Z.K v The Minister for Justice and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Power
• Judgment Date: 20 October 2023
• Neutral Citation: [2023] IECA 254
• Court: Court of Appeal (Ireland)
• Docket Number: Record Number: 2022/165

Between:

Z.K.

Applicant/Respondent

and

The Minister for Justice, Ireland and The Attorney General

Respondents/Appellants

[2023] IECA 254

Donnelly J.

Ní Raifeartaigh

J. Power J.

Record Number: 2022/165

High Court Record No.: 2021/409 JR

THE COURT OF APPEAL CIVIL

Residence card – Revocation – Order of certiorari – Appellants appealing against an order of certiorari quashing the decision affirming an earlier decision to revoke the respondent’s residence card – Whether the decision to uphold the revocation of the respondent’s residence card was vitiated by an error amounting to a denial of constitutional justice

Facts: The High Court, on foot of an application brought by the applicant/respondent, granted an order of certiorari quashing the decision of the Minister for Justice (the Minister), of 1 February 2021 in which she affirmed an earlier decision of 8 August 2019 to revoke the applicant’s residence card. The judgment which gave rise to that order of certiorari was delivered by the High Court (Phelan J) on 16 May 2022: [2022] IEHC 278. The respondents/appellants, the Minister, Ireland and the Attorney General, appealed to the Court of Appeal contending that the trial judge erred, in fact and in law, on a number of fronts. They said that an oral hearing was not required because the applicant had been put on notice of the matters of concern and had been given ample opportunity to furnish representations in relation thereto. They said that his failure to seek such a hearing before the review decision issued, was material, as was his failure to identify the matters which he would address at an oral hearing. They said that the European Communities (Free Movement of Persons) Regulations 2015 did not oblige the Minister to have regard to the parties’ familiarity with each other’s personal details. They said that the assessment in which the Minister was engaged did not turn on the applicant’s credibility, and the circumstances were not as directly analogous to international protection applications or the potential loss of citizenship as Phelan J had understood them to be. They said that the Court of Appeal’s decision in Balc v Minister for Justice & Equality [2018] IECA 76 was authority for the proposition that an oral hearing is not mandated by the Free Movement Directive (Directive 2004/38/EC), nor even required to be available, if sought. They said that the applicant lacked the standing to challenge the lack of an oral hearing, because, as well as failing to request such a hearing, he stated that “all relevant documentation and proofs...have been submitted” when calling for a decision to be issued.

Held by Power J that the Minister’s decision to revoke the applicant’s residence card was not vitiated by error for having been made in accordance with her usual practice and without having offered the applicant an oral interview or hearing. There was, in Power J’s view, no breach of the requirements of natural and constitutional justice for the following reasons: (i) the legal basis of the decision was clear, and the procedural safeguards required by law were observed; (ii) the applicant was notified of the proposed decision, in writing, and in such a way as to enable him to comprehend its content and its implications; (iii) the applicant could not but have known of the consequences that an adverse decision would entail; (iv) the first instance decision, the recommendation submission and the final decision on review were taken after attentive consideration of the evidence and further information provided and of the applicant’s submissions, and reasons were given as to why his residence permission was revoked; (v) the Minister was entitled to process the application for review in accordance with the standard paper-based practice for such applications and there was nothing to suggest that her discretion was exercised in an unthinking or uncritical manner; and (vi) the applicant’s failure to identify the evidence or matters which he would have raised at interview but which he could not address in writing was a material consideration in determining the fairness of the procedures involved. Power J was satisfied that the trial judge erred in fact and in law in granting an order of certiorari quashing the Minister’s decision dated 1 February 2021.

Power J allowed the appeal. As the Minister had been entirely successful in the appeal, it appeared to Power J that she was entitled to her costs.

Appeal allowed.

Unapproved

JUDGMENT of Ms. Justice Power delivered on the 20th day of October 2023

Table of Contents

Introduction	3
Background Facts	4
The ‘Proposal to Revoke’ Letter	6
The First Instance Decision	7
The Request for Review	8
The Review Decision	8
The High Court Application	11
The High Court Judgment	11
The Appeal	14
THE LAW	15
European Union Law	15
The Commission's Handbook on Marriages of Convenience	17
Irish Law	18
On a failure to request an oral hearing	18
The principle of non-interference with a finalised process	19
On the application of a fixed policy	21
The Directive and the 2015 Regulations	21
On judicial review as an effective remedy	23
On the requirements of natural and constitutional justice	23
On the waiver of natural and constitutional rights	24
Discussion	25
The First Issue: The Failure to Request an Oral Hearing	25
The Appellants' Submissions	25
The Respondent's Submissions	27
The Court's Assessment	30
The Second Issue: The Requirements of Natural and Constitutional Justice	32
The Appellants' Submissions	32
The Respondent's Submissions	35
The Court's Assessment	37
The ‘Galvin’ Factors	37
○ The Legislation Governing the Impugned Decision	38
○ Whether an Oral Hearing was Requested	38
○ The Subject Matter of the Decision	43
○ The Overall Circumstances of the Case	44
○ The Nature of the Inquiry	45
Distinguishing Assessments of Evidence and Assessments of Credibility	54
The Question of Demeanour	57
Miscellaneous Matters	61
Summary	62
Decision	63

Introduction

1 . This case raises a question concerning the procedural requirements to be observed when an administrative decision-maker revokes a residence card previously issued to a person who had obtained a derived right of free movement and residence on the basis of marriage to a European Union (‘EU’) citizen under the provisions of Directive 2004/38/EC (hereafter, ‘the Directive’ or ‘the Free Movement Directive’). 1 That Directive provides that the right of all EU citizens to move and reside freely within the territory of the Member States extends to their family members, irrespective of nationality. 2 Initially, the Directive was transposed into Irish Law by the European Communities (Free Movement of Persons) Regulations of 2006 (SI No. 226/2006) and the European Communities (Free Movement of Persons) (Amendment) Regulations of 2008 (SI No. 310/2008) (‘the 2006 and 2008 Regulations’), and, subsequently, by the European Communities (Free Movement of Persons) Regulations of 2015 (SI No. 548/2015) (‘the 2015 Regulations’). This case is concerned with the 2015 Regulations.

2 . The principal issue to be determined by this Court is whether fair procedures and natural and constitutional justice required the first named appellant (hereinafter ‘the Minister’) 3 to afford to the respondent an ‘oral hearing’ or an ‘in-person interview’ prior to determining an application to review a decision to revoke the respondent's residence card. The respondent never asked for an oral interview prior to the Minister's decision, and the question arises, whether that prevents him, now, from relying upon the absence of such an interview as the basis for challenging the decision made. In making her determination in respect of the respondent's residence, the Minister disregarded his marriage to an EU citizen as a factor bearing on that determination as she deemed that marriage to be a marriage of convenience.

3 . On foot of an application brought by the respondent (hereinafter and for ease of reference ‘the applicant’ or ‘ZK’), the High Court granted an Order of Certiorari quashing the Minister's decision of 1 February 2021 (hereinafter ‘the impugned decision’ or ‘the review decision’) in which she affirmed an earlier decision of 8 August 2019 to revoke the applicant's residence card.

4 . The judgment which gave rise to that Order of Certiorari was delivered by the High Court (Phelan J.) on 16 May 2022 ( [2022] IEHC 278).

5 . The appellants filed a Notice of Appeal seeking to appeal the entire decision of the High Court on the grounds set out in the said Notice of 30 June 2022. No cross appeal has been taken in respect of any aspect of the High Court's findings.

Background Facts

6 . In May 2016, the applicant, using an online dating application, connected with a Lithuanian woman (hereinafter ‘KB’), who was resident in Ireland. She was an EU citizen, exercising her rights under Article 3(2) of the Treaty on European Union (‘the EU Treaty’). During the course of their online communications, the applicant was living in his home country of Georgia.

7 . On or about 19 September 2016, the applicant came to Ireland, ‘ for the purposes of meeting [KB]’ in person. Despite that being the stated purpose of his visit, it would appear that he had already organised, in advance, a one-year lease agreement, because, on the same day that he entered the State, unlawfully, he signed that lease agreement in respect of a property in Dublin 6 (‘the Dublin 6 address’). 4 ZK remained, unlawfully, present in the State for almost six months, and he did not notify the authorities of his presence therein.

8 . On 22...