerns about the relationship.

• (3) Tax documentation available to the Minister confirmed that the applicant's spouse ceased employment on 1 February 2013 and has not held employment in the State since. The applicant's application for permission to remain in the State had been approved on 10 January 2013 and the Minister therefore considered it evident that the applicant's spouse ceased employment less than one month after the applicant's application for permission to remain had been approved, which the Minister found to be indicative of a contrived activity. That, combined with the precarious nature of the applicant's immigration status in the State at the time, and the fact he had entered the State without obtaining the required visa in 2008, were indicative of a marriage of convenience.

• (4) The applicant's response to the letter of 4 July 2013 requesting evidence of the identity, current activities, and current residence of he and his spouse was responded to by providing two payslips in the name of his spouse dated 12 July 2013 and 19 July 2013, an undated letter confirming employment, and a shared utility bill. The Minister noted that the applicant had stated via his...