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THE HIGH COURT
JUDICIAL REVIEW
[2019] IEHC 679
[2019 No. 598 J.R.]
BETWEEN
SAIM SHAHEEN KHAN AND GAELLE SAURON
APPLICANTS
AND
THE MINISTER FOR JUSTICE AND EQUALITY
RESPONDENT
JUDGMENT of Mr. Justice Richard Humphreys delivered on the 25th day of September,
2019
1. The first-named applicant is a Pakistani national who came to the State as a student in
October, 2012. He “married” a Portuguese national in what has some of the hallmarks of
a marriage of convenience, although there is no formal finding in that regard. He claims
that he met his current partner, the second-named applicant, in June, 2014 and that they
had a loving relationship from April, 2016 onwards and began to cohabit around that
time, although there was some inconsistency about dates provided. On 24th November,
2017, the first-named applicant was informed that his EU treaty rights permission based
on his “marriage” was being revoked on the grounds that the EU spouse was not
exercising her treaty rights and also noting that the first-named applicant had not notified
the Department of Justice and Equality of the change of circumstances in that regard, as
he was required to do.
2. On 8th December, 2017, a review application was submitted and further correspondence
then ensued, at which point it was unclear whether the applicant was making a fresh
application or a review application, but his correspondence appears ultimately to have
been treated as a fresh application, which was refused on 12th February, 2018, inter alia
on the grounds that the evidence of a durable relationship with his new partner was
insufficient.
3. On 5th March, 2018 he applied for a review which was rejected on 6th April, 2018, the
decision noting inconsistencies regarding addresses and also that there had been only 22
months of co-habitation. He was also notified on the same date of a proposal to make a
deportation order. On 23rd April, 2018 a fresh application for EU treaty rights was made.
The divorce from his first “wife” came through in June, 2019. A deportation order was
made on 21st June, 2019, served on 5th July, 2019 and not challenged.
4. On 19th July, 2019 he applied again as a permitted family member and has also given
notice of his intention to marry the second-named applicant. McDonald J. granted leave
in the present proceedings on 21st August, 2019 together with an injunction restraining
the first-named applicant’s deportation; and I am now dealing with the substantive claim
which is for an injunction as a substantive relief, which is the primary order sought in the
statement of grounds. In that regard I have received helpful submissions from Mr. Paul
O’Shea B.L. for the applicants and from Ms. Sarah-Jane Hillery B.L. for the respondent.
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5. Mr. O’Shea accepted that the context has now changed since the leave application in the
sense that this is not an interlocutory injunction application to be considered in
accordance with Okunade v. Minister for Justice, Equality and Law Reform [2012] IESC 49
[2012] 3 IR 152. Rather the court is now dealing with the substantive hearing and thus
the applicants must establish a substantive entitlement to an injunction, not simply that
the balance of convenience favours one.
6. Mr. O’Shea also agreed that, at least in general, such an entitlement in accordance with
B.S. (India) v. Minister for Justice and Equality [2019] IEHC 367 (Unreported, High Court,
10th May, 2019) would have to involve the demonstration of two cumulative
requirements:
(i). a showing of a substantial probability of success of an application to remain in the
State; and
(ii). a showing that if would be significantly oppressive to the applicant if deported in
the meantime to such an extent as to render it disproportionate to remove an
applicant pending a decision on the application.
7. However, by way of qualification of that submission, he also argued that, where EU law
was in play, he could rely on the principle of effectiveness such that national law, for
example in relation to deportation, cannot render the exercise of EU rights unduly
difficult. I will return to that principle later.
8. The current application is as a permitted family member under art. 7(2) of Directive
2004/38. If the parties marry as intended, the first-named applicant will apply under art.
7(1) as a qualifying family member.
9. A reference of the matter to Luxembourg is fairly pointless because the CJEU is not
disposed to hear moot cases and this case would be moot by the time it gets to be heard
there because the application will have been decided by that stage. That court has a very
high threshold for expedited or urgent hearings, which would not be met here. Unlike in
an Irish court, the fact that the case would otherwise be moot is not seen as a potentially
sufficient reason for priority.
10. This is not a straightforward case, and I have sympathy for the applicants, particularly the
second-named applicant, as the situation is not of her making. Unfortunately from the
applicants’ point of view, my role is not to impose the result I might like if I were the
decision-maker, but to apply the law subject to constitutional and European requirements.
Here there is an unchallenged deportation order to which the Minister is presumptively
entitled to give effect. There are also previous EU treaty rights applications which were
refused, one on review, and those decisions are also unchallenged.
11. The principle of effectiveness does not mean that one has to give an applicant everything
on a plate. It is satisfied by the opportunity to make an application for EU treaty rights,
have that determined, and challenge any adverse decision. That right was afforded here.
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Thus the exercise of EU law rights by the applicants has not been made impossible or
unduly difficult and the principle of effectiveness (even assuming that it is relevant in this
context, which seems questionable in the light of C.A. v. Governor of Cloverhill Prison
[2017] IECA 46 (Unreported, Court of Appeal, Hogan J., 27th February, 2017) has not
been infringed. Given that the applicants already have had an opportunity to assert the
essence of the claimed rights by way of the option of instituting proceedings before the
court to challenge the review decision or the deportation order, and didn’t avail of that,
and given that the B.S. (India) test is not otherwise satisfied (because the disruption to
the applicants here is considerably less than that considered in B.S.) I don’t think that an
entitlement to a substantive injunction can be said to have been made out. The right to
marry in general does not carry with it a right to marry in the State specifically.
Accordingly the proceedings are dismissed, although I do so without much enthusiasm.
Postscript – application for stay pending leave to appeal application
12. Mr. O’Shea’s argument was that the substantial grounds threshold for leave under s. 5 of
the Illegal Immigrants (Trafficking) Act 2000 applies in that this case and that the matter
was dealt with by McDonald J. under that section as a collateral attack on the deportation
order (see Nawaz v. Minister for Justice, Equality and Law Reform [2012] IESC 58
[2013] 1 IR 142). The logic of that position is that leave to appeal to the Court of Appeal is also
required under s. 5 of the 2000 Act, so Mr. O’Shea now applies for a date for the hearing
of such an application, and I will list that on 7th October, 2019 with written legal
submissions to be delivered before then. The next question then is whether the stay
should be continued notwithstanding the dismissal of the proceedings, and in relation to
that question the Okunade test does apply (even though, as noted above, it doesn’t apply
to an injunction as a substantive relief). Applying the test in Okunade here, the status
quo of the stay should be maintained, so I will continue the stay on the deportation of the
first named applicant until 7th October, 2019 at 2 o’clock.
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