Yaqub v The Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 15 August 2023
• Neutral Citation: [2023] IEHC 500
• Court: High Court
• Docket Number: Record No. 2021/723 JR

Between:-

Muhammad Nasir Yaqub

Applicant

and

The Minister for Justice

Respondent

[2023] IEHC 500

Record No. 2021/723 JR

THE HIGH COURT

Deportation – Order of certiorari – Immigration Act 1999 s. 3 – Applicant seeking an order of certiorari quashing the respondent’s decision proposing to deport the applicant from the State – Whether it was unlawful for the respondent to make a deportation order pursuant to s. 3 of the Immigration Act 1999

Facts: The applicant, Mr Yaqub, a Pakistani citizen, arrived in the State in 2015. The applicant applied to the High Court seeking an order of certiorari quashing a decision of the respondent, the Minister for Justice, made on 31st May 2021 pursuant to s. 3 of the Immigration Act 1999, as amended, proposing to deport the applicant from the State, and a further order quashing the decision of the respondent made on 27th May 2021, confirming an earlier decision of the respondent to revoke the residency card of the applicant. The applicant accepted that he no longer enjoyed EU Treaty Rights in the State. However, he claimed that he was, at one point in time, exercising legitimate EU Treaty rights in the State, such that it was unlawful for the respondent to make a deportation order pursuant to s. 3 of the 1999 Act, but instead she must use the removal process as set out in Directive 2004/38/EC (the Citizens Directive). The second line of argument raised by the applicant as to why the decisions of 27th May 2021 and 31st May 2021, should be set aside, was that the applicant had not been afforded an interview prior to making those decisions.

Held by Barr J that, having had regard to the numerous false statements that were made in the submissions that were made on behalf of the applicant on 2nd February 2020, and having had regard to the documentation that was submitted to prop up those falsehoods, the respondent was entitled to hold that the permission that had issued as a result of the decision on 20th July 2020 had been procured by fraud. In those circumstances, Barr J held that the respondent was entitled to proceed under the provisions of art. 35 of the Directive, rather than under the provisions of art. 15 of the Directive. Barr J found that this was the essential difference between this case and the circumstances in Chenchooliah v Minister for Justice and Equality (Case C-94/18), where it was accepted by all concerned that the EU national had been in the State and had contracted a valid marriage to the applicant and had been exercising his right to work in the State for a period, prior to his departure for Portugal; there was no question of fraud in that case. Barr J noted that, in Chenchooliah, the CJEU recognised that the member state could proceed under art. 35, independently of the requirements of art. 15. Barr J was satisfied that the submissions made by Ms McMahon BL, on behalf of the respondent, to the effect that in this case the provisions of art. 35 of the Directive, were engaged, rather than the provisions of art. 15 thereof, were supported by the decision in MA (Pakistan) v Minister for Justice [2018] IEHC 95. Barr J was of the same view. Accordingly, Barr J held that in the circumstances of this case the decision in the Chenchooliah case was not applicable. Barr J held that the respondent was entitled to revoke the permission in the way that she did and was entitled to proceed to make a decision to deport the applicant under the provisions of the 1999 Act. Looking at the circumstances of this case, Barr J was satisfied that it was not incumbent on the respondent to hold an oral hearing, or interview with the applicant prior to reaching the decision to revoke his permission to be in the State, or to make the consequential decision that he should be deported from it.

Barr J refused all the reliefs sought by the applicant in his notice of motion.

Application refused.

JUDGMENT of Mr. Justice Barr delivered on 15 ^th day of August, 2023.

Introduction.

1 . The applicant is a Pakistani citizen. He arrived in the State in 2015. In this application, he seeks an order of certiorari quashing a decision of the Minister made on 31 ^st May 2021 pursuant to s. 3 of the Immigration Act 1999, as amended, (hereafter, “the 1999 Act”), proposing to deport the applicant from the State, and a further order quashing the decision of the Minister made on 27 ^th May 2021, confirming an earlier decision of the Minister to revoke the residency card of the applicant. The date of 27 ^th May 2021 is a matter in dispute between the parties, which is discussed later in the judgment.

2 . While it will be necessary to set out the somewhat convoluted background facts in more detail later in the judgment, the key elements in the applicant's case can be stated as follows: the applicant accepts that he no longer enjoys EU Treaty Rights in the State. However, he claims that he was, at one point in time, exercising legitimate EU Treaty rights in the State, such that it is unlawful for the Minister to make a deportation order pursuant to s. 3 of the 1999 Act, but instead she must use the removal process as set out in Directive 2004/38/EC, known as the “ Citizens Directive”.

Background.

3 . The applicant is 38 years old. Prior to his arrival in the State, he was living in the UK with his brother, Mr. Muhammad Qasir Naveed. His brother is a UK citizen.

4 . The applicant arrived in the State on 30 ^th June 2015. On 25 ^th August 2015, the applicant applied to the Minister for a residence card on the basis that he was a “permitted family member” of an EU citizen, being his brother, who was exercising his EU Treaty Rights in the State. The basis for the applicant's application was that he was dependent on his brother and was a member of his brother's household in the UK.

5 . In support of his application, the applicant submitted a large volume of documentation. This included: passports and birth certificates for both the applicant and Mr. Naveed; a family registration certificate; a TV license in respect of Mr. Naveed; a letter from E-Flow addressed to Mr. Naveed; several bank statements from Bank of Ireland addressed to Mr. Naveed; a letter from Vodafone addressed to the applicant; and a Business Name Certificate in respect of a business named Qasir Computer and IT Services, registered by Mr. Naveed.

6 . On 26 ^th April 2016, the solicitors then on record for the applicant, submitted further documentation in support of the application for a residence card, detailing the incorporation of another company by Mr. Naveed, called Gourmet Pizza Ltd. That documentation included: a Certificate of Incorporation of the company; the sub-lease agreement for premises from which Gourmet Pizza Ltd operated; evidence of Revenue Corporation Tax registration; invoices in respect of Gourmet Pizza Ltd; a letter from an accountant company in respect of Gourmet Pizza Ltd; and documentation from the Companies Registration Office.

7 . That application was refused by the Minister on 2 ^nd July 2016. In the refusal letter, the Minister accepted that Mr. Naveed was exercising his EU Treaty rights in the State in conformity with the regulations, but found that the applicant had submitted insufficient evidence to establish that he was a permitted family member of Mr. Naveed.

8 . The applicant applied to the Minister to review that decision on 20 ^th July 2016. On 13 ^th July 2017, the Minister affirmed her decision to refuse the applicant a residence card. On the same date, the Minister wrote to the applicant, informing him that she proposed to deport him in accordance with s. 3 of the 1999 Act.

9 . The applicant instituted judicial review proceedings against the Minister with respect to the 13 ^th July 2017 decision, bearing record number 2017/ 786 JR; which proceedings were subsequently compromised. The applicant applied for a further review of the 2 ^nd July 2016 decision of the Minister on 19 ^th February 2020. In support of the second review application, the applicant again submitted a large volume of documentation. Included in that, was a contract of employment, bearing Mr. Naveed's details, concerning his employment in a Londis shop. This document was fraudulent, as conceded by Mr. Power SC on behalf of the applicant, in that it was not Mr. Naveed who was employed at the Londis shop, but rather, it was the applicant, who had been impersonating his brother. Several payslips, addressed to Mr. Naveed, but actually referencing work done by the applicant in the Londis shop, were also submitted to the Minister.

10 . The second review application was successful. On 20 ^th July 2020 the Minister granted the applicant permission to remain in the State on the basis that he was a permitted family member of his brother, who was a UK citizen exercising his EU treaty rights in the State. In that letter, the Minister noted that the initial application had been refused on the basis that the applicant had failed to submit sufficient evidence of his dependence on his brother, particularly prior to his arrival in the State. The review decision also noted that the Minister was satisfied that Mr. Naveed was exercising his EU treaty rights in the State on the basis of the contract of employment with Londis and the payslips provided (which were fraudulent in nature, in that it was the applicant working at the shop, rather than his brother).

11 . On 21 ^st September 2020, the applicant attended the Garda National Immigration Bureau (hereafter “GNIB”) and spoke with Immigration Officers. He informed the officers that his brother was not in attendance at the GNIB, as he was feeling unwell. He also informed them of a trip that his brother had taken to the UK on 15 ^th September 2020, from which he had returned on the evening of 15 ^th September 2020. He then informed the Officers that his brother had attended work in the Londis shop on 16 ^th – 19 ^th September 2020, and further indicated that he...