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THE HIGH COURT
JUDICIAL REVIEW
[2020] IEHC 37
[2019 No. 444 J.R.]
BETWEEN
SAID DARWISH MANDOUR ELSHAHBA AND ERIKA OROSZ
APPLICANTS
AND
THE MINISTER FOR JUSTICE AND EQUALITY
RESPONDENTS
JUDGMENT of Mr. Justice Richard Humphreys delivered on the 24th day of January,
2020
1. This textbook case of a marriage of convenience requires me to add a little
contextualisation. Only in the mysterious world of Irish immigration law could applicants
be found to have engaged in a fraudulent transaction and a deceptive statutory
application, fail to challenge that finding, wander back into court following a later adverse
decision and plead rights arising from the fraudulent and deceptive transaction (that
element requires emphasis – not rights they have entirely independently of the fraud),
and for nobody except possibly the court to see any problem with that. In any other legal
context, the applicants would be thrown out in limine, the papers would be referred to the
prosecuting authorities, and the lawyers might have questions to answer. But I need to
make clear that I make no criticisms whatsoever of the applicants’ lawyers in this case
based on the doctrine in the Highwaymen’s Case, Everet v. Williams (1725) 2 Pothier on
Obligations 3, for the simple reason that the respondent’s counsel didn’t ask me to. All in
a day’s work it seems. But if in some future case the State wants the court to look further
into the professional obligations arising in this type of situation, the matter can be
considered in more detail.
2. According to his counsel, the “husband” in this case claims to have arrived in the State on
1st March, 2014. He has not gone on affidavit to that effect and I will return to that issue
later. It is clear, whatever the date, that his entry into, and presence thereafter in, the
State was at all times unlawful.
3. The “husband” claims to have met the “wife” online. There was a lengthy process of
taking instructions in court as to when this happened, which resulted in my being told
that it was in early 2015. That contradicts what the Minister was informed, as set out in
the review decision, that the parties had a relationship for two years prior to the
“marriage”, which would have put the “meeting” in 2013. The applicants later told their
solicitor during the hearing that it was 2014 instead, but that is still a different timescale
from what the Minister was told, and indeed counsel for the applicants accepted that.
4. The “wife” was asked by an immigration officer where she was working. Her reply to that
question was, “We met on Facebook”: see letter of 2nd September, 2016. It was clear
she had little or no English, and I might add that at a number of key junctures on the
papers the only mantra she had to fall back on was to repeatedly state, “We met on
Facebook”. Counsel for the applicants was not altogether precise on how exactly one
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meets on Facebook, and it doesn’t seem to have occurred to the applicants’ lawyers to
have taken instructions on that point.
5. According to the review decision, the “wife” arrived in Ireland in June, 2015 and the
parties “married” four months later on 14th October, 2015. That level of immediacy is, of
course, characteristic of marriages of convenience especially bearing in mind the three-
month notice period. Obviously, one could add that there are other hallmarks of fraud
present here such as apparent linguistic incompatibility.
6. On 24th November, 2015, in the month following the “marriage”, an application was
made by the first named applicant for a residence card. While that was approved on 11th
July, 2016, three days later when he attended to receive the residence card, he was told
that the registration would be deferred. On 2nd September, 2016 he was issued with a
proposal to revoke the residence card on the grounds of fraud and abuse of rights, and of
the marriage being one of convenience. Representations were made on 16th September,
2016 and a decision to revoke the permission was made on 10th November, 2016. The
decision noted that the wife, “answered a number of questions put to her with, ‘We met
on Facebook’” and appeared unable to understand any questions relating to her
employment.
7. Application was made for a review of that decision on 22nd November, 2016 but the
review was refused on 27th July, 2017. That decision was challenged in the applicants’
first set of judicial review proceedings [2017 No. 806 JR], and on 24th September, 2018
those proceedings were compromised and struck out with the respondent agreeing to
make a fresh decision. That new decision was made on 11th March, 2019 with the same
outcome and it was not challenged.
8. The decision made the point that it had not been explained to the Minister’s satisfaction
how the wife could work in a takeaway without English skills. Her grasp of English was
quite poor. It was clear the Minister did not accept the claim that other employees
somehow (generously and above and beyond the call of duty, presumably because there
were no potential employees available to work in a takeaway that could speak English)
helped her to make up for her linguistic incapacity.
9. In a separate letter dated 11th March, 2019 the first named applicant was notified of a
proposal to deport him. Representations were made on 2nd April, 2019 and a deportation
order made on 8th May, 2019. That was notified to the first named applicant on 31st May,
2019.
10. Perhaps emboldened by the settlement of their first judicial review, a statement of
grounds challenging the deportation order was filed on 3rd July, 2019, out of time albeit
by a modest period. I granted leave on 8th July, 2019 and I have now received helpful
submissions from Mr. Conor Power S.C. (with Mr. Ian Whelan B.L.) for the applicants and
from Mr. Anthony Moore B.L. for the respondent.
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Ground 1
11. Ground 1 contends as follows: “Certiorari is sought as the respondent erred manifestly in
law and in fact and acted unreasonably and irrationally in reaching a decision on the
application without recognising, identifying or evaluating/weighing in the balance any of
the rights of the applicants pursuant to the Constitution and in particular Articles 40, 41
and 42 thereof. It is unquestionably the case that the applicants constitute a marital
family in the State and therefore the deportation of one of them will be such as to engage
constitutional rights. In spite of this there is no assessment at all of any of the
constitutional rights which will be engaged by deportation and nowhere in the decision is
it acknowledged that constitutional rights are engaged/exist or will be impinged upon by
the deportation of the first applicant and the decision is consequently invalid. There is
unquestionable family life as between the applicants and where no reasonable decision
maker could have found otherwise”.
12. Ground 1 is utterly misconceived. The Minister decided in an unchallenged statutory
decision that the marriage is one of convenience. Therefore, no constitutional rights arise
for consideration. I would uphold the plea at para. 7 of the statement of opposition that
constitutional protections do not extend to marriages of convenience.
13. That is consistent with EU law: see Secretary of State for the Home Department v. Akrich
that the marriage remains “formally valid” in that it has not been declared invalid by a
court of competent jurisdiction and that the Minister’s decision under the EU treaty rights
regime is “not self-executing”. But it is not open to a person who has been found in a
statutory process to have engaged in fraud to demand that a further process be gone
through, if fair procedures have already been afforded to him or her. The unreality of the
argument of the contrary has to be seen in the context of the requirement that the onus
to show that the deportation order is invalid is on the applicants at all times.
14. Mr. Power claims that the situation was dynamic; that even if there was a basis for a
finding of a marriage of convenience in the past, that does not mean it is a marriage of
convenience now. Such an argument sounds vaguely plausible but I don’t accept it. It is
equivalent to an argument in response to an allegation of theft along the lines that, “Yes,
I may have stolen this item originally, but you can’t prove I didn’t give it back and that
the rightful owner then voluntarily gave it to me”. A past finding of a marriage of
convenience has to be determinative for future purposes, save perhaps in the most
exceptional of circumstances which don’t arise here. The onus of proving any such
exceptional circumstances rests firmly on the applicants, and the Minister does not have
any obligation to go through some sort of separate process to ask whether such a change
of circumstances exists. Even if, contrary to my view, he does, I can add that it was well
within the Minister’s jurisdiction not to accede to that submission on the evidence before
him here.
Ground 2
15. Ground 2 contends as follows: “Certiorari is sought as the respondent erred in law and in
fact and acted unreasonably and/or irrationally and breached the principles of fair
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procedures and natural and constitutional justice in his consideration of the effects of
deportation on the family life rights of the applicants herein pursuant to the European
Convention on Human Rights. It flies in the face of common sense and rationality on a
consideration of the facts that were before the respondent to conclude that the decision to
deport the first applicant does not constitute an interference with the right to respect for
family life under Article 8 (1) of the ECHR. No reason or rationale is provided for this
pivotal conclusion and the decision is thereby invalid. In circumstances where the first
and second applicants are a married couple in law in the State and where all of the
evidence before the respondent was to the effect that they were residing together in the
State as a family there was then a requirement on the respondent to recognise that there
would be an interference with this family life which would be caused by deportation and to
proceed to assess whether the said potential interference with family rights was one
which was justified following a proportionality assessment pursuant to Article 8 (2) ECHR
and the failure to do this renders the decision to deport invalid”.
16. As one pauses to catch breath from that exercise in verbosity, one sees immediately that
such a pleading fails in limine because of the lack of any reference to the European
Convention on Human Rights Act 2003. The ECHR is not, in itself, justiciable. But even
disregarding that threshold problem, this argument fails for similar reasons to Ground 1.
17. If the marriage is determined to be one of convenience in an unchallenged statutory
process which has afforded fair procedures, no consideration of Article 8 rights arises or is
v. Malta (App. No. 66297/13) (Unreported, European Court of Human Rights, 19th
September, 2017). I would thus uphold the plea at para. 15 of the statement of
opposition that no ECHR protections for marriage arise out of a marriage of convenience.
18. Insofar as the claim is made that independently of the bogus “marriage” there is a real
relationship attracting the protection of Article 8, the previous comments apply. In any
event Article 8 is only breached in exceptional circumstances in the case of unsettled
migrants, and there is no basis to say it is breached here or that there was any error in
the Minister holding that it was not engaged. Even if there was some non-existent duty to
discuss Article 8 more narratively here, the fundamental stumbling block for the
applicants is that the first named applicant was at all times unsettled. Deportation of
unsettled migrants breaches Article 8 only in exceptional circumstances, as has been
repeatedly emphasised from Strasbourg down. If anything is settled law in the
immigration context, this principle is, although (depressingly for anyone who aspires to an
ordered system) that doesn’t seem to deter very many applicants: see, out of many
Rodrigues Da Silva v. The Netherlands (App. No. 50435/99) (2006) 44 E.H.R.R. 34; C.I.
[2015] IESC 64, [2015] 3 I.R. 164. Thus there is no actual breach of the applicants’
rights.
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Ground 3
19. Ground 3 contends: “In circumstances where the respondent might contend that his
essential finding was that there was no family life in existence in this case as the marriage
between the applicants had been deemed a marriage of convenience in the context of the
application for a residence card the said decision was one arrived at pursuant to the
provisions of the European Communities (Free Movement of Persons) Regulations, 2015
and by virtue of the said Regulations is a finding which applies only in circumstances
where the Minister is making his or her determination of any matter relevant to those
Regulations. Regulation 28 (1) of the said regulations provides as follows: ‘28. (1) The
Minister, in making his or her determination of any matter relevant to these Regulations,
may disregard a particular marriage as a factor bearing on that determination where the
Minister deems or determines that marriage to be a marriage of convenience.’ The said
regulations do not and cannot have any bearing on domestic deportation proceedings.
The respondent erred manifestly in essentially determining that there was no lawful
marriage and as a consequence no family life in existence as result of the fact that the
marriage had in a different context been deemed a marriage of convenience in
circumstances where the first and second applicants are validly married in law and where
there is unquestionable family life as between the applicants and where no reasonable
decision maker could have found otherwise. The respondent was under a duty to consider
the case presented to him and has failed to do so”.
20. This argument has already been addressed above. Any given immigration decision can be
relied on for the purposes of a later immigration decision. Every day is not a new day,
contrary to what applicants would have the court believe, but rather the process builds on
what has gone before. It would be totally incorrect to say that the EU treaty rights refusal
is a separate process because the person whose EU treaty rights are refused or cancelled
is then liable to deportation. I thus uphold the plea at para. 12 of the statement of
opposition to the effect that this claim must fail.
Time
21. No real explanation is offered as to why the proceedings were filed out of time, let alone
the good and sufficient reason required by O.84 of the Rules of the Superior Courts, so it
would not have been appropriate to extend time, even if the applicants counterfactually
had a valid legal point. The statement of opposition raises the objection of “delay” in
para. 2. The fact that the delay is short is not a basis for an extension. However, this is
obiter because I am dismissing the claim on its merits.
Discretion
22. Even if counterfactually there had been some valid legal point I would further or
alternatively have dismissed the proceedings on the grounds of discretion based on
wrongful conduct, lack of candour and abuse of the process of the court as pleaded in
para. 2 of the statement of opposition. The unchallenged finding of a marriage of
convenience means that the first named applicant has abused the immigration system of
the State. That adds to his previous flagrant disregard of the laws of the State in entering
illegally and failing to make his presence known to the Minister. The first named
applicant’s whole presence in the State has been an abuse of Irish law from beginning to
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end. There has also been a serious lack of candour to the court. The ex parte application
involved a statement in his affidavit at para. 3 that he “arrived as a visitor, but without a
valid visa”. That affidavit does not say when he arrived, whether he had an invalid visa or
no visa at all. It goes onto say, “After my arrival in Ireland, I met the second applicant
and we formed a relationship” at para. 4. It does not say that the relationship had been
formed online prior to arriving in Ireland and very much suggests the opposite, thus
contradicting what the applicant was to later tell the court and what he had previously
told the Minister. It does not say that the second named applicant, having met the first
named applicant online, then came to Ireland to meet him. These are serious failings in
the applicants’ ex parte disclosure. The first named applicant gave the impression that he
met the second named applicant in person and I understood Mr. Power to accept that that
was indeed the sense of the affidavit. Mr. Power gamely submitted that these details were
not germane, but if the claim is being made that the relationship has reality, the manner
of meeting cannot be said not to be germane. It is also clear that the applicants gave the
Minister incorrect information regarding the date of meeting. Even disregarding their
mutating instructions during the proceedings, they sought immigration permission based
on dates that they are not now standing over, namely meeting in 2013 rather than later.
I should add postscriptually that, without taking from the general principle that there is a
duty on solicitors to make proper inquiries rather than simply regurgitate instructions, on
the particular facts here, the applicants are entirely responsible for the shortcomings in
the ex parte disclosure and their lawyers cannot be faulted at all in the circumstances of
this particular case.
Decisions taken pursuant to the lawful operation of immigration control will be
proportional in all save a minority of exceptional cases
23. More broadly and independently of the above, even if there had not been fraud or abuse
or grounds for the exercise of discretion, the first named applicant has at all times been
an illegal immigrant. Feeney J. in Agbonlahor v. Minister for Justice [2007] IEHC 166,
at 390, that decisions taken pursuant to the lawful operation of immigration control of the
State will be proportionate in all save a minority of exceptional cases. In cases like this,
we do at times need a reality check. Even if there was not an abuse of process, the first
named applicant never had any legal right to be here; he entered surreptitiously and has
been without status throughout. One can safely disregard the brief period when he was
notified of an intention to give him a favourable EU treaty rights decision, because that
was never implemented and was cancelled retrospectively. No injustice is done to him by
being ordered to leave the State. Only in very limited circumstances of clearly established
illegality should the court prevent the deportation of such a person. To do so without such
exceptionality is to trespass on the executive domain and to breach the separation of
powers. Ultimately Mr. Power had to concede that he was not asserting any legal basis for
the first named applicant’s presence in the State.
Order
24. The proceedings are dismissed, and the respondent is released from any undertaking not
to deport the first named applicant.
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Postscript - Leave to Appeal
25. Mr. Power applied for leave to appeal under s. 5 of the Illegal Immigrants (Trafficking) Act
2000 and it was agreed that this could be dealt with straight away rather than being
adjourned for written submissions. Under the heading of public interest as to why leave to
appeal is not appropriate, the first problem is that the proceedings were out of time.
Admittedly I am not finding against the applicants on that ground; certainly, comments
about that are very much obiter. I am dismissing it on the merits instead, but
nonetheless the time problem is a factor to take into account in the public interest leg of
the leave to appeal test.
26. Secondly, there was on these particular facts wrongful conduct and an abuse of process
by the applicants. There was also deception of the Minister and clear failings in the
applicants’ ex parte disclosure to the court. These are not factors that apply to all cases;
they are very much fact-specific to these applicants and militate against there being a
public interest in allowing an appeal in this particular case. So those factors, combined
with the third element of the unchallenged finding of the marriage of convenience, lead
me to believe that the public interest leg of the test is not satisfied, even if, assuming for
the sake of argument, there was a point of law of public importance.
27. But having said that, there is not any point of law that I can identify that is not already
being addressed at the appellate level, so I do not see any great added value in an appeal
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