High Court of Ireland Decisions

[2025] IEHC 116

 

 

THE HIGH COURT

JUDICIAL REVIEW

Record No. 2023/1461 JR

 

 

BETWEEN

 

FN

Applicant

-and-

 

MINISTER FOR JUSTICE

Respondent

 

 

JUDGMENT of Ms Justice Sara Phelan delivered on the 27^th day of February 2025

Introduction

1.             This judgment addresses an alleged marriage of convenience and whether the respondent erred inter alia in preferring the unsubstantiated statements of third parties over the submissions/statements of the applicant and whether fair procedures were applied.  The applicant seeks an order of certiorari and declaratory relief as against the respondent in respect of the respondent's refusal to allow the applicant retain a residence card previously granted to him, such refusal being on the grounds that:

i.     the applicant had entered into a marriage of convenience with a third party in an attempt to obtain immigration permission to which he would not otherwise be entitled; and

ii.   the applicant had sought to rely upon documentation and/or information that he knew to be misleading in order to obtain a derived right of free movement and residence under EU law to which he would not otherwise be entitled.

 

2.             For the reasons set out hereunder, the relief sought is granted.

 

Factual Background

 

3.             The applicant, a Pakistani national, initially arrived in the State on 15 March 2014, having travelled without a visa from the United Kingdom.  Shortly before moving to Ireland, the applicant met one XY [identity anonymised], a Latvian national, through mutual acquaintances in the United Kingdom.  The applicant and XY remained in contact after meeting, XY moved to Ireland to be with the applicant in or around August 2014 and they married on 27 March 2015.  Thereafter, in May 2015, the applicant applied for a residence card under the European Communities (Free Movement of Persons) Regulations 2015 SI No 548/2015 ["the Regulations"] and on 25 November 2015, he was granted a residence card for a period of five years, on the basis of his marriage to XY, and the fact that she was, as an EU citizen, exercising EU treaty rights at the relevant time.

 

4.             In or around 2016/2017, the marriage began to break down and XY commenced travelling frequently to the United Kingdom.  The applicant and XY decided to separate from each other but they remained on good terms and they continued, for the most part, to live together in the State until XY left the State towards the end of 2019.  On 04 November 2019 the applicant and XY obtained a divorce in Latvia, proceedings having been commenced in Latvia on 09 August 2019.

 

5.             On 11 October 2019, the applicant applied for retention of his residence card under the Regulations and on 10 August 2021, the deciding officer [in the name of the respondent] refused to grant the applicant's application and found that the applicant's marriage to XY was one of convenience and that the applicant had provided the respondent with false and misleading documentation.  The deciding officer also refused the applicant's application to remain in the State, revoked his extant permission to be in the State and deemed all previous permissions granted to the applicant void ab initio.

 

6.             The applicant applied for a review of the decisions [and the adverse findings] on 27 August 2021 and, under cover of letter dated 20 September 2023, the deciding officer at review stage [in the name of the respondent] ["the decision-maker"] upheld the adverse findings previously made [as to marriage of convenience and submission of misleading documentation] and the decision to refuse the applicant's retention application.  Furthermore, the respondent revoked the applicant's extant permission back to the date of the first instance decision [10 August 2021] but did not uphold the first instance revocation of the applicant's permission valid from 25 November 2015 to 24 November 2020.  It is the decision of 20 September 2023 ["the decision"], and the adverse findings made therein, that the applicant seeks to impugn in the context of these judicial review proceedings.

 

Application for Retention of Residence Card

 

7.             In applying for retention of the residence card under cover of letter from his solicitor on 11 October 2019, the applicant provided certain documentation to the respondent, including:

-       XY's payslips [09 June 2019; and 19 July 2019 to 02 August 2019, with an address at Saggart, Co Dublin ("the Saggart address"); 09 August 2019 to 06 September 2019; and 20 September 2019, with an address at Navan, Co Meath ("the Navan address")], evidencing the fact that XY was exercising her EU treaty rights through employment in the State on the date of the initiation of the divorce;

-       bank statements in the joint names of the applicant and XY at the Navan address, from 21 June 2019 to 10 September 2019;

-       Virgin Media Bills in joint names of the applicant and XY at the Navan address, for July, August and September 2019;

-       SSE Airtricity bills in joint names of the applicant and XY at the Navan address, for July and August 2019;

-       XY's P60s for 2016 and 2017 with no address noted, but quoting PPSN 1234567A [here, and throughout the judgment, XY's PPSN is anonymised] and the name XY, with the surname Y having an additional "h" inserted as the fourth letter in the surname;

-       XY's P60s for 2015 and 2018 with no address noted, but quoting PPSN 1234567A and the name XY;

-       XY's amended tax credit certificates at an address in Dundalk, Co Louth ["the Dundalk address"] for 2016, 2017 and 2019, quoting PPSN 1234567A and the name XY;

-       bank statements in XY's sole name at the Navan address, from 19 July 2019 to 16 September 2019;

-       business start-up bank statements in the applicant's sole name at the Navan address, from 15 March 2019 to 25 July 2019 and from 26 August 2019 to 10 September 2019;

-       the applicant's P60s for 2016 and 2017 at an address in Mullingar, Co Westmeath ["the Mullingar address"];

-       the applicant's P45 at the Mullingar address, dated 18 February 2018; and

-       the applicant's notice of income tax registration at the Dundalk address, dated 15 November 2018.

 

8.             The respondent replied to this application by letter dated 07 November 2019 and sought additional information, including:

-       evidence of basis of retention of rights [i.e., the decree of divorce and evidence of XY's activity and residence at the time of the divorce];

-       evidence of the applicant's relationship with XY, prior to and post marriage;

-       a detailed immigration history of XY;

-       clarification as regards addresses, in circumstances where XY's payslips [from 14 June 2019 to 02 Aug 2019] gave the Saggart address and the SSE Airtricity bills in the parties' joint names [from 15 July 2019 to 15 August 2019] gave the Navan address;

-       a list of all the parties' residences in the State, with start and end dates, from 2015 to 2019;

-       evidence of these residences [lease agreements, utility bills]; and

-       details of the applicant's immigration history, together with evidence of his current activity in the State and residence in the State.

 

9.             The applicant responded, through his solicitor, under cover of letter of 18 December 2019 and provided inter alia:

-       a history of the parties' relationship;

-       photographs of the couple together pre- and post-marriage, with descriptions on the reverse;

-       the addresses at which the parties resided in the State, being the Mullingar address for two years prior to relocating to the Dundalk address, with the couple also residing for a time at the Navan address [although their relationship was not subsisting at that time] and further stating that XY lived between the Navan address and the Saggart address; and

-       the applicant's 2018 self-assessment/Chapter 4 notice at the Navan address, dated 24 September 2019.

 

10.         By further letter dated 09 January 2020, in response to a letter from the respondent dated 02 January 2020, the applicant's solicitor set out a list of all addresses in the State at which the applicant had resided from 2015 to 2019, being:

-       the Mullingar address, from May 2014 to February 2016;

-       the Dundalk address, from February 2016 to April 2019;

-       the Navan address, from April 2019 to November 2019; and

-       a second address at Navan, Co Meath from November 2019, stating that the applicant was residing at that address as of the date of the letter;

and the applicant's solicitor also enclosed a copy of the Latvian divorce decree dated 04 November 2019.  Thereafter followed further correspondence between the applicant's solicitor and the respondent regarding temporary permission for the applicant to reside in the State and, on 06 May 21 and again on 14 June 2021, there was a request from the applicant's solicitor for a decision on the applicant's application for retention, such application having been submitted in October 2019.

 

11.         On 05 July 2021, the respondent wrote to the applicant's solicitor indicating that it was the respondent's intention to refuse the application for retention and to revoke permission to reside in the State for the reasons set out in the letter and, in particular, the respondent noted firstly, the provision of documentary evidence for:

a.    the Navan address [bank statement in XY's name, bank statement in joint names, utilities bills] from June 2019 to September 2019;

b.    XY's employment in the State:

                                                              i.          amended tax credit certificates for 2016, 2017 and 2019, evidencing the Dundalk address;

                                                            ii.          P60s for 2015 to 2018, with no address being noted on the P60s;

                                                          iii.          payslips from one recruitment agency dated 09 June 2019 and payslips from a second recruitment agency dated 19 July 2019, 26 July 2019 and 02 August 2019, the said payslips evidencing the Saggart address; and

                                                          iv.          payslips from the second of those recruitment agencies dated 09 Aug 19, 16 Aug 19, 23 Aug 19, 30 Aug 19, 06 Sep 19 and 20 Sep 19, the said payslips evidencing the Navan address;

and stated that "[t]he conflicting overlap of dates and addresses in the documents listed above raises concerns as to the actual residence in the state of [XY]."

 

12.         Secondly, the respondent noted that, although the applicant had stated that XY had joined him in the State in August 2014, "[i]nformation available to the Minister from the Department of Employment Affairs and Social Protection states that [XY] was in receipt of her PPSN in this state on 09/01/2014, this was 7 months prior to when you claim she entered the state, and in around the time you claim to have met in the UK.  This information raises concerns of the authenticity of the statement you have provided in support of your relationship with [XY]."

 

13.         Thirdly, the respondent referred to information available to the respondent from the Latvian authorities regarding XY's three children [dates of birth, day/month/2010, day/month/2011 and day/month/2018], being that the two younger children had the same father and that the youngest child was born in the United Kingdom.  The respondent's letter goes on to state that "[t]his information would suggest that while [XY] was frequently travelling to the UK in 2016, she was in fact in a relationship with this same third party [the father of the two younger children] throughout the time you claim to have been in a relationship.  It is also noted that [XY] registered her place of residence to be in Latvia from 25/06/2019."

 

14.         Fourthly, the respondent referred to her letter dated 02 January 2020 requesting a list of the applicant's residences in the State since his arrival in 2014.  It should be noted that this letter was not exhibited in the affidavits before the court and it appears from the reply from the applicant's solicitor dated 09 January 2020 that this request was for residences between 2015 and 2019, as opposed to residences between 2014 and 2019.  The reply from the applicant's solicitor gave the dates and addresses as set out at §10 above.

 

15.         The respondent then noted that "[i]nformation available to the Minister from the Department of Employment Affairs and Social Protection states that you provided them with an address [in Carrick-on-Suir, Co Tipperary] when registering with them.  Furthermore, information available to the Minister from An Garda Siochana states that you were a resident at a guesthouse [in Drogheda, Co Louth] from 20/01/2016 - 28/02/2016, both addresses you have failed to mention in the above listing.  It is also noted that on 01/03/2016 a member of An Garda Siochana spoke with the owner [of the guesthouse in Drogheda, Co Louth], it was stated that the owner of the property was in receipt of a utility bill addressed to both you and [XY] at that address, and that you informed her that you were single, and that [XY] was married to a friend to try and help him gain immigration status in the state." [emphasis supplied]

 

16.         And the respondent stated that "[i]n light of the above information, the Minister has concerns that you contrived to enter into marriage with [XY] in order to maintain a residence permission in this State" and that based on the above information the respondent was "of the opinion that the documentation you provided in support of your application to evidence the residence of you and your spouse in this State is false and misleading as to a material fact.  You knowingly submitted this documentation in order to obtain a right of residence which you otherwise would not enjoy.  This constitutes a fraudulent act within the meaning of the Regulations and Directive, which provides that Member States may refuse, terminate or withdraw any rights conferred under the Directive "in the case of abuse of rights or fraud, such as marriages of convenience".  If this is found to be the case and the Minister will proceed to refuse your application for permission to remain/retention of a right of residence and/or to revoke your permission to remain in accordance with the provisions of ..... the Regulations and Article 35 of the Directive.  Further to the above, the Minister is also of the opinion, that the marriage contracted between yourself and [XY], is one of convenience, contracted for the purposes of obtaining an immigration permission which you would otherwise not have an entitlement to.  It should be noted that if your marriage is found to be one of convenience in accordance with ..... the Regulations, the Minister will disregard this marriage for the purpose of the determination of this matter.  Further any previous permission held on the basis of this marriage i.e. all the temporary permission held whilst your applications were pending and the substantive permission from 25/11/2015 to 24/11/2019 will be deemed to have never been valid and the residence card held on that basis will be revoked in accordance with ..... the Regulations." [emphasis supplied]

 

17.         The respondent invited the applicant to provide representations "stating why your retention application should not be refused and your permission to remain should not be revoked, to dismiss concerns that your marriage is a marriage of convenience in accordance with the provision of Regulation 28(2) of the ..... Regulations ..... and to address the issue of your submission of false and misleading information to this office in order to obtain a residence card."

 

18.         The respondent's letter also stated that "[a]ny representations should include a detailed immigration history of [XY] including dates of travel to and from the State in the period from January 2014 to present and state the purpose of such travel.  A detailed relationship history should also be provided along with any other information/documentary evidence you may wish to provide as to why your application for retention should not be refused & permission to remain in the State should not be revoked."

 

19.         By letter dated 23 July 2021, the applicant's solicitor replied, dealing with:

-       firstly, the queries as to the various addresses and stating "we are instructed that [XY] resided at [the Saggart address] for a period of 1 week before moving in with [the applicant] at his address.  This arose in circumstances where she initially planned to live there as it was closer to her work place in in Dublin, however she soon returned to reside with [the applicant].  Respectfully we would submit that this discrepancy may raise concerns as to the actual address of [XY] in the State however it cannot be said to raise concerns as to her residence in the State as she was clearly in employment in the State at this time as evidenced by the payslips submitted."

-       secondly, the query as to the date when XY received her PPSN, referring "to your claim that [XY's] PPSN was registered 7 months before she entered the country.  This is simply incorrect and a [sic] error in fact.  [XY's] PPSN was issued on 9 October 2014 and we enclose herewith letter from Department of Social Protection evidencing this.  This blatant error on your part obviously raises concerns over the veracity of the information upon which you are seeking to rely in making these allegations."  By way of comment, the court notes that the letter from the Client Identity Services section of the Department of Social Protection ["the Department"] states "I wish to acknowledge your registration for a Personal Public Service Number (PPS No.) and to advise you that your PPS No. is 1234567A" and whilst the copy exhibited at 'Exhibit FN5' of the applicant's affidavit sworn 04 December 2023 was very faint, the court had sight of the original letter during the course of the hearing and the court was, and is, satisfied that the PPSN quoted thereon was the exact same PPSN as quoted on all other documentation exhibited in the applicant's affidavit and referred to before the court.

-       thirdly, the paternity of XY's two younger children, stating that "[t]he writer has further erred in fact in stating that [XY's] two youngest children share the same father.  They do not.  Her two eldest children, born in 2010 and 2011 some 3 years before our client met [XY] share a father, however we are instructed that the father of the youngest child is someone else entirely.  Again, we are concerned that you are seeking to make such serious allegations against our client on information that is simply incorrect."

-       fourthly, the fact that XY had registered her address in Latvia in June 2019, and "[w]e understand that [XY] registered her place of residence in Latvia in June 2019 in order to obtain a divorce there.  Initially [the applicant] and [XY] sought to be divorced in Ireland however the Family Law Act (2009) [sic] which reduced the waiting time for a Divorce in Ireland was not commenced until December 2019 and they did not wish to wait a further two years."

-       fifthly, the failure to provide addresses prior to 2015 stating "[i]n respect to your letter of 2 January 2020, please note that you did not request a list of residences in the State since his arrival in 2014.  This letter clearly states "Please submit a list of all residences in the State from 2015 to 2019, with start and end dates, for your client."  Our client resided at the address [in Carrick-on-Suir, Co Tipperary] in or around March or April of 2014 which is outside the timeframe which you requested."

-       sixthly, the guesthouse in Drogheda, Co Louth ["the Drogheda guesthouse"], stating that "our client only stayed there for a period of 1 month and as such, never saw himself to be 'resident' there and it was always a temporary situation.  He had no intention of misleading your department.  Furthermore, our client instructs that he never spoke to the owner of [the guesthouse] about his wife or his immigration status in the State and it is deeply concerning to the writer that the Department would take into consideration the word of a person who crossed paths with the applicant for a period of 1 month back in 2016 over the evidence provided to them.  Please provide us with a copy of the utility bill which you are seeking to rely on and clarify why the Gardai were investigating our client in this regard in March 2016.  Please also furnish us with contemporaneous notes from this time and from the Garda who spoke with the owner of this address.  Given the above mentioned errors in the information you are seeking to rely on we have grave doubts as to the veracity of these allegations."

and the letter from the applicant's solicitor concluded "we submit that there is simply no basis upon which to find that our client contrived to enter into marriage with his wife in order to maintain a residence permission and your letter is premised on incorrect information."

 

First Instance Decision

 

20.         Thereafter, the respondent, under cover of letter of 10 August 2021, refused the applicant's application for retention of his residence card and revoked his permission to reside in the State, on the premise that the applicant did not fulfil the relevant criteria set out in the Regulations and Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States ["the Directive"].

 

21.         In so refusing, the respondent was satisfied that the documentation provided by the applicant in support of his application, and specifically the documentation firstly, evidencing the residence of the applicant and XY in the State and secondly, evidencing the exercise of rights by XY in the State, was false and misleading as to a material fact.  The respondent was of the view that the applicant knowingly submitted this documentation in order to obtain a right of residence which he otherwise would not enjoy and that this constituted a fraudulent act within the meaning of the Regulations and the Directive, which provided that Member States may refuse, terminate or withdraw any rights conferred under the Directive in the case of abuse of rights or fraud, such as marriages of convenience.  The respondent thus informed the applicant that the respondent had decided to "refuse your application for permission to remain and revoke your permission to remain in accordance with the provisions of Regulation 27(1) of the Regulations and Article 35 of the Directive."

 

22.         Furthermore, the respondent was satisfied that the marriage contracted between the applicant and XY was one of convenience, contracted for the purposes of obtaining an immigration permission to which the applicant would otherwise not have had an entitlement and the respondent informed the applicant that his marriage had been found to be one of convenience in accordance with the Regulations and that in accordance with Regulation 28(1), the respondent was disregarding the marriage for the purpose of the determination of the matter and that any previous permission held on the basis of the marriage was deemed to have never been valid and the residence card held on that basis was revoked in accordance with Regulation 27(1).

 

23.         Central to this refusal, were the deciding officer's observations regarding:

-       firstly, XY's residence at an address in Saggart, Co Dublin, that "[i]n your statement you note, '[XY] resided at [the Saggart address] for a period of 1 week before moving in with [the applicant] at his address.'  You ..... failed to provide any documentary evidence to substantiate this statement ..... the payslip you provide in [XY's] name, dated 14/06/2019, remains unexplained.  This payslip bears the address at [Saggart, Co Dublin].  It remains inexplicable as to why a payslip from 2019, which you had access to, would bear this address.  As such, you have failed to dismiss the Minister's concerns regarding this address."

-       secondly, the query as to the date when XY received her PPSN and "[y]our statement refers to the issue date of [XY's] PPS number ..... you provided a letter, dated 09/10/2014, from Client Identity Services, Social Welfare Services Office.  As stated in the Minister's letter, dated 05/07/2021, information available to the Minister from the Department of Employment Affairs and Social Protection states that [XY] was issued a PPS number in this State on 09/0l/2014, 7 months prior to when you claim [XY] entered the State.  This is also close to the time which you claim to have met [XY] in the United Kingdom.  The information provided to the Minister from the Department ..... proves a record of [XY's] PPS number from 09/01/2014.  Though the letter you have provided is dated 09/10/2014, as there is a record from 09/01/2014, the concerns raised in the Minister's letter have not been dismissed."

-       thirdly, the paternity of XY's two younger children, and "you state that [XY's] two youngest children do not share the same father and that it is [XY's] two eldest children that share the same father.  This statement does not match the information which has been made available to the Minister via the Latvian Authorities.  As stated in the Minister's letter, dated 05/07/2021, information available to the Minister from the Latvian Authorities states that [XY] has three children.  The father of the two youngest children is the same third party as per the information available to the Minister.  In addition to this, it is stated that [XY's] youngest child was born in the United Kingdom.  This information would suggest that while [XY] was frequently travelling to the UK in 2016, there was a relationship between [XY] and the third party father at the same time you claim to have been in a relationship with [XY].  You claim that the Minister has erred in fact regarding this yet you have failed to provide any evidence at all to support this.  As the Minister has reputable information to support that [XY's] two youngest children were born of the same third party father, the Minister continues to support this information from the Latvian Authorities."

-       fourthly, the interview between a member of an Garda Síochána and the owner of the Drogheda guesthouse, and the fact that "the Minister takes into consideration all available information and that the documents and evidence you have provided has been given equal consideration to all other information available to the Minister.  All information available to the Minister has been detailed in the letter dated 05/07/2021.  It should also be noted that this interview is not the sole information on which the Minister seeks to rely, as is made clear by both this letter and the Minister's letter dated 05/07/2021."

 

24.         It is noted that the deciding officer did not refer to inter alia

a.    XY's registration of her residence in Latvia;

b.   the applicant's failure to notify the respondent that he had resided at the Carrick-on-Suir address in 2014; and

c.    the applicant's failure to notify the respondent that he had resided at the Drogheda guesthouse for a month in 2016;

albeit that it was stated in the first instance decision that "[a]ll information available to the Minister has been detailed in the letter dated 05/07/2021".  However, it would appear that the decision-maker [as set out below] relied upon the matters set out at a., b. & c. above, and the court finds that such reliance was unfair and in breach of fair procedures, and this issue is dealt with in greater detail from §70 below.  It is also noted that prior to, or in the course of, the first instance decision, the respondent did not provide any of the documentation/information previously sought by the applicant and neither did the respondent at any stage deal with the requests for such documentation/information. 

 

Application for Review

 

25.         By letter dated 27 August 2021, the applicant sought a review of the refusal of his application for the retention of his residence card and the revocation of his permission to remain in accordance with the provisions of the Regulations and the Directive on the basis that the decision-maker erred in fact and in law in:

a.    revoking the applicant's permission and in finding that the applicant did not fulfil the criteria set out in the Regulations and the Directive;

b.   finding that the documentation provided in support of the application was false and misleading as to material fact;

c.    finding that the applicant engaged in a marriage that was contracted for the sole purpose of obtaining an immigration permission to which he would otherwise not be entitled;

d.   favouring unsighted evidence from the Department of Employment Affairs and Social Protection as to the date of issue of XY's PPS number and discounting probative evidence furnished in the form of a letter from the Department of Social Protection Client Identity Services acknowledging the date of registration for a PPS number;

The applicant further claimed that the decision-maker failed in law and acted in breach of fair procedures in relying on alleged information available from the Latvian authorities that had not been furnished to the applicant.

 

26.         Specifically, and as regards:

-       firstly, XY's residence at an address in Saggart, Co Dublin, the applicant submitted that an explanation had been provided under cover of letter of 23 July 2021 and that it was unclear why the respondent had "concerns regarding this address" in circumstances where XY had only resided there for one week and there was no requirement for the applicant and XY to be resident at the same address in order to satisfy the Regulations;

-       secondly, the date when XY received her PPSN, the applicant submitted that the respondent should have contemplated that there may be an error in the information provided to the respondent, particularly when the dates 09/01/2014 and 09/10/2014 were so similar and that it was incumbent upon the respondent to carry out the necessary checks [and there was no evidence that such checks has been carried out] and to ensure that safeguards were in place when the applicant was not in a position to assess the veracity of the information supplied to the respondent;

-       thirdly, the paternity of XY's two younger children, the applicant's solicitor stated that the applicant's firm instructions were that the children referred to did not have the same father and that whilst it had been previously submitted that the two eldest children had the same father, such submissions were mistaken and the applicant strongly believed that XY's three children had three different fathers.  The applicant further submitted that without prejudice to the above position, even if the two youngest children did share the same father there was a seven year age difference between those children and it should by no means be assumed that XY's relationship with the children's father was subsisting throughout the seven years; and

-       fourthly, the interview between a member of an Garda Síochána and the owner of the Drogheda guesthouse, the applicant again requested sight of the notes of such interview as a matter of urgency, on the basis that if the respondent was seeking to rely on such information it was imperative that the applicant be given the opportunity to test same.  It was submitted on behalf of the applicant, as a basic tenet of natural justice, that it was not sufficient for the respondent to simply refer to an interview without providing the applicant with the full text of the interview and the context in which it was taken.

In so referring to these matters, it is clear that the applicant's solicitor was responding to the matters referred to by the deciding officer.

 

27.         More generally it was also, submitted on behalf of the applicant that the respondent had leaped to a marriage of convenience finding with no evidence to support same and that whilst it was stated that the respondent took into consideration all available evidence and that the documents and evidence provided by the applicant had been given equal consideration to all other information available to the respondent, this was blatantly untrue and that the file had been consistently dealt with in a biased manner.  The applicant's solicitor further stated that it was clear to her that the respondent had made an assumption that it was a marriage of convenience and had then sought out information that supported this assumption.  Lastly, the applicant's solicitor submitted that the applicant had been severely prejudiced by the respondent's delay in raising the concerns and not only should any concerns have been raised at the time of the applicant's initial application in 2015 but that it had also taken the respondent nearly two years to determine the application for retention.

 

28.         By further letter dated 29 April 2022, the applicant's solicitor again requested sight of the documentation/information relied upon by the respondent regarding XY's PPSN and the interview with the owner of the Drogheda guesthouse.  And, in the same letter, the applicant's solicitor brought to the respondent's attention the efforts made by the applicant to obtain information from the Latvian authorities regarding changes to the children's birth certificates but that such request was denied since the applicant was divorced from the children's mother and he was not entitled to such information.  Additionally, further evidence of the applicant's activity within the State [being tax clearance certificates and self-assessment/chapter 4 forms for 2020 and 2019] was furnished to the respondent.  There then followed two requests [dated 11 May 2023 and 04 September 2023] for the respondent to make a decision.

 

Impugned Decision ["the decision"]

 

29.         By letter dated 20 September 2023, the applicant was informed that the review of his application was not successful and that, having considered all of the information, documentation, and submissions on all of his files, the respondent was not persuaded that the decision of 10 August 2021 should be overturned.  The letter went on to state that the applicant "failed to establish that the Deciding Officer erred in fact or law when refusing your retention application and revoking your residence card.  The Minister finds that appropriate procedures were used and that the correct interpretation of the Regulations and the Directive was applied.  In making his determination, the Deciding Officer in this case considered all of the information and documentation available to him."

 

30.         The issues recited in the decision, as grounds for refusing to overturn the first instance decision, are as follows:

-       firstly, it was asserted that there was conflicting overlap between dates and addresses in documents provided by the applicant.  This would appear to pertain to the addresses of the applicant and XY in 2019 and the respondent stated "[y]ou provided a payslip from [one recruitment agency] dated 09/06/2019 and payslips from [a second recruitment agency] dated 19/07/2019, 26/07/2019 & 02/08/2019, all with [the Saggart address].  You also submitted payslips from [the second recruitment agency] dated 09/08/2019, 6/08/2019, 23/08/2019, 30/08/2019, 06/09/2019 & 20/09/2019, these payslips hold an address of [the Navan address].  The conflicting overlap of dates and address [sic] in the documents listed above raises concerns to the actual residence in the State of [XY].  Your legal representative informed on 18/12/2019 'that the couple also resided for a time at [the Navan address] although their relationship was not subsisting at that time they were living there and we understand that [XY] lived between this address and [the Saggart address].'"

-       secondly, the respondent cited the date on which XY received her PPSN as an issue, stating "Information available to the Minister from the Department of Social Protection states that [XY] was in receipt of her PPSN in this state on 09/01/2024, this was 7 months prior to when you claimed she entered the State, and in around the time you claimed to have met the United Kingdom."

-       thirdly, the respondent referred to the paternity of XY's children, specifically the paternity of her third child, stating "[f]urther information available to the Minister from the Latvian Authorities states that [XY] has three children ..... [i]t is further noted that the father of the two youngest children is the same third party.  In addition to this, it is stated that [XY's] child born on day/month/2018 was born in the United Kingdom.  This information would suggest that while [XY] was frequently travelling to the United Kingdom in 2016, she was in fact in a relationship with this same third party throughout the time you claimed to have been in a relationship."

-       fourthly, the respondent noted the conversation between a member of An Garda Síochána and the owner of the Drogheda guesthouse to the effect that "a member of An Garda Siochana spoke with the owner of [the Drogheda guesthouse], it was stated that the owner of the property was in receipt of a utility bill addressed to both you and [XY] at that address, and that you informed her that you were single, and that [XY] was married to a friend to try and help her gain immigration status in the state." [emphasis supplied]

 

31.         The respondent cited two further matters in support of the refusal, being firstly, XY's registration of residence in Latvia, stating, "it is also noted that [XY] registered her place of residence to be in Latvia from 25/06/2019" and secondly, a failure to mention certain addresses, namely the Carrick-on-Suir address, and the Drogheda address, stating "Information available to the Minister from the Department of Social Protection states that you provided them with [the Carrick-on-Suir address] when registering with them.  Furthermore, information available to the Minister from An Garda Siochana states that you were a resident at [the Drogheda address] from 20/0l/2016 - 28/02/2016, both addresses you failed to mention."

 

32.         The respondent then concluded that "[h]aving considered all of the above documentation, information, and submissions, the Minister is not satisfied that you and [XY] were residing together in the State ..... the documentation and/or information that you submitted as putative evidence of your residence with [XY] was submitted with the intention of misleading the Minister into thinking that you were cohabiting with [XY] when this was not the case ..... you submitted and sought to rely upon information and/or documentation that you knew to be misleading in order to obtain a derived right of free movement and residence under EU law to which you would not otherwise be entitled.  This is an abuse of rights in accordance with Regulation 27 of the Regulations.  There is little cogent information or documentation on file in respect of your relationship with [XY] ..... there is little evidence on file that you and [XY] made any financial commitments to each other, had any joint assets or liabilities, lived together for any significant period of time in the State, dealt to any great extent with other organs of the State as a married couple, or displayed a continuing commitment to mutual emotional and financial support.  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 evidence available to the Minister strongly indicates that your marriage to [XY] was one of convenience in accordance with Regulation 28 of the Regulations that was contracted in an attempt to obtain an immigration permissions to which you would not otherwise be entitled."

 

33.         However, and in contrast to the first instance decision, the respondent did not revoke the applicant's residence card retrospectively and the card was revoked as of the date of the first instance decision on 10 August 2021.  In other words, the permission to remain that the applicant enjoyed between 25 November 2015 and 24 November 2020 remained valid.  Lastly the respondent noted that the decision did not interfere with any rights which the applicant may have under the Constitution or Article 8 of the European Convention on Human Rights and that full and proper consideration would be given to those rights in any subsequent proposed decision where such interference may arise.

 

Procedural Background

 

34.         The applicant sought leave to apply for judicial review by way of ex-parte application on 18 December 2023 and, following a hearing on 12 February 2024, leave was granted permitting the applicant to apply by way of an application for judicial review for the reliefs as specified in the statement of grounds filed on 15 December 2023, being inter alia:

a.    an order of certiorari, quashing the refusal of the respondent, on review, to allow the applicant to retain the residence card previously granted to him under the Regulations;

b.    a declaration that the respondent's findings that (i) the applicant's marriage to XY, an EU national, was a marriage of convenience and/or (ii) that the applicant had deliberately provided misleading documentation and/or information to the respondent, were made incorrectly and/or unreasonably and/or in breach of fair procedures; and

c.    any such other order, including and providing for the costs of the proceedings.

and the statement of grounds, filed on 15 December 2023, sought to impugn the decision of 20 September 2023 and, insofar as they are relevant to this decision, the grounds relied upon by the applicant are discussed below, from §46 onwards.  In support of matters set out in the statement of grounds, the applicant swore an affidavit on 04 December 2023, which said affidavit exhibited inter alia the documentation above referred to in the 'Factual Background' and a further affidavit, in accordance with Practice Direction HC81 as amended by directions of the High Court, was sworn by his solicitor on the same date.

 

35.         A statement of opposition was filed by the respondent on 05 July 2024, and again, insofar as they are relevant to this decision, the matters relied upon by the respondent are discussed below, from §46 onwards.  The decision-maker swore an affidavit on 05 July 2024 in support of matters set out in the statement of opposition.

 

Relevant EU and Domestic legislation

 

36.         The applicant's residence in the State from the date of his marriage to XY on 27 March 2015 to date is governed by the European Communities (Free Movement of Persons) Regulations 2015 SI No 548/2015 ["the Regulations"], which give effect to Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States ["the Directive"].  The Regulations were amended by SI No 445/2021 - European Communities (Free Movement of Persons) (Amendment) Regulations 2021.

 

The Directive

 

37.         Article 35 of the Directive, entitled "Abuse of Rights", provides that

"Member States may adopt the necessary measures to refuse, terminate or withdraw any right conferred by this Directive in the case of abuse of rights or fraud, such as marriages of convenience.  Any such measure shall be proportionate and subject to the procedural safeguards provided for in Articles 30 and 31." [emphasis supplied]

 

38.         Article 30 of the Directive, entitled "Notification of decisions", provides at 30(1) that

"The persons concerned shall be notified in writing of any decision taken under Article 27(1), in such a way that they are able to comprehend its content and the implications for them." [emphasis supplied]

 

39.         Article 31 of the Directive, entitled "Procedural safeguards", provides at 31(1) that

"The persons concerned shall have access to judicial and, where appropriate, administrative redress procedures in the host Member State to appeal against or seek review of any decision taken against them on the grounds of public policy, public security or public health."

and at 31(3) that

"The redress procedures shall allow for an examination of the legality of the decision, as well as of the facts and circumstances on which the proposed measure is based.  They shall ensure that the decision is not disproportionate, particularly in view of the requirements laid down in Article 28."  [emphasis supplied]

 

40.         Article 3(2) of the Directive, entitled "Beneficiaries" provides inter alia that

"The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people."  [emphasis supplied]

 

The Charter of Fundamental Rights of the European Union ["the Charter"]

 

41.         Article 47 of the Charter provides for the "Right to an effective remedy and to a fair trial" and states that

"Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.

Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.

Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice."

 

The Regulations

 

42.         Regulation 25, entitled "Review of decisions", provides at 25(1), as amended, that

"A person who -

(a)          has, or who claims to have, an entitlement under these Regulations to enter or reside in the State,

.....

may seek a review of any decision concerning such entitlement, claimed entitlement ..... "

and at 25(5)

"The officer carrying out the review shall have regard to the information contained in the application and may make or cause to be made such enquiries as he or she considers appropriate and may—

(a)          confirm the decision the subject of the review on the same or other grounds having regard to the information contained in the application for the review, or

(b)          set aside the decision and substitute his or her determination for the decision."

 

43.         Regulation 27, entitled "Cessation of entitlements", as amended, provides that

"(1)   The Minister may revoke ..... any of the following where he or she decides, in accordance with this Regulation, that the right, entitlement or status, as the case may be, concerned is being claimed on the basis of fraud or abuse of rights:

.....

(b)     a residence card, a permanent residence certificate or permanent residence card;

.....

(2)     Where the Minister suspects, on reasonable grounds, that any right, entitlement or status conferred by these Regulations is being claimed, or has been obtained, on the basis of fraud or abuse of rights, he or she shall be entitled to make such enquiries and to obtain such information as is reasonably necessary to investigate the matter.

(3)     Where the Minister proposes to exercise his or her power under paragraph (1), he or she shall -

(a)     give notice in writing to the person concerned, which shall set out the reasons for his proposal and shall give the person concerned a period of 21 days within which to give reasons as to why the right, entitlement or status concerned should not be revoked, and

(b)     consider any submissions made in accordance with subparagraph (a).

(4)     In this Regulation, 'abuse of rights' shall include a marriage of convenience or civil partnership of convenience."

 

44.         Regulation 28, entitled "Marriages of convenience", provides that

"(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.

(2)     Where the Minister, in taking into account a marriage for the purpose of making a determination of any matter relevant to these Regulations, has reasonable grounds for considering that the marriage is a marriage of convenience, he or she may send a notice to the parties to the marriage requiring the persons concerned to provide, within the time limit specified in that notice, such information as is reasonably necessary, either in writing or in person, to satisfy the Minister that the marriage is not a marriage of convenience.

.....

(5)     The Minister shall determine whether a marriage referred to in paragraph (2) is a marriage of convenience having regard to -

(a)     any information furnished under these Regulations, and

(b)     such of the following matters as appear to the Minister to be relevant in the circumstances:

.....

(ii)         whether the parties have been residing together as husband and wife, and, if so, the length of time during which they have so resided;

(iii)       the extent to which the parties have been sharing income and outgoings;

(iv)    the extent to which the parties have been dealing with other organs of the State or organs of any other state as a married couple;

(v)     the nature of the relationship between the parties prior to the marriage;

(vi)    whether the parties are familiar with the other's personal details;

.....

(ix)    whether the parties have a continuing commitment to mutual emotional and financial support;

.....

(xii)   the immigration status of the parties in the State or in any other state;

.....

(xiv)   any other matters which appear to the Minister to raise reasonable grounds for considering the marriage to be a marriage of convenience.

(6)     For the purposes of these Regulations "marriage of convenience" means a marriage contracted, whether inside or outside the State, for the sole purpose of obtaining an entitlement under -

(a)     the Council Directive or these Regulations,

(b)     any measure adopted by a Member State to transpose the Directive, or

(c)     any law of the State concerning the entry and residence of foreign nationals in the State or the equivalent law of another state."

 

Relevant Authorities

 

45.         So called 'marriages of convenience' have been the subject of many judicial review applications and the following principles regarding:

a.    the standard of reasonableness to apply to decision-making;

b.   what must be considered in the decision-making process; and

c.    the proportionality of the decision

may be gleaned from prior judgments.

(1)         Article 47 of the Charter requires that national courts, in implementing the Directive, must be able to ascertain whether the refusal decision is based on a sufficiently solid factual basis and whether procedural safeguards [including the obligation on the respondent to undertake an extensive examination of the applicant's personal circumstances and to justify any denial of entry or residence on a rational basis, taking the personal circumstances of the applicant into account] were complied with and this chimes with the standard by which reasonableness is to be judged that applies more generally to judicial review of asylum and immigration decisions following cases such as Meadows v. Minister for Justice [2010] IESC 3; [2010] 2 IR 701 and Mallak v. Minister for Justice [2012] IESC 59; [2012] 3 IR 297 [per Haughton J in Shishu & anor v. Minister for Justice [2021] IECA 1; [2023] 3 IR 251 at §92-94];

(2)         The Directive and the Regulations create the obligation to extensively examine the personal circumstances, but do not go so far as to impose an investigative obligation, or an obligation to raise queries or concerns or seek additional evidence [per Haughton J in Shishu at §126];

(3)         The person affected by a decision has an entitlement to put forward their side of the case and the respondent must fairly consider such representations [per Bolger J in K v. Minister for Justice [2022] IEHC 582 at §47];

(4)         A decision should give reasons which are sufficiently specific and concrete to allow the person to understand why an application is being rejected [per Charleton J in PO v. Minister for Justice [2015] IESC 64; [2015] 3 IR 164 at §25];

(5)         Fair procedures must be properly adhered to and the decision-making process must be sufficiently rigorous to ensure that an adverse finding is arrived at only following a careful evaluation of all of the evidence and submissions put before the decision-maker [per Ferriter J in RA v. Minister for Justice [2022] IEHC 378 at §66];

(6)         The purpose behind the duty to give reasons is so that it is clear that all relevant factors were taken into account by the decision-maker and all irrelevant factors are excluded from the consideration [per Clarke CJ in Connelly v. An Bord Pleanála [2018] IESC 31; [2021] 2 IR 752 at §5.4];

(7)         Where is it not questioned that a couple are married; nor that one of them is an EU citizen and that they both have the necessary three month period of established residence, the onus passes to the Minister to state clearly which condition of the application remains unsatisfied; which documentary proof is missing or questioned and to state plainly why this is so [per Cooke J in Lamasz v. Minister for Justice [2011] IEHC 50 at §20];

(8)         There will be circumstances in which fair procedures dictate that the decision-maker raises matters with an applicant and considers a response before coming to a decision, for example, where the decision-maker obtains relevant information from a source other than the applicant and is contemplating using that information to refuse a residence card [per Haughton J in Shishu at §127], but providing information does not require that the underlying documentation in the decision-maker's possession be provided unless that, in itself, is of relevance [per Burns J in VS v. Minister for Justice [2021] IEHC 63 at §22];

(9)         A decision does not have to address every single aspect of a claim in the reasoning process and a statement by a decision-maker that they have considered all the material put before them is sufficient, without further affidavit evidence, unless there is some evidence-based reason to think that they did not [per O'Malley J in Rana & anor v. Minister for Justice [2024] IESC 46 at §92];

(10)     Save for exceptional cases there is no obligation on a decision-maker to inquire outside or seek to verify any documentation submitted by an applicant [per Denham J in Oguekwe & ors v. Minister for Justice [2008] IESC 25; [2008] 3 IR 795 at §85];

(11)     There is no onus on the Minister to make inquiries seeking to bolster an applicant's claim; it is for the applicant to present the relevant facts [per Faherty J in Khan & ors v. Minister for Justice [2017] IEHC 800 at §85];

(12)     The redress procedures must allow for an examination of the legality of the decision, as well as of the facts and circumstances on which the proposed measure is based, and they must also ensure that the decision is not disproportionate [per Phelan J in AKS v. Minister for Justice & ors [2023] IEHC 1 at §79]

(13)     The respondent has a discretionary power to revoke but should only exercise that discretion in circumstances where it is proportionate, and an assessment of the potential impact of the decision on acquired or vested rights is necessary as a first step to ensuring that the decision ultimately taken does not give rise to a disproportionate interference with such rights [per Phelan J in AKS at §118 and §122]

 

Discussion

 

46.         The applicant, in his submissions, helpfully posed two questions that this court should consider in coming to a decision and the court now looks to each of these in turn.

 

Was the respondent's analysis of the applicant's case in accordance with legal principle and/or fair procedures and/or sufficiently rigorous and/or grounded on a sufficiently solid factual basis?

 

47.         It is clear from (i) the inter partes correspondence, (ii) the first instance decision and (iii) the impugned decision ["the decision"] above referred to, that the respondent considered a number of issues/anomalies in the applicant's application in arriving at the decision to refuse to allow the applicant to retain a residence card previously granted to him.  These issues may be summarised [primarily using the sequence in which they appear in the correspondence/decisions as set out above] as follows:

a.    the applicant's addresses/residence [conflicting/overlap, failure to mention];

b.   the date upon which XY received her PPSN;

c.    the paternity of XY's children;

d.   the registration of residence in Latvia;

e.    the Drogheda guesthouse; and

f.     the evidence of relationship.

 

48.         Given that the decision states "[h]aving considered all of the above documentation, information, and submissions" the court should be in a position to assume that each of the issues were considered by the respondent.  The applicant's counsel addressed all issues by way of written and oral submissions and these submissions [and the respondent's replies] are addressed hereunder, but the court considers two of these issues to be of such significant import [being (i) the date upon which XY received her PPSN and (ii) the Drogheda guesthouse] that they are dealt with in detail from §54 below.

 

49.         However, and before addressing these two issues, it is the court's view that the decision is remarkable for its lack of clarity and lack of transparency.  It is clear that the decision-maker, whilst stating at the commencement of the decision that "the review of your application has not been successful, as you do not fulfil the relevant conditions set out in the Regulations and the Directive.  The decision of 10/08/2021 to refuse your retention and revoke your residence card is affirmed for the following reasons" decided to then simply recite certain facts and statements made by the applicant, together with "information available to the Minister", before going on to hold as set out at §47 to §48 above.

 

50.         The court notes that in line with the finding in Rana as set out at §45 above, "a statement by a decision-maker that they have considered all the material put before them is sufficient, without further affidavit evidence, unless there is some evidence-based reason to think that they did not" but the difficulty in the matter presently before the court is that, for the reasons set out below, the court is not satisfied that the respondent considered all the material available in an evidence-based way.

 

51.         It is not evident to the court that there was engagement with any of the facts in the decision to the extent that it was clear to the applicant, or indeed the court, upon which facts the respondent actually relied to support the above conclusions.  And further, there was no obvious engagement or reasoning to suggest that the respondent properly engaged with the material supplied by the applicant in support of his request for a review of the first instance decision.

 

52.         It is also clear that, in certain respects, the decision-maker simply 'cut & pasted' from the respondent's letter of 05 July 2021, which said letter sought further information from the applicant in advance of the first instance decision, and that in so doing, the decision-maker did not properly engage firstly, with the information supplied by the applicant in response to that letter and secondly, with the first instance decision itself.  This 'cut & paste' would appear to apply [with very little difference between the respondent's letter of 05 July 2021 and the decision] to:

-       to the information available to the respondent from the Latvian authorities [regarding the paternity of XY's children];

-       the relationship history provided by the applicant;

-       the information available to the respondent from the Department [regarding the XY's PPS number]; and

-       the information available to the respondent from the Department [regarding the Carrick-on-Suir address and the Drogheda guesthouse].

However, and as regards the Drogheda guesthouse information, there is one crucial difference which is dealt with at §79 below.

 

53.         Thus, the manner in which the decision was drafted [and having regard to the principles as set out at §45 above], does not give any comfort to the court as regards the decision making process and the court's initial view in this regard is bolstered by the manner in which the respondent considered inter alia the two issues as set out hereunder being (i) the date upon which XY received her PPSN and (ii) the Drogheda guesthouse.

 

The date upon which XY received her PPSN

 

54.         The decision relies on "[i]nformation available to the Minister from the Department of Social Protection [which] states that [XY] was in receipt of her PPSN in this State on 09/01/2014, this was 7 months prior to when you claimed she entered the State, and in around the time you claimed to have met in the United Kingdom."  This is to be contrasted with a letter provided by the applicant to the respondent which evidenced a PPSN being provided to XY on 09 October 2014 ["the October PPSN"], albeit addressed to a Mr XY [with the surname having 'r' as the third letter, and XY's surname having 't' as the third letter] on 09 October 2014.  And, as stated at §19 above, the court had sight of the original letter during the course of the hearing and the court is satisfied that the PPSN quoted thereon is the exact same PPSN as quoted on all other documentation exhibited in the applicant's affidavit and referred to before the court.

 

55.         The respondent, in the decision, preferred the "information available to [her] from the Department of Social Protection", without setting out in any detail whatsoever what this information was, other than that the information "states that [XY] was in receipt of her PPSN in this State on 09/01/2014". 

 

56.         The applicant submitted that the respondent preferred the information received directly from the Department without explanation and that the respondent did not make any further enquiry of the Department as to the authenticity of the letter provided by the applicant and simply determined it to be fraudulent.

 

57.         The respondent did not greatly engage with the PPSN issue in written submissions [and the issue was not dealt with by counsel in oral submissions], save as to note that the decision relied on a number of reasons, on a cumulative basis, and to the extent that there may have been any error of fact in the manner in which the issue of [XY's] PPSN was dealt with, this was not material to the overall decision.  And that further, if there were any aspects of the reasoning that could not be maintained, the balance of the reasons that were not impugned were sufficient to support the decision and provide a sufficiently solid basis for same.  The difficulty with this argument is the fact of the reasons being cumulative, and if the respondent chose to take issue with the PPSN [which was clearly the case in the decision] then the applicant is entitled to know the degree of weight given by the respondent to this finding [whilst accepting that the attribution of weight is a matter for the respondent] and to what extent it led the respondent to form a view, adverse to the interests of the applicant, that "the Minister is not satisfied that you and [XY] in this case were residing together in the State.  It follows, therefore, that the documentation and/or information that you submitted as putative evidence of your residence with [XY] was submitted with the intention of misleading the Minister into thinking that you were cohabiting with [XY] when this was not the case.  It is considered that you submitted and sought to rely upon information and/or documentation that you knew to be misleading in order to obtain a derived right of free movement and residence under EU law to which you would not otherwise be entitled.  This is an abuse of rights in accordance with Regulation 27 of the Regulations."

 

58.         Furthermore, it is clear that the decision must stand or fall on the basis of the reasons set out therein and the respondent cannot retrospectively seek to minimise parts thereof by way of submissions or otherwise [by analogy with the views of Bolger J in at §42 (citing Humphreys J in PS Consulting Engineers Ltd v. Kildare County Council [2015] IEHC 113 at §109 where he said "[c]learly there can be no retrospective creation of reasons" and R v. Westminster City Council Ex Parte Ermakov [1996] 2 All ER 302, approved by McDermott J in TAR & anor v. Minister for Justice [2014] IEHC 385 and by the Court of Appeal in MNN v. Minister for Justice [2020] IECA 187)]. 

 

59.         If the respondent were to have permissibly relied upon the "information available to [her] from the Department of Social Protection" in the decision, the respondent ought to have engaged with the totality of the evidence regarding the PPSN and the decision should have far more "clearly [identified] the factors taken into account" [per Clarke CJ in Connelly at §5.4] and why this was so.  Looking to the decision, no clarifying information, let alone documentation, was provided by the respondent to the applicant so as to assuage any legitimate concerns that the applicant may have had as regards fair procedures being applied and this court is of the view that the applicant's concerns were legitimate in this regard [see also §62 below]. 

 

60.         In the decision, the respondent did not, for example, indicate that the information available to her included the fact that the PPSN issued on 09 January 2014 was the same PPSN as the October PPSN, or whether it was a different PPSN.  Neither did the respondent identify what was wrong with the letter dated 09 October 2014 from the Department.  It seems curious to say the least that the Client Identity Services section of the Department would issue a letter on 09 October 2014 which firstly; acknowledged registration for a PPSN and secondly; provided a PPSN to XY, if an application for registration had already been made [at least] seven months earlier and a PPSN allocated on 09 January 2014.  Further, the letter of 09 October 2014 did not make any reference to an earlier allocation of a PPSN or any previous communications/correspondence. 

 

61.         The respondent gave no reason as to why easily verifiable evidence, such as the letter of 09 October 2014, was discounted [and 'perhaps' deemed false and misleading], without taking into account explanations or contradictory evidence provided by the applicant and/or without further investigation.  The court has used 'perhaps' in the preceding sentence because whilst deeming documentation to be false and misleading, the decision did not actually specify which documentation was false and misleading and, in the words of Bolger J in K at §48, "[t]he decision maker failed to have any or any proper regard to the applicant's submissions and failed to give a sufficiently detailed statement of reasons for his decision that documentation and information submitted by the applicant in support of his application for a residence card ..... was false and misleading" [see also §114 below].

 

62.         The respondent did not indicate to the applicant at any stage that she had sought clarification from the Department regarding the two different dates and further, it appears that the respondent simply formed a view that an official document from the Department was misleading, without affording any explanation whatsoever.  To say the least, this is of concern to the court, and given that the letter of 09 October 2014 was an official letter from the Department, this court is of the view that it is an 'exceptional circumstance' per Denham J in Oguekwe and the respondent ought to have engaged with the issue further and sought clarification from the Department and advised the applicant of same.

 

63.         There is also a reference in the decision to the effect that the letter advising XY of the October PPSN is "addressed to a Mr" XY [with the surname having 'r' as the third letter, and XY's surname having 't' as the third letter], with perhaps an implication that Mr XY and XY were not one and the same person or that the letter advising XY of the October PPSN was misleading in some way.  However, this is simply conjecture on the part of the court since the respondent, in the decision, did not go on to address any implication of the letter being addressed to a Mr XY and the applicant was therefore left in the dark as to whether the respondent took this name prefix anomaly into account and, if so, to what extent.

 

64.         This anomaly is all the more important when each and every item of documentation provided by the applicant to the respondent regarding XY's employment and revenue registration [being payslips, P60s and amended tax credit certificates] quote the October PPSN.  And furthermore, whilst none of these documents, also being official documents, were addressed to a Mr XY, some of them do have an incorrect spelling for XY as set out at §54 above.  The significance of these errors, if they are indeed errors, is unknown since the respondent did not address same in the decision and further, the fact of other official documents also having incorrect spellings of XY's name could well be in ease of the applicant given that the respondent appears to have relied on the letter of 09 October 2014 being addressed to a Mr XY in support of the applicant providing false and misleading documentation to the respondent.

 

65.         The court is of the view that the respondent, by way of submissions, cannot ignore the fact that anomalies as regards the PPSN were relied upon in the decision and cannot seek to minimise same at hearing and, as such, the fact that the respondent relied on the PPSN anomalies in the decision against the interests of the applicant and preferred the information received directly from the Department without explanation was contrary to fair procedures and did not demonstrate that all relevant factors were taken into account and all irrelevant factors were excluded from the consideration [per Clarke CJ in Connelly at §5.4].  Further, and in line with the decision of Ferriter J in RA, at §66], there is no indication in the decision that the decision-maker carefully evaluated of all of the evidence and submissions put forward on behalf of the applicant.

 

The Drogheda guesthouse

 

66.         Much was made in the decision of a conversation between a member of An Garda Síochána and the owner of the Drogheda guesthouse and separately, the fact that the applicant did not mention residing at the Drogheda guesthouse for in or around a month in early 2016 when asked by the respondent on 07 November 2019 to "clarify and submit a list all residences with start and end dates from 2015 to 2019 for the applicant and [XY]."

 

67.         The applicant provided an explanation for the latter issue [i.e., failure to mention residing at the Drogheda guesthouse] under cover of letter of 23 Jul 2021, being that he "only stayed there for a period of 1 month and as such, never saw himself to be 'resident' there and it was always a temporary situation.  He had no intention of misleading your department."

 

68.         A similar issue arose regarding an address in Carrick-on-Suir, Co Tipperary ["the Carrick-on-Suir address"] and the fact that the applicant failed to mention this address in his application, was also noted in the decision.  As regards this address, the applicant submitted that failure to mention same in the application did not form part of the first instance decision and, in that regard, the applicant was entitled to assume that his explanation provided under cover of letter of 23 July 2021 [that he had resided at the Carrick-on-Suir address in or around March or April 2014, which date range was outside the timeframe [2015 to 2019] requested by the respondent] had been accepted by the deciding officer.

 

69.         This discrete issue [as regards both addresses] did not form part of the first instance decision and, in that regard, the applicant was entitled to assume that his exculpatory explanation given, by way of letter of 23 July 2021, had been accepted by the deciding officer.  This submission was not challenged on behalf of the respondent at hearing but, in not so challenging, the respondent cannot simply choose to ignore that part [and other parts] of the decision which do not suit her purpose, since it is the totality of the decision which is under review.

 

70.         In the circumstances, the court is of the view that the revisiting of matters in the decision which were not raised in the first instance decision is, in the particular circumstances of this case, in breach of fair procedures and should not have been taken into account by the respondent.  The court accepts, of course, that the matters revisited in the decision were matters in respect of which the applicant was aware, but fair procedures should have dictated that the applicant be made aware that the respondent was considering matters at review stage over and above those referred to by the decision-maker in the first instance decision, since it was the first instance decision that informed the applicant's request for review under cover of letter dated 27 August 2021.  And thus, if the respondent did not accept the applicant's exculpatory explanations, for whatever reason, the applicant ought to have been on notice [in specific terms] of why that was so.  This is of particular significance as regards the Carrick-on-Suir address which was outside the timeframe requested by the respondent and thus should have had no bearing whatsoever on the decision.

 

71.         The court notes that Keane J in Qureshi v. Minister for Justice [2019] IEHC 446 came to a different conclusion, stating at §61 that "[t]his was not a case involving the consideration by the decision-maker of further or other material of which the applicants were not on notice  Thus, there is no question in this case of the applicants being deprived of a reasonable opportunity to know the matters that may be likely to affect the judgment of that body against their interest.  Once that opportunity has been provided, then, as McMahon J observed in P.S. (a minor) v Refugee Applications Commissioner & Ors [2008] IEHC 235, (Unreported, 11th July, 2008), it is clear that not every matter that may inform a decision must be put to the applicants or their advisers" but for the reasons as expressed below, the court is satisfied to depart from the decision of Keane J in Qureshi.

 

72.         This view of the court as expressed at §70 above, is strengthened by the wording of Regulation 25(5) which bears repeating

"The officer carrying out the review shall have regard to the information contained in the application and may make or cause to be made such enquiries as he or she considers appropriate and may—

(a)          confirm the decision the subject of the review on the same or other grounds having regard to the information contained in the application for the review, or

(b)          set aside the decision and substitute his or her determination for the decision." [emphasis supplied]

 

73.         There is, it appears, some conflict contained in the body of Regulation 25(5) as to the material the decision-maker may consider and whether it is the "information contained in the application" or the "information contained in the application for review" and if it is the latter, then the revisiting of matters in the decision which were not raised in the first instance decision is ultra vires.  However, this conflict was not brought to the attention of the court by either the applicant or the respondent at hearing and the court makes no specific determination in relation to same, save as to note as set out at §70 above.

 

74.         Separately, and far more significantly, the applicant was left completely in the dark as to the exact content of the Garda conversation with the owner of the Drogheda guesthouse, apart from the fact that same took place on 01 March 2016 and that, according to the decision, "it was stated that the owner of the property was in receipt of a utility bill addressed to both you and XY at that address, and that you informed her that you were single and that XY was married to a friend to try and help her gain immigration status in the state." [emphasis supplied]

 

75.         The applicant's solicitor requested a copy of the utility bill under cover of letter of 23 July 2021, stating "our client instructs that he never spoke to the owner of [the Drogheda guesthouse] about his wife or his immigration status in the State and it is deeply concerning to the writer that the Department would take into consideration the word of a person who crossed paths with the applicant for a period of 1 month back in 2016 over the evidence provided to them.  Please provide us with a copy of the utility bill which you are seeking to rely on and clarify why the Gardai were investigating our client in this regard in March 2016.  Please also furnish us with contemporaneous notes from this time and from the Garda who spoke with the owner of this address.  Given the above mentioned errors in the information you are seeking to rely on we have grave doubts as to the veracity of these allegations."  The applicant's solicitor again sought information/documentation as regards this conversation by letter dated 27 August 2021 [in the context of the applicant's appeal of the first instance decision] and a further letter dated 29 April 2022, but not alone did the respondent not provide such information/documentation, it appears that the applicant's request was not even addressed by the respondent and the request did not feature in the decision.  The same observation applies as regards the applicant's request for sight of documentation/information relied upon by the respondent regarding XY's PPSN.

 

76.         The applicant was thus left in the invidious position of not being able to ascertain inter alia

-       the purpose of the Garda visit to the Drogheda guesthouse on 01 March 2016 [given that this was over three-and-a-half years prior to the applicant's application for retention of his residence card on 11 October 2019 and bearing in mind that the respondent had granted a five-year residence card on 25 November 2015, less than one year prior];

-       the questions the Garda may have asked of the guesthouse owner to elicit the information stated to have been conveyed by the guesthouse owner to the Garda, and why this was so;

-       the credibility of the guesthouse owner; and

-       the identity of the utility bill.

Further, the utility bill was stated to be "addressed to both you and [XY] at that address" and the respondent, in the decision, did not acknowledge the fact that this discrete issue may well have been in favour of the applicant as opposed to against the applicant.

 

77.         The applicant's submissions noted that in the first instance decision, in response to the applicant's solicitor's representations, the respondent stated that she took "into consideration all available information and that the documents and evidence you have provided has been given equal consideration to all other information available to the Minister.  All information available to the Minister has been detailed in the letter dated 05/07/2021.  It should also be noted that this interview is not the sole information on which the Minister seeks to rely, as is made clear by both this letter and the Minister's letter dated 05/07/2021."  The applicant further submitted that the respondent relied on the Garda interview and that, in the decision, the respondent repeated the statement and the applicant's solicitor's submission, but made no independent finding except to later uphold all findings made in the first instance decision and finding that all appropriate procedures were used and that all information and documentation available were considered.  The applicant also submitted that the information provided was patently unreliable and that XY, as an EU citizen, did not need to marry to gain immigration status in the State.  Further, the applicant was not single, he was married to XY, and it was apparent that the Minister did not return to the source of the information to make further enquiries following the applicant's emphatic denials or give the applicant any opportunity to fairly challenge the information on which she relied.  And lastly, the applicant submitted that the respondent did not state why, particularly in the face of the errors contained in the information, she afforded it any weight at all and/or the respondent did not identify what it established, except to find it adverse to the applicant's review application.

 

78.         The respondent submitted that in the decision the respondent referred to a Garda having spoken to the owner of the Drogheda guesthouse and that firstly, the owner was in receipt of a utility bill addressed to both the applicant and his wife at that address and secondly, she told the Garda that the applicant had informed her that he was single and that XY was married to a friend to try and help her gain immigration status.  The respondent further submitted that the decision did not unfairly or in breach of fair procedures rely on hearsay evidence that was unreliable or incorrect and that the relevance of the information taken into account was that the applicant said to the person in question that he was single and that XY was married to a friend to try to help her gain immigration status and that further, the applicant's denial was noted and taken into account.

 

79.         The court is at a loss to understand the respondent's submission that the respondent's reliance on 'what was said' to the owner of the Drogheda guesthouse was not reliance on hearsay evidence, since if the respondent was not relying on the truth of the statement then what relevance could the statement possibly have had to the respondent's decision making?  Further, 'what was said' to the owner of the Drogheda guesthouse gains all the more significance when in the respondent's request for further information dated 05 July 2021 it is stated that 'what was said' was that XY "was married to a friend to try and help him gain immigration status in the state" whilst in the decision it is stated that XY "was married to a friend to try and help her gain immigration status in the state" [emphasis supplied].  This mismatch of genders, and the fact that the first instance decision did not mention the details of 'what was said' at all, is concerning to say the least and does not give the court any comfort that the respondent was correct to rely on 'what was said'.

 

80.         The court is of the view that the introduction of the conversation with the owner of the Drogheda guesthouse and the circumstances surrounding same were so bizarre that the applicant was entitled to the underlying documentation, that such documentation in the peculiar circumstances was, in itself, of relevance [per Burns J in VS at §22] and that absent such documentation having been provided, the reliance by the respondent on this conversation was in breach of fair procedures.

 

81.         The respondent also relied on the decision of the Court of Appeal in Shishu and the decision of Burns J in VS, to support the position that it was sufficient to have advised the applicant of the information that was available to the respondent and that the applicant had had an opportunity to comment on and deal with that information and that no more was required of the respondent.  But, given that, as regards the PPSN, there was a conflicting official document and as regards the Garda conversation, the circumstances were so bizarre [as referred to above] the court is not persuaded by the respondent's submission.

 

82.         As regards the other issues as set out at §47 above, and given that same were dealt with in the parties submissions, the court notes as follows.

 

Applicant's addresses/residence - conflicting overlap

 

83.         The decision notes the various addresses supplied by the applicant and the information/documentation provided by the applicant to support residing at such addresses and simply states that "[t]he conflicting overlap of dates and address [sic] in the documents listed above raises concerns to the actual residence in the State of the EU Citizen" and "the Minister is not satisfied that you and [XY] in this case were residing together in the State.  It follows, therefore, that the documentation and/or information that you submitted as putative evidence of your residence with [XY] was submitted with the intention of misleading the Minister into thinking that you were cohabiting with [XY] when this was not the case."

 

84.         In the applicant's submissions it was accepted that XY and he did not live together for a short period of time [but this was at a time when they were not in a subsisting relationship] and it was submitted that this could not reasonably ground the respondent's conclusion that they never lived together or render all the other evidence of them living together fraudulent without further enquiry.

 

85.         For her part, the respondent submitted that the applicant had ample opportunities to set out accurately where XY and he lived during the time that she was residing in the State and, in the respondent's view, the applicant failed to give a coherent account.  In the circumstances, according to the respondent, there was no duty on the respondent to undertake any further enquiries and the respondent was entitled in the decision to place reliance on the applicant's conflicting accounts of dates and addresses.

 

86.         However, it seems to the court that the decision is not clear as to the conflict/s upon which the respondent relied, and why, and if the respondent had good reason to rely on and prefer conflicting addresses or residence, then a more easily understood and cogent reason ought to have been given by the respondent, and the exact conflict upon which the respondent relied ought to have been clearly set out.  This did not happen and it is impossible to discern, from the decision, the material facts upon which the respondent relied.

 

Applicant's addresses/residence - present tense assertion

 

87.         Lastly, as regards residence, the decision states "[y]ou assert that you and [XY] reside together in the State" and the applicant submitted that in circumstances where the decision is dated 20 September 2023, this is clearly an error since the applicant accepted that XY and he had not resided together since sometime late in 2019.  Thus, there was no evidential basis for the respondent's finding that the applicant was asserting that XY was residing with him in the State as of 20 September 2023.

 

88.         The respondent's submission as regards the statement that "[y]ou assert that you and [XY] reside together in the State" is that read in the context of the decision as a whole, this was clearly a reference to the applicant's claim that he and XY resided together in the past and that, in the decision, immediately following the sentence in question, there was a discussion of addresses and dates provided by the applicant in respect of the periods in the past for which he was claiming that XY and he lived together and that in the circumstances, the controversial sentence could not possibly be read as a finding that the respondent considered that the applicant was contending that at the time of the review process his divorced wife was living with him.  The respondent is correct in her assertion that "immediately following the sentence in question, there is a discussion of addresses and dates provided by the applicant in respect of the periods in the past for which he was claiming that XY and he lived together" but this statement is made at the end of the second page of the decision and thereafter follows details of addresses and employment covering in excess of a page, and it is not until the fourth page of the decision that the respondent concludes "[t]he conflicting overlap of dates and address [sic] in the documents listed above raises concerns to the actual residence in the State of [XY]."

 

89.         Whilst setting out details of addresses and employment, there is no coherence to the decision such that it is easily understood or that a reader [and, more importantly, the applicant and the court] knows exactly the material upon which the respondent relied and exactly the material the respondent rejected, and why.  The applicant and the court ought not be left to 'join the dots' so to speak, and in the words of Clarke CJ in Connelly at §5.4 "..... it will be rarely sufficient simply to indicate the factors taken into account and assert, that as a result of those factors, the decision goes one way or the other.  That does not enlighten any interested party as to why the decision went the way it did ..... it will rarely be the case that a statement to that effect will be sufficient to demonstrate the reasoning behind the conclusion to the degree necessary to meet the obligation to give reasons."

 

90.         The decision is one which, if upheld by this court, will significantly adversely affect the applicant and one which will render him subject to a deportation process [per the decision of McKechnie J in S & ors v. Minister for Justice [2020] IESC 48].  In the circumstances, the court is of the view that the applicant is entitled to take the decision at face value, and he should not have to read into it or be asked to interpret it in any way other than as it is written.  It should speak for itself and, in so doing, it should not make erroneous assertions as to fact.

 

Paternity of XY's children

 

91.         The decision refers to XY having three children and gives their dates of birth.  The decision also noted that certain information was available to the respondent from the Latvian authorities as regards the paternity of the children and stated that "the father of the two youngest children is the same third party.  In addition to this, it is stated that XY's child born [on day/month 2018] was born in the United Kingdom.  This information would suggest that while XY was frequently travelling to the United Kingdom in 2016, she was in fact in a relationship with this same third party throughout the time you claimed to have been in a relationship."

 

92.         Leaving aside the fact that the applicant refuted that the younger two of XY's children had the same father, the respondent would appear to have placed some reliance on the fact that XY was "in a relationship with this same third party throughout the time you claimed to have been in a relationship" and this was also stressed by counsel for the respondent at hearing.  The import of such reliance is unclear and again the applicant [and the court] are left in the position of having to assume what significance, if any, attaches to the fact that XY may have been in a relationship with a third party and the applicant at the same time, which can hardly be said to be an unusual occurrence in this day and age.

 

93.         The respondent, in submissions to the court, relied inter alia on the following:

-       that when XY was frequently travelling to the UK in 2016, she was in fact in a relationship with the same third party throughout the time the applicant claimed to have been in a relationship with her;

-       that it would be unusual for a wife to travel abroad to give birth to a child she is having with another man;

-       that despite being close enough to remain living together in 2019, the applicant was not even sure of the children's paternity; and

-       that the applicant himself changed his position on the issue of the numbers of fathers and wasn't sure himself of the answer;

and the court accepts that certainly the applicant did not engender confidence in the manner in which he dealt with the issue of 'the number of fathers', appearing to change his mind as to the paternity of XY's children - the letter of 23 July 2021 from the applicant's solicitor stated that the two eldest children shared a father and the letter of 27 August 2021 from the applicant's solicitor stated that the applicant strongly believed that the three children had different fathers.

 

94.         Counsel for the respondent also submitted at hearing that the respondent was entitled to draw a reasonable inference from the information available to the respondent and that if the applicant and XY had been in a genuine relationship then the applicant would have mentioned the children more, but that there was little or no mention of the children in the applicant's submissions or of the applicant's knowledge of, or relationship with, them.  This may well be so, but it is not evident from the decision that the respondent took such considerations into account and the respondent cannot seek to supplement the decision after the fact.

 

95.         Thus, and for the reasons as set out in this judgment, the court is not of the view that this issue and the manner in which the applicant dealt with same is sufficient to overcome the frailties of the decision.

 

Registration of Residence in Latvia

 

96.         The decision further noted that "[XY] registered her place of residence to be in Latvia from 25/06/2019."  Again, the significance of this statement is unclear, and the respondent did not explain how she considered the Latvian registration of residence to be relevant in light of the explanation afforded by the applicant under cover of letter of 23 July 2021 that he understood that "[XY] registered her place of residence in Latvia in June 2019 in order to obtain a divorce there.  Initially [the applicant] and [XY] sought to be divorced in Ireland however the Family Law Act (2009) which reduced the waiting time for a Divorce in Ireland was not commenced until December 2019 and they did not wish to wait a further two years."

 

97.         Further, it was accepted that the parties remained married until 04 November 2019, when a decree of divorce was granted by the Latvian courts, effective as of 26 November 2019.  The applicant also provided documentation evidencing the parties residing together at the Navan address from June 2019 to September 2019 and the respondent, in the decision, simply ignored this documentation.

 

98.         The applicant submitted that the registration of residence in Latvia did not form part of the first instance decision and, in that regard, the applicant was entitled to assume that his exculpatory explanation given [and as set out at §96 above], had been accepted by the deciding officer.

 

99.         The respondent, for her part, submitted that the suggestion that XY was falsely pretending to be living in Latvia for the purpose of divorce, was hardly something to be weighed in the applicant's favour for the purpose of the review decision and that not expressly referring to this explanation in the decision was, if anything, to the applicant's benefit. 

 

100.     However, and as noted previously at §70 above, the revisiting of a matter in the decision which was not raised in the first instance decision is, in the particular circumstances of this case, in breach of fair procedures and should not have been taken into account by the respondent.  Each of the instances of matters revisited in the decision [being the Carrick-on-Suir address, staying at a guesthouse for a month in 2016 and registration of residence in Latvia] had been the subject of reasonable explanations provided by the applicant and, absent seeking further information from the applicant or explaining why the applicant's explanations were rejected, same should not have been relied upon by the respondent.

 

Evidence of relationship

 

101.     The decision recites certain information conveyed to the respondent by the applicant as regards his relationship with XY, both before and after the parties' marriage.  And ultimately the decision takes all of the foregoing issues into account in coming to a conclusion that "[t]here is little cogent information or documentation on file in respect of your relationship with [XY] in this case.  That is to say, there is little evidence on file that you and [XY] made any financial commitments to each other, had any joint assets or liabilities, lived together for any significant period of time in the State, dealt to any great extent with other organs of the State as a married couple, or displayed a continuing commitment to mutual emotional and financial support.  Nor is there any useful information or documentation on file in respect of your relationship prior to your marriage or, indeed, after your marriage."

 

102.     The respondent, in oral submissions, also pointed to the decision in RA and noted that at §21 of that judgment, it was clear that the applicant had submitted photographs and postcards as evidence of the personal nature of the relationship and that this was lacking in the case before the court. 

 

103.     However, nowhere in the decision is there a reference to the photographs supplied under cover of letter of 18 December 2019, "[b]way of proof of relationship please find enclosed herewith various pictures of the couple together pre and post marriage with the descriptions on the back."  And further, the decision fails to address the significance of the documentary material supplied to the respondent, as set out above.

 

Conclusion on the question "Was the respondent's analysis of the applicant's case in accordance with legal principle and/or fair procedures and/or sufficiently rigorous and/or grounded on a sufficiently solid factual basis?"

 

104.     Taking all of the foregoing into account, the court is satisfied that the decision did not engage with the evidence supplied by the applicant in such a way as to satisfy the court that the decision was made on a sufficiently solid factual basis, and that the reasons given were justified on a rational basis that took into account the personal circumstances of the applicant [per Haughton J in Shishu at §94].  In the instances above described, the respondent preferred evidence adverse to the applicant's interests without giving cogent reasons explaining why such evidence was to be preferred.  The respondent made a number of assertions and inferred that the applicant was not being truthful, but adverse findings of credibility must be justified by substantial reasons and, returning to the decision of Clarke CJ in Connelly at §5.4, it was not sufficient that the decision simply indicated the factors taken into account and then asserted, that as a result of those factors, the decision went against the applicant.  The decision should have enlightened the applicant as to why it went the way it did, but the applicant is not so enlightened since the decision did not give sufficient reasons "to demonstrate the reasoning behind the conclusion to the degree necessary to meet the obligation to give reasons."

 

105.     Furthermore, and specifically given that information was obtained from third party sources regarding the PPSN, the conversation with the owner of the Drogheda guesthouse and the information from the Latvian authorities as regards the paternity of XY's children, there was no evidence that the respondent engaged with or considered the applicant's responses prior to deciding to prefer the information available to the respondent from third party sources, to which said sources the applicant did not have access.  In all instances of reliance on information from third party sources, the information relied upon by the respondent is not disclosed to the applicant in a manner which allows the applicant to address it and it is not explained why this information is more reliable than the applicant's information.

 

106.     The respondent submitted that whether the marriage was a marriage of convenience was solely a matter for the decision-maker, the decision-maker had assessed the evidence lawfully and to directly challenge a finding of fact, the applicant must establish an error of law and that it required a conclusion either that there was no evidence to support the challenged finding of fact, or that the finding was one that no reasonable decision-maker could have reached.  The respondent further submitted that the nature of judicial review had not changed and the limited role of the courts in terms of the review of factual finding was emphasised, with a caution that the court should be careful not to trespass into an appeal on the merits.

 

107.     In this regard, the respondent relied upon the decision of the Court of Appeal in Abbas v. Minister for Justice [2021] IECA 16, at §101, to the effect that "[t]he outcome of these proceedings depends, not upon the opinion of this Court as to whether or not the second named respondent was dependent upon the first named respondent while the former was in Pakistan during the period from November 2011 to January 2014, but rather upon whether or not the decision of the appellant on the question of the claimed dependency in Pakistan during this period was so unreasonable as to offend the principles established in O'Keeffe v. an Bord Pleanála [1993] 1 IR 39 and Keegan v. Stardust Compensation Tribunal [1986] IR 642.  It is well established that the courts should be very slow to interfere with the decisions of specialist tribunals.  That places a high bar in the way of a person seeking to set aside decisions of the appellant in applications made pursuant to reg. 5 of the Regulations".

 

108.     The applicant submitted that, as a matter of law, a review resulting in a determination that an application was fraudulent and that the applicant's marriage was one of convenience, must be carried out rigorously and in accordance with fair procedures and that the respondent was incorrect in her assertion that the probative value of evidence was only a matter for her.

 

109.     Noting that the decision in Abbas was delivered less than three weeks after the decision of the Court of Appeal in Shishu, the court is satisfied that Article 47 of the Charter must be complied with and, in line with the decision of the CJEU in Banger and Haughton J in Shishu, this court "must ascertain in particular whether the contested decision is based on a sufficiently solid factual basis."  This imperative necessarily implies that the court must engage with the factual background to an extent greater than that contended for by counsel for the respondent.

 

110.     Further, and insofar as applying to matters such as the decision now under consideration, this court is the independent and impartial tribunal envisaged by Article 47 of the Charter [in line with inter alia the decision of Faherty J in FM v. Minister for Justice [2020] IECA 184, at §112] and this court must be in a position to review issues of law and fact to the extent necessary to comply with Article 47.  That being so, and for the reasons as set out above, the court is not satisfied that the decision was "based on a sufficiently solid factual basis".

 

111.     Article 31(3) of the Directive also has some relevance in that it is clear from the Directive that "[t]he redress procedures shall allow for an examination of the legality of the decision, as well as of the facts and circumstances on which the proposed measure is based.  They shall ensure that the decision is not disproportionate, particularly in view of the requirements laid down in Article 28."  [emphasis supplied]

 

112.     As found by Haughton J in Shishu at §95, the respondent had a duty to consider documentation submitted by the applicant and to assess it in the round and per Ferriter J in RA at §66, "it is important that fair procedures are properly adhered to and that the decision-making process is sufficiently rigorous to ensure that an adverse finding is arrived at only following a careful evaluation of all of the evidence and submissions put before the decision-maker."  For the reasons as set out above, the court is not satisfied that the respondent considered the applicant's documentation and submissions 'in the round' and/or that the respondent properly engaged with the evidence and submissions [per Ferriter J in RA at §69] when arriving at the conclusions set out in the decision.

 

113.     The applicant also submitted that the respondent had not weighed the evidence proportionately, in that many of the respondent's findings were not central to the issues of whether (a) the applicant and XY were married; (b) XY was an EU citizen; (c) XY moved to reside in the State; (d) XY was living in the State; and (e) XY was working in the State and, for example, the respondent had not challenged the fact of XY's employment.  The respondent submitted in this regard that it was not open to the court to investigate the weight placed by the decision-maker on the relevant factors and that the attribution of weight was solely for the decision-maker.

 

114.     The court's view is that for the court to assess the weight to be attributed to the relevant factors may well indeed be to stray into the merits of the case, but even if the court were minded to so do [and it is not] the decision is so opaque that the court does not even know what factors were, and were not, taken into account.  It is quite clear from the matters as set out above from §104 onwards, that the decision-maker failed to have any or any proper regard to the applicant's submissions and failed to give a sufficiently detailed statement of reasons for the decision that documentation and information submitted by the applicant in support of his application for the retention of his residence card was false and misleading.  Further, the decision-maker found that the applicant had submitted documentation and information that was false and misleading but did not give any commentary on the documentation that the applicant had submitted, including revenue documentation that should have been easily verifiable.  It is unclear from the decision whether the decision-maker considered all of the documentation and information furnished to have been false and misleading or just some of it and, if so, which and why [per Bolger J in K at §48 and §52].

 

115.     The respondent relied on the judgment on Murray CJ in Meadows to support the submission that what was required from a decision was for the rationale to be patent from the decision itself and that the rationale and reasons were clear from the decision and there was no ambiguity therein.  Further, the respondent submitted that in a 'marriage of convenience' case, it was not likely that there would be direct evidence of that fact and that the respondent was entitled to draw inferences from the available evidence.  However, for this court to exercise its judicial review function, sufficient reasons or explanations must be given so that the court is apprised of why a particular conclusion has been reached and for the myriad of reasons set out above, the court is simply at a loss in this regard.  By way of analogy, the decision is clear as to its destination, but not the route taken. Thus, the court does not agree that either the rationale or reasons were sufficiently clear to justify the decision-maker's conclusions.

 

116.     The respondent sought to distinguish Lamasz on the basis that there was no doubt about the applicant being married in that case and that the failure to grant a residence card was related to concerns over the applicant's wife's employment status in the State, but it is very clear both from the granting of the residence card in the matter before the court [for five years from 25 November 2015] and the fact that the decision did not revoke this five-year residence card that the respondent also accepted the applicant's marriage to XY at that time.  This court is clear that the reasoning in Lamasz also extends to the present matter and there was a requirement on the respondent to state plainly which documentary proof was questioned and this did not happen.

 

117.     Thus, this court is satisfied that the applicant has identified sufficient frailties in the decision and in the decision-making process to render him entitled to an order of certiorari of the decision, and it goes without saying that the court has come to such conclusion by reason of the decision-making process, rather than on the merits of the applicant's case.

 

Was the respondent entitled to automatically revoke the applicant's permission and/or was the respondent obliged to consider the applicant's Article 8 rights?

 

118.     Given the conclusion reached above, it may not be necessary for the court to address this issue.  However, out of an abundance of caution, the court has considered this issue as follows.

 

119.     One of the issues that fell to be considered in AKS was the fact that correspondence from the respondent was phrased in such a way that it appeared therefrom that the respondent was of the view that the Regulations mandated revocation of a residence card if the respondent decided that an applicant had procured such residence card on foot of a marriage of convenience.  Phelan J, at §118, considered that there was "a disconnection between the correspondence [in that case] and the requirements of the Directive as transposed through the 2015 Regulations ..... [and] that the First Respondent has erred in approaching the exercise of her power (whether retrospective or prospective) under the 2015 Regulations by proceeding as if the Regulations mandate revocation."  Central to this finding was that it had been said in repeated correspondence that "a finding of fraud and marriage of convenience "will" result in his permission being revoked and previous permissions being "deemed" to have been invalid."

 

120.     It is clear from the matter now before the court that the respondent formed a view that information provided by the applicant in support of his application was misleading as to a material fact, that that constituted a fraudulent act within the meaning of the Regulations and Directive, leading to the deciding officer making a decision on 10 August 2021 to revoke his residence card and that, by way of the decision, "having considered all of the information, documentation, and submissions on all of your files, the Minister is not persuaded that the decision of 10/08/2021 should be overturned.  You have failed to establish that the Deciding Officer erred in fact or law when refusing your retention application and revoking your residence card.  The Minister finds that appropriate procedures were used and that the correct interpretation of the Regulations and the Directive was applied.  In making his determination, the Deciding Officer in this case considered all of the information and documentation available to him."

 

121.     However, nowhere in the decision was there any indication that the decision-maker was aware that a discretion could be exercised and there is no evidence that such discretion was, in fact, exercised.  The respondent simply makes an automatic jump from being satisfied that the applicant "submitted and sought to rely upon documentation and/or information that [he] knew to be misleading in order to obtain a derived right of free movement and residence under EU law to which [he] would not otherwise be entitled" and that this was "an abuse of rights in accordance with Regulation 27 of the Regulations" to a decision to revoke.

 

122.     Separately, by way of written submissions, the applicant drew the court's attention to Article 35 of the Directive, as set out in detail at §37 above, and the applicant submitted that the respondent had not engaged in any type of proportionality examination, as she was bound to do under the Directive, with Article 35 providing that any measures adopted by Member States to "refuse, terminate or withdraw any right conferred by this Directive in the case of abuse of rights or fraud, such as marriages of convenience ..... shall be proportionate and subject to the procedural safeguards provided for in Articles 30 and 31".

 

123.     The decision, in its concluding paragraph stated "[t]his decision does not interfere with any rights which you may have under the Constitution or Article 8 of the European Convention on Human Rights.  In any subsequent proposed decision where such interference may arise, please note that full and proper consideration will be given to these rights" and the applicant submitted that the respondent unlawfully determined that the applicant's Article 8 ECHR and constitutional rights did not fall to be considered when they should have formed part of the respondent's consideration in her determination, particularly when looking to the proportionality of the determination.  The applicant further submitted that the respondent was legally obliged to consider the proportionality of her decision to revoke the applicant's permission and/or not to grant retention permission and that such proportionality had to include the applicant's rights under the ECHR, the Constitution and/or the Charter, it being well established in European law that a right of residence is based on fundamental rights.

 

124.     In support of this submission, the applicant referenced the European Commission's Handbook ["the Handbook"] on addressing the issue of alleged marriages of convenience between EU citizens and non-EU nationals in the context of EU law on free movement of EU citizens, which states at Section 3.1.2 [entitled 'Wider context of European and international law']

"Besides EU law on free movement of EU citizens, there are other important instruments of European and international law that need to be taken into account when marriages of convenience are detected, investigated and sanctioned.  It needs to be stressed that these instruments apply together with the rules and principles of EU law, as explained above.  Of particular relevance for the purposes of this Handbook is the right to marry, to respect for private and family life and the right of the child as well as the prohibition of discrimination, the right to an effective remedy and the right to defence, as provided for in the Charter of Fundamental Rights of the European Union (hereinafter referred to as the Charter), which is binding on EU institutions as well as EU Member States when implementing EU law.  In accordance with Article 52(3) of the Charter, the meaning and scope of rights corresponding to rights guaranteed by the European Convention on Human Rights (hereinafter referred to as the Convention) should be the same as those laid down by this Convention. Guidance on the interpretation of the rights enshrined in the Charter therefore takes into account the corresponding provisions of the Convention. "

and at section 3.1.2.2, regarding the 'Relationship between EU law and Article 8 of the Convention'

"When seeking to restrict the rights of parties in a marriage of convenience, national authorities must comply with two tests: under EU law on free movement of EU citizens and under Article 8 of the Convention.  Those two tests are distinct and non-interchangeable but share a number of similar features, notably that both require that the restrictive decision is justified and proportionate.  The fact that such restrictions may be found compatible with Article 8 of the Convention does not mean that they can automatically be considered as compatible also with EU law on free movement of EU citizens."

and at section 3.3, regarding 'The Charter'

"The specific safeguards of the Directive must be also placed in the context of other relevant protected fundamental rights, such as the right to an effective remedy and to a fair trial (Article 47 of the Charter) or the right of defence (Article 48 of the Charter).  In addition to the below procedural rights, enshrined and fleshed out by the Directive, national authorities must respect other important fundamental rights and principles of general nature, such as the right to good administration."

 

125.     The respondent submitted that no fundamental rights arose for consideration in the context of the decision and the fact that the applicant was represented throughout the relevant process by solicitors with expertise in EU law and immigration law and that they did not rely on fundamental rights in any of the numerous sets of submissions they made to the respondent was because those rights did not fall to be considered.  The respondent further submitted that on the applicant's argument, fundamental rights could only arise for consideration if it were accepted that there was a marriage of convenience or other fraud.  The applicant did not set out what it was in his circumstances that would mean that not allowing him to retain his residence card could be a breach of any fundamental rights under the Constitution, Article 8 ECHR, or the EU Charter and given that they could arise for potential consideration only if it were accepted that there was an abuse of rights by the applicant, it was difficult to see how any fundamental rights could have any real substance in this matter.

 

126.     From the court's perspective, there is a circularity to this argument and howsoever approached, it is clear that by the respondent's actions in deeming the marriage to be one of convenience, the applicant's fundamental rights were then engaged.

 

127.     Whilst accepting that the Handbook is a Commission staff working document as opposed to a more formal legal authority, it is nonetheless neatly instructive as to the relationship between the Charter, the Convention and EU law and this court is satisfied that in applying the Regulations [and by implication, the Directive] the respondent ought also to have had regard to the applicant's Article 8 rights and that such rights were invoked at the latest, once the decision had been made.

 

128.     Further, and given the conclusion reached in the decision [and although this court has granted on order of certiorari in respect of same], the respondent ought then to have considered the proportionality of her decision in the context of the applicant's ongoing circumstances and even having concluded that the applicant's marriage to XY was one of convenience in accordance with Regulation 28, and that it was contracted in an attempt to obtain an immigration permissions to which the applicant would not otherwise be entitled, did not mean that the respondent was obliged to refuse the applicant's application to retain the residence card previously granted to him.

 

129.     It is clear from the decision of Phelan J in AKS at §119 that "a proportionate exercise of a power to revoke would require consideration of the impact of revocation on any acquired rights prior to the exercise of such a power" and at §122, "[w]here it is proposed to make a revocation order, be it retrospective or prospective ..... consideration should be given in the exercise of a discretionary power to the potential impact of the decision on acquired or vested rights.  An assessment of the potential impact of the decision on acquired or vested rights is necessary as a first step to ensuring that the decision ultimately taken does not give rise to a disproportionate interference with such rights."

 

130.     There is no evidence in the decision that the respondent considered the impact of the decision on the applicant in any way whatsoever, particularly in circumstances where

-       the applicant had been residing in the State since March 2014, which was nine-and-a-half years as of the date of the decision;

-       the applicant had been in employment [and paying taxes] for much of that period and until the retention of his residence card had been refused;

-       the process of application for retention of the applicant's residence card took almost four years [October 2019 to September 2023];

-       there was no suggestion that the applicant was not otherwise a person of good conduct;

-       the applicant's original residence card was not revoked in the decision, meaning that the applicant had the benefit of a lawful five-year residence;

and there is no evidence, on the part of the respondent, that a proportionate decision was made and/or that the discretion afforded to the respondent was exercised in a proportionate manner and further, even if a proportionality assessment were carried out, the manner in which it was done is not clear from the decision.

 

 

131.     The applicant relied on the decision of the Supreme Court in XX v. Minister for Justice [2019] IESC 59; [2020] 3 IR 532 to support the submission that a point should be taken when it first arises and, in any subsequent deportation process, the applicant ran the risk of being penalised for not raising the issues of proportionality or fundamental rights at judicial review stage.  It seems to this court that the applicant was correct to raise these issues in the context of the application now before the court.

 

132.     Therefore, and even if I am incorrect in my decision that the application is entitled to an order of certiorari for the reasons as set out earlier in this judgment, I am satisfied that the applicant is entitled to an order of certiorari given that there is no evidence before the court that the respondent exercised her discretion in a proportionate manner or that a proportionality test was applied.

 

Costs

 

133.     Pursuant to the provisions of s.169 of the Legal Services Regulation Act 2015, costs should follow the event "unless the court orders otherwise, having regard to the particular nature and circumstances of the case, and the conduct of the proceedings by the parties".  In circumstances where the applicant has succeeded in his application, and there is nothing of note concerning the particular nature and circumstances of the case, or the conduct of the proceedings by the parties, the court is inclined to award the applicant his costs of the proceedings.

 

134.     However, it is open to the parties to contend for the making of a different form of costs order and I will hear the parties in relation to the precise form of order to be made.  I propose listing this matter, in person, for 10:30 on Thursday, 13 March 2025 for such purpose.