Z.K. v The Minister for Justice & Equality

• Jurisdiction: Ireland
• Judge: Ms. Justice Siobhán Phelan
• Judgment Date: 16 May 2022
• Neutral Citation: [2022] IEHC 278
• Court: High Court
• Docket Number: [Record No. 2021/409 JR]

Between

Z.K.

Applicant

and

The Minister for Justice & Equality

and

Ireland

and

The Attorney General

Respondents

[2022] IEHC 278

[Record No. 2021/409 JR]

THE HIGH COURT

JUDGMENT of Ms. Justice Siobhán Phelan delivered on the 16 ^th day of May, 2022

INTRODUCTION

1 . In these proceedings the Applicant challenges a decision to revoke EU residency granted on foot of his marriage to an EU citizen exercising free movement rights in the State on the basis that it had been fraudulently obtained in reliance on a marriage of convenience. The Applicant maintains that the decision was based on a personal credibility assessment in which his account and that of his wife were disbelieved and the constitutional justice and fairness required that an oral hearing should have been convened as part of the decision-making process in those circumstances. Notably, no request for an oral hearing was made prior to the decision being made.

2 . In its opposition papers, the First Named Respondent confirms that while the First Named Respondent is not precluded from convening an oral hearing, no provision of the Citizens Rights Directive 2004/38/EC [hereinafter “ Directive 2004/38/EC”] or the transposing EC (Free Movement of Persons) Regulations, 2015 [hereinafter “the Regulations”] provides an entitlement to an oral hearing. It is accepted that the practice of the First Named Respondent is such that applications for residence cards and any subsequent review process under Directive 2004/38/EC the transposing Regulations is conducted in writing for all Applicants.

3 . The First Named Respondent maintains that the requirements of natural and constitutional justice are met in the context of the relevant legislation which provides in express terms for the Applicant's right to know the information upon which the decision is being made, a right to reply prior to any adverse decision being taken and a right to know the reasons for any such decision. The First Named Respondent further maintains that the decision was based on evidence available to her and not on the basis of a personal credibility assessment as claimed.

4 . Accordingly, the net issue in this case is whether the requirements of constitutional and natural justice required some form of oral hearing before a decision to revoke residency was made.

5 . In the light of the First Named Respondent's acceptance that it remains open to the First Named Respondent to convene an oral hearing, the Applicant did not pursue a constitutional challenge to the Regulations which had been pleaded in the proceedings as instituted.

BACKGROUND

6 . The Applicant is a Georgian national who travelled to Ireland without lawful permission on the 19 ^th of September, 2016. The Applicant's wife is a Lithuanian national who has resided in the State since 2006. The couple claim to have met on a dating app (Badoo.com) in or about May, 2016 while the Applicant was still living in Georgia and his future wife was living in Dublin with her mother at an address in Citywest. It is claimed that the couple courted through video, phone and messages for several months before the Applicant travelled to Ireland.

7 . It is claimed that following the Applicant's arrival in the State the relationship intensified and that while the Applicant's future wife continued to live with her mother, she overnighted frequently with the Applicant. It is claimed that as the relationship accelerated the couple discussed marriage.

8 . Although present in the Irish State from September, 2016, the Applicant did not notify the authorities of his presence until he applied for international protection on the 22 ^nd of February, 2017. He admits that his application for international protection was made in order to obtain a temporary permission for the purpose of submitting an application to marry. It is claimed, however, that the couple decided to marry because they were in love and wanted to spend the rest of their lives together. It is denied that there was any ill-intention or ulterior motive.

9 . The couple married on the 1 ^st of March, 2017 in Dublin. The marriage certificate records an address in Dublin 6 [hereinafter “the Dublin 6 address”] as their common address. The couple went on honeymoon to Georgia in August, 2017 where it is claimed that the Applicant introduced his wife to his family and friends. Supportive photographic evidence and travel documentation has subsequently been relied upon to confirm this.

10 . On the 12 ^th of April, 2017, the Applicant submitted an application to the First Named Respondent for a residence card as the spouse of an EU national exercising her EU Treaty Rights in the State.

11 . On the 21 ^st of December, 2017, the First Named Respondent approved the Applicant's application for a residence card. The Applicant was informed that the onus was on him to advise the Minister for any change of circumstances which may affect his right to reside in the State under S.I. 548/2015 European Communities (Free Movement of Persons) Regulations 2015 (e.g. change of residence, the activities of EU citizen or the relationship to the EU citizen).

12 . The Applicant and his wife (who swore an affidavit in the proceedings) maintain that the relationship became strained in or about December, 2017. It is claimed that the Applicant's wife moved home to her mother for a short while before agreeing to attempt to work through their differences in early 2018. It is claimed that she left the couple's rented accommodation permanently in October, 2018. Since then the Applicant's wife has lived in a series of rented accommodations. She continues to use her mother's address in Citywest for some correspondence including bank statements and payslips.

13 . The Applicant did not advise the First Named Respondent that the relationship had broken down and the couple were no longer residing together. On the 28 ^th of February, 2019 the Applicant wrote to the First Named Respondent to inform her that he had lost his passport and had ordered a new one.

14 . On the 8 ^th of March, 2019 the First Named Respondent wrote to the Applicant at the address he had given for the family home of the Applicant and his wife seeking evidence relating to the identity, the relationship with the EU citizen, current activities of the Applicant and the EU citizen since 2017 and, evidence of residence for both the Applicant and the EU national.

15 . On the 1 ^st of April, 2019, the Applicant and the EU national sent the First Named Respondent a hand written note (penned by the EU national but signed by both the Applicant and the EU national) informing the First Named Respondent that they had ceased residing together since October 2017. It was stated that:

“Me and ZK.. met in person in September, 2016 and started dating. We soon fell in love and started living together. Not long after Z.K. proposed to me and I said yes. We decided to get married in March 2017. Only recently I moved out in October 2017 because we were having lots of the fights and after trying to save the relationship we decided to move on and live as separated couple …we decided to divorce. However, we have been very busy with work lately, but we will start seeking further advice about divorce in the near future. I am currently renting with a friend of mine….”

16 . The Applicant furnished up to date documentation confirming his employment and correspondence from the Revenue Commissioners in relation to his tax credits addressed to his home address. A copy of the lease agreement entered into with both the Applicant and his wife in March, 2017 was provided as well as a utility bills (Vodafone) in her name sent to the said address between May, 2017 and October, 2018. The Applicant's wife's bank statements and payslips continued to be addressed to her mother's address throughout 2017 and indeed her payslips give her mother's current address right up to 2019 when the query arose. A copy of the Applicant's wife lease agreement in respect of her new home was also provided. This lease agreement cited its commencement date as being October, 2018. Correspondence with Virgin Media and the ESB Networks appear to confirm the Applicant's wife taking up occupation at her new rental address in October, 2018. Her new tenancy was registered with the Residential Tenancies Board [RTB] as having been commenced on the 16 ^th of October, 2018.

17 . On foot of the information furnished by the Applicant and the EU national, the First Named Respondent issued the Applicant with a letter on the 30 ^th of April, 2019 setting out her concerns regarding his marriage and the permissions given to him. This letter set out a summary of an examination of the Applicant's immigration permission in the State as follows:

“It is noted that you entered this State on 18/09/2017 without any legal permission to do so. You did not attempt to legitimise your status or engage with immigration authorities in this State until you submitted an application for International Protection on 22/02/2017. You then married the EU citizen o 01/03/2017 and submitted an application for EU Treaty Rights on 12/04/2017. Following which your international protection application was withdrawn on 20/07/2017. Your EU Treaty Rights application was approved on 21/12/2017, granting you permission to remain for a period of 5 years.”

18 . The First Named Respondent informed the Applicant of an intention to revoke his permission on the basis that he had submitted documentation that was false and misleading as to a material fact in respect of his marriage. It was stated:

“It is noted that in your most recent correspondence dated 01/04/2019 you state that you are now separated from the EU citizen and that you both have been living apart from one another since October 2017. It is of concern that your original application was not approved until 21/12/2017, some two months after you and...