YMA v Minister for Justice

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms Justice Marguerite Bolger
• Judgment Date: 06 February 2024
• Neutral Citation: [2024] IEHC 58
• Docket Number: [Record No. 2022/577JR]

Between

YMA

Applicant

and

Minister for Justice

Respondent

[2024] IEHC 58

[Record No. 2022/577JR]

THE HIGH COURT

Residence card – Revocation – Marriage of convenience – Applicant seeking certiorari of the respondent’s decision that the applicant’s residence card ought to be revoked – Whether the applicant had been denied fair procedures and natural or constitutional justice

Facts: The applicant, a citizen of Pakistan, applied to the High Court for certiorari of the decision of the respondent, the Minister for Justice (the Minister), of 11 April 2022 that the applicant’s residence card ought to be revoked. The applicant raised a particular concern and criticism about the following extract from the decision: “There is little information or documentation on file in respect of your relationship with the Union citizen in this case. That is to say, there is nothing to suggest that you as couple made any financial commitments to each other, had any joint assets or liabilities, travelled or lived together for any significant length of time outside the State, or lived together for any significant length of time in this State. Nor is there any useful information or documentation on file in respect of your relationship prior to your marriage or, indeed, after your marriage”. The applicant pleaded that the Minister’s decision was irrational and unreasonable in making the findings set out above, given that the applicant had provided evidence of joint liabilities in the form of a tenancy agreement, a joint utility bill and had said they lived together for a year. The applicant contended it was fundamentally at variance with reason and common sense for the Minister to make those findings, given the “relatively intimate photos” taken during their time together and that the applicant had paid for his EU spouse’s flights home to Slovakia in 2013. The applicant claimed the respondent had failed to consider that evidence in spite of having claimed to have done so. The applicant also claimed he had been denied fair procedures and natural or constitutional justice in not affording him a personal interview prior to determining the marriage to have been one of convenience, which he had offered to attend in his solicitor’s letter of 12 November 2018 so as to dispel the concerns and have the finding of the Minister overturned.

Held by Bolger J that a thorough account of all the information and documentation on the applicant’s file was given in both the first instance and the impugned decision. Bolger J held that the conclusions the Minister reached reasonably flowed from the facts before her and there was no basis for the applicant’s contention that the Minister acted irrationally or unreasonably or failed to take relevant factors into consideration. Bolger J found that the totality of the information and documentation furnished by the applicant was referenced in the impugned decision, and it was clear that its quality and probative value was found to be so limited that it failed to assuage the Minister of her concerns of which she had put the applicant on notice and to which she had allowed him the opportunity to respond including by the furnishing of a detailed relationship history. Bolger J held that the dearth of information provided by the applicant was such that it was open to the Minister to reach the conclusions that she did, find that the marriage was one of convenience and refuse the applicant’s application for a renewal of his residence card.

Bolger J held that the Minister’s conclusions were neither irrational nor unreasonable and the process applied was in line with the applicant’s rights to fair procedures and natural justice. Bolger J refused the application.

Application refused.

Counsel for the applicant: Aengus Ó Corráin BL

Counsel for the respondent: Sarah Cooney BL

JUDGMENT of Ms Justice Marguerite Bolger delivered on the 6 ^th day of February 2024

1 . This is the applicant's application for certiorari of the Minister's decision of 11 April 2022 that the applicant's residence card ought to be revoked. For the reasons set out below, I am refusing this application.

Background

2 . The applicant is a citizen of Pakistan and was born on 20 October 1983. He first entered Ireland on 18 September 2006 on a student visa which expired on 30 September 2012. He said he met an EU citizen from Slovakia in August 2012 who had entered the State on 6 July 2012 to work as an au pair for which she did not require a PPS number. They began a relationship and on 14 November 2012 they moved into an apartment together and he said in his Statement of Grounds that they thereafter made plans to marry. They married at a Galway hotel on 17 January 2013 for which they must have given the necessary three months notification of intention to marry by 17 October 2012. The applicant, in reliance on his marriage to an EU citizen, applied for a residence card on 20 March 2013 and furnished various documents in support of his application. He was asked for further documents in correspondence throughout May, June and July 2013, which he furnished, including evidence of his EU spouse's health insurance, a utility bill in their joint names, a tenancy agreement in the names of the applicant, his EU spouse and two other people, confirmation of his EU spouse's registration with a Cork college and a letter from the Residential Tenancies Board addressed to the applicant and his EU spouse confirming registration of their rental property.

3 . The applicant was illegally in the State from the date on which his student visa expired in September 2012 until he applied for a residence card in March 2013, at which time he was granted temporary permission to live and work in the State until his residence card was granted on 20 September 2013. The letter confirming the approval of his application for a residence card said that the onus was on him to keep the office up to date at all times of any change in his circumstances.

4 . The applicant says that his marriage broke down at the end of 2014. He did not advise the Minister of that change in his circumstances at that time, as he was required to do. He first advised the Minister of the change in his circumstances in July 2018 when he applied for permission to continue to live and work in the State and explained that his EU spouse was resident in the UK where divorce proceedings were in train. That application was made some three months before his Stamp 4 EU visa was due to expire.

5 . By letter dated 16 August 2018 the Minister advised the applicant of her opinion that the documentation he furnished in support of his application to evidence the residence of himself and his spouse in the State was false and misleading as to a material fact and that his marriage may have been of convenience. The letter set out the following concerns:

• i. That the applicant may have been residing illegally in the State from 30 September 2012 when his visa expired, to 21 March 2013 when he applied for a residence card.

• ii. That the EU spouse, who obtained her PPS number on 12 October 2012, may have entered the State shortly before that date.

• iii. That the three month notification of intention to marry was served five days after the EU spouse obtained her PPS number.

• iv. The accelerated nature of the relationship is not typical of a genuine marriage.

• v. The employment history of the EU spouse confirmed she was employed for 20 weeks in 2013 earning €2,722 and for four weeks in 2014 earning €123, with no evidence of having engaged in further studies or having made any claim for state benefit. The Minister was therefore not satisfied that the EU spouse was at that time residing in the State in exercise of her right in accordance with the Regulations.

• vi. The applicant's failure to notify the office of a change in circumstances in 2014 when he said his spouse left Ireland and moved to live in the UK.

6 . The applicant was asked to provide the Minister with information as to why his permission to reside should not be revoked and to address the Minister's concerns. He was expressly asked to include a detailed immigration history of the EU spouse and a detailed relationship history along with any other information/documentary evidence he might wish to provide as to why his application for permission to remain in the State should not be refused.

7 . The applicant responded by way of written submission via his solicitor in which he set out how he met his EU spouse in August 2012 when she was working as an au pair for which she did not need a PPS number, and that they decided a few months later to move in together and to get married. The letter set out his EU spouse's work and travel history throughout 2012 and 2013. Apart from saying that they got married to become a secure couple, there were no further details about their relationship or their lives together before or after the marriage. He said that after the parties married his EU spouse had two abortions and had abused alcohol which led to difficulties in the marriage. They separated in 2014 and the EU spouse went to the UK, but the letter stated that they remained in contact. The applicant had some photographs but said he needed his former spouse's consent to furnish them to the Minister.

8 . By letter dated 25 October 2018 the Minister issued a first instance decision finding the applicant's marriage to have been a marriage of convenience on the basis of the following:

• i. The maximum period of time the persons could have known each other before serving notification of their intention to marry was three months which raised concerns.

• ii. The EU spouse applied for a PPS number three months after her alleged entry into Ireland, which raised concerns as to how she could reside in the State for three months without accessing the labour market or having recourse to social assistance.

• iii. The...