Yaqub v The Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Allen
• Judgment Date: 27 June 2024
• Neutral Citation: [2024] IECA 166
• Court: Court of Appeal (Ireland)
• Docket Number: Appeal Number: 2023 308

Between/

Muhammad Nasir Yaqub

Applicant/Appellant

and

The Minister for Justice

Respondent/Respondent

[2024] IECA 166

Power J.

Allen J.

O'Moore J.

Appeal Number: 2023 308

THE COURT OF APPEAL

CIVIL

NO REDACTION NEEDED

JUDGMENT ofMr. Justice Allendelivered on the 27 ^th day of June, 2024

Introduction

1 . This is an appeal against the judgment of the High Court (Barr J.) delivered on 15 ^th August, 2023 ( [2023] IEHC 500) and consequent order made on 13 ^th October, 2023, refusing an application by the appellant for orders of certiorari quashing the decisions of the respondent Minister (“the Minister”) revoking the appellant's residence card and proposing to deport the appellant from the State pursuant to s. 3 of the Immigration Act, 1999.

2 . The appellant accepts that he has no right to remain in the State but contends that because – as he suggests – he was at one time entitled to exercise derived EU treaty rights in the State, he may not be deported by a deportation order made under s. 3 of the Act of 1999. Rather, he contends, the Minister must use the removal process provided for by Directive 2004/38/EC – the Citizens' Directive – which was transposed into Irish law by the European Communities (Free Movement of Persons) Regulations, 2015.

3 . The procedure under s. 3 of the Act of 1999 for the making of deportation orders is different to the procedure under the Regulations of 2015 for the making of removal orders. If the Minister may not necessarily agree that the removal process would be more favourable to the appellant that the deportation process, she does not contest his submission that it would be.

4 . It is common case that the appellant has no right to remain in the State. It is common case – on the authority of the judgment of the Court of Justice of the European Union in Case C 94/18Chenchooliah v. Minister for Justice – that if the appellant is a person who was previously entitled to exercise derived EU treaty rights in the State, he may not be the subject of a deportation order.

5 . It is common case that it is for the Minister to decide whether the appellant is or is not a person who was previously entitled to exercise derived EU treaty rights in the State.

6 . On 20 ^th July, 2020 the Minister granted the appellant's application under the Regulations of 2015 for a residence card. On 8 ^th December, 2020 the Minister revoked the appellant's residence card on the ground that it had been obtained by fraud. It is common case that the appellant obtained the residence card by fraud. However, the appellant contends that along the way, the Minister found that he was, for a time entitled to exercise derived EU treaty rights: with the consequence that he is not liable to be deported. In essence, the appellant seeks to compartmentalise his fraud and the consequences of his fraud and makes the case, variously, that the Minister – in revoking his residence card – either compartmentalised the fraud or, if she did not, that she should have: rather in the manner of the curate's egg.

The facts

7 . The facts – or at least the unfolding story – are set out clearly and succinctly in the judgment of the High Court.

8 . The appellant is a Pakistani citizen who was born in 1984. He has a brother, Mr. Muhammad Qasir Naveed, who was born in 1980 and who is a UK citizen.

9 . On 25 ^th August, 2015 the appellant applied to the Minister for a residence card on the basis that he was a “permitted family member” of his brother who was an EU citizen exercising his EU treaty rights in the State. The appellant claimed to have arrived in the State with his brother on 30 ^th June, 2015 and to be living with his brother at an address in Dublin 15, from where Mr. Naveed was said to be carrying on a computer and IT business on his own account. The application was accompanied by the appellant's and Mr. Naveed's original passports; photographs of both; the appellant's original birth certificate; a TV licence in the name of Mr. Naveed; a letter from E-flow addressed to Mr. Naveed; a Bank of Ireland letter in respect of Mr. Naveed; a Vodafone application in respect of the appellant; and a certificate of registration of a business name by – or at least in the name of – Mr. Naveed. The information given was declared by both to be true and complete.

10 . On 27 ^th November, 2015 the appellant submitted a bundle of 31 copy letters and documents which were said to evidence his dependency on Mr. Naveed and on 28 ^th April, 2016 a bundle of copy documents – including correspondence from Revenue, bank statements and business documents – which were said to evidence the current activities of Mr. Naveed in the State. Included in this bundle was a certificate of incorporation of a company called Gourmet Pizza Limited; a letting agreement for business premises in Clonsilla in the name of Mr. Naveed and another man; a Revenue letter confirming that Gourmet Pizza Limited was registered for tax; and some copy invoices.

11 . On 2 ^nd July, 2016 the appellant was informed that the Minister had decided to refuse his application on the ground that she was not satisfied that he was a permitted family member of Mr. Naveed. Specifically, it was said, the appellant had failed to submit satisfactory evidence of dependence on the EU citizen, including dependence prior to residing in the State, or evidence of membership of the EU citizen's household prior to residing in the State. The appellant was advised of his right to request a review of the decision and availed of that right.

12 . On 20 ^th July, 2016 the appellant, by his then solicitor, filed the appropriate form of request for review, accompanied by a detailed written submission. The documentation previously submitted was supplemented by copy correspondence from the UK Revenue. On 27 ^th September, 2016 the material was further supplemented by a copy contract of employment and payslips said to be in respect of Mr. Naveed; a tax clearance certificate said to be for Mr. Naveed; and a further UK Revenue letter in respect of the appellant. These documents were said to have been submitted to keep the Minister updated on a change of employment by the EU citizen. The copy contract of employment was a contract dated 19 ^th September, 2016 purportedly between Mr. Naveed and a company called Kerzak Limited T/A Londis by which Kerzak Limited agreed to employ Mr. Naveed for twelve months as a shop assistant at a Londis shop in Dublin 8.

13 . By letter dated 13 ^th July, 2017 the appellant was advised that the decision to refuse his application had been affirmed on the same grounds, namely, that the documentation submitted failed to demonstrate that he has been residing in Mr. Naveed's household in the UK or that he had been financially dependent on Mr. Naveed in the UK.

14 . A challenge by way of judicial review to the Minister's decision of 13 ^th July, 2017 was compromised on terms that the Minister would conduct a further review.

15 . On 20 ^th February, 2020 a new Form EU4 was filed, with a comprehensive written submission prepared by the appellant's former solicitor, which was largely based on the previous such submission but included some additional documents – not least 23 payslips purporting to evidence Mr. Naveed's earnings from his employment in Londis and copy AIB Bank statements in the name of Mr. Naveed which were said to show regular payments by Mr. Naveed to the appellant. Again, the information was declared by the appellant and Mr. Naveed to be true and complete.

16 . In the written submission made in support of each of the reviews, the appellant and Mr. Naveed were said to have been members of the same household in the UK and to continue to be members of the same household in Ireland. Mr. Naveed was said in the written submission to be self-employed but on the form to be employed in the Londis shop in Dublin 8 since 1 ^st August, 2016.“All of the above”, it was said, “can be verified by way of documentation already provided to your office. An outline of the relevant documents can be seen below.”

17 . In the submission in support of the review, the Minister was said to have erred in fact and in law in reaching the decision of 2 ^nd July, 2016. The appellant, it was said, had been a member of Mr. Naveed's household for eight years prior to entering the State and continued to be dependent on him and a member of his household in Ireland. The appellant, it was said, had provided bank accounts which showed a continuous financial support from his brother while they resided in the UK and that financial and emotional support continued in Ireland. It was – it was said – clear from the evidence provided that the appellant was a permitted family member of an EU citizen within the meaning of the Regulations and the continued denial of a residence card was in breach of their rights under the Directive. The submission listed the supporting documents already provided, as well as additional supporting documents including, as I have said, 23 payslips for Mr. Naveed.

18 . By letter dated 20 ^th July, 2020 the appellant was informed that his review had been successful as he satisfied the conditions set out in the Regulations and that his permission to remain started on the date of that letter. The appellant was invited to make an appointment at the Garda National Immigration Bureau registration office – at which he should be accompanied by his brother – to obtain his residence card.

19 . The appellant attended by appointment at the registration office on 21 ^st September, 2020 but his brother did not. Over the following fortnight or so there was a certain amount of to-ing and fro-ing in relation to the whereabouts of Mr. Naveed which prompted a visit by the Gardaí to the Londis shop on 5 ^th October, 2020. The appellant was due to return to the registration office on 9 ^th October, 2020 but failed to appear. In the meantime, the...